Procedures for Disclosure of Records Under the Freedom of Information Act (FOIA), 46676-46690 [2014-18770]

Download as PDF 46676 Federal Register / Vol. 79, No. 154 / Monday, August 11, 2014 / Rules and Regulations AIRAC date State City FDC Number Airport FDC Date 21–Aug–14 21–Aug–14 21–Aug–14 21–Aug–14 21–Aug–14 21–Aug–14 ........ ........ ........ ........ ........ ........ NY .......... ME .......... MA .......... CO .......... CO .......... WA ......... Canandaigua ................... Brunswick ........................ Falmouth ......................... Kremmling ....................... Kremmling ....................... Port Angeles ................... Canandaigua ........................................ Brunswick Executive ............................ Cape Cod Coast Guard Air Station ..... Mc Elroy Airfield ................................... Mc Elroy Airfield ................................... 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Miles City ........................ Albany ............................. Albany ............................. Thomasville ..................... Walla Walla ..................... Elmira/Corning ................ Elmira/Corning ................ Elmira/Corning ................ Elmira/Corning ................ Elmira/Corning ................ Elmira/Corning ................ South Boston .................. Somerville ....................... Somerville ....................... Somerville ....................... and increase the amount of information that members of the public may receive from the Agency without being charged processing fees. DATES: Effective Date: August 11, 2014. FOR FURTHER INFORMATION CONTACT: Miriam Brown-Lam, (202) 358–0718. SUPPLEMENTARY INFORMATION: [FR Doc. 2014–18602 Filed 8–8–14; 8:45 am] BILLING CODE 4910–13–P NATIONAL AERONAUTICS AND SPACE ADMINISTRATION 14 CFR Part 1206 [Docket Number NASA–2014–0008] RIN 2700–AE04 Procedures for Disclosure of Records Under the Freedom of Information Act (FOIA) National Aeronautics and Space Administration. ACTION: Final rule. AGENCY: This rule revises the National Aeronautics and Space Administration (NASA) Freedom of Information Act (FOIA) regulations that the Agency follows in processing records under the FOIA. The revisions clarify and update procedures for requesting information from the Agency, as well as procedures that the Agency follows in responding to requests from the public. The revisions also incorporate clarifications and updates resulting from changes to the FOIA and case law. Finally, the revisions include current cost figures to be used in calculating and charging fees tkelley on DSK3SPTVN1PROD with RULES SUMMARY: VerDate Mar<15>2010 17:19 Aug 08, 2014 Jkt 232001 Guardia Guardia Guardia Guardia I. Background NASA published a proposed rule in the Federal Register at 79 FR 9430 on February 18, 2014, to amend its FOIA regulations. The rule updated and streamlined several procedural provisions and to incorporate certain changes brought resulting from amendments to the FOIA under the Openness Promotes Effectiveness in our National (OPEN) Government Act of 2007, to reflect developments in case law, and to include current cost figures to be used in calculating and charging fees. II. Discussion and Analysis NASA received comments from two members of the public as well as comments from a subcomponent of a Federal agency. NASA has also made minor corrections to the text. The following is a discussion of Comments: Comment 1: One commenter suggested that in § 1206.201, NASA PO 00000 Frm 00012 Fmt 4700 Sfmt 4700 Subject RNAV (GPS) RWY 31, Orig. ILS OR LOC/DME RWY 1R, Orig-A. ILS OR LOC RWY 32, Amdt 1. VOR/DME A, Amdt 3. RNAV (GPS) B, Orig. COPTER RNAV (GPS) RWY 26, Orig. ILS OR LOC RWY 4, Amdt 36B. RNAV (GPS) RWY 31, Amdt 1C. ILS OR LOC RWY 22, Amdt 20C. ILS RWY 22 (SA CAT I & II), Amdt 20C. RNAV (GPS) RWY 13, Amdt 1B. RNAV (GPS) RWY 16, Amdt 1. RNAV (GPS) RWY 1, Orig. RNAV (GPS) RWY 19, Orig. RNAV (GPS) RWY 20, Amdt 1. RNAV (GPS) RWY 2, Amdt 1. ILS OR LOC/DME RWY 20, Amdt 1. VOR/DME RWY 4, Orig. VOR RWY 4, Amdt 12. RNAV (GPS) RWY 4, Amdt 2. RNAV (GPS) RWY 22, Orig-A. RNAV (GPS) RWY 28, Orig. RNAV (GPS) RWY 10, Orig. NDB RWY 22, Amdt 6. NDB RWY 20, Amdt 6. RNAV (GPS) RWY 6, Amdt 2. RNAV (GPS) RWY 24, Amdt 2. RNAV (GPS) RWY 10, Amdt 2. RNAV (GPS) RWY 28, Amdt 3. ILS OR LOC RWY 6, Amdt 5. ILS OR LOC RWY 24, Amdt 19. VOR A, Amdt 8A. NDB RWY 19, Amdt 1A. RNAV (GPS) RWY 19, Amdt 2. RNAV (GPS) RWY 1, Orig. establish categories of records to proactively disclose and post on its Web site. Response: The FOIA requires Agencies to proactively post agency records (Subsection (a)(2) of the FOIA) when they have received two requests for the documents and anticipate a third. NASA has regularly taken affirmative steps to make information available to the public through the use of robust Web sites. NASA routinely updates these Web sites to provide the public with documents as well as information, video links, etc. that are of value and interest to the public. NASA declines to adopt this comment. Comment 2: One commenter suggested that in § 1206.300(g) NASA include an alternative for third party requesters access to Privacy Act records if they are able to demonstrate an overriding public interest in the records. Response: NASA believes adding a statement of this kind would create confusion with regard to releasing Privacy Act records. There are significant variables concerning release of privacy-protected information, which is addressed on a case-by-case basis. An overriding public interest with regard to the release of privacy-protected information cannot be defined for the E:\FR\FM\11AUR1.SGM 11AUR1 tkelley on DSK3SPTVN1PROD with RULES Federal Register / Vol. 79, No. 154 / Monday, August 11, 2014 / Rules and Regulations purposes of this section. NASA declines to adopt this comment. Comment 3: One commenter suggested that in § 1206.300(g) NASA include a definition of a FOIA Public Liaison. Response: NASA has adopted this comment and included this reference in § 1206.801(c). Comment 4: One commenter suggested that in § 1206.301(a) the word ‘must’ be changed to ‘should’ in the reference requiring requesters to either address their request to an appropriate FOIA Office or identify their letter as a request for an Agency record under the FOIA. Response: If a requester submits a request to a program office not designated to process FOIA requests and it is not identified as a FOIA request, it may not be appropriately handled. Therefore, a request not sent to a FOIA office must be identified as a request ‘Under the Freedom of Information Act’ in order for staff to understand that it needs to be forwarded to the FOIA office for proper processing. NASA declines to adopt this comment. Comment 5: One commenter suggested that in § 1206.301(e) that the language indicating NASA need not comply with a blanket or categorical request where it is not reasonably feasible to determine what record is sought be changed to indicate NASA will work with the requester and locate the records sought. Response: This comment is already reflected in section § 1206.301(f) of this subsection. NASA declines to adopt this comment. Comment 6: One commenter made a statement in reference to § 1206.301(g) noting from Schladetsch v. HUD (D.D.C. Apr. 4, 2000) that extracting, sorting, and compiling discrete pieces of information from an existing database does not amount to the creation of a new record. Response: The FOIA does not obligate agencies to create records, it obligates them to provide access to those which it has created or retained. FOIA staff will generally provide information from an existing database, removing exempt information as necessary unless the information as a whole is exempt from release. Comment 7: One commenter suggested that in § 1206.302(a) NASA clearly address the statutory fee entitlements for the various processing categories. Response: NASA has adopted this comment by adding a cross-reference in § 1206.302(a) to Subpart E, § 1206.507(b) and (c), Categories of requesters. VerDate Mar<15>2010 16:09 Aug 08, 2014 Jkt 232001 Comment 8: One commenter suggested that in § 1206.302(b)(1) and (h) NASA provide requesters with a breakdown of the fee estimate and/or bill as a best practice. Response: NASA works with requesters regarding fee estimates, applicable charges, etc. NASA will continue to work with and provide requesters a breakdown of the cost estimate as a best practice but declines to adopt this comment in the regulation. Comment 9: One commenter suggested that in § 1206.307(b)(2) when denying records, NASA provide a brief description of the exemption as well as a description of the information NASA is withholding. Response: NASA currently provides a brief description of the exemptions, as required. On a case-by-case basis, NASA does provide descriptive information. However, NASA believes a requirement to provide this information for every case would have a negative impact on NASA’s processing and response times while providing the requester with very little, if any, additional meaningful information. NASA declines to adopt this comment. Comment 10: One commenter suggested that in § 1206.308 when referring records to another agency, NASA provide the name of the contact information. Response: NASA declines to adopt this comments as it is addressed in § 1206.308(e). However, this particular section has been reworded for clarity purposes. Comment 11: One commenter suggested that the language in § 1206.400 regarding the subrequirement for expedited processing requiring that a requester ‘must establish that he or she is a person whose main professional activity or occupation is information dissemination, though it need not be his/her sole occupation’ would create an additional obligation and an impediment to expedited processing criteria by imposing an added requirement. Response: After consideration, NASA has removed this subrequirement. Comment 12: One commenter suggested that in § 1206.401 NASA clarify the language and change the word ‘made’ to ‘submitted’ to ensure requesters do not think they can make a request verbally. Response: NASA has adopted this comment. Comment 13: One commenter suggested that NASA should not increase the fees for copy in § 1206.501(f) stating the costs associated with photo-duplication have declined PO 00000 Frm 00013 Fmt 4700 Sfmt 4700 46677 rather than increased over the last 16 years. Response: Based on inflation, the increase is reasonable and consistent with fees charged by other Federal agencies. This is the first increase in fees NASA has issued in 16 years. NASA declines to adopt this comment. Comment 14: One commenter suggested that in § 1206.503(c), NASA should increase the minimum threshold to $50.00 for charging fees to FOIA requesters. Response: NASA has adopted this comment and will increase the minimum threshold accordingly. Comment 15: One commenter suggested that in § 1206.504, NASA should provide a breakdown of the fees for search, review and/or duplication. Response: NASA works with requesters regarding fee estimates, applicable charges, etc. NASA will continue to work with and provide requesters with a breakdown of the cost estimate as a best practice but declines to adopt this comment in the regulation. Comment 16: One commenter suggested that in § 1206.506(a) the difference between a fee waiver and fee category should be clarified. Response: To alleviate confusion, NASA has adopted this comment by cross-referencing § 1206.506(a) with § 1206.507 fee categories. Comment 17: One commenter suggested that in § 1206.506(d)(3) the language in the last sentence be rewritten to conform with the FOIA language ‘using editorial skills to turn raw materials into a distinct work.’ Response: NASA has adopted this comment. Comment 18: One commenter suggested that in § 1206.506(j) the language should be revised to allow FOIA staff to provide assistance to a requester when composing a request in order to receive a fee waiver. Response: NASA disagrees with this suggestion. It would place and undue burden on the FOIA staff it they were to provide assistance in composing a request in order for requesters to receive a fee waiver. This would also place them in a position that would prevent them from making an unbiased determination regarding a fee waiver request. NASA declines to adopt this comment. Comment 19: One commenter suggested that NASA also include the information in § 1206.507(a) in § 1206.300. Response: NASA declines to adopt this comment as this information is already in § 1206.300(a). NASA need not act on this comment. E:\FR\FM\11AUR1.SGM 11AUR1 tkelley on DSK3SPTVN1PROD with RULES 46678 Federal Register / Vol. 79, No. 154 / Monday, August 11, 2014 / Rules and Regulations Comment 20: One commenter suggested that in § 1206.700(a), NASA increase the minimum time for requesters to prepare and submit appeals from 30 days from the date of the initial determination to 60 days. Response: NASA has carefully considered this comment but declines to adopt it. The current 30 days from the date of the initial determination allows requesters to consider the response they have received and determine whether or not the response is satisfactory in a timely manner. Comment 21: One commenter suggested that in § 1206.700(b)(3), NASA change the language requiring requesters to clearly identify a FOIA appeal on the outside envelope of their appeal. Response: While this is not a requirement of the FOIA, it has been a long-standing requirement for processing appeals and is in the best interest of both the appellant as well as the Agency. Agencies have a limited time to process an appeal in a timely manner; therefore, clearly identifying a FOIA appeal on the outside of the envelope in order to ensure it reaches the proper office in a timely manner is administratively beneficial to both parties. NASA declines to adopt this comment. Comment 22: One commenter suggested in § 1206.701, NASA include a reference for requesters to contact the Office of Government Information Services (OGIS) to resolve a dispute between requesters and the Agency. Response: NASA has adopted this comment and included language to reference OGIS in § 1206.701(f)(4). Comment 23: One commenter suggested that in Appendix A, NASA also provide fax numbers and email addresses to which requesters can submit requests. Response: NASA has adopted this comment and will include this information in Appendix A. Comment 24: The OGIS also suggested NASA include information about the preservation of records and records management in the FOIA regulations. Response: While this is very good information, NASA has a records management office that is responsible for issuing records management information and requirements in accordance with the General Records Schedule of the National Archives and Records Administration (NARA). NASA declines to adopt this comment. VerDate Mar<15>2010 16:09 Aug 08, 2014 Jkt 232001 III. Regulatory Analysis Executive Order 12866 and Executive Order 13563 Executive Orders 13563 and 12866 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. This final rule has been designated a ‘‘significant regulatory action,’’ although not economically significant, under section 3(f) of Executive Order 12866. Accordingly, this rule has been reviewed by the Office of Management and Budget. Regulatory Flexibility Act It has been certified that this rule is not subject to the Regulatory Flexibility Act (5 U.S.C. 601) because it would not, if promulgated, have a significant economic impact on a substantial number of small entities. Fees assessed by the Administration are nominal. Further, the ‘‘small entities’’ that make FOIA requests, as compared with individual requesters and other requesters, are relatively few in number. Paperwork Reduction Act Statement This rule does not contain an information collection requirement subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). Unfunded Mandates Reform Act of 1995 This rule will not result in the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995. Small Business Regulatory Enforcement Fairness Act of 1996 This rule is not a major rule as defined by § 251 of the Small Business Regulatory Enforcement Fairness Act of 1996 (as amended), 5 U.S.C. 804. This rule will not result in an annual effect on the economy of $100,000,000 or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the PO 00000 Frm 00014 Fmt 4700 Sfmt 4700 ability of United States-based companies to compete with foreign based companies in domestic and export markets. List of Subjects in 14 CFR Part 1206 Administrative practice and procedure, Freedom of Information Act, Privacy Act. Accordingly, 14 CFR part 1206 is revised to read as follows: PART 1206—PROCEDURES FOR DISCLOSURE OF RECORDS UNDER THE FREEDOM OF INFORMATION ACT (FOIA) Subpart A—Basic Policy Sec. 1206.100 Scope of part. 1206.101 General policy. Subpart B—Types of Records To Be Made Available 1206.200 Publishing of records. 1206.201 Proactive disclosure of Agency records. 1206.202 Records that have been published. 1206.203 Incorporation by reference. Subpart C—Procedures 1206.300 How to make a request for Agency records. 1206.301 Describing records sought. 1206.302 Fee agreements. 1206.303 Format of records disclosed. 1206.304 Expedited processing. 1206.305 Responding to requests. 1206.306 Granting a request. 1206.307 Denying a request. 1206.308 Referrals and consultations within NASA or other Federal agencies. Subpart D—Procedures and Time Limits for Responding to Requests 1206.400 Procedures for processing queues and expedited processing. 1206.401 Procedures and time limits for acknowledgement letters and initial determinations. 1206.402 Suspending the basic time limit. 1206.403 Time extensions. Subpart E—Fees Associated With Processing Requests 1206.500 Search. 1206.501 Review. 1206.502 Duplication. 1206.503 Restrictions on charging fees. 1206.504 Charging fees. 1206.505 Advance payments. 1206.506 Requirements for a waiver or reduction of fees. 1206.507 Categories of requesters. 1206.508 Aggregation of requests. 1206.509 Form of payment. 1206.510 Nonpayment of fees. 1206.511 Other rights and services. Subpart F—Commercial Information 1206.600 General policy. 1206.601 Notice to submitters. 1206.602 Opportunity to object to disclosure. 1206.603 Notice of intent to disclose. E:\FR\FM\11AUR1.SGM 11AUR1 Federal Register / Vol. 79, No. 154 / Monday, August 11, 2014 / Rules and Regulations Subpart G—Appeals 1206.700 How to submit an appeal. 1206.701 Actions on appeals. 1206.702 Litigation. Subpart H—Responsibilities 1206.800 Delegation of authority. 1206.801 Chief FOIA Officer. 1206.802 General Counsel. 1206.803 NASA Headquarters. 1206.804 NASA Centers and Components. 1206.805 Inspector General. Subpart I—Location for Inspection and Request of Agency Records 1206.900 FOIA offices and electronic libraries. Authority: 5 U.S.C. 552, 552a; 51 U.S.C. 20113(a) Subpart A—Basic Policy § 1206.100 Scope of part. This part 1206 establishes the policies, responsibilities, and procedures for the release of Agency records which are under the jurisdiction of the National Aeronautics and Space Administration, hereinafter NASA, to members of the public. This part applies to information and Agency records located at NASA Headquarters, and NASA Centers, including Component Facilities and Technical and Service Support Centers, herein NASA Headquarters and Centers, as defined in this part. § 1206.101 General policy. (a) In compliance with the Freedom of Information Act (FOIA), as amended 5 U.S.C. 552, a positive and continuing obligation exists for NASA, herein Agency, to make available to the fullest extent practicable upon request by members of the public, all Agency records under its jurisdiction, as described in this regulation. (b) Part 1206 does not entitle any person to any service or to the disclosure of any record that is not required under the FOIA. Subpart B—Types of Records To Be Made Available tkelley on DSK3SPTVN1PROD with RULES § 1206.200 Publishing of records. (a) Records required to be published in the Federal Register. The following records are required to be published in the Federal Register, for codification in Title 14, Chapter V, of the CFR. (1) Description of NASA Headquarters and NASA Centers and the established places at which, the employees from whom, and the methods whereby, the public may secure information, make submittals or requests, or obtain decisions; (2) Statements of the general course and method by which NASA’s functions VerDate Mar<15>2010 16:09 Aug 08, 2014 Jkt 232001 are channeled and determined, including the nature and requirements of all formal and informal procedures available; (3) Rules of procedure, descriptions of forms available or the places at which forms may be obtained, and instructions regarding the scope and contents of all papers, reports, or examinations; (4) Substantive rules of general applicability adopted as authorized by law, and statements of general policy or interpretations of general applicability formulated and adopted by NASA; (5) Each amendment, revision, or repeal of the foregoing. (b) Agency opinions, orders, statements, and manuals. (1) Unless they are exempt from disclosure in accordance with the FOIA, or unless they are promptly published and copies offered for sale, NASA shall make available the following records for public inspection and copying or purchase: (i) All final opinions (including concurring and dissenting opinions) and all orders made in the adjudication of cases; (ii) Those statements of NASA policy and interpretations which have been adopted by NASA and are not published in the Federal Register; (iii) Administrative staff manuals (or similar issuances) and instructions to staff that affect a member of the public; (iv) Copies of all records, regardless of form or format, that have been released to any person under Subpart C herein and which, because of the nature of their subject matter, the Agency determines have become or are likely to become the subject of subsequent requests for substantially the same records (frequently requested documents). (2) A general index of records referred to under paragraph (b)(1)(iv) of this section. (i) For records created after November 1, 1997, which are covered by paragraph (b)(l)(i) through (b)(l)(iv) of this section, such records shall be available electronically, through an electronic library and in electronic forms or formats. (ii) In connection with all records required to be made available or published under this paragraph (b), identifying details shall be deleted to the extent required to prevent a clearly unwarranted invasion of personal privacy. However, in each case, the justification for the deletion shall be explained fully in writing. The extent of such deletion shall be indicated on the portion of the record which is made available or published, unless including that indication would harm an interest PO 00000 Frm 00015 Fmt 4700 Sfmt 4700 46679 protected by an exemption in the FOIA. If technically feasible, the extent of the deletion shall be indicated at the place in the record where the deletion is made. (c) Other Agency records. (1) In addition to the records made available or published under paragraphs (a) and (b) of this section, NASA shall, upon request for other records made in accordance with this part, make such records promptly available to any person, unless they are exempt from disclosure, or unless they may be purchased by the public from other readily available sources, i.e., books. (2) Furthermore, at a minimum, NASA will maintain records in its electronic library that were created after November 1, 1997, under paragraphs (b)(1)(iv) and a guide for requesting records or information from NASA. § 1206.201 records. Proactive disclosure of Agency Records that are required by the FOIA to be made available for public inspection and copying are accessible on the Agency’s Web site, http:// www.nasa.gov. Each Center is responsible for determining which of its records are required to be made publicly available, as well as identifying additional records of interest to the public that are appropriate for public disclosure, and for posting such records. Each Center has a FOIA Public Liaison who can assist individuals in locating records particular to a Center. A list of the Agency’s FOIA Public Liaisons is available at http://www.hq.nasa.gov/ office/pao/FOIA/agency/. § 1206.202 Records that have been published. Publication in the Federal Register is a means of making certain Agency records are available to the public in accordance with 5 U.S.C.552(a)(2) without requiring the filing of a FOIA request. NASA has a FOIA Electronic Library Web site at NASA Headquarters and each of its Centers. The FedBizOpps (FBO) (formerly Commerce Business Daily), is also a source of information concerning Agency records or actions. Various other NASA publications and documents, and indexes thereto, are available from other sources, such as the U.S. Superintendent of Documents and the Earth Resources Observation and Science Center (Department of the Interior). Such publications and documents are not required to be made available or reproduced in response to a request unless they cannot be purchased readily from available sources. E:\FR\FM\11AUR1.SGM 11AUR1 46680 § 1206.203 Federal Register / Vol. 79, No. 154 / Monday, August 11, 2014 / Rules and Regulations Incorporation by reference. Records reasonably available to the members of the public affected thereby shall be deemed published in the Federal Register when incorporated by reference in material published in the Federal Register (pursuant to the Federal Register regulation on incorporation by reference, 1 CFR Part 51). Subpart C—Procedures tkelley on DSK3SPTVN1PROD with RULES § 1206.300 How to make a request for Agency records. (a) A requester submitting a request for records must include his/her name and mailing address, a description of the record(s) sought (see § 1206.301), and must address fees or provide justification for a fee waiver (see § 1206.302) as well as address the fee category in accordance with § 1206.507. It is also helpful to provide a telephone number and email address in case the FOIA office needs to contact you regarding your request; however, this information is optional when submitting a written request. If a requester chooses to submit a request online via the NASA FOIA Web site, the required information must be completed. Do not include a social security number on any correspondence with the FOIA office. (b) NASA does not have a central location for submitting FOIA requests and it does not maintain a central index or database of records in its possession. Instead, Agency records are decentralized and maintained by various Centers and offices throughout the country. (c) NASA has not yet implemented a records management application for automated capture and control of erecords; therefore, official files are primarily paper files. (d) A member of the public may request an Agency record by mail, facsimile (FAX), electronic-mail (email), or by submitting a written request in person to the FOIA office having responsibility over the record requested or to the NASA Headquarters (HQ) FOIA Office. (e) When a requester is unable to determine the proper NASA FOIA Office to direct a request to, the requester may send the request to the NASA HQ FOIA Office, 300 E. Street SW., Washington, DC 20546–0001. The HQ FOIA Office will forward the request to the Center(s) that it determines to be most likely to maintain the records that are sought. (1) It is in the interest of the requester to send the request to the Center FOIA Office they believe has responsibility over the records being sought. (See VerDate Mar<15>2010 16:09 Aug 08, 2014 Jkt 232001 Appendix A for www.nasa.gov/foia for NASA FOIA Office locations and addresses.) (2) A misdirected request may take up to ten (10) additional working (meaning all days except Saturdays, Sundays and all Federal legal holidays) days to reroute to the proper FOIA office. (f) A requester who is making a request for records about himself or herself (a Privacy Act request) must comply with the verification of identity provisions set forth in 14 CFR 1212.202. (g) Where a request pertains to a third party, a requester may receive greater access by submitting either a notarized authorization signed by the individual who is the subject of the record requested, or a declaration by that individual made in compliance with the requirements set forth in 28 U.S.C. 1746, authorizing disclosure of the records to the requester, or submit proof that the individual is deceased (e.g., a copy of a death certificate or a verifiable obituary). (h) As an exercise of its administrative discretion, each Center FOIA office may require a requester to supply additional information if necessary, i.e., a notarized statement from the subject of the file, in order to verify that a particular individual has consented to a third party disclosure. Information will only be released on a case-by-case basis to third party requesters if they have independently provided authorization from the individual who is the subject of the request. § 1206.301 Describing records sought. In view of the time limits under 5 U.S.C. 552(a)(6) for an initial determination on a request for an Agency record, a request must meet the following requirements: (a) The request must be addressed to an appropriate FOIA office or otherwise be clearly identified in the letter as a request for an Agency record under the ‘‘Freedom of Information Act.’’ (b) Requesters must describe the records sought in sufficient detail to enable Agency personnel who are familiar with the subject area of the request to identify and locate the record with a reasonable amount of effort. To the extent possible, requesters should include specific information that may assist a FOIA office in identifying the requested records, such as the date, title or name, author, recipient, subject matter of the record, case number, file designation, or reference number. In general, requesters should include as much detail as possible about the specific records or the types of records sought. PO 00000 Frm 00016 Fmt 4700 Sfmt 4700 (c) If the requester fails to reasonably describe the records sought, the FOIA office shall inform the requester of what additional information is needed or why the request is deficient. The FOIA office will also notify the requester that it will not be able to comply with the FOIA request unless the additional information requested is provided within 20 working days from the date of the letter. If the additional information is not provided within that timeframe, the request will be closed without further notification. (d) If after being asked to clarify a request, the requester provides additional information to the FOIA office but fails to provide sufficient details or information to allow the FOIA office to ascertain exactly what records are being requested and locate them, or in general to process the request, the FOIA office will notify the requester that the request has not been properly made and the request will be closed. The FOIA office will advise him/her that they may submit a new request for the information; however, the requester will need to provide more detailed information to allow processing of the request. (e) NASA need not comply with a blanket or categorical request (such as ‘‘all matters relating to’’ a general subject) where it is not reasonably feasible to determine what record is sought. (f) NASA will in good faith attempt to identify and locate the record(s) sought and will consult with the requester when necessary and appropriate for that purpose in accordance with these regulations. (g) NASA is not required to create or compile records in response to a FOIA request. § 1206.302 Fee agreements. (a) A request must explicitly state a willingness to pay all fees associated with processing the request, fees up to a specified amount, or a request for a fee waiver, if processing fees will likely exceed the statutory entitlements as defined in § 1206.507(b) and (c). (b) If the FOIA office determines that fees for processing the request will exceed the agreed upon amount or the statutory entitlements, the FOIA office will notify the requester that: (1) He/she must provide assurance of payment for all anticipated fees or provide an advance payment if estimated fees are expected to exceed $250.00, or (2) The FOIA office will not be able to fully comply with the FOIA request unless an assurance or advance payment as requested has been provided. E:\FR\FM\11AUR1.SGM 11AUR1 tkelley on DSK3SPTVN1PROD with RULES Federal Register / Vol. 79, No. 154 / Monday, August 11, 2014 / Rules and Regulations (3) He/she may wish to limit the scope of the request to reduce the processing fees. (c) If the FOIA office does not receive a written response within 20 working days after requesting the information, it will presume the requester is no longer interested in the records requested and will close the file on the request without further notification. (d) A commercial-use requester (as defined in§ 1206.507(c)(1)) must: (1) State a willingness to pay all fess associated with processing a request; or (2) State a willingness to pay fees to cover the costs of conducting an initial search for responsive records to determine a fee estimate. (e) If a requester is only willing to pay a limited amount for processing a request and it is for more than one document, the requester must state the order in which he/she would like the request for records to be processed. (f) If a requester is seeking a fee waiver, the request must include sufficient justification to substantiate a waiver. (See subpart E of this part for information on fee waivers.) Failure to provide sufficient justification will result in a denial of the fee waiver request. (g) If a requester is seeking a fee waiver, he/she may also choose to state a willingness to pay fees in case the fee waiver request is denied in order to allow the FOIA office to begin processing the request while considering the fee waiver. (h) If a fee is chargeable for search, review, duplication, or other costs incurred in connection with a request for an Agency record, the requester will be billed prior to releasing Agency documents. If the total amount of processing fees is under $50.00, the Agency will release the records when final processing is complete. (1) If the exact amount of the fee chargeable is not known at the time of the request, the requester will be notified in the initial determination (or in a final determination in the case of an appeal) of the amount of fees chargeable. (2) For circumstances in which advance payment of fees is required, the requester will be notified after the FOIA office has obtained an estimate of associated fees. (i) The FOIA office will begin processing a request only after the request has been properly described in accordance with these regulations and fees have been resolved. (j) If the requester is required to pay a fee and it is later determined on appeal that he/she was entitled to a full VerDate Mar<15>2010 16:09 Aug 08, 2014 Jkt 232001 or partial fee waiver, a refund will be sent as appropriate. (k) NASA may refuse to consider a waiver or reduction of fees for requesters (persons or organizations) from whom unpaid fees remain owed to the Agency for another information access request. § 1206.303 Format of records disclosed. (a) The FOIA office will provide the records in the requested format if the records can readily be reproduced from the original file to that specific format. (b) The FOIA office may charge direct costs associated with converting the records or files into the requested format if they are not maintained in that format. If the costs to convert the records exceed the amount the requester has agreed to pay, the FOIA office will notify the requester in writing. If the requester does not agree to pay the additional fees for converting the records, the records may not be provided in the requested format. § 1206.304 Expedited processing. A requester may ask for expedited processing of a request. However, information to substantiate the request must be included in accordance with § 1206.400, Criteria for Expedited Processing; otherwise, the request for expedited processing will be denied and processed in the simple or complex queue. § 1206.305 Responding to requests. (a) Except in the instances described in paragraphs (e) and (f) of this section, the FOIA office that first receives a request for a record and maintains that record is the FOIA office responsible for responding to the request. (b) In determining what records are responsive to a request, a FOIA office ordinarily will include only records in its possession as of the date that it begins its search. If any other date is used, the FOIA office shall inform the requester of that date. (c) A record that is excluded from the requirements of the FOIA pursuant to 5 U.S.C. 552(c)(1)–(3), shall not be considered responsive to a request. (d) The Head of a Center, or designee, is authorized to grant or to deny any requests for records that are maintained by that Center. (e) The FOIA office may refer a request to or consult with another Center FOIA office or Federal agency in accordance with § 1206.308, if the FOIA office receives a request for records that are in its possession that were not created at that Center. If another Center within NASA or another Federal agency has substantial interest in or created the PO 00000 Frm 00017 Fmt 4700 Sfmt 4700 46681 records, the request will either be referred or they will consult with that FOIA office/agency. (f) If a request for an Agency record is received by a FOIA office not having responsibility of the record (for example, when a request is submitted to one NASA Center or Headquarters and another NASA Center has responsibility of the record), the FOIA office receiving the request shall promptly forward it to that FOIA office within 10 working days from the date of receipt. The receiving FOIA office shall acknowledge the request and provide the requester with a tracking number. § 1206.306 Granting a request. (a) The FOIA office will not begin processing a request until all issues regarding scope and fees have been resolved. (b) If fees are not expected to exceed the minimum threshold of $50.00, and the scope of the request is in accordance with § 1206.301, the FOIA office will begin processing the request. (c) If the FOIA office contacts the requester regarding fees or clarification and the requester has provided a response, the FOIA office will notify the requester in writing of the decision to either grant or deny the request. § 1206.307 Denying a request. (a) If the FOIA office denies records in response to a request either in full or in part, it will advise the requester in writing that: (1) The requested record(s) is exempt in full or in part; or (2) Records do not exist, cannot be located, or are not in the Agency’s possession; or (3) A record is not readily reproducible in the form or format requested; or (4) Denial is based on a procedural issue only and not access to the underlying records when it makes a decision that: (i) A fee waiver or another fee-related issue will not be granted; or (ii) Expedited processing will not be provided. (b) The denial notification must include: (1) The name, title, or position of the person(s) responsible for the denial; (2) A brief statement of the reasons for the denial, including a reference to any FOIA exemption(s) applied by the FOIA office to withhold records in full or in part; (3) An estimate of the volume of any records or information withheld, i.e., the number of pages or a reasonable form of estimation, unless such an estimate would harm an interest E:\FR\FM\11AUR1.SGM 11AUR1 46682 Federal Register / Vol. 79, No. 154 / Monday, August 11, 2014 / Rules and Regulations protected by the exemption(s) used to withhold the records or information; (4) A statement that the denial may be appealed under Subpart G of this part and a description of the requirements set forth therein. (c) If the requested records contain both exempt and non-exempt material, the FOIA office will: (1) Segregate and release the nonexempt material unless the non-exempt material is so intertwined with the exempt material that disclosure of it would leave only meaningless words and phrases; (2) Indicate on the released portion(s) of the records the amount of information redacted and the FOIA exemption(s) under which the redaction was made, unless doing so would harm an interest protected by the FOIA exemption used to withhold the information; and (3) If technically feasible, place the exemption at the place of excision. tkelley on DSK3SPTVN1PROD with RULES § 1206.308 Referrals and consultations within NASA or other Federal Agencies. (a) Referrals and consultations can occur within the Agency or outside the Agency. (b) If a FOIA office (other than the Office of Inspector General) receives a request for records in its possession that another NASA FOIA office has responsibility over or is substantially concerned with, it will either: (1) Consult with the other FOIA office before deciding whether to release or withhold the records; or (2) Refer the request, along with the records, to that FOIA office for direct response. (c) If the FOIA office that originally received the request refers all or part of the request to another FOIA office within the Agency for further processing, they will notify the requester of the partial referral and provide that FOIA contact information. (d) If while responding to a request, the FOIA office locates records that originated with another Federal agency, it will generally refer the request and any responsive records to that other agency for a release determination and direct response. (e) If the FOIA office refers all the records to another agency, it will document the referral and maintain a copy of the records that it refers; notify the requester of the referral in writing, unless that identification will itself disclose a sensitive, exempt fact; and will provide the contact information for the other agency and if known, the name of a contact at the other agency. (f) If the FOIA office locates records that originated with another Federal agency while responding to a request, VerDate Mar<15>2010 16:09 Aug 08, 2014 Jkt 232001 the office will make the release determination itself (after consulting with the originating agency) when: (1) The record is of primary interest to NASA (for example, a record may be of primary interest to NASA if it was developed or prepared according to Agency regulations or directives, or in response to an Agency request); or (2) NASA is in a better position than the originating agency to assess whether the record is exempt from disclosure; or (3) The originating agency is not subject to the FOIA; or (4) It is more efficient or practical depending on the circumstances. (g) If the FOIA office receives a request for records that another Federal agency has classified under any applicable executive order concerning record classification, it must refer the request to that agency for response. (h) If the FOIA office receives a request for records that are under the purview of another Federal agency, the office will return the request to the requester and may advise the requester to submit it directly to another agency. The FOIA office will then close the request. (i) All consultations and referrals received by the Agency will be handled according to the date that the FOIA request initially was received by the first FOIA office. Subpart D—Procedures and Time Limits for Responding to Requests § 1206.400 Procedures for processing queues and expedited processing. (a) The FOIA office will normally process requests in the order in which they are received in each of the processing tracks. (b) FOIA offices use three queues for multi-track processing depending on the complexity of the request. Once it has been determined the request meets the criteria in accordance with subpart C of this part, the FOIA office will place the request in one of the following tracks: (1) Simple—A request that can be processed within 20 working days. (2) Complex—A request that will take over 20 working days to process. (A complex request will generally require coordination with more than one office and a legal 10 working day extension for unusual circumstances (see § 1206.403) may be taken either up front or during the first 20 days of processing the request.) (3) Expedited processing—A request for expedited processing will be processed in this track if the requester can show exceptional need or urgency that their request should be processed out of turn in accordance with paragraph (c) of this section. PO 00000 Frm 00018 Fmt 4700 Sfmt 4700 (c) Requests and appeals will be processed on an expedited basis whenever it is determined that they involve one or more of the following: (1) Circumstances in which the lack of expedited treatment could reasonably be expected to pose an imminent threat to the life or physical safety of an individual; (2) Circumstances in which there is an urgency to inform the public about an actual or alleged Federal Government activity if the FOIA request is made by a person primarily engaged in disseminating information; (i) In most situations, a person primarily engaged in disseminating information will be a representative of the news media and therefore, will qualify as a person primarily engaged in disseminating information. (ii) To substantiate paragraph (c)(2) of this section, the requested information must be the type of information which has particular value that will be lost if not disseminated quickly; this ordinarily refers to a breaking news story of general public interest. Information of historical interest only or information sought for litigation or commercial activities would not qualify, nor would a news media deadline unrelated to breaking news; or (3) The loss of substantial due process rights. (d) A request for expedited processing must contain a statement that: (1) Explains in detail how the request meets one or more of the criteria in paragraph (c) of this section; and (2) Certifies that the explanation is true and correct to the best of the requester’s knowledge and belief. (3) If the request is made referencing paragraph (c)(2) of this section, the requester must substantiate the public interest. (e) A request for expedited processing may be made at any time. Requests must be submitted to the FOIA office responsible for processing the requested records. (f) The FOIA office must notify the requester of its decision to grant or deny expedited processing within 10 calendar days from the date of receipt. (g) If expedited processing is granted, the request will be processed on a firstin, first-out basis in that queue. (h) If expedited processing is denied, the FOIA office will notify the requester and provide information on appealing this decision in accordance with Subpart G of this part and place the request in the appropriate processing queue. (i) If the FOIA office processing the request does not provide notification of either granting or denying the request E:\FR\FM\11AUR1.SGM 11AUR1 Federal Register / Vol. 79, No. 154 / Monday, August 11, 2014 / Rules and Regulations for expedited processing within 10 calendar days from the date of receipt, the requester may file an appeal for nonresponse in accordance with subpart G of this part. § 1206.401 Procedures and time limits for acknowledgement letters and initial determinations. tkelley on DSK3SPTVN1PROD with RULES (a) Following receipt of a request submitted under the FOIA, the FOIA staff will send an acknowledgement letter providing the case tracking number and processing track within ten (10) working days from date of receipt to the requester. (b) An initial determination is a decision by a NASA official, in response to a request by a member of the public for an Agency record, on whether the record described in the request can be identified and located after a reasonable search and, if so, whether the record (or portions thereof) will be made available under this part or will be withheld from disclosure under the FOIA. (c) An initial determination on a request for an Agency record addressed in accordance with this regulation (to include one submitted in person at a FOIA office) shall be made (for example, to grant, partially grant or deny a request), and the requester shall be sent an initial determination letter within 20 working days after receipt of the request, as required by 5 U.S.C. 552(a)(6) (unless unusual circumstances exist as defined in § 1206.403). (d) The basic time limit for a misdirected FOIA request (not a referral or consultation) begins on the date on which the request is first received by the appropriate FOIA office within the Agency, but in any event no later than ten (10) working days after the date the request is first received by a FOIA office designated to receive FOIA requests. (e) Any notification of an initial determination that does not comply fully with the request for an Agency record, including those searches that produce no responsive documents, shall include a statement of the reasons for the adverse determination, include the name and title of the person making the initial determination, and notify the requester of the right to appeal to the Administrator or the Inspector General, as appropriate, pursuant to subpart G of this part. § 1206.402 limit. Suspending the basic time (a) In accordance with 5 U.S.C. 552(a)(6)(A)(ii)(I), the FOIA office may make one request to the requester for information to clarify a request and temporarily suspend (toll) the time (the 20-day period) while it is awaiting such VerDate Mar<15>2010 16:09 Aug 08, 2014 Jkt 232001 information that it has reasonably requested from the requester. Receipt of the requester’s response by the FOIA office to the Agency’s request for additional information or clarification ends the temporary time suspension. (b) In accordance with 5 U.S.C. 552(a)(6)(A)(ii)(II), the FOIA office may temporarily suspend (toll) the 20-day period as many times as is necessary to clarify with the requester issues regarding fees. Receipt of the requester’s response by the FOIA office to the Agency’s request for information regarding fees ends the temporary time suspension. § 1206.403 Time extensions. (a) In ‘‘unusual circumstances’’ as defined in this section, the time limits for an initial determination and for a final determination may be extended, but not to exceed a total of 10 working days in the aggregate in the processing of any specific request for an Agency record. The extension must be taken before the expiration of the 20 working day time limits. The requester will be notified in writing of: (1) The unusual circumstances surrounding the extension of the time limit; (2) The date by which the FOIA office expects to complete the processing of the request. (b) Unusual circumstances are defined as: (1) The need to search for and collect the requested records from offices other than the office processing the request; (2) The need to search for, collect, and appropriately examine a voluminous number of documents; (3) The need to coordinate and/or consult with another NASA office or agency having a substantial subjectmatter interest in the determination of the request. (c) If initial processing time will exceed or is expected to exceed 30 working days, the FOIA office will notify the requester of the delay in processing and: (1) Provide an opportunity to modify or limit the scope of the request to reduce processing time; and (2) Provide appeal rights, since the FOIA office has exceeded the 30 working day time period. (3) Shall make available its designated FOIA contact and its FOIA Public Liaison for this purpose. (d) The requester’s refusal to reasonably modify the scope of a request or arrange an alternative timeframe for processing a request after being given the opportunity to do so may be considered a factor when determining whether exceptional circumstances PO 00000 Frm 00019 Fmt 4700 Sfmt 4700 46683 exist. A delay that results from a predictable workload of requests does not constitute exceptional circumstances unless the Agency demonstrates reasonable progress in reducing its backlog of pending requests. Subpart E—Fees Associated With Processing Requests § 1206.500 Search. (a) Search includes all time spent looking for material that is responsive to a request, including page-by-page or line-by-line identification of material within documents. A search will determine what specific documents, if any, are responsive to a request. A search for Agency records responsive to a request may be accomplished by manual or automated means. (b) Search charges, as set forth in this part, may be billed even when an Agency record, which has been requested, cannot be identified or located after a diligent search and consultation with a professional NASA employee familiar with the subject area of the request has been conducted or if located, cannot be made available under § 1206.308. (c) In responding to FOIA requests, FOIA offices shall charge the following fees based on the date the request is received in the NASA FOIA Office unless a waiver or reduction of fees has been granted under § 1206.506. Fees will be determined on October 1st of each year based on the appropriate General Schedule (GS) base salary, plus the District of Columbia locality payment, plus 16 percent for benefits of employees. Fees such as search, review, and duplication will be charged in accordance with the requester’s fee category as defined in § 1206.507. (d) For each quarter hour spent by personnel searching for requested records, including electronic searches that do not require new programming, the fees will be the average hourly GSbase salary, plus the District of Columbia locality payment, plus 16 percent for benefits of employees in the following three categories, as applicable: (1) Clerical—Based on a GS–6, Step 5 (all employees at a GS–7 and below are classified as clerical for this purpose). (2) Professional—Based on a GS–11, Step 7 pay (all employees at a GS–8 through GS–12 are classified as professional for this purpose); (3) Managerial—Based on GS–14, Step 2, pay (all employees at a GS–13 and above are classified as managerial for this purpose). (e) Requesters will be charged the direct costs associated with conducting E:\FR\FM\11AUR1.SGM 11AUR1 46684 Federal Register / Vol. 79, No. 154 / Monday, August 11, 2014 / Rules and Regulations any search that requires the creation of a new program to locate the requested records. (f) For requests that require the retrieval of records stored by an agency at a Federal records center operated by the NARA, additional costs shall be charged in accordance with the Transactional Billing Rate Schedule established by NARA. § 1206.501 Review. (a) Review means the process of examining a document(s) located in response to a request to determine whether the document(s) or any portion thereof is disclosable. Review does not include time spent resolving general legal or policy issues regarding the application of exemptions. (b) Review fees will be assessed in connection with the initial review of the record, i.e., the review conducted by Agency staff to determine whether an exemption applies to a particular record or portion of a record. (c) Review fees will be charged to commercial use requesters. (d) No charge will be made for review at the administrative appeal stage of exemptions applied at the initial review stage. However, when the appellate authority determines that a particular exemption no longer applies, any costs associated with an additional review of the records in order to consider the use of other exemptions may be assessed as review fees. (e) Review fees will be charged at the same rates as those charged for a search under § 1206.500. (f) Review fees can be charged even if the record(s) reviewed ultimately is not disclosed. (g) Review fees will not include costs incurred in resolving issues of law or policy that may be raised in the course of processing a request under this section. tkelley on DSK3SPTVN1PROD with RULES § 1206.502 Duplication. (a) Duplication is reproducing a copy of a record or of the information contained in it, necessary to respond to a FOIA request. Copies can take the form of paper, audiovisual materials, or electronic records, among others. (b) FOIA offices shall honor a requester’s preference for receiving a record in a particular form or format where it is readily reproducible by the FOIA office in the form or format requested. If the records are not readily reproducible in the requested form or format, the Agency will so inform the requester. The requester may specify an alternative form or format that is available. If in this situation the requester refuses to specify an VerDate Mar<15>2010 16:09 Aug 08, 2014 Jkt 232001 alternative form or format, the Agency will not process the request any further. (c) Where standard-sized photocopies or scans are supplied, the FOIA office will provide one copy per request at the regular copy rate per page. (d) For copies of records produced on tapes, disks, or other electronic media, FOIA offices will charge the direct costs of producing the copy, including the time spent by personnel duplicating the requested records. For each quarter hour spent by personnel duplicating the requested records, the fees will be the same as those charged for a search under this subpart. (e) If NASA staff must scan paper documents in order to accommodate a requester’s preference to receive the records in an electronic format, the requester shall pay the appropriate copy fee charge per page as well as each quarter hour spent by personnel scanning the requested records. Fees will be the same as those charged for search under this subpart for each quarter hour spent by personnel scanning the requested records. (f) For other forms of duplication, FOIA offices will charge the direct costs as well as any associated personnel costs. For standard-sized copies of documents such as letters, memoranda, statements, reports, contracts, etc., $0.15 per copy of each page; charges for double-sided copies will be $0.30. For copies of oversized documents, such as maps, charts, etc., fees will be assessed as direct costs. Charges for copies (and scanning) include the time spent in duplicating the documents. For copies of computer disks, still photographs, blueprints, videotapes, engineering drawings, hard copies of aperture cards, etc., the fee charged will reflect the direct cost to NASA of reproducing, copying, or scanning the record. (g) If the request for an Agency record required to be made available under this part requires a computerized search or printout, the charge for the time of personnel involved shall be at the rates specified in this part or the direct costs assessed to the Agency. The charge for computer time involved and for any special supplies or materials used shall not exceed the direct cost to NASA. (h) Reasonable standard fees may be charged for additional direct costs incurred in searching for or duplicating an Agency record in response to a request under this part. Charges made under this paragraph include, but are not limited to, the transportation of NASA personnel to places of record storage for search purposes or freight charges for transporting records to the personnel searching for or duplicating a requested record. PO 00000 Frm 00020 Fmt 4700 Sfmt 4700 (i) Complying with requests for special services such as those listed in this section is entirely at the discretion of NASA. To the extent that NASA elects to provide the following services, it will levy a charge equivalent to the full cost of the service provided: (1) Certifying that records are true copies. (2) Sending records by special methods such as express mail. (3) Packaging and mailing bulky records that will not fit into the largest envelope carried in the supply inventory. § 1206.503 Restrictions on charging fees. (a) No search fees will be charged when the FOIA office fails to comply with the statutory time limits in response to a request if no unusual or exceptional circumstances apply to the processing of the request, as those terms are defined in Subpart D of this regulation. (b) In the case of a requester as defined in § 1206.507(c)(2) (education and noncommercial scientific institution) and (c)(3) (representative of the news media), no duplication fees will be charged when the FOIA office fails to comply with the statutory time limits in response to a request if no unusual or exceptional circumstances apply to the processing of the request, as those terms are defined in subpart D of this part. (c) Fees will not be charged unless they are over $50.00. (d) No search or review fees will be charged for a quarter-hour period unless more than half of that period is required to fulfill processing of the request. § 1206.504 Charging fees. (a) When a FOIA office determines or estimates the fees to be assessed in accordance with this section will exceed $50.00, the FOIA office shall notify the requester unless the requester has indicated a willingness to pay fees as high as those anticipated. If a portion of the fees can be readily estimated, the FOIA office shall advise the requester accordingly. (b) In cases in which a requester has been notified that actual or estimated fees are in excess of $50.00, the request shall be placed on hold and further work will not be completed until the requester commits in writing to pay the actual or estimated fees. Such a commitment must be made by the requester in writing, must indicate a given dollar amount or a willingness to pay all processing fees, and must be received by the FOIA office within 20 working days from the date of the letter providing notification of the fee E:\FR\FM\11AUR1.SGM 11AUR1 Federal Register / Vol. 79, No. 154 / Monday, August 11, 2014 / Rules and Regulations tkelley on DSK3SPTVN1PROD with RULES estimate. If a commitment is not received within this period, the request shall be closed without further notification. (c) After the FOIA office begins processing a request, if it finds that the actual cost will exceed the amount the requester previously agreed to pay, the FOIA office will: Stop processing the request; and promptly notify the requester of the higher amount. The request will be placed on hold until the fee issue has been resolved. If the issue is not resolved within 20 working days from the date of the notification letter, the request shall be closed without further notification. (d) Direct costs, meaning those expenditures that NASA actually incurs in searching for, duplicating, and downloading computer files and documents in response to a FOIA request, will be included on the invoice as appropriate. Direct costs include, for example, the salary of the employee who would ordinarily perform the work (the basic rate of pay for the employee plus 16 percent of that rate to cover benefits), the cost of operating computers and other electronic equipment, such as photocopiers and scanners, the costs associated with retrieving records stored at a Federal records center operated by the NARA, as well as costs for CDs and other media tools. (e) NASA may charge interest on any unpaid bill starting on the 31st day following the date of billing the requester. Interest charges will be assessed at the rate provided in 31 U.S.C. 3717 and will accrue from the billing date until payment is received by the FOIA office. NASA will follow the provisions of the Debt Collection Act of 1982 (Pub. L. 97–365, 96 Stat. 1749), as amended, and its administrative procedures, including the use of consumer reporting agencies, collection agencies, and offset. (f) If processing fees are less than $50.00, NASA will send all releaseable documents (or portions thereof) following the completion of the initial determination. If fees are greater than $50.00, the documents will not be released until the invoice has been paid and verified by the FOIA office. (g) Final billing will be sent when the initial determination has been completed. At that time the case will be closed. § 1206.505 Advance payments. (a) For requests other than those described in paragraphs (b), (c), and (f) of this section, a FOIA office shall not require the requester to make an advance payment before work is VerDate Mar<15>2010 16:09 Aug 08, 2014 Jkt 232001 commenced or continued on a request. Payment owed for work already completed (i.e., payment for search, review and/or before records are released to a requester) is not an advance payment. (b) When a FOIA office determines or estimates that a total fee to be charged under this section will exceed $250.00, it may require that the requester make an advance payment up to the amount of the entire anticipated fee before beginning to process the request. A FOIA office may elect to process the request prior to collecting fees when it receives a satisfactory assurance of full payment from a requester. (c) Where a requester has previously failed to pay a properly charged FOIA fee assessed by any FOIA office in the agency within 30 calendar days of the billing date, a FOIA office may require the requester to pay the full amount due, plus any applicable interest due on the outstanding debt, before the FOIA office begins to process a new request or continues to process a pending request or any pending remand of an appeal. Once the outstanding bill has been paid, the FOIA office may also require the requester to make an advance payment of the full amount of any anticipated fee before processing the new request. (d) Where a FOIA office has a reasonable basis to believe that a requester has misrepresented his or her identity in order to avoid paying outstanding fees, it may require that the requester provide further proof of identity. (e) In cases in which a FOIA office requires advance payment, the request shall be placed on hold and further work will not be completed until the required payment is received. If the requester does not pay the advance payment within 20 working days after the date of the FOIA office’s letter, the request will be closed without further notification. (f) When advance payment is required in order to initiate processing, after a fee estimate has been determined, the FOIA office will require payment before continuing to process the request. (g) The fee schedule of this section does not apply to fees charged under any statute that specifically requires an agency to set and collect fees for particular types of records. In instances where records responsive to a request are subject to a statutorily-based fee schedule program, the FOIA office will inform the requester of the contact information for that source. PO 00000 Frm 00021 Fmt 4700 Sfmt 4700 46685 § 1206.506 Requirements for a waiver or reduction of fees. (a) The burden is on the requester to justify an entitlement to a fee waiver. (See § 1206.507 for a discussion on fee categories.) (b) Requests for a waiver or reduction of fees shall be considered on a case-bycase basis using the criteria in this section. These statutory requirements must be satisfied by the requester before properly assessable fees are waived or reduced under the statutory standard. (c) Records shall be furnished without charge or at a reduced rate if the requester has demonstrated, based on all available information, that disclosure of the information is in the public interest because it: (1) Is likely to contribute significantly to public understanding of the operations or activities of the Government; and (2) Is not primarily in the commercial interest of the requester. (d) In deciding whether a request for a fee waiver meets the requirements in § 1206.506(c)(1), the FOIA office will use the following factors, which must be addressed by the requester: (1) Does the subject of the request specifically concern identifiable operations or activities of the Agency with a connection that is direct and clear, not remote or attenuated? For example, is the information requested clearly associated to current events? (2) If the record(s) concern the operations or activities of the Government, is disclosure likely to contribute to an increased public understanding of those operations or activities? For example, are the disclosable contents of the record(s) meaningfully informative in relation to the subject matter of the request? (3) Is the focus of the requester on contributing to public understanding, rather than on the individual understanding of the requester or a narrow segment of interested persons? The requester must demonstrate how he/she plans to disseminate the information. The dissemination of information must be to the general public or a reasonably broad audience. (Dissemination to a wide audience is not merely posting the documents on a Web site, but using his/her editorial skills to turn raw materials into a distinct work.) (4) If there is likely to be a contribution to public understanding, will that contribution be significant? A contribution to public understanding will be significant if the information disclosed is new, clearly supports public oversight of Agency operations, including the quality of Agency E:\FR\FM\11AUR1.SGM 11AUR1 46686 Federal Register / Vol. 79, No. 154 / Monday, August 11, 2014 / Rules and Regulations activities and the effect of policy and regulations on public health and safety, or otherwise confirms or clarifies data on past or present operations of the Agency. (e) In deciding whether the fee waiver meets the requirements in § 1206.506(c)(2), the FOIA office will consider any commercial interest of the requester that would be furthered by the requested disclosure. (1) Requesters are encouraged to provide explanatory information regarding this consideration. (2) A waiver or reduction of fees is justified where the public interest is greater than any identified commercial interest in disclosure. (3) If the requester is a representative of a news media organization seeking information as part of a news gathering process, the FOIA office will presume that the public interest outweighs the requester’s commercial interest. (4) If the requester represents a business, corporation, or is an attorney representing such an organization, the FOIA office will presume that the commercial interest outweighs the public interest unless otherwise demonstrated. (f) Where only some of the records to be released satisfy the requirements for a waiver of fees, a partial waiver shall be granted for those records. (g) Requests for a waiver or reduction of fees should be made when the request is first submitted to the Agency and should address the criteria referenced above. A requester may submit a fee waiver request at a later time so long as the underlying record request is pending or on administrative appeal. (h) When a requester who has committed to pay fees subsequently asks for a waiver of those fees and that waiver is denied, the requester will be required to pay any costs incurred up to the date the fee waiver request was received by the office processing the original request. (i) When deciding whether to waive or reduce fees, the FOIA office will rely on the fee waiver justification submitted in the request letter. If the request letter does not include sufficient justification, the FOIA office will either deny the fee waiver request or at its discretion, ask for additional justification from the requester. (j) FOIA offices may make available their FOIA Public Liaison or other FOIA professional to assist any requester in reformulating a request in an effort to reduce fees; however, the FOIA staff may not assist a requester in composing a request, advising what specific records to request, or how to write a request to qualify for a fee waiver. § 1206.507 Categories of requesters. (a) A request should indicate the fee category. If the requester does not indicate a fee category, or it is unclear to the FOIA office, the FOIA office will make a determination of the fee category based on the request. If the requester does not agree with their determination, he/she will be afforded the opportunity to provide information to support a different fee category. (b) If the request is submitted on behalf of another person or organization (e.g., if an attorney is submitting a request on behalf of a client), the fee category will be determined by considering the underlying requester’s identity and intended use of the information. The following table outlines the basic fee categories and applicable fees: Search fees Review fees Duplication fees Commercial use requester ....................... Educational and non-commercial scientific institutions. Representative of news media requester Yes ............................................ No .............................................. Yes ............................................ No .............................................. No .............................................. No .............................................. All other requesters .................................. tkelley on DSK3SPTVN1PROD with RULES Requester category Yes (first charge). No .............................................. Yes. Yes (first 100 pages, or equivalent volume, without charge). Yes (first 100 pages, or equivalent volume, without charge). Yes (first 100 pages, or equivalent volume, without charge). (c) The FOIA provides for three categories of requesters. However, for clarity purposes, NASA has broken them down to four for the purposes of determining fees. These four categories of FOIA requesters are: Commercial use requesters; educational and noncommercial scientific institutions; representatives of the news media; and all other requesters. The Act prescribes specific levels of fees for each of these categories, which is indicated in the FOIA fee table above. (1) Commercial use requesters. When NASA receives a request for documents appearing to be for commercial use, meaning a request from or on behalf of one whom seeks information for a use or purpose that furthers the commercial, trade, or profit interests of either the requester or the person on whose behalf the request is made, it will assess charges to recover the full direct costs of searching for, reviewing for release, and duplicating the records sought. NASA will not consider a commercial- VerDate Mar<15>2010 16:09 Aug 08, 2014 Jkt 232001 2 hours without use request for a waiver or reduction of fees based upon an assertion that disclosure would be in the public interest. A request from a corporation (not a news media corporation) may be presumed to be for commercial use unless the requester demonstrates that it qualifies for a different fee category. Commercial use requesters are not entitled to two (2) hours of search time or to 100 pages of duplication of documents without charge. (2) Education and non-commercial scientific institution requesters. (i) To be eligible for inclusion in this category, requesters must show that the request being made is authorized by and under the auspices of a qualifying institution and that the records are not being sought for a commercial use (not operated for commerce, trade or profit), but are being sought in furtherance of scholarly (if the request is from an educational institution) or scientific (if the request is from a noncommercial scientific institution) research. A PO 00000 Frm 00022 Fmt 4700 Sfmt 4700 request for educational purposes must be sent on the Institution’s letterhead and signed by the Dean of the School or Department. Records requested for the intention of fulfilling credit requirements are not considered to be sought for a scholarly purpose. (ii) For the purposes of a noncommercial scientific institution, it must be solely for the purpose of conducting scientific research, the results of which are not intended to promote any particular product or industry. Requests must be sent on the letterhead of the scientific institution and signed by the responsible official in charge of the project/program associated with the subject of the documents that are being requested. (3) Representative of the news media. (i) NASA shall provide documents to requesters in this category for the cost of duplication alone, excluding charges for the first 100 pages when the requester demonstrates the following: E:\FR\FM\11AUR1.SGM 11AUR1 Federal Register / Vol. 79, No. 154 / Monday, August 11, 2014 / Rules and Regulations (A) The requester’s intended dissemination, (B) Whether the information is current news and/or of public interest, and (C) Whether the information sought will shed new light on agency statutory operations. (ii) A representative of the news media is any person or entity organized and operated to publish or broadcast news to the public that actively gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience. Examples of news media entities include television or radio stations that broadcast ‘‘news’’ to the public at large and publishers of periodicals that disseminate ‘‘news’’ and make their products available through a variety of means to the general public. A request for records that supports the news-dissemination function of the requester shall not be considered to be for a commercial use. ‘‘Freelance’’ journalists who demonstrate a solid basis for expecting publication through a news media entity shall be considered as working for that entity. A publishing contract would provide the clearest evidence that publication is expected; however, NASA shall also consider a requester’s past publication record in making this determination. NASA’s decision to grant a requester news media status for the purposes of assessing fees will be made on a case-by-case basis based upon the requesters intended use. (iii) Requesters seeking this fee category who do not articulate sufficient information to support their request will not be included in this fee category. Additionally, FOIA staff may grant a partial fee waiver if the requester can articulate the information above for some of the documents. (4) All other requesters. NASA shall charge requesters who do not fit into any of the categories mentioned in this section fees in accordance with the fee table above. tkelley on DSK3SPTVN1PROD with RULES § 1206.508 Aggregation of requests. (a) A requester may not file multiple requests at the same time, each seeking portions of a document or documents, solely in order to avoid payment of fees. (b) When NASA has reason to believe that a requester or a group of requesters acting in concert is attempting to divide a request into a series of requests on a single subject or related subjects for the purpose of avoiding the assessment of fees, NASA will aggregate any such requests and charge accordingly. (c) NASA will consider that multiple requests made within a 30-day period VerDate Mar<15>2010 16:09 Aug 08, 2014 Jkt 232001 were so intended submitted as such to avoid fees, unless there is evidence to the contrary. (d) NASA will aggregate requests separated by a longer period of time only when there is a reasonable basis for determining that aggregation is warranted in view of all the circumstances involved. (e) NASA will not aggregate multiple requests on unrelated subjects from one requester or organization. § 1206.509 Form of payment. Payment shall be made by check or money order payable to the ‘‘Treasury of the United States,’’ or by credit card per instructions in the initial determination or billing invoice and sent to NASA. § 1206.510 Nonpayment of fees. (a) Requesters are advised that should they fail to pay the fees assessed, they may be charged interest on the amount billed starting on the 31st day following the day on which the billing was sent. Interest will be at the rate prescribed in 31 U.S.C. 3717. (b) Applicability of Debt Collection Act of 1982 (Pub. L. 97–365). Requesters are advised that if full payment is not received within 60 days after the billing was sent, the procedures of the Debt Collection Act may be invoked (14 CFR 1261.407–1261.409). These procedures include three written demand letters at not more than 30-day intervals, disclosure to a consumer reporting agency, and the use of a collection agency, where appropriate. § 1206.511 Other rights and services. Nothing in this subpart shall be construed to entitle any person to any service or to the disclosure of any record that is not required under the FOIA. Subpart F—Commercial Information § 1206.600 General policy. (a) Notice shall be given to a submitter whenever the information requested is commercial information and has been designated by the submitter as information deemed protected from disclosure under Exemption 4 of the Act, or the Agency otherwise has reason to believe that the information may be protected from disclosure under Exemption 4. For the purpose of applying the notice requirements, commercial information is information provided by a submitter and in the possession of NASA, that may arguably be exempt from disclosure under the provisions of Exemption 4 of the FOIA (5 U.S.C. 552(b)(4)). The meaning ascribed to this term for the purpose of this notice requirement is separate and should not be confused with use of this PO 00000 Frm 00023 Fmt 4700 Sfmt 4700 46687 or similar terms in determining whether information satisfies one of the elements of Exemption 4. (b) A submitter is a person or entity outside the Federal Government from whom the Agency directly or indirectly obtains commercial or financial information. The term submitter includes, but is not limited to corporations, state governments, individuals, and foreign governments. (c) The notice requirements of § 1206.601 will not apply if: (1) The information has been lawfully published or officially made available to the public; or (2) Disclosure of the information is required by a statute (other than this part); or (3) The submitter has received notice of a previous FOIA request which encompassed information requested in the later request, and the Agency intends to withhold and/or release information in the same manner as in the previous FOIA request. (d) An additional limited exception to the notice requirements of § 1206.601, to be used only when all of the following exceptional circumstances are found to be present, authorizes the Agency to withhold information that is the subject of a FOIA request, based on Exemption 4 (5 U.S.C. 552(b)(4)), without providing the submitter individual notice when: (1) The Agency would be required to provide notice to over ten (10) submitters, in which case, notification may be accomplished by posting or publishing the notice in a place reasonably calculated to accomplish notification. (2) Absent any response to the published notice, the Agency determines that if it provided notice as is otherwise required by § 1206.601, it is reasonable to assume that the submitter would object to disclosure of the information based on Exemption 4; and, (3) If the submitter expressed the anticipated objections, the Agency would uphold those objections. (e) The exception shall be used only with the approval of the Chief Counsel of the Center, the Counsel to the Inspector General, or the Associate General Counsel responsible for providing advice on the request. This exception shall not be used for a class of documents or requests, but only as warranted by an individual FOIA request. § 1206.601 Notice to submitters. (a) Except as provided in § 1206.603(b) and § 1206.603(c), the Agency shall provide a submitter with prompt written notice of a FOIA request E:\FR\FM\11AUR1.SGM 11AUR1 46688 Federal Register / Vol. 79, No. 154 / Monday, August 11, 2014 / Rules and Regulations that seeks its commercial information whenever required under § 1206.600(a). (b) A notice to a submitter must include: (1) The exact language of the request or an accurate description of the request; (2) Access to or a description of the responsive records or portions thereof containing the commercial information to the submitter; (3) A description of the procedures for objecting to the release of the possibly confidential information under § 1206.602; (4) A time limit for responding to the Agency that shall not exceed 10 working days from the date of the letter sent to the submitter by the FOIA Office or publication of the notice (as set forth in § 1206.603(b)) to object to the release and to explain the basis for the objection; (5) Notice that the information contained in the submitter’s objections may itself be subject to disclosure under the FOIA; (6) Notice that the Agency, not the submitter, is responsible for deciding whether the information shall be released or withheld; (7) Notice that failing to respond within the timeframe specified under § 1206.601(b)(4) will create a presumption that the submitter has no objection to the disclosure of the information in question. (c) Whenever the Agency provides notice pursuant to this section, the Agency shall advise the requester that notice and opportunity to comment are being provided to the submitter. tkelley on DSK3SPTVN1PROD with RULES (a) If a submitter has any objections to the disclosure of commercial information, the submitter must provide a detailed written statement to the FOIA office that specifies all factual and/or legal grounds for withholding the particular information under any FOIA exemptions. (b) The submitter must include a daytime telephone number, an email and mailing address, and a fax number if available on a response to the FOIA office. (c) A submitter who does not respond within the time period specified under this subpart will be considered to have no objection to disclosure of the information. (d) Responses received by the FOIA office after the time period specified in § 1206.601(b)(4) will not be considered by the FOIA office. An extension of time to respond may be granted provided the submitter provides an explanation 16:09 Aug 08, 2014 Jkt 232001 § 1206.603 Notice of intent to disclose. (a) The Agency shall carefully consider any objections of the submitter in the course of determining whether to disclose commercial information. The Agency, not the submitter, is responsible for deciding whether the information will be released or withheld. (b) Whenever the Agency decides to disclose commercial information over the objection of a submitter, the Agency shall forward to the submitter a written statement which shall include the following: (1) A brief explanation as to why the Agency did not agree with any objections; (2) A description of the commercial information to be disclosed, sufficient to identify information to the submitter; and (3) A date after which disclosure is expected, which shall be no less than 10 working days from the date of the letter providing notification to the submitter by the FOIA Office (§ 1206.601). (c) The FOIA office will provide notification regarding a FOIA lawsuit: (1) To a submitter, when a requester brings suit seeking to compel disclosure of commercial information; or (2) To a requester, when a submitter brings suit against the Agency in order to prevent disclosure of commercial information. Subpart G—Appeals 1206.700 § 1206.602 Opportunity to object to disclosure. VerDate Mar<15>2010 justifying additional time within the time period specified in § 1206.601(b)(4). How to submit an appeal. (a) A member of the public who has requested an Agency record in accordance with subpart C of this part, and who has received an initial determination which does not comply fully with the request, may appeal such an adverse initial determination to the Administrator, or, for records as specified in § 1206.805, to the Inspector General within 30 days from the date of the initial determination letter. (b) The appeal must: (1) Be in writing; (2) Be addressed to the Administrator, NASA Headquarters, Executive Secretariat, Washington, DC 20546, or, for records as specified in § 1206.805, to the Inspector General, NASA Headquarters, Washington, DC 20546; (3) Be identified clearly on the envelope and in the letter as an ‘‘Appeal under the Freedom of Information Act;’’ (4) Include a copy of the initial request for the Agency record and a copy of the adverse initial PO 00000 Frm 00024 Fmt 4700 Sfmt 4700 determination along with any other correspondence with the FOIA office; (5) To the extent possible, state the reasons the adverse initial determination should be reversed; and (6) Be sent to the Administrator or the Inspector General, as appropriate, within 30 days of the date of the initial determination. (c) An official authorized to make a final determination may waive any of the requirements of paragraph (b) of this section, in which case the time limit for the final determination (see § 1206.701(a)) shall run from the date of such waiver. § 1206.701 Actions on appeals. (a) Except as provided in § 1206.403, the Administrator or designee, or in the case of records as specified in § 1206.805, the Inspector General or designee, shall make a final determination on an appeal and notify the appellant thereof, within 20 working days after the receipt of the appeal by the Administrator’s Office. (b) In ‘‘unusual circumstances’’ as defined in § 1206.403, the time limit for a final determination may be extended, but not to exceed a total of 10 working days in the aggregate in the processing of any specific appeal for an Agency record. The extension must be taken before the expiration of the 20 working day time limit. The appellant will be notified in writing in accordance with § 1206.403. (c) If processing time will exceed or is expected to exceed 30 working days, the appellant will be notified of the delay in processing and the reason for the delay. (d) If the final determination reverses in whole or in part the initial determination, the record requested (or portions thereof) shall be made available promptly to the requester, as provided in the final determination. (e) If a reversal in whole or in part of the initial determination requires additional document search or production, associated fees will be applicable in accordance with fee guidance in this regulation. (f) If the final determination sustains in whole or in part an adverse initial determination, the notification of the final determination shall: (1) Explain the basis on which the record (or portions thereof) will not be made available; (2) Include the name and title of the person making the final determination; (3) Include a statement that the final determination is subject to judicial review under 5 U.S.C. 552(a)(4); (4) Provide a statement regarding the mediation services of the Office of E:\FR\FM\11AUR1.SGM 11AUR1 Federal Register / Vol. 79, No. 154 / Monday, August 11, 2014 / Rules and Regulations Government Information Services (OGIS) as a non-exclusive alternative to litigation; and (5) Enclose a copy of 5 U.S.C. 552(a)(4). (g) Before seeking a review by a court of a FOIA office’s adverse initial determination, a requester must generally submit a timely administrative appeal in accordance with this part. § 1206.702 Litigation. In any instance in which a requester brings suit concerning a request for an Agency record under this part, the matter shall promptly be referred to the General Counsel with a report on the details and status of the request. Subpart H—Responsibilities § 1206.800 Delegation of authority. Authority necessary to carry out the responsibilities specified in this subpart is delegated from the Administrator to the officials named in this subpart. tkelley on DSK3SPTVN1PROD with RULES § 1206.801 Chief FOIA Officer. (a) The Associate Administrator, Office of Communications, is designated as the Chief FOIA Officer for the Agency. The Chief FOIA Officer is delegated authority for administering the FOIA and all related laws and regulations within the Agency. The Associate Administrator has delegated the day-to-day oversight of the Agency FOIA Program to the Deputy Associate Administrator for Communications. (b) The Deputy Associate Administrator for Communications has delegated the overall responsibility for developing and administering the FOIA program within NASA to the Principal Agency FOIA Officer, located in the Office of Communications. This includes: (1) Developing regulations, guidelines, procedures, and standards for the Agency’s FOIA program; (2) Overseeing all FOIA offices and programs and ensuring they are in compliance with FOIA laws and regulations; (3) Ensuring implementation of the FOIA Programs throughout the Agency and keeping the Chief FOIA Officer and the Deputy Associate Administrator for Communications informed of the Agency’s FOIA performance; (4) Providing program oversight, technical assistance, and training to employees to ensure compliance with the Act; (5) Preparing the Agency’s FOIA Annual Report to the Department of Justice (DOJ) and Congress, as well as the Chief FOIA Officer’s Report; VerDate Mar<15>2010 16:09 Aug 08, 2014 Jkt 232001 (6) Preparing all other reports as required to DOJ/Congress or within the Agency; (7) Developing, conducting, and reviewing all internal Agency FOIA training for NASA FOIA staff; (8) Directly supervising the Headquarters FOIA Office. (c) The Chief FOIA Officer is responsible for ensuring NASA has appointed a FOIA Public Liaison, who is responsible for assisting in reducing delays, increasing transparency and understanding of the status of requests, and assisting in the resolution of disputes at each Center or Component. § 1206.802 General Counsel. The General Counsel is responsible for the interpretation of 5 U.S.C. 552 and of this part, as well as providing legal guidance with regard to disclosure of Agency records. The General Counsel is also responsible for the handling of appeals and litigation in connection with a request for an Agency record under this part. § 1206.803 NASA Headquarters. Except as otherwise provided under this subpart, the Deputy Associate Administrator for Communications is responsible for the following: (a) Delegating the authority for direct oversight of the Headquarters FOIA Office to the Principal Agency FOIA Officer. (b) When denying records in whole or in part, ensuring the Headquarters FOIA Office consults with the General Counsel charged with providing legal advice to Headquarters before releasing an initial determination under § 1206.307. § 1206.804 NASA Centers and Components. Except as otherwise provided in this subpart, in coordination with the Deputy Associate Administrator for Communications, the Director of each NASA Center or the Official-in-Charge of each Center, is responsible for ensuring the following: (a) The Director of Public Affairs or the Head of the Public Affairs Office at the Center has delegated authority to process all FOIA requests at their respective Center. (b) This delegated authority has further been delegated to the FOIA Officer at their Center or in the absence of a FOIA Officer, the FOIA Specialist, both of whom must report to and be supervised by their Director of Public Affairs or the Head of the Public Affairs Office. (c) When denying records in whole or in part, the FOIA Officer at the Center PO 00000 Frm 00025 Fmt 4700 Sfmt 4700 46689 will consult with the Chief Counsel or the Counsel charged with providing legal advice to that FOIA office before releasing an initial determination under § 1206.307. § 1206.805 Inspector General. (a) The Inspector General or designee is responsible for making final determinations under § 1206.701, within the time limits specified in subpart G of this part, concerning audit, inspection and investigative records originating in the Office of the Inspector General records from outside the Government related to an audit, inspection or investigation, records prepared in response to a request from or addressed to the Office of the Inspector General, or other records originating within the Office of the Inspector General, after consultation with the General Counsel or designee on an appeal of an initial determination to the Inspector General. (b) The Assistant Inspectors General or their designees are responsible for making initial determinations under subpart C concerning Office of Inspector General records originating in the Office of the Inspector General, records from outside the Government related to Office of Inspector General records prepared in response to a request from or addressed to the Office of the Inspector General, or other records originating with the Office of the Inspector General, after consultation with the Counsel to the Inspector General or designee. (c) The Inspector General or designee is responsible for ensuring that requests for Agency records as specified in paragraphs (a) and (b) of this section are processed and initial determinations are made within the time limits specified in subpart D of this part. (d) The Inspector General or designee is responsible for determining whether unusual circumstances exist under § 1206.403 that would justify extending the time limit for an initial or final determination, for records as specified in paragraphs (a) and (b) of this section. (e) Records as specified in paragraphs (a) and (b) of this section include any records located at Regional and field Inspector General Offices, as well as records located at the Headquarters Office of the Inspector General. Subpart I—Location for Inspection and Request of Agency Records § 1206.900 libraries. FOIA offices and electronic (a) NASA Headquarters and each NASA Center have a FOIA Electronic Library on the Internet. The Electronic E:\FR\FM\11AUR1.SGM 11AUR1 46690 Federal Register / Vol. 79, No. 154 / Monday, August 11, 2014 / Rules and Regulations library addresses are located on the NASA FOIA homepage http:// www.hq.nasa.gov/office/pao/FOIA/ agency/ (b) In addition, a requester may submit a FOIA request electronically. The addresses are located on the NASA FOIA homepage under each Center link. Cheryl E. Parker, Federal Register Liaison Officer. tkelley on DSK3SPTVN1PROD with RULES 27 CFR Parts 447, 478, 479, 555, and 646 [Docket No. ATF 2013R–9F; AG Order No. 3439–2014] Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), Department of Justice. ACTION: Final rule. AGENCY: Appendix A—NASA FOIA Requester Service Center Addresses NASA Ames Research Center, FOIA Requester Service Center, Mail Stop 204– 14, Moffett Field, CA 94035, foia@ arc.nasa.gov, FAX (650) 604–0688 NASA Armstrong Flight Research Center, FOIA Requester Service Center, Post Office Box 273, Edwards, CA 93523, afrcfoia@ nasa.gov, FAX (661) 276–3088 NASA Glenn Research Center, FOIA Requester Service Center, 21000 Brookpark Road, Cleveland, OH 44135, foia@ grc.nasa.gov,FAX (216) 433–6790 NASA Goddard Space Flight Center, FOIA Requester Service Center, Greenbelt, MD 20771, gsfc-foia@mail.nasa.gov, FAX (301) 286–1712 NASA Headquarters, FOIA Requester Service Center, Mail Stop 5–L19, 300 E Street, SW., Washington, DC 20546, hq-foia@nasa.gov, FAX (202) 358–4332 NASA Office of the Inspector General, FOIA Requester Service Center, Mail Stop 8–V69, 300 E Street, SW., Washington, DC 20546, foiaoig@hq.nasa.gov, FAX (202) 358–2767 NASA Management Office—Jet Propulsion Laboratory, FOIA Requester Service Center, 4800 Oak Grove Drive, Pasadena, CA 91109, jpl-foia@nasa.gov, FAX (818) 393– 3160 NASA Johnson Space Center, FOIA Requester Service Center, Houston, TX 77058, jsc-foia@mail.nasa.gov, FAX (281) 483–3741 NASA Kennedy Space Center, FOIA Requester Service Center, Kennedy Space Center, FL 32899, foia@ksc.nasa.gov, FAX (321) 867–2692 NASA Langley Research Center, FOIA Requester Service Center, Hampton, VA 23681, larc-dl-foia@mail.nasa.gov, FAX (757) 864–6333 NASA Marshall Space Flight Center, FOIA Requester Service Center, Huntsville, AL 35812, foia@msfc.nasa.gov, FAX (256) 544–0007 NASA Stennis Space Center, FOIA Requester Service Center, Stennis Space Center, MS 39529, ssc-foia@nasa.gov, FAX (228) 688– 1094 NASA Shared Services Center, FOIA Requester Service Center, Bldg 5100, Stennis Space Center, MS 39529, nssc@ nasa.gov, FAX (877) 779–6772 [FR Doc. 2014–18770 Filed 8–8–14; 8:45 am] BILLING CODE P 16:09 Aug 08, 2014 Bureau of Alcohol, Tobacco, Firearms, and Explosives Technical Amendments to Regulations Note: The following appendix will not appear in the Code of Federal Regulations. VerDate Mar<15>2010 DEPARTMENT OF JUSTICE Jkt 232001 This final rule makes technical amendments and corrects typographical errors in ATF regulations in the Code of Federal Regulations (CFR). Many of the technical changes are being made to reflect changes in nomenclature resulting from the transfer of ATF to the Department of Justice from the Department of the Treasury pursuant to the Homeland Security Act of 2002. The changes are designed to provide clarity and enhance uniformity throughout these regulations. DATES: This rule is effective August 11, 2014. FOR FURTHER INFORMATION CONTACT: Shermaine Kenner, Office of Regulatory Affairs, Enforcement Programs and Services, Bureau of Alcohol, Tobacco, Firearms, and Explosives, U.S. Department of Justice, 99 New York Avenue NE., Washington, DC 20226; telephone: (202) 648–7070 (this is not a toll-free number). SUPPLEMENTARY INFORMATION: SUMMARY: Background The Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) administers regulations published in title 27, chapter II, Code of Federal Regulations (CFR). ATF identified several technical amendments that are needed to provide clarity and uniformity to 27 CFR regulations. Rather than make substantive changes to the regulations, these amendments generally focus on improving the clarity and accuracy of title 27, chapter II. Many of the technical changes reflect changes in nomenclature resulting from the transfer of ATF to the Department of Justice from the Department of the Treasury pursuant to the Homeland Security Act of 2002. In addition, some changes are being made to reflect changes in the assignment of responsibility within ATF. The following sections are being amended to reflect the current name of the Bureau of Alcohol, Tobacco, PO 00000 Frm 00026 Fmt 4700 Sfmt 4700 Firearms, and Explosives in the Department of Justice: §§ 447.11, 447.32, 478.11, 478.76, 478.78, 479.11, 479.22, 555.78, 555.104, 646.143. The following sections are being amended to reflect current contact information for ATF’s Distribution Center: §§ 447.35, 447.58, 478.21, 478.103, 479.21, 555.21. The following sections defining ‘‘Customs Officer’’ are being amended to remove all references to the ‘‘Customs Service’’ and ‘‘Secretary of the Treasury’’ and replace with ‘‘Any officer of U.S. Customs and Border Protection, any commissioned, warrant, or petty officer of the Coast Guard, or any agent or other person authorized by law to perform the duties of a customs officer’’, to reflect the current name of the Customs Service and that it is no longer under the Department of the Treasury: §§ 478.11, 479.11, 555.11. The following sections are being amended to remove extra spaces: §§ 478.56, 478.76. The following sections are being amended to reflect the correct form numbers: §§ 478.72, 478.73, 478.74, 478.126. Section 478.76 is being amended to replace ‘‘Assistant Chief Counsel’’ with the correct title, ‘‘Chief Counsel’’. The following sections are being amended to replace ‘‘regional director (compliance)’’ with the current title, ‘‘Director, Industry Operations’’: §§ 479.11, 479.26, 555.11, 555.22, 555.25, 555.49, 555.63, 555.71, 555.72, 555.73, 555.74, 555.75, 555.76, 555.78, 555.79, 555.80, 555.122(a)(4), 555.123(a)(4), 555.124(a)(4), 555.125(b)(1)(iv), 555.142, 555.201. With the elimination of the position of regional director (compliance), the duties enumerated in these sections are being assigned to the Director, Industry Operations. The following sections are being amended to replace ‘‘regional director (compliance)’’ with the correct title, ‘‘Chief, National Firearms Act Branch’’: §§ 479.37, 479.38, 479.46, 479.47, 479.50, 479.172. With the elimination of the position of regional director (compliance), the duties enumerated in these sections are being assigned to the Chief, National Firearms Act Branch. Section 479.34 is being amended to remove ‘‘(12–93 edition)’’, a reference to an obsolete edition of a form. Section 479.37 is being amended to remove ‘‘Center’’ as the word does not make sense in the context of the sentence. Section 479.84 is being amended to replace ‘‘regional director (compliance)’’ with the correct title, ‘‘Special Agent in Charge’’. With the elimination of the E:\FR\FM\11AUR1.SGM 11AUR1

Agencies

[Federal Register Volume 79, Number 154 (Monday, August 11, 2014)]
[Rules and Regulations]
[Pages 46676-46690]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-18770]


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NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

14 CFR Part 1206

[Docket Number NASA-2014-0008]
RIN 2700-AE04


Procedures for Disclosure of Records Under the Freedom of 
Information Act (FOIA)

AGENCY: National Aeronautics and Space Administration.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This rule revises the National Aeronautics and Space 
Administration (NASA) Freedom of Information Act (FOIA) regulations 
that the Agency follows in processing records under the FOIA. The 
revisions clarify and update procedures for requesting information from 
the Agency, as well as procedures that the Agency follows in responding 
to requests from the public. The revisions also incorporate 
clarifications and updates resulting from changes to the FOIA and case 
law. Finally, the revisions include current cost figures to be used in 
calculating and charging fees and increase the amount of information 
that members of the public may receive from the Agency without being 
charged processing fees.

DATES: Effective Date: August 11, 2014.

FOR FURTHER INFORMATION CONTACT: Miriam Brown-Lam, (202) 358-0718.

SUPPLEMENTARY INFORMATION: 

I. Background

    NASA published a proposed rule in the Federal Register at 79 FR 
9430 on February 18, 2014, to amend its FOIA regulations. The rule 
updated and streamlined several procedural provisions and to 
incorporate certain changes brought resulting from amendments to the 
FOIA under the Openness Promotes Effectiveness in our National (OPEN) 
Government Act of 2007, to reflect developments in case law, and to 
include current cost figures to be used in calculating and charging 
fees.

II. Discussion and Analysis

    NASA received comments from two members of the public as well as 
comments from a subcomponent of a Federal agency. NASA has also made 
minor corrections to the text. The following is a discussion of 
Comments:
    Comment 1: One commenter suggested that in Sec.  1206.201, NASA 
establish categories of records to proactively disclose and post on its 
Web site.
    Response: The FOIA requires Agencies to proactively post agency 
records (Subsection (a)(2) of the FOIA) when they have received two 
requests for the documents and anticipate a third. NASA has regularly 
taken affirmative steps to make information available to the public 
through the use of robust Web sites. NASA routinely updates these Web 
sites to provide the public with documents as well as information, 
video links, etc. that are of value and interest to the public. NASA 
declines to adopt this comment.
    Comment 2: One commenter suggested that in Sec.  1206.300(g) NASA 
include an alternative for third party requesters access to Privacy Act 
records if they are able to demonstrate an overriding public interest 
in the records.
    Response: NASA believes adding a statement of this kind would 
create confusion with regard to releasing Privacy Act records. There 
are significant variables concerning release of privacy-protected 
information, which is addressed on a case-by-case basis. An overriding 
public interest with regard to the release of privacy-protected 
information cannot be defined for the

[[Page 46677]]

purposes of this section. NASA declines to adopt this comment.
    Comment 3: One commenter suggested that in Sec.  1206.300(g) NASA 
include a definition of a FOIA Public Liaison.
    Response: NASA has adopted this comment and included this reference 
in Sec.  1206.801(c).
    Comment 4: One commenter suggested that in Sec.  1206.301(a) the 
word `must' be changed to `should' in the reference requiring 
requesters to either address their request to an appropriate FOIA 
Office or identify their letter as a request for an Agency record under 
the FOIA.
    Response: If a requester submits a request to a program office not 
designated to process FOIA requests and it is not identified as a FOIA 
request, it may not be appropriately handled. Therefore, a request not 
sent to a FOIA office must be identified as a request `Under the 
Freedom of Information Act' in order for staff to understand that it 
needs to be forwarded to the FOIA office for proper processing. NASA 
declines to adopt this comment.
    Comment 5: One commenter suggested that in Sec.  1206.301(e) that 
the language indicating NASA need not comply with a blanket or 
categorical request where it is not reasonably feasible to determine 
what record is sought be changed to indicate NASA will work with the 
requester and locate the records sought.
    Response: This comment is already reflected in section Sec.  
1206.301(f) of this subsection. NASA declines to adopt this comment.
    Comment 6: One commenter made a statement in reference to Sec.  
1206.301(g) noting from Schladetsch v. HUD (D.D.C. Apr. 4, 2000) that 
extracting, sorting, and compiling discrete pieces of information from 
an existing database does not amount to the creation of a new record.
    Response: The FOIA does not obligate agencies to create records, it 
obligates them to provide access to those which it has created or 
retained. FOIA staff will generally provide information from an 
existing database, removing exempt information as necessary unless the 
information as a whole is exempt from release.
    Comment 7: One commenter suggested that in Sec.  1206.302(a) NASA 
clearly address the statutory fee entitlements for the various 
processing categories.
    Response: NASA has adopted this comment by adding a cross-reference 
in Sec.  1206.302(a) to Subpart E, Sec.  1206.507(b) and (c), 
Categories of requesters.
    Comment 8: One commenter suggested that in Sec.  1206.302(b)(1) and 
(h) NASA provide requesters with a breakdown of the fee estimate and/or 
bill as a best practice.
    Response: NASA works with requesters regarding fee estimates, 
applicable charges, etc. NASA will continue to work with and provide 
requesters a breakdown of the cost estimate as a best practice but 
declines to adopt this comment in the regulation.
    Comment 9: One commenter suggested that in Sec.  1206.307(b)(2) 
when denying records, NASA provide a brief description of the exemption 
as well as a description of the information NASA is withholding.
    Response: NASA currently provides a brief description of the 
exemptions, as required. On a case-by-case basis, NASA does provide 
descriptive information. However, NASA believes a requirement to 
provide this information for every case would have a negative impact on 
NASA's processing and response times while providing the requester with 
very little, if any, additional meaningful information. NASA declines 
to adopt this comment.
    Comment 10: One commenter suggested that in Sec.  1206.308 when 
referring records to another agency, NASA provide the name of the 
contact information.
    Response: NASA declines to adopt this comments as it is addressed 
in Sec.  1206.308(e). However, this particular section has been 
reworded for clarity purposes.
    Comment 11: One commenter suggested that the language in Sec.  
1206.400 regarding the subrequirement for expedited processing 
requiring that a requester `must establish that he or she is a person 
whose main professional activity or occupation is information 
dissemination, though it need not be his/her sole occupation' would 
create an additional obligation and an impediment to expedited 
processing criteria by imposing an added requirement.
    Response: After consideration, NASA has removed this 
subrequirement.
    Comment 12: One commenter suggested that in Sec.  1206.401 NASA 
clarify the language and change the word `made' to `submitted' to 
ensure requesters do not think they can make a request verbally.
    Response: NASA has adopted this comment.
    Comment 13: One commenter suggested that NASA should not increase 
the fees for copy in Sec.  1206.501(f) stating the costs associated 
with photo-duplication have declined rather than increased over the 
last 16 years.
    Response: Based on inflation, the increase is reasonable and 
consistent with fees charged by other Federal agencies. This is the 
first increase in fees NASA has issued in 16 years. NASA declines to 
adopt this comment.
    Comment 14: One commenter suggested that in Sec.  1206.503(c), NASA 
should increase the minimum threshold to $50.00 for charging fees to 
FOIA requesters.
    Response: NASA has adopted this comment and will increase the 
minimum threshold accordingly.
    Comment 15: One commenter suggested that in Sec.  1206.504, NASA 
should provide a breakdown of the fees for search, review and/or 
duplication.
    Response: NASA works with requesters regarding fee estimates, 
applicable charges, etc. NASA will continue to work with and provide 
requesters with a breakdown of the cost estimate as a best practice but 
declines to adopt this comment in the regulation.
    Comment 16: One commenter suggested that in Sec.  1206.506(a) the 
difference between a fee waiver and fee category should be clarified.
    Response: To alleviate confusion, NASA has adopted this comment by 
cross-referencing Sec.  1206.506(a) with Sec.  1206.507 fee categories.
    Comment 17: One commenter suggested that in Sec.  1206.506(d)(3) 
the language in the last sentence be rewritten to conform with the FOIA 
language `using editorial skills to turn raw materials into a distinct 
work.'
    Response: NASA has adopted this comment.
    Comment 18: One commenter suggested that in Sec.  1206.506(j) the 
language should be revised to allow FOIA staff to provide assistance to 
a requester when composing a request in order to receive a fee waiver.
    Response: NASA disagrees with this suggestion. It would place and 
undue burden on the FOIA staff it they were to provide assistance in 
composing a request in order for requesters to receive a fee waiver. 
This would also place them in a position that would prevent them from 
making an unbiased determination regarding a fee waiver request. NASA 
declines to adopt this comment.
    Comment 19: One commenter suggested that NASA also include the 
information in Sec.  1206.507(a) in Sec.  1206.300.
    Response: NASA declines to adopt this comment as this information 
is already in Sec.  1206.300(a). NASA need not act on this comment.

[[Page 46678]]

    Comment 20: One commenter suggested that in Sec.  1206.700(a), NASA 
increase the minimum time for requesters to prepare and submit appeals 
from 30 days from the date of the initial determination to 60 days.
    Response: NASA has carefully considered this comment but declines 
to adopt it. The current 30 days from the date of the initial 
determination allows requesters to consider the response they have 
received and determine whether or not the response is satisfactory in a 
timely manner.
    Comment 21: One commenter suggested that in Sec.  1206.700(b)(3), 
NASA change the language requiring requesters to clearly identify a 
FOIA appeal on the outside envelope of their appeal.
    Response: While this is not a requirement of the FOIA, it has been 
a long-standing requirement for processing appeals and is in the best 
interest of both the appellant as well as the Agency. Agencies have a 
limited time to process an appeal in a timely manner; therefore, 
clearly identifying a FOIA appeal on the outside of the envelope in 
order to ensure it reaches the proper office in a timely manner is 
administratively beneficial to both parties. NASA declines to adopt 
this comment.
    Comment 22: One commenter suggested in Sec.  1206.701, NASA include 
a reference for requesters to contact the Office of Government 
Information Services (OGIS) to resolve a dispute between requesters and 
the Agency.
    Response: NASA has adopted this comment and included language to 
reference OGIS in Sec.  1206.701(f)(4).
    Comment 23: One commenter suggested that in Appendix A, NASA also 
provide fax numbers and email addresses to which requesters can submit 
requests.
    Response: NASA has adopted this comment and will include this 
information in Appendix A.
    Comment 24: The OGIS also suggested NASA include information about 
the preservation of records and records management in the FOIA 
regulations.
    Response: While this is very good information, NASA has a records 
management office that is responsible for issuing records management 
information and requirements in accordance with the General Records 
Schedule of the National Archives and Records Administration (NARA). 
NASA declines to adopt this comment.

III. Regulatory Analysis

Executive Order 12866 and Executive Order 13563

    Executive Orders 13563 and 12866 direct agencies to assess all 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). Executive 
Order 13563 emphasizes the importance of quantifying both costs and 
benefits, reducing costs, harmonizing rules, and promoting flexibility. 
This final rule has been designated a ``significant regulatory 
action,'' although not economically significant, under section 3(f) of 
Executive Order 12866. Accordingly, this rule has been reviewed by the 
Office of Management and Budget.

Regulatory Flexibility Act

    It has been certified that this rule is not subject to the 
Regulatory Flexibility Act (5 U.S.C. 601) because it would not, if 
promulgated, have a significant economic impact on a substantial number 
of small entities. Fees assessed by the Administration are nominal. 
Further, the ``small entities'' that make FOIA requests, as compared 
with individual requesters and other requesters, are relatively few in 
number.

Paperwork Reduction Act Statement

    This rule does not contain an information collection requirement 
subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et 
seq.).

Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by State, local, and 
Tribal governments, in the aggregate, or by the private sector, of 
$100,000,000 or more in any one year, and it will not significantly or 
uniquely affect small governments. Therefore, no actions were deemed 
necessary under the provisions of the Unfunded Mandates Reform Act of 
1995.

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by Sec.  251 of the Small 
Business Regulatory Enforcement Fairness Act of 1996 (as amended), 5 
U.S.C. 804. This rule will not result in an annual effect on the 
economy of $100,000,000 or more; a major increase in costs or prices; 
or significant adverse effects on competition, employment, investment, 
productivity, innovation, or on the ability of United States-based 
companies to compete with foreign based companies in domestic and 
export markets.

List of Subjects in 14 CFR Part 1206

    Administrative practice and procedure, Freedom of Information Act, 
Privacy Act.
    Accordingly, 14 CFR part 1206 is revised to read as follows:

PART 1206--PROCEDURES FOR DISCLOSURE OF RECORDS UNDER THE FREEDOM 
OF INFORMATION ACT (FOIA)

Subpart A--Basic Policy
Sec.
1206.100 Scope of part.
1206.101 General policy.
Subpart B--Types of Records To Be Made Available
1206.200 Publishing of records.
1206.201 Proactive disclosure of Agency records.
1206.202 Records that have been published.
1206.203 Incorporation by reference.
Subpart C--Procedures
1206.300 How to make a request for Agency records.
1206.301 Describing records sought.
1206.302 Fee agreements.
1206.303 Format of records disclosed.
1206.304 Expedited processing.
1206.305 Responding to requests.
1206.306 Granting a request.
1206.307 Denying a request.
1206.308 Referrals and consultations within NASA or other Federal 
agencies.
Subpart D--Procedures and Time Limits for Responding to Requests
1206.400 Procedures for processing queues and expedited processing.
1206.401 Procedures and time limits for acknowledgement letters and 
initial determinations.
1206.402 Suspending the basic time limit.
1206.403 Time extensions.
Subpart E--Fees Associated With Processing Requests
1206.500 Search.
1206.501 Review.
1206.502 Duplication.
1206.503 Restrictions on charging fees.
1206.504 Charging fees.
1206.505 Advance payments.
1206.506 Requirements for a waiver or reduction of fees.
1206.507 Categories of requesters.
1206.508 Aggregation of requests.
1206.509 Form of payment.
1206.510 Nonpayment of fees.
1206.511 Other rights and services.
Subpart F--Commercial Information
1206.600 General policy.
1206.601 Notice to submitters.
1206.602 Opportunity to object to disclosure.
1206.603 Notice of intent to disclose.

[[Page 46679]]

Subpart G--Appeals
1206.700 How to submit an appeal.
1206.701 Actions on appeals.
1206.702 Litigation.
Subpart H--Responsibilities
1206.800 Delegation of authority.
1206.801 Chief FOIA Officer.
1206.802 General Counsel.
1206.803 NASA Headquarters.
1206.804 NASA Centers and Components.
1206.805 Inspector General.
Subpart I--Location for Inspection and Request of Agency Records
1206.900 FOIA offices and electronic libraries.


    Authority: 5 U.S.C. 552, 552a; 51 U.S.C. 20113(a)

Subpart A--Basic Policy


Sec.  1206.100  Scope of part.

    This part 1206 establishes the policies, responsibilities, and 
procedures for the release of Agency records which are under the 
jurisdiction of the National Aeronautics and Space Administration, 
hereinafter NASA, to members of the public. This part applies to 
information and Agency records located at NASA Headquarters, and NASA 
Centers, including Component Facilities and Technical and Service 
Support Centers, herein NASA Headquarters and Centers, as defined in 
this part.


Sec.  1206.101  General policy.

    (a) In compliance with the Freedom of Information Act (FOIA), as 
amended 5 U.S.C. 552, a positive and continuing obligation exists for 
NASA, herein Agency, to make available to the fullest extent 
practicable upon request by members of the public, all Agency records 
under its jurisdiction, as described in this regulation.
    (b) Part 1206 does not entitle any person to any service or to the 
disclosure of any record that is not required under the FOIA.

Subpart B--Types of Records To Be Made Available


Sec.  1206.200  Publishing of records.

    (a) Records required to be published in the Federal Register. The 
following records are required to be published in the Federal Register, 
for codification in Title 14, Chapter V, of the CFR.
    (1) Description of NASA Headquarters and NASA Centers and the 
established places at which, the employees from whom, and the methods 
whereby, the public may secure information, make submittals or 
requests, or obtain decisions;
    (2) Statements of the general course and method by which NASA's 
functions are channeled and determined, including the nature and 
requirements of all formal and informal procedures available;
    (3) Rules of procedure, descriptions of forms available or the 
places at which forms may be obtained, and instructions regarding the 
scope and contents of all papers, reports, or examinations;
    (4) Substantive rules of general applicability adopted as 
authorized by law, and statements of general policy or interpretations 
of general applicability formulated and adopted by NASA;
    (5) Each amendment, revision, or repeal of the foregoing.
    (b) Agency opinions, orders, statements, and manuals. (1) Unless 
they are exempt from disclosure in accordance with the FOIA, or unless 
they are promptly published and copies offered for sale, NASA shall 
make available the following records for public inspection and copying 
or purchase:
    (i) All final opinions (including concurring and dissenting 
opinions) and all orders made in the adjudication of cases;
    (ii) Those statements of NASA policy and interpretations which have 
been adopted by NASA and are not published in the Federal Register;
    (iii) Administrative staff manuals (or similar issuances) and 
instructions to staff that affect a member of the public;
    (iv) Copies of all records, regardless of form or format, that have 
been released to any person under Subpart C herein and which, because 
of the nature of their subject matter, the Agency determines have 
become or are likely to become the subject of subsequent requests for 
substantially the same records (frequently requested documents).
    (2) A general index of records referred to under paragraph 
(b)(1)(iv) of this section.
    (i) For records created after November 1, 1997, which are covered 
by paragraph (b)(l)(i) through (b)(l)(iv) of this section, such records 
shall be available electronically, through an electronic library and in 
electronic forms or formats.
    (ii) In connection with all records required to be made available 
or published under this paragraph (b), identifying details shall be 
deleted to the extent required to prevent a clearly unwarranted 
invasion of personal privacy. However, in each case, the justification 
for the deletion shall be explained fully in writing. The extent of 
such deletion shall be indicated on the portion of the record which is 
made available or published, unless including that indication would 
harm an interest protected by an exemption in the FOIA. If technically 
feasible, the extent of the deletion shall be indicated at the place in 
the record where the deletion is made.
    (c) Other Agency records. (1) In addition to the records made 
available or published under paragraphs (a) and (b) of this section, 
NASA shall, upon request for other records made in accordance with this 
part, make such records promptly available to any person, unless they 
are exempt from disclosure, or unless they may be purchased by the 
public from other readily available sources, i.e., books.
    (2) Furthermore, at a minimum, NASA will maintain records in its 
electronic library that were created after November 1, 1997, under 
paragraphs (b)(1)(iv) and a guide for requesting records or information 
from NASA.


Sec.  1206.201  Proactive disclosure of Agency records.

    Records that are required by the FOIA to be made available for 
public inspection and copying are accessible on the Agency's Web site, 
http://www.nasa.gov. Each Center is responsible for determining which 
of its records are required to be made publicly available, as well as 
identifying additional records of interest to the public that are 
appropriate for public disclosure, and for posting such records. Each 
Center has a FOIA Public Liaison who can assist individuals in locating 
records particular to a Center. A list of the Agency's FOIA Public 
Liaisons is available at http://www.hq.nasa.gov/office/pao/FOIA/agency/.


Sec.  1206.202  Records that have been published.

    Publication in the Federal Register is a means of making certain 
Agency records are available to the public in accordance with 5 
U.S.C.552(a)(2) without requiring the filing of a FOIA request. NASA 
has a FOIA Electronic Library Web site at NASA Headquarters and each of 
its Centers. The FedBizOpps (FBO) (formerly Commerce Business Daily), 
is also a source of information concerning Agency records or actions. 
Various other NASA publications and documents, and indexes thereto, are 
available from other sources, such as the U.S. Superintendent of 
Documents and the Earth Resources Observation and Science Center 
(Department of the Interior). Such publications and documents are not 
required to be made available or reproduced in response to a request 
unless they cannot be purchased readily from available sources.

[[Page 46680]]

Sec.  1206.203  Incorporation by reference.

    Records reasonably available to the members of the public affected 
thereby shall be deemed published in the Federal Register when 
incorporated by reference in material published in the Federal Register 
(pursuant to the Federal Register regulation on incorporation by 
reference, 1 CFR Part 51).

Subpart C--Procedures


Sec.  1206.300  How to make a request for Agency records.

    (a) A requester submitting a request for records must include his/
her name and mailing address, a description of the record(s) sought 
(see Sec.  1206.301), and must address fees or provide justification 
for a fee waiver (see Sec.  1206.302) as well as address the fee 
category in accordance with Sec.  1206.507. It is also helpful to 
provide a telephone number and email address in case the FOIA office 
needs to contact you regarding your request; however, this information 
is optional when submitting a written request. If a requester chooses 
to submit a request online via the NASA FOIA Web site, the required 
information must be completed. Do not include a social security number 
on any correspondence with the FOIA office.
    (b) NASA does not have a central location for submitting FOIA 
requests and it does not maintain a central index or database of 
records in its possession. Instead, Agency records are decentralized 
and maintained by various Centers and offices throughout the country.
    (c) NASA has not yet implemented a records management application 
for automated capture and control of e-records; therefore, official 
files are primarily paper files.
    (d) A member of the public may request an Agency record by mail, 
facsimile (FAX), electronic-mail (email), or by submitting a written 
request in person to the FOIA office having responsibility over the 
record requested or to the NASA Headquarters (HQ) FOIA Office.
    (e) When a requester is unable to determine the proper NASA FOIA 
Office to direct a request to, the requester may send the request to 
the NASA HQ FOIA Office, 300 E. Street SW., Washington, DC 20546-0001. 
The HQ FOIA Office will forward the request to the Center(s) that it 
determines to be most likely to maintain the records that are sought.
    (1) It is in the interest of the requester to send the request to 
the Center FOIA Office they believe has responsibility over the records 
being sought. (See Appendix A for www.nasa.gov/foia for NASA FOIA 
Office locations and addresses.)
    (2) A misdirected request may take up to ten (10) additional 
working (meaning all days except Saturdays, Sundays and all Federal 
legal holidays) days to reroute to the proper FOIA office.
    (f) A requester who is making a request for records about himself 
or herself (a Privacy Act request) must comply with the verification of 
identity provisions set forth in 14 CFR 1212.202.
    (g) Where a request pertains to a third party, a requester may 
receive greater access by submitting either a notarized authorization 
signed by the individual who is the subject of the record requested, or 
a declaration by that individual made in compliance with the 
requirements set forth in 28 U.S.C. 1746, authorizing disclosure of the 
records to the requester, or submit proof that the individual is 
deceased (e.g., a copy of a death certificate or a verifiable 
obituary).
    (h) As an exercise of its administrative discretion, each Center 
FOIA office may require a requester to supply additional information if 
necessary, i.e., a notarized statement from the subject of the file, in 
order to verify that a particular individual has consented to a third 
party disclosure. Information will only be released on a case-by-case 
basis to third party requesters if they have independently provided 
authorization from the individual who is the subject of the request.


Sec.  1206.301  Describing records sought.

    In view of the time limits under 5 U.S.C. 552(a)(6) for an initial 
determination on a request for an Agency record, a request must meet 
the following requirements:
    (a) The request must be addressed to an appropriate FOIA office or 
otherwise be clearly identified in the letter as a request for an 
Agency record under the ``Freedom of Information Act.''
    (b) Requesters must describe the records sought in sufficient 
detail to enable Agency personnel who are familiar with the subject 
area of the request to identify and locate the record with a reasonable 
amount of effort. To the extent possible, requesters should include 
specific information that may assist a FOIA office in identifying the 
requested records, such as the date, title or name, author, recipient, 
subject matter of the record, case number, file designation, or 
reference number. In general, requesters should include as much detail 
as possible about the specific records or the types of records sought.
    (c) If the requester fails to reasonably describe the records 
sought, the FOIA office shall inform the requester of what additional 
information is needed or why the request is deficient. The FOIA office 
will also notify the requester that it will not be able to comply with 
the FOIA request unless the additional information requested is 
provided within 20 working days from the date of the letter. If the 
additional information is not provided within that timeframe, the 
request will be closed without further notification.
    (d) If after being asked to clarify a request, the requester 
provides additional information to the FOIA office but fails to provide 
sufficient details or information to allow the FOIA office to ascertain 
exactly what records are being requested and locate them, or in general 
to process the request, the FOIA office will notify the requester that 
the request has not been properly made and the request will be closed. 
The FOIA office will advise him/her that they may submit a new request 
for the information; however, the requester will need to provide more 
detailed information to allow processing of the request.
    (e) NASA need not comply with a blanket or categorical request 
(such as ``all matters relating to'' a general subject) where it is not 
reasonably feasible to determine what record is sought.
    (f) NASA will in good faith attempt to identify and locate the 
record(s) sought and will consult with the requester when necessary and 
appropriate for that purpose in accordance with these regulations.
    (g) NASA is not required to create or compile records in response 
to a FOIA request.


Sec.  1206.302  Fee agreements.

    (a) A request must explicitly state a willingness to pay all fees 
associated with processing the request, fees up to a specified amount, 
or a request for a fee waiver, if processing fees will likely exceed 
the statutory entitlements as defined in Sec.  1206.507(b) and (c).
    (b) If the FOIA office determines that fees for processing the 
request will exceed the agreed upon amount or the statutory 
entitlements, the FOIA office will notify the requester that:
    (1) He/she must provide assurance of payment for all anticipated 
fees or provide an advance payment if estimated fees are expected to 
exceed $250.00, or
    (2) The FOIA office will not be able to fully comply with the FOIA 
request unless an assurance or advance payment as requested has been 
provided.

[[Page 46681]]

    (3) He/she may wish to limit the scope of the request to reduce the 
processing fees.
    (c) If the FOIA office does not receive a written response within 
20 working days after requesting the information, it will presume the 
requester is no longer interested in the records requested and will 
close the file on the request without further notification.
    (d) A commercial-use requester (as defined inSec.  1206.507(c)(1)) 
must:
    (1) State a willingness to pay all fess associated with processing 
a request; or
    (2) State a willingness to pay fees to cover the costs of 
conducting an initial search for responsive records to determine a fee 
estimate.
    (e) If a requester is only willing to pay a limited amount for 
processing a request and it is for more than one document, the 
requester must state the order in which he/she would like the request 
for records to be processed.
    (f) If a requester is seeking a fee waiver, the request must 
include sufficient justification to substantiate a waiver. (See subpart 
E of this part for information on fee waivers.) Failure to provide 
sufficient justification will result in a denial of the fee waiver 
request.
    (g) If a requester is seeking a fee waiver, he/she may also choose 
to state a willingness to pay fees in case the fee waiver request is 
denied in order to allow the FOIA office to begin processing the 
request while considering the fee waiver.
    (h) If a fee is chargeable for search, review, duplication, or 
other costs incurred in connection with a request for an Agency record, 
the requester will be billed prior to releasing Agency documents. If 
the total amount of processing fees is under $50.00, the Agency will 
release the records when final processing is complete.
    (1) If the exact amount of the fee chargeable is not known at the 
time of the request, the requester will be notified in the initial 
determination (or in a final determination in the case of an appeal) of 
the amount of fees chargeable.
    (2) For circumstances in which advance payment of fees is required, 
the requester will be notified after the FOIA office has obtained an 
estimate of associated fees.
    (i) The FOIA office will begin processing a request only after the 
request has been properly described in accordance with these 
regulations and fees have been resolved.
    (j) If the requester is required to pay a fee and it is later 
determined on appeal that he/she was entitled to a full or partial fee 
waiver, a refund will be sent as appropriate.
    (k) NASA may refuse to consider a waiver or reduction of fees for 
requesters (persons or organizations) from whom unpaid fees remain owed 
to the Agency for another information access request.


Sec.  1206.303  Format of records disclosed.

    (a) The FOIA office will provide the records in the requested 
format if the records can readily be reproduced from the original file 
to that specific format.
    (b) The FOIA office may charge direct costs associated with 
converting the records or files into the requested format if they are 
not maintained in that format. If the costs to convert the records 
exceed the amount the requester has agreed to pay, the FOIA office will 
notify the requester in writing. If the requester does not agree to pay 
the additional fees for converting the records, the records may not be 
provided in the requested format.


Sec.  1206.304  Expedited processing.

    A requester may ask for expedited processing of a request. However, 
information to substantiate the request must be included in accordance 
with Sec.  1206.400, Criteria for Expedited Processing; otherwise, the 
request for expedited processing will be denied and processed in the 
simple or complex queue.


Sec.  1206.305  Responding to requests.

    (a) Except in the instances described in paragraphs (e) and (f) of 
this section, the FOIA office that first receives a request for a 
record and maintains that record is the FOIA office responsible for 
responding to the request.
    (b) In determining what records are responsive to a request, a FOIA 
office ordinarily will include only records in its possession as of the 
date that it begins its search. If any other date is used, the FOIA 
office shall inform the requester of that date.
    (c) A record that is excluded from the requirements of the FOIA 
pursuant to 5 U.S.C. 552(c)(1)-(3), shall not be considered responsive 
to a request.
    (d) The Head of a Center, or designee, is authorized to grant or to 
deny any requests for records that are maintained by that Center.
    (e) The FOIA office may refer a request to or consult with another 
Center FOIA office or Federal agency in accordance with Sec.  1206.308, 
if the FOIA office receives a request for records that are in its 
possession that were not created at that Center. If another Center 
within NASA or another Federal agency has substantial interest in or 
created the records, the request will either be referred or they will 
consult with that FOIA office/agency.
    (f) If a request for an Agency record is received by a FOIA office 
not having responsibility of the record (for example, when a request is 
submitted to one NASA Center or Headquarters and another NASA Center 
has responsibility of the record), the FOIA office receiving the 
request shall promptly forward it to that FOIA office within 10 working 
days from the date of receipt. The receiving FOIA office shall 
acknowledge the request and provide the requester with a tracking 
number.


Sec.  1206.306  Granting a request.

    (a) The FOIA office will not begin processing a request until all 
issues regarding scope and fees have been resolved.
    (b) If fees are not expected to exceed the minimum threshold of 
$50.00, and the scope of the request is in accordance with Sec.  
1206.301, the FOIA office will begin processing the request.
    (c) If the FOIA office contacts the requester regarding fees or 
clarification and the requester has provided a response, the FOIA 
office will notify the requester in writing of the decision to either 
grant or deny the request.


Sec.  1206.307  Denying a request.

    (a) If the FOIA office denies records in response to a request 
either in full or in part, it will advise the requester in writing 
that:
    (1) The requested record(s) is exempt in full or in part; or
    (2) Records do not exist, cannot be located, or are not in the 
Agency's possession; or
    (3) A record is not readily reproducible in the form or format 
requested; or
    (4) Denial is based on a procedural issue only and not access to 
the underlying records when it makes a decision that:
    (i) A fee waiver or another fee-related issue will not be granted; 
or
    (ii) Expedited processing will not be provided.
    (b) The denial notification must include:
    (1) The name, title, or position of the person(s) responsible for 
the denial;
    (2) A brief statement of the reasons for the denial, including a 
reference to any FOIA exemption(s) applied by the FOIA office to 
withhold records in full or in part;
    (3) An estimate of the volume of any records or information 
withheld, i.e., the number of pages or a reasonable form of estimation, 
unless such an estimate would harm an interest

[[Page 46682]]

protected by the exemption(s) used to withhold the records or 
information;
    (4) A statement that the denial may be appealed under Subpart G of 
this part and a description of the requirements set forth therein.
    (c) If the requested records contain both exempt and non-exempt 
material, the FOIA office will:
    (1) Segregate and release the non-exempt material unless the non-
exempt material is so intertwined with the exempt material that 
disclosure of it would leave only meaningless words and phrases;
    (2) Indicate on the released portion(s) of the records the amount 
of information redacted and the FOIA exemption(s) under which the 
redaction was made, unless doing so would harm an interest protected by 
the FOIA exemption used to withhold the information; and
    (3) If technically feasible, place the exemption at the place of 
excision.


Sec.  1206.308  Referrals and consultations within NASA or other 
Federal Agencies.

    (a) Referrals and consultations can occur within the Agency or 
outside the Agency.
    (b) If a FOIA office (other than the Office of Inspector General) 
receives a request for records in its possession that another NASA FOIA 
office has responsibility over or is substantially concerned with, it 
will either:
    (1) Consult with the other FOIA office before deciding whether to 
release or withhold the records; or
    (2) Refer the request, along with the records, to that FOIA office 
for direct response.
    (c) If the FOIA office that originally received the request refers 
all or part of the request to another FOIA office within the Agency for 
further processing, they will notify the requester of the partial 
referral and provide that FOIA contact information.
    (d) If while responding to a request, the FOIA office locates 
records that originated with another Federal agency, it will generally 
refer the request and any responsive records to that other agency for a 
release determination and direct response.
    (e) If the FOIA office refers all the records to another agency, it 
will document the referral and maintain a copy of the records that it 
refers; notify the requester of the referral in writing, unless that 
identification will itself disclose a sensitive, exempt fact; and will 
provide the contact information for the other agency and if known, the 
name of a contact at the other agency.
    (f) If the FOIA office locates records that originated with another 
Federal agency while responding to a request, the office will make the 
release determination itself (after consulting with the originating 
agency) when:
    (1) The record is of primary interest to NASA (for example, a 
record may be of primary interest to NASA if it was developed or 
prepared according to Agency regulations or directives, or in response 
to an Agency request); or
    (2) NASA is in a better position than the originating agency to 
assess whether the record is exempt from disclosure; or
    (3) The originating agency is not subject to the FOIA; or
    (4) It is more efficient or practical depending on the 
circumstances.
    (g) If the FOIA office receives a request for records that another 
Federal agency has classified under any applicable executive order 
concerning record classification, it must refer the request to that 
agency for response.
    (h) If the FOIA office receives a request for records that are 
under the purview of another Federal agency, the office will return the 
request to the requester and may advise the requester to submit it 
directly to another agency. The FOIA office will then close the 
request.
    (i) All consultations and referrals received by the Agency will be 
handled according to the date that the FOIA request initially was 
received by the first FOIA office.

Subpart D--Procedures and Time Limits for Responding to Requests


Sec.  1206.400  Procedures for processing queues and expedited 
processing.

    (a) The FOIA office will normally process requests in the order in 
which they are received in each of the processing tracks.
    (b) FOIA offices use three queues for multi-track processing 
depending on the complexity of the request. Once it has been determined 
the request meets the criteria in accordance with subpart C of this 
part, the FOIA office will place the request in one of the following 
tracks:
    (1) Simple--A request that can be processed within 20 working days.
    (2) Complex--A request that will take over 20 working days to 
process. (A complex request will generally require coordination with 
more than one office and a legal 10 working day extension for unusual 
circumstances (see Sec.  1206.403) may be taken either up front or 
during the first 20 days of processing the request.)
    (3) Expedited processing--A request for expedited processing will 
be processed in this track if the requester can show exceptional need 
or urgency that their request should be processed out of turn in 
accordance with paragraph (c) of this section.
    (c) Requests and appeals will be processed on an expedited basis 
whenever it is determined that they involve one or more of the 
following:
    (1) Circumstances in which the lack of expedited treatment could 
reasonably be expected to pose an imminent threat to the life or 
physical safety of an individual;
    (2) Circumstances in which there is an urgency to inform the public 
about an actual or alleged Federal Government activity if the FOIA 
request is made by a person primarily engaged in disseminating 
information;
    (i) In most situations, a person primarily engaged in disseminating 
information will be a representative of the news media and therefore, 
will qualify as a person primarily engaged in disseminating 
information.
    (ii) To substantiate paragraph (c)(2) of this section, the 
requested information must be the type of information which has 
particular value that will be lost if not disseminated quickly; this 
ordinarily refers to a breaking news story of general public interest. 
Information of historical interest only or information sought for 
litigation or commercial activities would not qualify, nor would a news 
media deadline unrelated to breaking news; or
    (3) The loss of substantial due process rights.
    (d) A request for expedited processing must contain a statement 
that:
    (1) Explains in detail how the request meets one or more of the 
criteria in paragraph (c) of this section; and
    (2) Certifies that the explanation is true and correct to the best 
of the requester's knowledge and belief.
    (3) If the request is made referencing paragraph (c)(2) of this 
section, the requester must substantiate the public interest.
    (e) A request for expedited processing may be made at any time. 
Requests must be submitted to the FOIA office responsible for 
processing the requested records.
    (f) The FOIA office must notify the requester of its decision to 
grant or deny expedited processing within 10 calendar days from the 
date of receipt.
    (g) If expedited processing is granted, the request will be 
processed on a first-in, first-out basis in that queue.
    (h) If expedited processing is denied, the FOIA office will notify 
the requester and provide information on appealing this decision in 
accordance with Subpart G of this part and place the request in the 
appropriate processing queue.
    (i) If the FOIA office processing the request does not provide 
notification of either granting or denying the request

[[Page 46683]]

for expedited processing within 10 calendar days from the date of 
receipt, the requester may file an appeal for non-response in 
accordance with subpart G of this part.


Sec.  1206.401  Procedures and time limits for acknowledgement letters 
and initial determinations.

    (a) Following receipt of a request submitted under the FOIA, the 
FOIA staff will send an acknowledgement letter providing the case 
tracking number and processing track within ten (10) working days from 
date of receipt to the requester.
    (b) An initial determination is a decision by a NASA official, in 
response to a request by a member of the public for an Agency record, 
on whether the record described in the request can be identified and 
located after a reasonable search and, if so, whether the record (or 
portions thereof) will be made available under this part or will be 
withheld from disclosure under the FOIA.
    (c) An initial determination on a request for an Agency record 
addressed in accordance with this regulation (to include one submitted 
in person at a FOIA office) shall be made (for example, to grant, 
partially grant or deny a request), and the requester shall be sent an 
initial determination letter within 20 working days after receipt of 
the request, as required by 5 U.S.C. 552(a)(6) (unless unusual 
circumstances exist as defined in Sec.  1206.403).
    (d) The basic time limit for a misdirected FOIA request (not a 
referral or consultation) begins on the date on which the request is 
first received by the appropriate FOIA office within the Agency, but in 
any event no later than ten (10) working days after the date the 
request is first received by a FOIA office designated to receive FOIA 
requests.
    (e) Any notification of an initial determination that does not 
comply fully with the request for an Agency record, including those 
searches that produce no responsive documents, shall include a 
statement of the reasons for the adverse determination, include the 
name and title of the person making the initial determination, and 
notify the requester of the right to appeal to the Administrator or the 
Inspector General, as appropriate, pursuant to subpart G of this part.


Sec.  1206.402  Suspending the basic time limit.

    (a) In accordance with 5 U.S.C. 552(a)(6)(A)(ii)(I), the FOIA 
office may make one request to the requester for information to clarify 
a request and temporarily suspend (toll) the time (the 20-day period) 
while it is awaiting such information that it has reasonably requested 
from the requester. Receipt of the requester's response by the FOIA 
office to the Agency's request for additional information or 
clarification ends the temporary time suspension.
    (b) In accordance with 5 U.S.C. 552(a)(6)(A)(ii)(II), the FOIA 
office may temporarily suspend (toll) the 20-day period as many times 
as is necessary to clarify with the requester issues regarding fees. 
Receipt of the requester's response by the FOIA office to the Agency's 
request for information regarding fees ends the temporary time 
suspension.


Sec.  1206.403  Time extensions.

    (a) In ``unusual circumstances'' as defined in this section, the 
time limits for an initial determination and for a final determination 
may be extended, but not to exceed a total of 10 working days in the 
aggregate in the processing of any specific request for an Agency 
record. The extension must be taken before the expiration of the 20 
working day time limits. The requester will be notified in writing of:
    (1) The unusual circumstances surrounding the extension of the time 
limit;
    (2) The date by which the FOIA office expects to complete the 
processing of the request.
    (b) Unusual circumstances are defined as:
    (1) The need to search for and collect the requested records from 
offices other than the office processing the request;
    (2) The need to search for, collect, and appropriately examine a 
voluminous number of documents;
    (3) The need to coordinate and/or consult with another NASA office 
or agency having a substantial subject-matter interest in the 
determination of the request.
    (c) If initial processing time will exceed or is expected to exceed 
30 working days, the FOIA office will notify the requester of the delay 
in processing and:
    (1) Provide an opportunity to modify or limit the scope of the 
request to reduce processing time; and
    (2) Provide appeal rights, since the FOIA office has exceeded the 
30 working day time period.
    (3) Shall make available its designated FOIA contact and its FOIA 
Public Liaison for this purpose.
    (d) The requester's refusal to reasonably modify the scope of a 
request or arrange an alternative timeframe for processing a request 
after being given the opportunity to do so may be considered a factor 
when determining whether exceptional circumstances exist. A delay that 
results from a predictable workload of requests does not constitute 
exceptional circumstances unless the Agency demonstrates reasonable 
progress in reducing its backlog of pending requests.

Subpart E--Fees Associated With Processing Requests


Sec.  1206.500  Search.

    (a) Search includes all time spent looking for material that is 
responsive to a request, including page-by-page or line-by-line 
identification of material within documents. A search will determine 
what specific documents, if any, are responsive to a request. A search 
for Agency records responsive to a request may be accomplished by 
manual or automated means.
    (b) Search charges, as set forth in this part, may be billed even 
when an Agency record, which has been requested, cannot be identified 
or located after a diligent search and consultation with a professional 
NASA employee familiar with the subject area of the request has been 
conducted or if located, cannot be made available under Sec.  1206.308.
    (c) In responding to FOIA requests, FOIA offices shall charge the 
following fees based on the date the request is received in the NASA 
FOIA Office unless a waiver or reduction of fees has been granted under 
Sec.  1206.506. Fees will be determined on October 1st of each year 
based on the appropriate General Schedule (GS) base salary, plus the 
District of Columbia locality payment, plus 16 percent for benefits of 
employees. Fees such as search, review, and duplication will be charged 
in accordance with the requester's fee category as defined in Sec.  
1206.507.
    (d) For each quarter hour spent by personnel searching for 
requested records, including electronic searches that do not require 
new programming, the fees will be the average hourly GS-base salary, 
plus the District of Columbia locality payment, plus 16 percent for 
benefits of employees in the following three categories, as applicable:
    (1) Clerical--Based on a GS-6, Step 5 (all employees at a GS-7 and 
below are classified as clerical for this purpose).
    (2) Professional--Based on a GS-11, Step 7 pay (all employees at a 
GS-8 through GS-12 are classified as professional for this purpose);
    (3) Managerial--Based on GS-14, Step 2, pay (all employees at a GS-
13 and above are classified as managerial for this purpose).
    (e) Requesters will be charged the direct costs associated with 
conducting

[[Page 46684]]

any search that requires the creation of a new program to locate the 
requested records.
    (f) For requests that require the retrieval of records stored by an 
agency at a Federal records center operated by the NARA, additional 
costs shall be charged in accordance with the Transactional Billing 
Rate Schedule established by NARA.


Sec.  1206.501  Review.

    (a) Review means the process of examining a document(s) located in 
response to a request to determine whether the document(s) or any 
portion thereof is disclosable. Review does not include time spent 
resolving general legal or policy issues regarding the application of 
exemptions.
    (b) Review fees will be assessed in connection with the initial 
review of the record, i.e., the review conducted by Agency staff to 
determine whether an exemption applies to a particular record or 
portion of a record.
    (c) Review fees will be charged to commercial use requesters.
    (d) No charge will be made for review at the administrative appeal 
stage of exemptions applied at the initial review stage. However, when 
the appellate authority determines that a particular exemption no 
longer applies, any costs associated with an additional review of the 
records in order to consider the use of other exemptions may be 
assessed as review fees.
    (e) Review fees will be charged at the same rates as those charged 
for a search under Sec.  1206.500.
    (f) Review fees can be charged even if the record(s) reviewed 
ultimately is not disclosed.
    (g) Review fees will not include costs incurred in resolving issues 
of law or policy that may be raised in the course of processing a 
request under this section.


Sec.  1206.502  Duplication.

    (a) Duplication is reproducing a copy of a record or of the 
information contained in it, necessary to respond to a FOIA request. 
Copies can take the form of paper, audiovisual materials, or electronic 
records, among others.
    (b) FOIA offices shall honor a requester's preference for receiving 
a record in a particular form or format where it is readily 
reproducible by the FOIA office in the form or format requested. If the 
records are not readily reproducible in the requested form or format, 
the Agency will so inform the requester. The requester may specify an 
alternative form or format that is available. If in this situation the 
requester refuses to specify an alternative form or format, the Agency 
will not process the request any further.
    (c) Where standard-sized photocopies or scans are supplied, the 
FOIA office will provide one copy per request at the regular copy rate 
per page.
    (d) For copies of records produced on tapes, disks, or other 
electronic media, FOIA offices will charge the direct costs of 
producing the copy, including the time spent by personnel duplicating 
the requested records. For each quarter hour spent by personnel 
duplicating the requested records, the fees will be the same as those 
charged for a search under this subpart.
    (e) If NASA staff must scan paper documents in order to accommodate 
a requester's preference to receive the records in an electronic 
format, the requester shall pay the appropriate copy fee charge per 
page as well as each quarter hour spent by personnel scanning the 
requested records. Fees will be the same as those charged for search 
under this subpart for each quarter hour spent by personnel scanning 
the requested records.
    (f) For other forms of duplication, FOIA offices will charge the 
direct costs as well as any associated personnel costs. For standard-
sized copies of documents such as letters, memoranda, statements, 
reports, contracts, etc., $0.15 per copy of each page; charges for 
double-sided copies will be $0.30. For copies of oversized documents, 
such as maps, charts, etc., fees will be assessed as direct costs. 
Charges for copies (and scanning) include the time spent in duplicating 
the documents. For copies of computer disks, still photographs, 
blueprints, videotapes, engineering drawings, hard copies of aperture 
cards, etc., the fee charged will reflect the direct cost to NASA of 
reproducing, copying, or scanning the record.
    (g) If the request for an Agency record required to be made 
available under this part requires a computerized search or printout, 
the charge for the time of personnel involved shall be at the rates 
specified in this part or the direct costs assessed to the Agency. The 
charge for computer time involved and for any special supplies or 
materials used shall not exceed the direct cost to NASA.
    (h) Reasonable standard fees may be charged for additional direct 
costs incurred in searching for or duplicating an Agency record in 
response to a request under this part. Charges made under this 
paragraph include, but are not limited to, the transportation of NASA 
personnel to places of record storage for search purposes or freight 
charges for transporting records to the personnel searching for or 
duplicating a requested record.
    (i) Complying with requests for special services such as those 
listed in this section is entirely at the discretion of NASA. To the 
extent that NASA elects to provide the following services, it will levy 
a charge equivalent to the full cost of the service provided:
    (1) Certifying that records are true copies.
    (2) Sending records by special methods such as express mail.
    (3) Packaging and mailing bulky records that will not fit into the 
largest envelope carried in the supply inventory.


Sec.  1206.503  Restrictions on charging fees.

    (a) No search fees will be charged when the FOIA office fails to 
comply with the statutory time limits in response to a request if no 
unusual or exceptional circumstances apply to the processing of the 
request, as those terms are defined in Subpart D of this regulation.
    (b) In the case of a requester as defined in Sec.  1206.507(c)(2) 
(education and noncommercial scientific institution) and (c)(3) 
(representative of the news media), no duplication fees will be charged 
when the FOIA office fails to comply with the statutory time limits in 
response to a request if no unusual or exceptional circumstances apply 
to the processing of the request, as those terms are defined in subpart 
D of this part.
    (c) Fees will not be charged unless they are over $50.00.
    (d) No search or review fees will be charged for a quarter-hour 
period unless more than half of that period is required to fulfill 
processing of the request.


Sec.  1206.504  Charging fees.

    (a) When a FOIA office determines or estimates the fees to be 
assessed in accordance with this section will exceed $50.00, the FOIA 
office shall notify the requester unless the requester has indicated a 
willingness to pay fees as high as those anticipated. If a portion of 
the fees can be readily estimated, the FOIA office shall advise the 
requester accordingly.
    (b) In cases in which a requester has been notified that actual or 
estimated fees are in excess of $50.00, the request shall be placed on 
hold and further work will not be completed until the requester commits 
in writing to pay the actual or estimated fees. Such a commitment must 
be made by the requester in writing, must indicate a given dollar 
amount or a willingness to pay all processing fees, and must be 
received by the FOIA office within 20 working days from the date of the 
letter providing notification of the fee

[[Page 46685]]

estimate. If a commitment is not received within this period, the 
request shall be closed without further notification.
    (c) After the FOIA office begins processing a request, if it finds 
that the actual cost will exceed the amount the requester previously 
agreed to pay, the FOIA office will: Stop processing the request; and 
promptly notify the requester of the higher amount. The request will be 
placed on hold until the fee issue has been resolved. If the issue is 
not resolved within 20 working days from the date of the notification 
letter, the request shall be closed without further notification.
    (d) Direct costs, meaning those expenditures that NASA actually 
incurs in searching for, duplicating, and downloading computer files 
and documents in response to a FOIA request, will be included on the 
invoice as appropriate. Direct costs include, for example, the salary 
of the employee who would ordinarily perform the work (the basic rate 
of pay for the employee plus 16 percent of that rate to cover 
benefits), the cost of operating computers and other electronic 
equipment, such as photocopiers and scanners, the costs associated with 
retrieving records stored at a Federal records center operated by the 
NARA, as well as costs for CDs and other media tools.
    (e) NASA may charge interest on any unpaid bill starting on the 
31st day following the date of billing the requester. Interest charges 
will be assessed at the rate provided in 31 U.S.C. 3717 and will accrue 
from the billing date until payment is received by the FOIA office. 
NASA will follow the provisions of the Debt Collection Act of 1982 
(Pub. L. 97-365, 96 Stat. 1749), as amended, and its administrative 
procedures, including the use of consumer reporting agencies, 
collection agencies, and offset.
    (f) If processing fees are less than $50.00, NASA will send all 
releaseable documents (or portions thereof) following the completion of 
the initial determination. If fees are greater than $50.00, the 
documents will not be released until the invoice has been paid and 
verified by the FOIA office.
    (g) Final billing will be sent when the initial determination has 
been completed. At that time the case will be closed.


Sec.  1206.505  Advance payments.

    (a) For requests other than those described in paragraphs (b), (c), 
and (f) of this section, a FOIA office shall not require the requester 
to make an advance payment before work is commenced or continued on a 
request. Payment owed for work already completed (i.e., payment for 
search, review and/or before records are released to a requester) is 
not an advance payment.
    (b) When a FOIA office determines or estimates that a total fee to 
be charged under this section will exceed $250.00, it may require that 
the requester make an advance payment up to the amount of the entire 
anticipated fee before beginning to process the request. A FOIA office 
may elect to process the request prior to collecting fees when it 
receives a satisfactory assurance of full payment from a requester.
    (c) Where a requester has previously failed to pay a properly 
charged FOIA fee assessed by any FOIA office in the agency within 30 
calendar days of the billing date, a FOIA office may require the 
requester to pay the full amount due, plus any applicable interest due 
on the outstanding debt, before the FOIA office begins to process a new 
request or continues to process a pending request or any pending remand 
of an appeal. Once the outstanding bill has been paid, the FOIA office 
may also require the requester to make an advance payment of the full 
amount of any anticipated fee before processing the new request.
    (d) Where a FOIA office has a reasonable basis to believe that a 
requester has misrepresented his or her identity in order to avoid 
paying outstanding fees, it may require that the requester provide 
further proof of identity.
    (e) In cases in which a FOIA office requires advance payment, the 
request shall be placed on hold and further work will not be completed 
until the required payment is received. If the requester does not pay 
the advance payment within 20 working days after the date of the FOIA 
office's letter, the request will be closed without further 
notification.
    (f) When advance payment is required in order to initiate 
processing, after a fee estimate has been determined, the FOIA office 
will require payment before continuing to process the request.
    (g) The fee schedule of this section does not apply to fees charged 
under any statute that specifically requires an agency to set and 
collect fees for particular types of records. In instances where 
records responsive to a request are subject to a statutorily-based fee 
schedule program, the FOIA office will inform the requester of the 
contact information for that source.


Sec.  1206.506  Requirements for a waiver or reduction of fees.

    (a) The burden is on the requester to justify an entitlement to a 
fee waiver. (See Sec.  1206.507 for a discussion on fee categories.)
    (b) Requests for a waiver or reduction of fees shall be considered 
on a case-by-case basis using the criteria in this section. These 
statutory requirements must be satisfied by the requester before 
properly assessable fees are waived or reduced under the statutory 
standard.
    (c) Records shall be furnished without charge or at a reduced rate 
if the requester has demonstrated, based on all available information, 
that disclosure of the information is in the public interest because 
it:
    (1) Is likely to contribute significantly to public understanding 
of the operations or activities of the Government; and
    (2) Is not primarily in the commercial interest of the requester.
    (d) In deciding whether a request for a fee waiver meets the 
requirements in Sec.  1206.506(c)(1), the FOIA office will use the 
following factors, which must be addressed by the requester:
    (1) Does the subject of the request specifically concern 
identifiable operations or activities of the Agency with a connection 
that is direct and clear, not remote or attenuated? For example, is the 
information requested clearly associated to current events?
    (2) If the record(s) concern the operations or activities of the 
Government, is disclosure likely to contribute to an increased public 
understanding of those operations or activities? For example, are the 
disclosable contents of the record(s) meaningfully informative in 
relation to the subject matter of the request?
    (3) Is the focus of the requester on contributing to public 
understanding, rather than on the individual understanding of the 
requester or a narrow segment of interested persons? The requester must 
demonstrate how he/she plans to disseminate the information. The 
dissemination of information must be to the general public or a 
reasonably broad audience. (Dissemination to a wide audience is not 
merely posting the documents on a Web site, but using his/her editorial 
skills to turn raw materials into a distinct work.)
    (4) If there is likely to be a contribution to public 
understanding, will that contribution be significant? A contribution to 
public understanding will be significant if the information disclosed 
is new, clearly supports public oversight of Agency operations, 
including the quality of Agency

[[Page 46686]]

activities and the effect of policy and regulations on public health 
and safety, or otherwise confirms or clarifies data on past or present 
operations of the Agency.
    (e) In deciding whether the fee waiver meets the requirements in 
Sec.  1206.506(c)(2), the FOIA office will consider any commercial 
interest of the requester that would be furthered by the requested 
disclosure.
    (1) Requesters are encouraged to provide explanatory information 
regarding this consideration.
    (2) A waiver or reduction of fees is justified where the public 
interest is greater than any identified commercial interest in 
disclosure.
    (3) If the requester is a representative of a news media 
organization seeking information as part of a news gathering process, 
the FOIA office will presume that the public interest outweighs the 
requester's commercial interest.
    (4) If the requester represents a business, corporation, or is an 
attorney representing such an organization, the FOIA office will 
presume that the commercial interest outweighs the public interest 
unless otherwise demonstrated.
    (f) Where only some of the records to be released satisfy the 
requirements for a waiver of fees, a partial waiver shall be granted 
for those records.
    (g) Requests for a waiver or reduction of fees should be made when 
the request is first submitted to the Agency and should address the 
criteria referenced above. A requester may submit a fee waiver request 
at a later time so long as the underlying record request is pending or 
on administrative appeal.
    (h) When a requester who has committed to pay fees subsequently 
asks for a waiver of those fees and that waiver is denied, the 
requester will be required to pay any costs incurred up to the date the 
fee waiver request was received by the office processing the original 
request.
    (i) When deciding whether to waive or reduce fees, the FOIA office 
will rely on the fee waiver justification submitted in the request 
letter. If the request letter does not include sufficient 
justification, the FOIA office will either deny the fee waiver request 
or at its discretion, ask for additional justification from the 
requester.
    (j) FOIA offices may make available their FOIA Public Liaison or 
other FOIA professional to assist any requester in reformulating a 
request in an effort to reduce fees; however, the FOIA staff may not 
assist a requester in composing a request, advising what specific 
records to request, or how to write a request to qualify for a fee 
waiver.


Sec.  1206.507  Categories of requesters.

    (a) A request should indicate the fee category. If the requester 
does not indicate a fee category, or it is unclear to the FOIA office, 
the FOIA office will make a determination of the fee category based on 
the request. If the requester does not agree with their determination, 
he/she will be afforded the opportunity to provide information to 
support a different fee category.
    (b) If the request is submitted on behalf of another person or 
organization (e.g., if an attorney is submitting a request on behalf of 
a client), the fee category will be determined by considering the 
underlying requester's identity and intended use of the information. 
The following table outlines the basic fee categories and applicable 
fees:

----------------------------------------------------------------------------------------------------------------
         Requester category                  Search fees              Review fees            Duplication fees
----------------------------------------------------------------------------------------------------------------
Commercial use requester............  Yes.....................  Yes....................  Yes.
Educational and non-commercial        No......................  No.....................  Yes (first 100 pages,
 scientific institutions.                                                                 or equivalent volume,
                                                                                          without charge).
Representative of news media          No......................  No.....................  Yes (first 100 pages,
 requester.                                                                               or equivalent volume,
                                                                                          without charge).
All other requesters................  Yes (first 2 hours        No.....................  Yes (first 100 pages,
                                       without charge).                                   or equivalent volume,
                                                                                          without charge).
----------------------------------------------------------------------------------------------------------------

    (c) The FOIA provides for three categories of requesters. However, 
for clarity purposes, NASA has broken them down to four for the 
purposes of determining fees. These four categories of FOIA requesters 
are: Commercial use requesters; educational and noncommercial 
scientific institutions; representatives of the news media; and all 
other requesters. The Act prescribes specific levels of fees for each 
of these categories, which is indicated in the FOIA fee table above.
    (1) Commercial use requesters. When NASA receives a request for 
documents appearing to be for commercial use, meaning a request from or 
on behalf of one whom seeks information for a use or purpose that 
furthers the commercial, trade, or profit interests of either the 
requester or the person on whose behalf the request is made, it will 
assess charges to recover the full direct costs of searching for, 
reviewing for release, and duplicating the records sought. NASA will 
not consider a commercial-use request for a waiver or reduction of fees 
based upon an assertion that disclosure would be in the public 
interest. A request from a corporation (not a news media corporation) 
may be presumed to be for commercial use unless the requester 
demonstrates that it qualifies for a different fee category. Commercial 
use requesters are not entitled to two (2) hours of search time or to 
100 pages of duplication of documents without charge.
    (2) Education and non-commercial scientific institution requesters. 
(i) To be eligible for inclusion in this category, requesters must show 
that the request being made is authorized by and under the auspices of 
a qualifying institution and that the records are not being sought for 
a commercial use (not operated for commerce, trade or profit), but are 
being sought in furtherance of scholarly (if the request is from an 
educational institution) or scientific (if the request is from a 
noncommercial scientific institution) research. A request for 
educational purposes must be sent on the Institution's letterhead and 
signed by the Dean of the School or Department. Records requested for 
the intention of fulfilling credit requirements are not considered to 
be sought for a scholarly purpose.
    (ii) For the purposes of a non-commercial scientific institution, 
it must be solely for the purpose of conducting scientific research, 
the results of which are not intended to promote any particular product 
or industry. Requests must be sent on the letterhead of the scientific 
institution and signed by the responsible official in charge of the 
project/program associated with the subject of the documents that are 
being requested.
    (3) Representative of the news media. (i) NASA shall provide 
documents to requesters in this category for the cost of duplication 
alone, excluding charges for the first 100 pages when the requester 
demonstrates the following:

[[Page 46687]]

    (A) The requester's intended dissemination,
    (B) Whether the information is current news and/or of public 
interest, and
    (C) Whether the information sought will shed new light on agency 
statutory operations.
    (ii) A representative of the news media is any person or entity 
organized and operated to publish or broadcast news to the public that 
actively gathers information of potential interest to a segment of the 
public, uses its editorial skills to turn the raw materials into a 
distinct work, and distributes that work to an audience. Examples of 
news media entities include television or radio stations that broadcast 
``news'' to the public at large and publishers of periodicals that 
disseminate ``news'' and make their products available through a 
variety of means to the general public. A request for records that 
supports the news-dissemination function of the requester shall not be 
considered to be for a commercial use. ``Freelance'' journalists who 
demonstrate a solid basis for expecting publication through a news 
media entity shall be considered as working for that entity. A 
publishing contract would provide the clearest evidence that 
publication is expected; however, NASA shall also consider a 
requester's past publication record in making this determination. 
NASA's decision to grant a requester news media status for the purposes 
of assessing fees will be made on a case-by-case basis based upon the 
requesters intended use.
    (iii) Requesters seeking this fee category who do not articulate 
sufficient information to support their request will not be included in 
this fee category. Additionally, FOIA staff may grant a partial fee 
waiver if the requester can articulate the information above for some 
of the documents.
    (4) All other requesters. NASA shall charge requesters who do not 
fit into any of the categories mentioned in this section fees in 
accordance with the fee table above.


Sec.  1206.508  Aggregation of requests.

    (a) A requester may not file multiple requests at the same time, 
each seeking portions of a document or documents, solely in order to 
avoid payment of fees.
    (b) When NASA has reason to believe that a requester or a group of 
requesters acting in concert is attempting to divide a request into a 
series of requests on a single subject or related subjects for the 
purpose of avoiding the assessment of fees, NASA will aggregate any 
such requests and charge accordingly.
    (c) NASA will consider that multiple requests made within a 30-day 
period were so intended submitted as such to avoid fees, unless there 
is evidence to the contrary.
    (d) NASA will aggregate requests separated by a longer period of 
time only when there is a reasonable basis for determining that 
aggregation is warranted in view of all the circumstances involved.
    (e) NASA will not aggregate multiple requests on unrelated subjects 
from one requester or organization.


Sec.  1206.509  Form of payment.

    Payment shall be made by check or money order payable to the 
``Treasury of the United States,'' or by credit card per instructions 
in the initial determination or billing invoice and sent to NASA.


Sec.  1206.510  Nonpayment of fees.

    (a) Requesters are advised that should they fail to pay the fees 
assessed, they may be charged interest on the amount billed starting on 
the 31st day following the day on which the billing was sent. Interest 
will be at the rate prescribed in 31 U.S.C. 3717.
    (b) Applicability of Debt Collection Act of 1982 (Pub. L. 97-365). 
Requesters are advised that if full payment is not received within 60 
days after the billing was sent, the procedures of the Debt Collection 
Act may be invoked (14 CFR 1261.407-1261.409). These procedures include 
three written demand letters at not more than 30-day intervals, 
disclosure to a consumer reporting agency, and the use of a collection 
agency, where appropriate.


Sec.  1206.511  Other rights and services.

    Nothing in this subpart shall be construed to entitle any person to 
any service or to the disclosure of any record that is not required 
under the FOIA.

Subpart F--Commercial Information


Sec.  1206.600  General policy.

    (a) Notice shall be given to a submitter whenever the information 
requested is commercial information and has been designated by the 
submitter as information deemed protected from disclosure under 
Exemption 4 of the Act, or the Agency otherwise has reason to believe 
that the information may be protected from disclosure under Exemption 
4. For the purpose of applying the notice requirements, commercial 
information is information provided by a submitter and in the 
possession of NASA, that may arguably be exempt from disclosure under 
the provisions of Exemption 4 of the FOIA (5 U.S.C. 552(b)(4)). The 
meaning ascribed to this term for the purpose of this notice 
requirement is separate and should not be confused with use of this or 
similar terms in determining whether information satisfies one of the 
elements of Exemption 4.
    (b) A submitter is a person or entity outside the Federal 
Government from whom the Agency directly or indirectly obtains 
commercial or financial information. The term submitter includes, but 
is not limited to corporations, state governments, individuals, and 
foreign governments.
    (c) The notice requirements of Sec.  1206.601 will not apply if:
    (1) The information has been lawfully published or officially made 
available to the public; or
    (2) Disclosure of the information is required by a statute (other 
than this part); or
    (3) The submitter has received notice of a previous FOIA request 
which encompassed information requested in the later request, and the 
Agency intends to withhold and/or release information in the same 
manner as in the previous FOIA request.
    (d) An additional limited exception to the notice requirements of 
Sec.  1206.601, to be used only when all of the following exceptional 
circumstances are found to be present, authorizes the Agency to 
withhold information that is the subject of a FOIA request, based on 
Exemption 4 (5 U.S.C. 552(b)(4)), without providing the submitter 
individual notice when:
    (1) The Agency would be required to provide notice to over ten (10) 
submitters, in which case, notification may be accomplished by posting 
or publishing the notice in a place reasonably calculated to accomplish 
notification.
    (2) Absent any response to the published notice, the Agency 
determines that if it provided notice as is otherwise required by Sec.  
1206.601, it is reasonable to assume that the submitter would object to 
disclosure of the information based on Exemption 4; and,
    (3) If the submitter expressed the anticipated objections, the 
Agency would uphold those objections.
    (e) The exception shall be used only with the approval of the Chief 
Counsel of the Center, the Counsel to the Inspector General, or the 
Associate General Counsel responsible for providing advice on the 
request. This exception shall not be used for a class of documents or 
requests, but only as warranted by an individual FOIA request.


Sec.  1206.601  Notice to submitters.

    (a) Except as provided in Sec.  1206.603(b) and Sec.  1206.603(c), 
the Agency shall provide a submitter with prompt written notice of a 
FOIA request

[[Page 46688]]

that seeks its commercial information whenever required under Sec.  
1206.600(a).
    (b) A notice to a submitter must include:
    (1) The exact language of the request or an accurate description of 
the request;
    (2) Access to or a description of the responsive records or 
portions thereof containing the commercial information to the 
submitter;
    (3) A description of the procedures for objecting to the release of 
the possibly confidential information under Sec.  1206.602;
    (4) A time limit for responding to the Agency that shall not exceed 
10 working days from the date of the letter sent to the submitter by 
the FOIA Office or publication of the notice (as set forth in Sec.  
1206.603(b)) to object to the release and to explain the basis for the 
objection;
    (5) Notice that the information contained in the submitter's 
objections may itself be subject to disclosure under the FOIA;
    (6) Notice that the Agency, not the submitter, is responsible for 
deciding whether the information shall be released or withheld;
    (7) Notice that failing to respond within the timeframe specified 
under Sec.  1206.601(b)(4) will create a presumption that the submitter 
has no objection to the disclosure of the information in question.
    (c) Whenever the Agency provides notice pursuant to this section, 
the Agency shall advise the requester that notice and opportunity to 
comment are being provided to the submitter.


Sec.  1206.602  Opportunity to object to disclosure.

    (a) If a submitter has any objections to the disclosure of 
commercial information, the submitter must provide a detailed written 
statement to the FOIA office that specifies all factual and/or legal 
grounds for withholding the particular information under any FOIA 
exemptions.
    (b) The submitter must include a daytime telephone number, an email 
and mailing address, and a fax number if available on a response to the 
FOIA office.
    (c) A submitter who does not respond within the time period 
specified under this subpart will be considered to have no objection to 
disclosure of the information.
    (d) Responses received by the FOIA office after the time period 
specified in Sec.  1206.601(b)(4) will not be considered by the FOIA 
office. An extension of time to respond may be granted provided the 
submitter provides an explanation justifying additional time within the 
time period specified in Sec.  1206.601(b)(4).


Sec.  1206.603  Notice of intent to disclose.

    (a) The Agency shall carefully consider any objections of the 
submitter in the course of determining whether to disclose commercial 
information. The Agency, not the submitter, is responsible for deciding 
whether the information will be released or withheld.
    (b) Whenever the Agency decides to disclose commercial information 
over the objection of a submitter, the Agency shall forward to the 
submitter a written statement which shall include the following:
    (1) A brief explanation as to why the Agency did not agree with any 
objections;
    (2) A description of the commercial information to be disclosed, 
sufficient to identify information to the submitter; and
    (3) A date after which disclosure is expected, which shall be no 
less than 10 working days from the date of the letter providing 
notification to the submitter by the FOIA Office (Sec.  1206.601).
    (c) The FOIA office will provide notification regarding a FOIA 
lawsuit:
    (1) To a submitter, when a requester brings suit seeking to compel 
disclosure of commercial information; or
    (2) To a requester, when a submitter brings suit against the Agency 
in order to prevent disclosure of commercial information.

Subpart G--Appeals


1206.700  How to submit an appeal.

    (a) A member of the public who has requested an Agency record in 
accordance with subpart C of this part, and who has received an initial 
determination which does not comply fully with the request, may appeal 
such an adverse initial determination to the Administrator, or, for 
records as specified in Sec.  1206.805, to the Inspector General within 
30 days from the date of the initial determination letter.
    (b) The appeal must:
    (1) Be in writing;
    (2) Be addressed to the Administrator, NASA Headquarters, Executive 
Secretariat, Washington, DC 20546, or, for records as specified in 
Sec.  1206.805, to the Inspector General, NASA Headquarters, 
Washington, DC 20546;
    (3) Be identified clearly on the envelope and in the letter as an 
``Appeal under the Freedom of Information Act;''
    (4) Include a copy of the initial request for the Agency record and 
a copy of the adverse initial determination along with any other 
correspondence with the FOIA office;
    (5) To the extent possible, state the reasons the adverse initial 
determination should be reversed; and
    (6) Be sent to the Administrator or the Inspector General, as 
appropriate, within 30 days of the date of the initial determination.
    (c) An official authorized to make a final determination may waive 
any of the requirements of paragraph (b) of this section, in which case 
the time limit for the final determination (see Sec.  1206.701(a)) 
shall run from the date of such waiver.


Sec.  1206.701  Actions on appeals.

    (a) Except as provided in Sec.  1206.403, the Administrator or 
designee, or in the case of records as specified in Sec.  1206.805, the 
Inspector General or designee, shall make a final determination on an 
appeal and notify the appellant thereof, within 20 working days after 
the receipt of the appeal by the Administrator's Office.
    (b) In ``unusual circumstances'' as defined in Sec.  1206.403, the 
time limit for a final determination may be extended, but not to exceed 
a total of 10 working days in the aggregate in the processing of any 
specific appeal for an Agency record. The extension must be taken 
before the expiration of the 20 working day time limit. The appellant 
will be notified in writing in accordance with Sec.  1206.403.
    (c) If processing time will exceed or is expected to exceed 30 
working days, the appellant will be notified of the delay in processing 
and the reason for the delay.
    (d) If the final determination reverses in whole or in part the 
initial determination, the record requested (or portions thereof) shall 
be made available promptly to the requester, as provided in the final 
determination.
    (e) If a reversal in whole or in part of the initial determination 
requires additional document search or production, associated fees will 
be applicable in accordance with fee guidance in this regulation.
    (f) If the final determination sustains in whole or in part an 
adverse initial determination, the notification of the final 
determination shall:
    (1) Explain the basis on which the record (or portions thereof) 
will not be made available;
    (2) Include the name and title of the person making the final 
determination;
    (3) Include a statement that the final determination is subject to 
judicial review under 5 U.S.C. 552(a)(4);
    (4) Provide a statement regarding the mediation services of the 
Office of

[[Page 46689]]

Government Information Services (OGIS) as a non-exclusive alternative 
to litigation; and
    (5) Enclose a copy of 5 U.S.C. 552(a)(4).
    (g) Before seeking a review by a court of a FOIA office's adverse 
initial determination, a requester must generally submit a timely 
administrative appeal in accordance with this part.


Sec.  1206.702  Litigation.

    In any instance in which a requester brings suit concerning a 
request for an Agency record under this part, the matter shall promptly 
be referred to the General Counsel with a report on the details and 
status of the request.

Subpart H--Responsibilities


Sec.  1206.800  Delegation of authority.

    Authority necessary to carry out the responsibilities specified in 
this subpart is delegated from the Administrator to the officials named 
in this subpart.


Sec.  1206.801  Chief FOIA Officer.

    (a) The Associate Administrator, Office of Communications, is 
designated as the Chief FOIA Officer for the Agency. The Chief FOIA 
Officer is delegated authority for administering the FOIA and all 
related laws and regulations within the Agency. The Associate 
Administrator has delegated the day-to-day oversight of the Agency FOIA 
Program to the Deputy Associate Administrator for Communications.
    (b) The Deputy Associate Administrator for Communications has 
delegated the overall responsibility for developing and administering 
the FOIA program within NASA to the Principal Agency FOIA Officer, 
located in the Office of Communications. This includes:
    (1) Developing regulations, guidelines, procedures, and standards 
for the Agency's FOIA program;
    (2) Overseeing all FOIA offices and programs and ensuring they are 
in compliance with FOIA laws and regulations;
    (3) Ensuring implementation of the FOIA Programs throughout the 
Agency and keeping the Chief FOIA Officer and the Deputy Associate 
Administrator for Communications informed of the Agency's FOIA 
performance;
    (4) Providing program oversight, technical assistance, and training 
to employees to ensure compliance with the Act;
    (5) Preparing the Agency's FOIA Annual Report to the Department of 
Justice (DOJ) and Congress, as well as the Chief FOIA Officer's Report;
    (6) Preparing all other reports as required to DOJ/Congress or 
within the Agency;
    (7) Developing, conducting, and reviewing all internal Agency FOIA 
training for NASA FOIA staff;
    (8) Directly supervising the Headquarters FOIA Office.
    (c) The Chief FOIA Officer is responsible for ensuring NASA has 
appointed a FOIA Public Liaison, who is responsible for assisting in 
reducing delays, increasing transparency and understanding of the 
status of requests, and assisting in the resolution of disputes at each 
Center or Component.


Sec.  1206.802  General Counsel.

    The General Counsel is responsible for the interpretation of 5 
U.S.C. 552 and of this part, as well as providing legal guidance with 
regard to disclosure of Agency records. The General Counsel is also 
responsible for the handling of appeals and litigation in connection 
with a request for an Agency record under this part.


Sec.  1206.803  NASA Headquarters.

    Except as otherwise provided under this subpart, the Deputy 
Associate Administrator for Communications is responsible for the 
following:
    (a) Delegating the authority for direct oversight of the 
Headquarters FOIA Office to the Principal Agency FOIA Officer.
    (b) When denying records in whole or in part, ensuring the 
Headquarters FOIA Office consults with the General Counsel charged with 
providing legal advice to Headquarters before releasing an initial 
determination under Sec.  1206.307.


Sec.  1206.804  NASA Centers and Components.

    Except as otherwise provided in this subpart, in coordination with 
the Deputy Associate Administrator for Communications, the Director of 
each NASA Center or the Official-in-Charge of each Center, is 
responsible for ensuring the following:
    (a) The Director of Public Affairs or the Head of the Public 
Affairs Office at the Center has delegated authority to process all 
FOIA requests at their respective Center.
    (b) This delegated authority has further been delegated to the FOIA 
Officer at their Center or in the absence of a FOIA Officer, the FOIA 
Specialist, both of whom must report to and be supervised by their 
Director of Public Affairs or the Head of the Public Affairs Office.
    (c) When denying records in whole or in part, the FOIA Officer at 
the Center will consult with the Chief Counsel or the Counsel charged 
with providing legal advice to that FOIA office before releasing an 
initial determination under Sec.  1206.307.


Sec.  1206.805  Inspector General.

    (a) The Inspector General or designee is responsible for making 
final determinations under Sec.  1206.701, within the time limits 
specified in subpart G of this part, concerning audit, inspection and 
investigative records originating in the Office of the Inspector 
General records from outside the Government related to an audit, 
inspection or investigation, records prepared in response to a request 
from or addressed to the Office of the Inspector General, or other 
records originating within the Office of the Inspector General, after 
consultation with the General Counsel or designee on an appeal of an 
initial determination to the Inspector General.
    (b) The Assistant Inspectors General or their designees are 
responsible for making initial determinations under subpart C 
concerning Office of Inspector General records originating in the 
Office of the Inspector General, records from outside the Government 
related to Office of Inspector General records prepared in response to 
a request from or addressed to the Office of the Inspector General, or 
other records originating with the Office of the Inspector General, 
after consultation with the Counsel to the Inspector General or 
designee.
    (c) The Inspector General or designee is responsible for ensuring 
that requests for Agency records as specified in paragraphs (a) and (b) 
of this section are processed and initial determinations are made 
within the time limits specified in subpart D of this part.
    (d) The Inspector General or designee is responsible for 
determining whether unusual circumstances exist under Sec.  1206.403 
that would justify extending the time limit for an initial or final 
determination, for records as specified in paragraphs (a) and (b) of 
this section.
    (e) Records as specified in paragraphs (a) and (b) of this section 
include any records located at Regional and field Inspector General 
Offices, as well as records located at the Headquarters Office of the 
Inspector General.

Subpart I--Location for Inspection and Request of Agency Records


Sec.  1206.900  FOIA offices and electronic libraries.

    (a) NASA Headquarters and each NASA Center have a FOIA Electronic 
Library on the Internet. The Electronic

[[Page 46690]]

library addresses are located on the NASA FOIA homepage http://www.hq.nasa.gov/office/pao/FOIA/agency/
    (b) In addition, a requester may submit a FOIA request 
electronically. The addresses are located on the NASA FOIA homepage 
under each Center link.

Cheryl E. Parker,
Federal Register Liaison Officer.

    Note:  The following appendix will not appear in the Code of 
Federal Regulations.

Appendix A--NASA FOIA Requester Service Center Addresses

NASA Ames Research Center, FOIA Requester Service Center, Mail Stop 
204-14, Moffett Field, CA 94035, foia@arc.nasa.gov, FAX (650) 604-
0688
NASA Armstrong Flight Research Center, FOIA Requester Service 
Center, Post Office Box 273, Edwards, CA 93523, afrcfoia@nasa.gov, 
FAX (661) 276-3088
NASA Glenn Research Center, FOIA Requester Service Center, 21000 
Brookpark Road, Cleveland, OH 44135, foia@grc.nasa.gov,FAX (216) 
433-6790
NASA Goddard Space Flight Center, FOIA Requester Service Center, 
Greenbelt, MD 20771, gsfc-foia@mail.nasa.gov, FAX (301) 286-1712
NASA Headquarters, FOIA Requester Service Center, Mail Stop 5-L19, 
300 E Street, SW., Washington, DC 20546, hq-foia@nasa.gov, FAX (202) 
358-4332
NASA Office of the Inspector General, FOIA Requester Service Center, 
Mail Stop 8-V69, 300 E Street, SW., Washington, DC 20546, 
foiaoig@hq.nasa.gov, FAX (202) 358-2767
NASA Management Office--Jet Propulsion Laboratory, FOIA Requester 
Service Center, 4800 Oak Grove Drive, Pasadena, CA 91109, jpl-foia@nasa.gov, FAX (818) 393-3160
NASA Johnson Space Center, FOIA Requester Service Center, Houston, 
TX 77058, jsc-foia@mail.nasa.gov, FAX (281) 483-3741
NASA Kennedy Space Center, FOIA Requester Service Center, Kennedy 
Space Center, FL 32899, foia@ksc.nasa.gov, FAX (321) 867-2692
NASA Langley Research Center, FOIA Requester Service Center, 
Hampton, VA 23681, larc-dl-foia@mail.nasa.gov, FAX (757) 864-6333
NASA Marshall Space Flight Center, FOIA Requester Service Center, 
Huntsville, AL 35812, foia@msfc.nasa.gov, FAX (256) 544-0007
NASA Stennis Space Center, FOIA Requester Service Center, Stennis 
Space Center, MS 39529, ssc-foia@nasa.gov, FAX (228) 688-1094
NASA Shared Services Center, FOIA Requester Service Center, Bldg 
5100, Stennis Space Center, MS 39529, nssc@nasa.gov, FAX (877) 779-
6772

[FR Doc. 2014-18770 Filed 8-8-14; 8:45 am]
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