Freedom of Information, 93864-93872 [2016-30661]

Agencies

• Overseas Private Investment Corporation

[Federal Register Volume 81, Number 246 (Thursday, December 22, 2016)]
[Proposed Rules]
[Pages 93864-93872]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-30661]


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OVERSEAS PRIVATE INVESTMENT CORPORATION

22 CFR Part 706

[No. FOIA-2016]
RIN 3420-AA02


Freedom of Information

AGENCY: Overseas Private Investment Corporation.

ACTION: Notice of proposed rulemaking.

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SUMMARY: This rule proposes revisions to the Overseas Private 
Investment Corporation's (``OPIC'') Freedom of Information Act (FOIA) 
regulations by making substantive and administrative changes. These 
revisions are intended to supersede OPIC's current FOIA regulations, 
located at this Part. The proposed rule incorporates the FOIA revisions 
contained in the FOIA Improvement Act of 2016, makes administrative 
changes to reflect OPIC's costs, and conforms more closely to the 
language recommended by the Department of Justice, Office of 
Information Policy.

DATES:  Written comments must be postmarked and electronic comments 
must be submitted on or before January 23, 2017.

ADDRESSES: You may submit comments, identified by Docket Number FOIA-
2016, by one of the following methods:
     Email: foia@opic.gov. Include docket number FOIA-2016 in 
the subject line of the message.
     Mail: Nichole Skoyles, Administrative Counsel, Overseas 
Private Investment Corporation, 1100 New York Avenue NW., Washington, 
DC 20527. Include docket number FOIA-2016 on both the envelope and the 
letter.

FOR FURTHER INFORMATION CONTACT: Nichole Skoyles, Administrative 
Counsel, (202) 336-8400, or foia@opic.gov.

SUPPLEMENTARY INFORMATION: The revision of Part 706 incorporates 
changes to the language and structure of the regulations and adds new 
provisions to implement the FOIA Improvement Act of 2016. OPIC is 
already complying with these changes and this proposed revision serves 
as OPIC's formal codification of the applicable law and its practice.
    OPIC has also updated its regulations to incorporate much of the 
suggested language provided by the Department of Justice, Office of 
Information Policy. Adopting this language allows OPIC to adopt many of 
the recommended best practices in FOIA administration. This update also 
assists requesters as much of OPIC's regulations are now similar to 
those of other agencies.
    In general, comments received, including attachments and other 
supporting materials, are part of the public record and are available 
to the public. Do not submit any information in your comment or 
supporting materials that you consider confidential or inappropriate 
for public disclosure.

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

    Pursuant to the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., 
the head of OPIC has certified that this proposed rule, as promulgated, 
will not have a significant economic impact on a substantial number of 
small entities. The proposed rule implements the FOIA, a statute 
concerning the release of federal records, and does not economically 
impact Federal Government relations with the private sector. Further, 
under the FOIA, agencies may recover only the direct costs of searching 
for, reviewing, and duplicating the records processes for requesters. 
Based on OPIC's experience, these fees are nominal.

Executive Order 12866

    OPIC is exempted from the requirements of this Executive Order per 
the Office of Management and Budget's October 12, 1993 memorandum. 
Accordingly, OMB did not review this proposed rule. However this rule 
was generally composed with the principles stated in section 1(b) of 
the Executive Order in mind.

Unfunded Mandates Reform Act of 1995 (2 U.S.C. 202-05)

    This proposed 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 (5 U.S.C. 
801 et seq.)

    This proposed rule is not a major rule as defined by section 804 of 
the Small Business Regulatory Enforcement Fairness Act of 1996. This 
regulation 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 State based 
companies to compete with foreign-based companies in domestic and 
export markets.

List of Subjects in 22 CFR Part 706

    Administrative practice and procedure, Freedom of Information, 
Privacy.

    For the reasons stated in the preamble the Overseas Private 
Investment Corporation proposes to revise 22 CFR part 706 as follows:

PART 706--INFORMATION DISCLOSURE UNDER THE FREEDOM OF INFORMATION 
ACT

Sec.
Subpart A--General
706.1 Description.
706.2 Policy.
706.3 Scope.
706.4 Preservation and transfer of records.
706.5 Other rights and services.
Subpart B--Obtaining OPIC Records
706.10 Publically available records.
706.11 Requesting non-public records.
Subpart C--Fees for Requests for Non-Public Records
706.20 In general.
706.21 Types of fees.
706.22 Requester categories.
706.23 Fees charged.

[[Page 93865]]

706.24 Requirements for waiver or reduction of fees.
Subpart D--Processing of Requests for Non-Public Records
706.30 Responsibility for responding to requests.
706.31 Timing of responses to requests.
706.32 Responses to requests.
706.33 Confidential commercial information.
706.34 Administrative appeals.

    Authority: 5 U.S.C. 552, Public Law 114-185

Subpart A--General


Sec.  706.1  Description.

    This part contains the rules that the Overseas Private Investment 
Corporation (``OPIC'') follows in processing requests for records under 
the Freedom of Information Act (``FOIA''), 5 U.S.C. 552 as amended. 
These rules should be read together with the FOIA and the Uniform 
Freedom of Information Fee Schedule and Guidelines published by the 
Office of Management and Budget at 52 FR 10012 (Mar. 27, 1987) (``OMB 
Guidelines''). Requests made by individuals for records about 
themselves under the Privacy Act of 1974, 5 U.S.C. 552a, are processed 
in accordance with OPIC's Privacy Act regulations at 22 CFR 707 as well 
as under this subpart.


Sec.  706.2  Policy.

    It is OPIC's policy to make its records available to the public to 
the greatest extent possible, in keeping with the spirit of the FOIA. 
This policy includes providing reasonably segregable information from 
records that also contain information that may be withheld under the 
FOIA. However, implementation of this policy also reflects OPIC's view 
that the soundness and viability of many of its programs depend in 
large measure upon full and reliable commercial, financial, technical 
and business information received from applicants for OPIC assistance 
and that the willingness of those applicants to provide such 
information depends on OPIC's ability to hold it in confidence. 
Consequently, except as provided by law and in this part, information 
provided to OPIC in confidence will not be disclosed without the 
submitter's consent.


Sec.  706.3  Scope.

    This part applies to all agency records in OPIC's possession and 
control. This part does not compel OPIC to create records or to ask 
outside parties to provide documents in order to satisfy a FOIA 
request. OPIC may, however, in its discretion and in consultation with 
a FOIA requester, create a new record as a partial or complete response 
to a FOIA request. In responding to requests for information, OPIC will 
ordinarily consider only those records within its possession and 
control as of the date of OPIC's search. If any other date is used, 
OPIC will inform the requester of that date. A record that is excluded 
from the requirements of the FOIA pursuant to 5 U.S.C. 552(c), is not 
considered responsive to a request.


Sec.  706.4  Preservation and transfer of records.

    (a) Preservation of records. OPIC preserves all correspondence 
pertaining to the requests that it receives under this part, as well as 
copies of all requested records, until disposition or destruction is 
authorized pursuant to title 44 of the United States Code or the 
General Records Schedule 14 of the National Archives and Records 
Administration. Records that are identified as responsive to a request 
will not be disposed of or destroyed while they are the subject of a 
pending request, appeal, or lawsuit under the FOIA.
    (b) Transfer of records to the National Archives. Under the Records 
Disposal Act, 44 U.S.C. Chapter 33, OPIC is required to transfer legal 
custody and control of records with permanent historical value to the 
National Archives. OPIC's Finance Project and Insurance Contract Case 
files generally do not qualify as records with permanent historical 
value. OPIC will not transfer these files except when the National 
Archives determines that an individual project or case is especially 
significant or unique. If the National Archives receives a FOIA request 
for records that have been transferred it will respond to the request 
in accordance with its own FOIA regulations.


Sec.  706.5  Other rights and services.

    Nothing in this subpart shall be construed to entitle any person, 
as of right, to any service or to the disclosure of any record to which 
such person is not entitled under the FOIA.

Subpart B--Obtaining OPIC Records


Sec.  706.10  Publically available records.

    Records that the FOIA requires agencies to make available for 
public inspection in an electronic format may be accessed through 
OPIC's FOIA Web site at www.opic.gov/foia. Records identified as of 
interest to the public and appropriate for public disclosure are also 
available, along with an index. These include annual reports and 
financial statements, program handbooks, press releases, application 
forms, claims information, and annual FOIA reports. OPIC will review 
and update its Web site of posted records on an ongoing basis. Persons 
seeking information are encouraged to visit OPIC's Web site to see what 
information is already available before submitting a request; OPIC's 
FOIA Office and FOIA Public Liaison are available to assist individuals 
in locating records.


Sec.  706.11  Requesting non-public records.

    (a) General information. (1) How to submit. To make a request for 
records a requester must submit a written request to OPIC's FOIA Office 
either by mail to Overseas Private Investment Corporation, 1100 New 
York Avenue NW., Washington, DC 20527 or electronic mail to 
FOIA@opic.gov. The envelope or subject line should read ``Freedom of 
Information Request'' to ensure proper routing. The request is 
considered received by OPIC upon actual receipt by OPIC's FOIA Office.
    (2) Records about oneself. A requester who is making a request for 
records about himself or herself must verify his or her identity by 
providing a notarized statement or a statement under 28 U.S.C. 1746, a 
law that permits statements to be made under penalty of perjury as a 
substitute for notarization, stating that the requester is the person 
he or she claims to be.
    (3) Records about a third party. Where a request for records 
pertains to a third party, a requester may receive greater access by 
submitting a notarized authorization signed by that individual, 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, proof of guardianship, or proof that the individual is 
deceased (e.g., a copy of a death certificate or an obituary). OPIC may 
require a requester to supply additional information if necessary in 
order to verify that a particular individual has consented to 
disclosure.
    (b) Description of records sought. Requesters must describe the 
records sought in sufficient detail to enable OPIC personnel to locate 
them with a reasonable amount of effort. To the extent possible, 
requesters should include specific information that may assist OPIC in 
identifying the requested records, such as the project name, contract 
number, date or date range, country, title, name, author, recipient, 
subject matter of the record, or reference number. In general, 
requesters should include as much detail as possible about the specific 
records or the types of records sought. Before submitting their 
requests, requesters may contact OPIC's FOIA Office or FOIA Public 
Liaison to

[[Page 93866]]

discuss the records they seek and to receive assistance in describing 
the records. If a requester fails to reasonably describe the records 
sought, OPIC will inform the requester what additional information is 
needed or why the request is otherwise insufficient. Requesters who are 
attempting to reformulate or modify such a request may discuss their 
request with the FOIA Office or FOIA Public Liaison. If a request does 
not reasonably describe the records sought, OPIC's response to the 
request may be delayed.
    (c) Format. Requests may state a preferred format for released 
records including electronic formats. The records will be provided in 
the preferred format if the record is readily reproducible in that 
format. If you do not state a preference, you will receive any released 
records in the format most convenient to OPIC.
    (d) Requester information. Requests must include the requester's 
name and contact information, such as phone number, email address, or 
mailing address, to assist OPIC in communicating with them and 
providing the released records.
    (e) Fees. You should state your willingness to pay fees under these 
regulations or, alternately, your willingness to pay up to a specified 
limit. If you believe that you qualify for a partial or total fee 
waiver under 706.24 you should request a waiver and provide 
justification as required by 706.24. If your request does not contain a 
statement of your willingness to pay fees or a request for a fee 
waiver, OPIC will consider your request an agreement to pay up to 
$25.00 in fees.

Subpart C--Fees for Requests of Non-Public Records.


Sec.  706.20  In general.

    OPIC will charge for processing requests under the FOIA in 
accordance with the provisions of this section and with the OMB 
Guidelines. For purposes of assessing fees, the FOIA establishes three 
categories of requests, commercial use requests, non-commercial 
scientific or educational institutions or news media requests, and all 
other requests. OPIC will inform requesters as to which category their 
request has been placed into. Different fees are assessed depending on 
the category. Requesters may seek a fee waiver. OPIC will consider 
requests for fee waiver in accordance with the requirements in Section 
706.24. To resolve any fee issues that arise under this section, OPIC 
may contact a requester for additional information. OPIC will ensure 
that searches, review, and duplication are conducted in the most 
efficient and the least expensive manner. OPIC ordinarily will collect 
all applicable fees before sending copies of records to a requester. 
Requesters must pay fees by check or money order made payable to the 
Treasury of the United States.


Sec.  706.21  Types of fees.

    (a) Direct costs are those expenses that OPIC expends in searching 
for and duplicating (and, in the case of commercial-use requests, 
reviewing) records in order to respond to a FOIA request. For example, 
direct costs include the salary of the employee performing the work 
(i.e., the basic rate of pay for the employee, plus 16 percent of that 
rate to cover benefits) and the cost of operating computers and other 
electronic equipment. Direct costs do not include overhead expenses 
such as the costs of space, and of heating or lighting a facility.
    (b) 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.
    (c) Review is the examination of a record located in response to a 
request in order to determine whether any portion of it is exempt from 
disclosure. Review time includes processing any record for disclosure, 
such as doing all that is necessary to prepare the record for 
disclosure, including the process of redacting the record and marking 
the appropriate exemptions. Review costs are properly charged even if a 
record ultimately is not disclosed. Review time also includes time 
spent both obtaining and considering any formal objection to disclosure 
made by a confidential commercial information submitter under Section 
706.33(c) of this subpart, but it does not include time spent resolving 
general legal or policy issues regarding the application of exemptions.
    (d) Search is the process of looking for and retrieving records or 
information responsive to a request. Search time includes page-by-page 
or line-by-line identification of information within records; and the 
reasonable efforts expended to locate and retrieve information from 
electronic records.


Sec.  706.22  Request categories.

    (a) A Commercial Use request is a request that asks for information 
for a use or a purpose that furthers a commercial, trade, or profit 
interest, which can include furthering those interests through 
litigation. OPIC's decision to place a requester in the commercial use 
category will be made on a case-by-case basis based on the requester's 
intended use of the information.
    (b) An Educational Use request is one made on behalf of an 
educational institution, defined as any school that operates a program 
of scholarly research. A requester in this category must show that the 
request is made in connection with his or her role at the educational 
institution. OPIC may request verification from the requester that the 
request is in furtherance of scholarly research.

    (1) Example 1.  A request from a professor of geology at a 
university for records relating to soil erosion, written on 
letterhead of the Department of Geology, would be presumed to be 
from an educational institution.
    (2) Example 2.  A request from the same professor of geology 
seeking drug information from the Food and Drug Administration in 
furtherance of a murder mystery he is writing would not be presumed 
to be an institutional request, regardless of whether it was written 
on institutional stationery.
    (3) Example 3. A student who makes a request in furtherance of 
their coursework or other school-sponsored activities and provides a 
copy of a course syllabus or other reasonable documentation to 
indicate the research purpose for the request, would qualify as part 
of this fee category.

    (c) A Noncommercial Scientific Institution Use request is a request 
made on behalf of a noncommercial scientific institution, defined as an 
institution that is not operated on a ``commercial'' basis, as defined 
in paragraph (a) of this section, and that is operated solely for the 
purpose of conducting scientific research, the results of which are not 
intended to promote any particular product or industry. A requester in 
this category must show that the request is authorized by and is made 
under the auspices of a qualifying institution and that the records are 
sought to further scientific research and not for a commercial use.
    (d) A News Media Request is a request made by a representative of 
the news media in that capacity. A representative of the news media is 
defined as any person or entity that 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. The term ``news'' means information that is about current 
events or that would be of current interest to the public. 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

[[Page 93867]]

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 a representative of the news media. A publishing 
contract would provide the clearest evidence that publication is 
expected; however, OPIC shall also consider a requester's past 
publication record in making this determination.
    (e) All other requests include any requests that do not qualify 
under one of the above categories.


Sec.  706.23  Fees charged.

    (a) In responding to FOIA requests, OPIC will charge the following 
fees unless a waiver or reduction of fees has been granted under 
section 706.24 of this section. Because the fee amounts provided below 
already account for the direct costs associated with a given fee type, 
OPIC should not add any additional costs to charges calculated under 
this section. (1) Search.
    (i) Requests made by educational institutions, noncommercial 
scientific institutions, or representatives of the news media are not 
subject to search fees. Search fees will be charged to all other 
requests, subject to the restrictions of paragraph (b) of this section. 
Fees for time spent searching is properly charged even if no responsive 
records are located or if all responsive records are determined to be 
entirely exempt from disclosure.
    (ii) For each quarter hour spent by personnel searching for 
requested records, including electronic searches that do not require 
new programming, the fees will be as follows: Professional--$13.75; and 
administrative--$7.50.
    (iii) Requesters will be charged the direct costs associated with 
conducting any search that requires the creation of a new program to 
locate the requested records. Before incurring such costs, OPIC will 
notify the requester and the requester must agree to pay.
    (iv) For requests that require the retrieval of records stored at a 
Federal Records Center operated by the National Archives and Records 
Administration (NARA), additional costs shall be charged in accordance 
with the Transactional Billing Rate Schedule established by NARA.
    (2) Duplication. Duplication fees will be charged to all 
requesters, subject to the restrictions of paragraph (b) of this 
section. OPIC will honor a requester's preference for receiving a 
record in a particular form or format where it is readily reproducible 
in the form or format requested. Where photocopies are supplied, OPIC 
will provide one copy per request at a cost of $0.10 per page. For 
copies of records produced on tapes, disks, or other electronic media, 
OPIC will charge the direct costs of producing the copy, including 
operator time. Where paper documents must be scanned in order to comply 
with a requester's preference to receive the records in an electronic 
format, the requester must also pay the direct costs associated with 
scanning those materials. For other forms of duplication, OPIC will 
charge the direct costs.
    (3) Review. Review fees will be charged to requesters who make 
commercial use requests. Review fees will be assessed in connection 
with the initial review of the record, i.e., the review conducted by 
OPIC to determine whether an exemption applies to a particular record 
or portion of a record. No charge will be made for review at the 
administrative appeal stage of exemptions applied at the initial review 
stage. However, if the appellate authority determines that a particular 
exemption no longer applies, any costs associated with the re-review of 
the records in order to consider the use of other exemptions may be 
assessed as review fees. Review fees will be charged at the same rates 
as those charged for a search under paragraph (a)(1)(ii) of this 
section.
    (b) Restrictions on charging fees. (1) No search fees will be 
charged for educational use requests, noncommercial scientific use 
requests, or news media requests as defined in Section 706.22.
    (2) Fees charged when OPIC exceeds time limits.
    (i) When OPIC fails to comply with the time limits in which to 
respond to a request, it may not charge search fees, or, in the 
instances of requests from requesters described in paragraph (b)(1) of 
this section, may not charge duplication fees, except as described in 
(b)(2)(ii)-(iv).
    (ii) If OPIC has determined that unusual circumstances as defined 
by the FOIA apply and OPIC provided timely written notice to the 
requester in accordance with the FOIA, a failure to comply with the 
time limit shall be excused for an additional ten days.
    (iii) If OPIC has determined that unusual circumstances, as defined 
by the FOIA, apply and more than 5,000 pages are necessary to respond 
to the request, OPIC may charge all applicable fees incurred in 
processing the request if the following steps are taken:
    (A) OPIC has provided timely written notice of unusual 
circumstances to the requester in accordance with the FOIA; and
    (B) OPIC has discussed with the requester via written mail, email, 
or telephone (or made not less than three good-faith attempts to do so) 
how the requester could effectively limit the scope of the request in 
accordance with 5 U.S.C. 552(a)(6)(B)(ii).
    (iv) If a court has determined that exceptional circumstances 
exist, as defined by the FOIA, a failure to comply with the time limits 
shall be excused for the length of time provided by the court order.
    (3) No search or review fees will be charged for a quarter-hour 
period unless more than half of that period is required for search or 
review.
    (4) Except for requesters seeking records for a commercial use, 
OPIC will provide without charge:
    (i) The first 100 pages of duplication (or the cost equivalent for 
other media); and
    (ii) The first two hours of search.
    (5) If, after deducting free entitlements, the total fee calculated 
under this section is $25.00 or less, no fee will be charged.
    (c) Notice of anticipated fees in excess of $25.00. (1) When OPIC 
determines or estimates that the fees to be assessed in accordance with 
this section will exceed $25.00, OPIC will notify the requester of the 
actual or estimated amount of the fees, including a breakdown of fees 
for search, review, and duplication, unless the requester has indicated 
a willingness to pay fees as high as those anticipated. If only a 
portion of the fee can be estimated readily, OPIC will advise the 
requester accordingly. If the request is for noncommercial use, the 
notice will specify that the requester is entitled to the statutory 
entitlements of 100 pages of duplication at no charge, and if the 
requester is charged search fees, two hours of search time at no 
charge, and will advise the requester whether those entitlements have 
been provided.
    (2) If OPIC notifies the requester that the actual or estimated 
fees are in excess of $25.00, the request will not be considered 
received and further work will not be completed until the requester 
commits in writing to pay the actual or estimated total fee, or 
designates some amount of fees the requester is willing to pay, or in 
the case of a noncommercial use requester who has not yet been provided 
with the requester's statutory entitlements, designates that the 
requester seeks only that which can be provided by the statutory 
entitlements. The requester must provide the commitment or designation 
in writing, and must, when

[[Page 93868]]

applicable, designate an exact dollar amount the requester is willing 
to pay. OPIC is not required to accept payments in installments.
    (3) If the requester has indicated a willingness to pay some 
designated amount of fees, but OPIC estimates that the total fee will 
exceed that amount, the processing of the request will be tolled when 
OPIC notifies the requester of the estimated fees in excess of the 
amount the requester has indicated a willingness to pay. OPIC will 
inquire whether the requester wishes to revise the amount of fees the 
requester is willing to pay or modify the request. Once the requester 
responds, OPIC's time to respond will resume from where it was at the 
date of the notification.
    (4) OPIC's FOIA Office or FOIA Public Liaison is available to 
assist any requester in reformulating a request to meet the requester's 
needs at a lower cost.
    (d) Charges for other services. Although not required to provide 
special services, if OPIC chooses to do so as a matter of 
administrative discretion, the direct costs of providing the service 
will be charged. Examples of such services include certifying that 
records are true copies, providing multiple copies of the same 
document, or sending records by means other than first class mail.
    (e) Charging interest. OPIC may charge interest on any unpaid bill 
starting on the thirty-first day following the billing date. 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 OPIC. 
OPIC 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) Aggregating requests. If OPIC reasonably believes that a 
requester or a group of requesters acting in concert is attempting to 
divide a single request into a series of requests for the purpose of 
avoiding fees, OPIC may aggregate those requests and charge 
accordingly. OPIC may presume that multiple requests of this type made 
within a 30-day period have been made in order to avoid fees. For 
requests separated by a longer period, OPIC will aggregate them only 
where there is a reasonable basis for determining that aggregation is 
warranted in view of all the circumstances involved. Multiple requests 
involving unrelated matters will not be aggregated.
    (g) Advance payments. (1) For requests other than those described 
in paragraphs (g)(2) and (g)(3) of this section OPIC will 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 before copies are sent to a requester) is not an advance 
payment.
    (2) When OPIC 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. OPIC may elect 
to process the request prior to collecting fees when it receives a 
satisfactory assurance of full payment from a requester with a history 
of prompt payment.
    (3) Where a requester has previously failed to pay a properly 
charged FOIA fee to any agency within thirty calendar days of the 
billing date, OPIC may require that the requester pay the full amount 
due, plus any applicable interest on that prior request. OPIC may also 
require that the requester make an advance payment of the full amount 
of any anticipated fee before OPIC begins to process a new request or 
continues to process a pending request or any pending appeal. Where 
OPIC 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 proof of identity.
    (4) In cases in which OPIC requires advance payment, OPIC's 
response time will be tolled and further work will not be completed 
until the required payment is received. If the requester does not pay 
the advance payment within thirty calendar days after the date of 
OPIC's fee letter, OPIC may administratively close the request.
    (h) Other statutes specifically providing for fees. 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, 
OPIC will inform the requester of the contact information for that 
program.


Sec.  706.24  Requirements for waiver or reduction of fees.

    (a) Requesters may seek a waiver of fees by submitting a written 
application demonstrating how disclosure of the requested information 
is in the public interest because it is likely to contribute 
significantly to public understanding of the operations and activities 
of the government and is not primarily in the interest of the 
requester.
    (b) OPIC will furnish records responsive to a request without 
charge or at a reduced rate when it determines, based on all available 
information, that the factors described in paragraphs (b)(1)-(3) are 
satisfied. (1) Disclosure of the requested information would shed light 
on the operations or activities of the government. The subject of the 
request must concern identifiable operations or activities of the 
Federal government, with a connection that is direct and clear, not 
remote or attenuated.
    (2) Disclosure of the requested information is likely to contribute 
significantly to public understanding of those operations or 
activities. This factor is satisfied when the following criteria are 
met:
    (i) Disclosure of the requested records must be meaningfully 
informative about government operations or activities. The disclosure 
of information that already is in the public domain, in either the same 
or a substantially identical form, would not be meaningfully 
informative if nothing new would be added to the public's 
understanding.
    (ii) The disclosure must contribute to the understanding of a 
reasonably broad audience of persons interested in the subject, as 
opposed to the individual understanding of the requester. A requester's 
expertise in the subject area as well as his or her ability and 
intention to effectively convey information to the public shall be 
considered. It shall ordinarily be presumed that a representative of 
the news media satisfies this consideration.
    (3) The disclosure must not be primarily in the commercial interest 
of the requester. To determine whether disclosure of the requested 
information is primarily in the commercial interest of the requester, 
OPIC will consider the following factors:
    (i) OPIC shall identify whether the requester has any commercial 
interest that would be furthered by the requested disclosure. A 
commercial interest includes any commercial, trade, or profit interest. 
Requesters shall be given an opportunity to provide explanatory 
information regarding this consideration.
    (ii) If there is a commercial interest, OPIC will determine whether 
that is the primary interest furthered by the request. A waiver or 
reduction of fees is justified when the requirements of paragraphs 
(b)(1) and (2) are satisfied and any commercial interest is not the 
primary interest furthered by the request. OPIC will ordinarily presume 
that when a news media requester has satisfied factors b(1) and (2) 
above, the request is not primarily in the

[[Page 93869]]

commercial interest of the requester. Disclosure to data brokers or 
others who merely compile and market government information for direct 
economic return will not be presumed to primarily serve the public 
interest.
    (c) Where only some of the records to be released satisfy the 
requirements for a waiver of fees, a waiver shall be granted for those 
records.
    (d) Requests for a waiver or reduction of fees should be made when 
the request is first submitted to OPIC 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. 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.

Subpart D--Processing of Requests for Non-Public Records


Sec.  706.30  Responsibility for responding to requests.

    (a) Authority to grant or deny requests. The OPIC President and CEO 
or designee is authorized to grant or to deny any requests for records.
    (b) Consultation, referral, and coordination. When reviewing 
records responsive to a request, OPIC will determine whether another 
agency of the Federal Government is better able to determine whether 
the record is exempt from disclosure under the FOIA. As to any such 
record, OPIC will proceed in one of the following ways:
    (1) Consultation. When records originated with OPIC, but contain 
within them information of interest to another agency or other Federal 
Government office, OPIC will typically consult with that other entity 
prior to making a release determination.
    (2) Referral.
    (i) When OPIC believes that a different agency is best able to 
determine whether to disclose the record, OPIC will typically refer the 
responsibility for responding to the request regarding that record to 
that agency. Ordinarily, the agency that originated the record is 
presumed to be the best agency to make the disclosure determination. 
However, if OPIC and the originating agency jointly agree that OPIC is 
in the best position to respond regarding the record, then the record 
may be handled as a consultation.
    (ii) Whenever OPIC refers any part of the responsibility for 
responding to a request to another agency, it will document the 
referral, maintain a copy of the record that it refers, and notify the 
requester of the referral, informing the requester of the name(s) of 
the agency to which the record was referred, including that agency's 
FOIA contact information.
    (3) Coordination. The standard referral procedure is not 
appropriate where disclosure of the identity of the agency to which the 
referral would be made could harm an interest protected by an 
applicable exemption, such as the exemptions that protect personal 
privacy or national security interests. For example, if in responding 
to a request for records on a living third party, OPIC locates within 
its files records originating with a law enforcement agency, and if the 
existence of that law enforcement interest in the third party was not 
publicly known, then to disclose that law enforcement interest could 
cause an unwarranted invasion of the personal privacy of the third 
party. Similarly, if OPIC locates within its files material originating 
with an Intelligence Community agency, and the involvement of that 
agency in the matter is classified and not publicly acknowledged, then 
to disclose or give attribution to the involvement of that Intelligence 
Community agency could cause national security harms. In such 
instances, in order to avoid harm to an interest protected by an 
applicable exemption, OPIC should coordinate with the originating 
agency to seek its views on the disclosability of the record. The 
release determination for the record that is the subject of the 
coordination should then be conveyed to the requester by OPIC.
    (c) Classified information. On receipt of any request involving a 
record containing information that has been classified or may be 
appropriate for classification by another agency under any applicable 
executive order concerning the classification of records, OPIC must 
refer the responsibility for responding to the request to the agency 
that classified the information, or that should consider the 
information for classification. Whenever OPIC's record contains 
information that has been derivatively classified (for example, when it 
contains information classified by another agency), OPIC must refer the 
responsibility for responding to that portion of the request to the 
agency that classified the underlying information.
    (d) Timing of responses to consultations and referrals. All 
consultations and referrals will be handled according to the date that 
the first agency received the perfected FOIA request.
    (e) Agreements regarding consultations and referrals. OPIC may 
establish agreements with other agencies to eliminate the need for 
consultations or referrals with respect to particular types of records.


Sec.  706.31  Timing of responses to requests.

    (a) In general. OPIC ordinarily will process requests according to 
their order of receipt within their appropriate track under subpart (b) 
of this section. The response time will commence on the date that the 
request is received by the FOIA Office, but in any event not later than 
ten working days after the request is first received by OPIC. Any time 
tolled under subparagraph (c) of this section does not count against 
OPIC's response time.
    (b) Multitrack processing. OPIC has a track for requests that are 
granted expedited processing, in accordance with the standards set 
forth in paragraph (f) of this section. Non-expedited requests will be 
placed into a ``simple'' or ``complex'' track based on the estimated 
amount of work or time needed to process the request. OPIC will 
consider the number of records requested, the number of pages involved 
in processing the request, and the need for consultations or referrals. 
OPIC will advise the requester into which track the request falls and, 
when appropriate, will offer requesters the opportunity to narrow or 
modify the request so that it can be placed in a different track.
    (c) Tolling of response time. OPIC may toll its response time once 
to seek clarification of a request in accordance with Section 706.11(b) 
or as needed to resolve fee issues in accordance with Sections 
706.22(c) and 706.23(d). The response time will resume upon OPIC's 
receipt of the requester's clarification or upon resolution of the fee 
issue.
    (d) Unusual circumstances. Whenever the statutory time limits for 
processing cannot be met because of ``unusual circumstances'' as 
defined in the FOIA, and OPIC extends the time limits on that basis, 
OPIC will notify the requester in writing of the unusual circumstances 
involved and of the date by which OPIC estimates processing of the 
request will be completed. Where the extension exceeds ten working 
days, the requester will be provided an opportunity to modify the 
request or agree to an alternative time period for processing the 
original or modified request. OPIC will make its FOIA Office and its 
FOIA Public Liaison available for this purpose and will notify the 
requester of the availability of the Office of Government Services 
(OGIS) dispute resolution services.
    (e) Aggregating requests. For the purposes of satisfying unusual 
circumstances under the FOIA, OPIC

[[Page 93870]]

may aggregate requests in cases where it reasonably appears that 
multiple requests, submitted either by a requester or by a group of 
requesters acting in concert, constitute a single request that would 
otherwise involve unusual circumstances. OPIC will not aggregate 
multiple requests that involve unrelated matters.
    (f) Expedited processing.
    (1) Requests and appeals will be processed on an expedited basis 
whenever it is determined that they involve:
    (i) Circumstances in which the lack of expedited processing could 
reasonably be expected to pose an imminent threat to the life or 
physical safety of an individual;
    (ii) An urgency to inform the public about an actual or alleged 
Federal government activity, if made by a person who is primarily 
engaged in disseminating information;
    (2) A request for expedited processing may be made at any time.
    (3) A requester who seeks expedited processing must submit a 
statement, certified to be true and correct, explaining in detail the 
basis for making the request for expedited processing. For example, 
under paragraph (f)(1)(ii) of this section, a requester who is not a 
full-time member of the news media must establish that the requester is 
a person whose primary professional activity or occupation is 
information dissemination, though it need not be the requester's sole 
occupation. Such a requester also must establish a particular urgency 
to inform the public about the government activity involved in the 
request--one that extends beyond the public's right to know about 
government activity generally. The existence of numerous articles 
published on a given subject can be helpful in establishing the 
requirement that there be an ``urgency to inform'' the public on the 
topic. OPIC may waive the formal certification requirement in its 
administrative discretion.
    (4) OPIC shall notify the requester within ten calendar days of the 
receipt of a request for expedited processing of its decision whether 
to grant or deny expedited processing. If expedited processing is 
granted, the request shall be given priority, placed in the processing 
track for expedited requests, and shall be processed as soon as 
practicable. If OPIC denies expedited processing, any appeal of that 
decision which complies with the procedures set forth in Section 706.34 
of this subpart shall be acted on expeditiously.


Sec.  706.32  Responses to requests.

    (a) In general. To the extent practicable, OPIC will communicate 
electronically with requesters who have access to the internet.
    (b) Acknowledgments of requests. If a request will take longer than 
ten days to process, OPIC will send the requester an acknowledgment 
letter that assigns the request an individualized tracking number. The 
letter will include a brief description of the records sought to allow 
requesters to more easily keep track of requests.
    (c) Grants of requests. OPIC will notify the requester in writing 
if it makes a determination to grant a request in full or in part. The 
notice will inform the requester of any fees charged under Section 
706.22 of this part and of the availability of the FOIA Public Liaison 
to offer assistance. OPIC will disclose the requested records to the 
requester promptly upon payment of any applicable fees.
    (d) Adverse determinations of requests. OPIC will notify the 
requester in writing if it makes an adverse determination denying a 
request in any respect. Adverse determinations, or denials of requests, 
include decisions that: The requested record is exempt, in whole or in 
part; the request does not reasonably describe the records sought; the 
information requested is not a record subject to the FOIA; the 
requested record does not exist, cannot be located, or has been 
destroyed; or the requested record is not readily reproducible in the 
form or format sought by the requester. Adverse determinations also 
include denials involving fees or fee waiver matters or denials of 
requests for expedited processing.
    (e) Content of denial letter. The denial letter will be signed by 
the person responsible for the denial, and will include:
    (1) The name and title or position of the person responsible for 
the denial;
    (2) A brief statement of the reasons for the denial, including any 
FOIA exemptions applied;
    (3) An estimate of the volume of any records or information 
withheld, for example, by providing the number of pages or some other 
reasonable form of estimation. This estimation is not required if the 
volume is otherwise indicated by deletions marked on records that are 
disclosed in part, or if providing an estimate would harm an interest 
protected by an applicable exemption;
    (4) A brief description of the types of information withheld and 
the reasons for doing so. A description and explanation are not 
required if providing it would harm an interest protected by an 
applicable exemption;
    (5) A statement that the denial may be appealed under Section 
706.34(a) of this subpart, and a description of the appeal 
requirements;
    (6) A statement notifying the requester of the assistance available 
from OPIC's FOIA Public Liaison and dispute resolution services offered 
by OGIS; and
    (7) Notice of any fees charged under Section 706.23 of this part.
    (f) Markings on released documents. Records disclosed in part must 
be marked clearly to show the amount of information deleted and the 
exemption under which the deletion was made unless doing so would harm 
an interest protected by an applicable exemption. If technically 
feasible, the location of the information deleted will be indicated on 
the record.
    (g) Notice of record exclusions. (1) In the event that OPIC 
identifies records that may be subject to exclusion from the 
requirements of the FOIA pursuant to 5 U.S.C. 552(c), the agency will 
confer with the Department of Justice, Office of Information Policy, to 
obtain approval to apply the exclusion.
    (2) OPIC will maintain an administrative record of the process of 
invocation and approval of the exclusion by OIP.


Sec.  706.33  Confidential commercial information.

    (a) Definitions.
    (1) Confidential commercial information means commercial or 
financial information obtained by the agency from a submitter that may 
be protected from disclosure under Exemption 4 of the FOIA. Exemption 4 
protects:
    (i) Trade secrets; or
    (ii) Commercial or financial information that is privileged or 
confidential where either: Disclosure of the information would cause 
substantial competitive harm to the submitter, or the information is 
voluntarily submitted and would not customarily be publicly released by 
the submitter. Information which is required to apply for OPIC support 
is not considered to be voluntarily submitted.
    (2) Submitter means any person or entity, including a corporation, 
State, or foreign government, but not including another Federal 
Government entity, that provides confidential commercial information to 
the Federal government, directly or indirectly.
    (b) Designation of confidential commercial information. All 
submitters may designate, by appropriate markings, any portions of 
their submissions that they consider to be protected from

[[Page 93871]]

disclosure under the FOIA. These markings will be considered by OPIC in 
responding to a FOIA request but such markings (or the absence of such 
markings) will not be dispositive as to whether the marked information 
is ultimately released. Unless otherwise requested and approved these 
markings will be considered no longer applicable ten years after 
submission or five years after the close of the associated project, 
whichever is later.
    (c) When notice to submitters is required. (1) Except as provided 
in paragraph (d) of this section, OPIC's FOIA Office will use 
reasonable efforts to notify a submitter in writing whenever:
    (i) The requested information has been designated in good faith by 
the submitter as confidential commercial information protected from 
disclosure under Exemption 4; or
    (ii) OPIC has reason to believe that the requested information may 
be protected from disclosure under Exemption 4, but has not yet 
determined whether the information is protected from disclosure.
    (2) This notification will describe the nature and scope of the 
request, advise the submitter of its right to submit written objections 
in response to the request, and provide a reasonable time for response. 
The notice will either describe the commercial information requested or 
include copies of the requested records or portions of records 
containing the information. In cases involving a voluminous number of 
submitters, notice may be made by posting or publishing the notice in a 
place or manner reasonably likely to inform the submitters of the 
proposed disclosure, instead of sending individual notifications.
    (d) Exceptions to submitter notice requirements. The notice 
requirements of this section shall not apply if:
    (1) OPIC determines that the information is exempt under the FOIA, 
and therefore will not be disclosed;
    (2) The information has been lawfully published or has been 
officially made available to the public;
    (3) Disclosure of the information is required by a statute other 
than the FOIA or by a regulation issued in accordance with the 
requirements of Executive Order 12600 of June 23, 1987; or
    (4) The designation made by the submitter under paragraph (b) of 
this section appears obviously frivolous. In such case, OPIC will give 
the submitter written notice of any final decision to disclose the 
information within a reasonable number of days prior to a specified 
disclosure date.
    (e) Opportunity to object to disclosure. (1) OPIC will specify a 
reasonable time period within which the submitter must respond to the 
notice referenced above.
    (2) If a submitter has any objections to disclosure, it should 
provide OPIC with a detailed written statement that specifies all 
grounds for withholding the particular information under any exemption 
of the FOIA. In setting forth such grounds, the submitter should 
explain the basis of its belief that the nondisclosure of any item of 
information requested is mandated or permitted by law. In order to rely 
on Exemption 4 as a basis for nondisclosure, the submitter shall 
explain why the information is considered a trade secret or commercial 
or financial information that is privileged or confidential and either: 
How disclosure of the information would cause substantial competitive 
harm to the submitter, or why the information should be considered 
voluntarily submitted and why it is information that would not 
customarily be publicly released by the submitter.
    (3) A submitter who fails to respond within the time period 
specified in the notice shall be considered to have no objection to 
disclosure of the information. OPIC is not required to consider any 
information received after the date of any disclosure decision. Any 
information provided by a submitter under this subpart may itself be 
subject to disclosure under the FOIA.
    (4) The period for providing OPIC with objections to disclosure of 
information may be extended by OPIC upon receipt of a written request 
for an extension from the submitter. Such written request shall set 
forth the date upon which any objections are expected to be completed 
and shall provide reasonable justification for the extension. In its 
discretion, OPIC may permit more than one extension.
    (f) Analysis of objections. OPIC will consider a submitter's 
objections and specific grounds for nondislosure in deciding whether to 
disclose the requested information.
    (g) Notice of intent to disclose. If OPIC decides to disclosure 
information over the objection of a submitter, OPIC will notify the 
submitter of its determination at least five working days prior to 
release of the information. The notification will include:
    (1) A statement of the reasons why each of the submitter's 
disclosure objections was not sustained;
    (2) A description of the information to be disclosed, or a copy 
thereof; and
    (3) A specified disclosure date, which shall be a reasonable time 
subsequent to the notice.
    (h) Notice of FOIA lawsuit. Whenever a requester files a FOIA 
lawsuit seeking to compel the disclosure of confidential commercial 
information, OPIC will promptly notify the submitter.
    (i) Requester notification. OPIC will notify a requester whenever 
it provides the submitter with notice and an opportunity to object to 
disclosure; whenever it notifies the submitter of its intent to 
disclose the requested information; and whenever a submitter files a 
lawsuit to prevent the disclosure of the information.


Sec.  706.34  Administrative appeals.

    (a) Requirements for making an appeal. A requester may appeal any 
adverse determinations to OPIC's Vice President and General Counsel at 
FOIA@opic.gov or 1100 New York Avenue NW., Washington, DC 20527. 
Examples of adverse determinations are provided in Section 706.06(c) of 
this subpart. The requester must make the appeal in writing and it must 
be postmarked, or in the case of electronic submissions, transmitted, 
within ninety calendar days after the date of the response. The appeal 
should clearly identify OPIC's determination that is being appealed and 
the assigned request number. The requester should mark both the appeal 
letter and envelope, or subject line of the electronic transmission, 
``Freedom of Information Act Appeal.''
    (b) Adjudication of appeals. OPIC's Vice President and General 
Counsel or his/her designee will render a written decision within 
twenty working days after the date of OPIC's receipt of the appeal, 
unless an extension of up to ten working days is deemed necessary due 
to unusual circumstances. The requester will be notified in writing of 
any extension.
    (c) Decisions on appeals. A decision that upholds the initial 
determination will contain a written statement that identifies the 
reasons for the affirmance, including any FOIA exemptions applied, and 
will provide the requester with notification of the statutory right to 
file a lawsuit and the ability to request mediation from the Office of 
Government Information Services. If an initial determination is 
remanded or modified on appeal the requester will be notified in 
writing. OPIC's FOIA Office will then process the request in accordance 
with that appeal determination and respond directly to the requester. 
If an appeal is granted in whole or in part, the information will be 
made available promptly, provided the requirements of Section 706.23 
regarding payment of fees are satisfied.

[[Page 93872]]

    (d) Engaging in dispute resolution services provided by OGIS. 
Mediation is a voluntary process. If OPIC agrees to participate in the 
mediation services provided by OGIS, it will actively engage as a 
partner to the process in an attempt to resolve the dispute.
    (e) When appeal is required. Before seeking court review, a 
requester generally must first submit a timely administrative appeal.

     Dated: December 15, 2016.
Nichole Skoyles,
Administrative Counsel, Department of Legal Affairs.
[FR Doc. 2016-30661 Filed 12-21-16; 8:45 am]
 BILLING CODE P