Implementing the Freedom of Information Act, 54684-54691 [2018-23606]

Agencies

• Office of Science and Technology Policy

[Federal Register Volume 83, Number 211 (Wednesday, October 31, 2018)]
[Proposed Rules]
[Pages 54684-54691]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-23606]


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OFFICE OF SCIENCE AND TECHNOLOGY POLICY

32 CFR Part 2402


Implementing the Freedom of Information Act

AGENCY: Office of Science and Technology Policy.

ACTION: Notice of proposed rulemaking and request for public comment.

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SUMMARY: The White House Office of Science and Technology Policy (OSTP) 
is amending its regulations to implement the FOIA Improvement Act of 
2016. The regulations reflect OSTP's policy and practices and reaffirm 
its commitment to provide the fullest possible disclosure of records to 
the public.

DATES: Comments will be received through November 30, 2018.

ADDRESSES: Comments of approximately one page or less in length (4000 
characters) are requested. All submissions must be in English. Comments 
may be submitted by any of the following methods:
    Email: [email protected]. Include ``FOIA PROPOSED RULEMAKING'' 
in the subject line of the message. OSTP does not currently accept 
attachments sent to the FOIA mailbox. Please paste the text of your 
comment into the message body of your email.
    Mail: Office of Science and Technology Policy, Eisenhower Executive 
Office Building, 1650 Pennsylvania Avenue NW, Washington, DC 20502. 
Attention: ``FOIA PROPOSED RULEMAKING.''
    Fax: (202) 395-1224. Please clearly label all submissions as ``FOIA 
PROPOSED RULEMAKING.''

FOR FURTHER INFORMATION CONTACT: Andrew Mendoza, 202-456-4444. 
Questions about the content of this document should be sent to 
[email protected]. Include ``FOIA PROPOSED RULEMAKING'' in the 
subject line of the message. Questions may also be sent by mail (please 
allow additional time for processing) to: Office of Science and 
Technology Policy, Eisenhower Executive Office Building, 1650 
Pennsylvania Avenue NW, Washington, DC 20502. Attention: ``FOIA 
PROPOSED RULEMAKING.''

SUPPLEMENTARY INFORMATION: OSTP is proposing new regulations to govern 
its implementation of the Freedom of Information Act (FOIA). In 2013, 
OSTP implemented its FOIA regulations, currently codified at 32 CFR 
part 2402. The FOIA Improvement Act of 2016, Pub. L. 114-185, requires 
each agency to review and update their FOIA regulations in accordance 
with its provisions. Among other things, the Act makes changes that 
require agencies to (1) withhold information only when it is reasonably 
foreseeable that disclosure would harm to an interest protected by an 
exemption; (2) allow a minimum of 90 days to file an appeal following 
an adverse determination; and (3) inform requesters of their right to 
seek dispute resolution services.
    In connection with OSTP's review of its FOIA regulations, OSTP 
proposes the following rule to update its FOIA regulations, clarifying 
OSTP's process for responding to requests for information, 
incorporating new language on partial disclosures of information, 
increasing the period of time for a requester to appeal an adverse 
determination from 30 days to 90 days, and requiring OSTP to notify 
requesters of their right to seek dispute resolution services. Due to 
the scope of the proposed revisions, the proposed rule would replace 
OSTP's current FOIA regulations in their entirety. This proposed rule 
will update OSTP's regulations to reflect the statutory changes to FOIA 
and improve FOIA-related service and performance, thereby strengthening 
OSTP's compliance with FOIA. Accordingly, OSTP proposes these 
regulations implementing FOIA and submits them for public comment.

Statutory and Executive Order Reviews

Executive Order 12866 and 13563

    These regulations have been drafted and reviewed in accordance with 
Executive Order 12866, ``Regulatory Planning and Review,'' section 
1(b), Principles of Regulation, and in accordance with Executive Order 
13563, ``Improving Regulation and Regulatory Review,'' section 1(b), 
General Principles of Regulation. These regulations are not a 
significant regulatory action under section 3(f) of Executive Order 
12866; accordingly, this rule has not been reviewed by the Office of 
Management and Budget (OMB). Further, both Executive Orders 12866 and 
13563 direct agencies to

[[Page 54685]]

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, of reducing costs, of harmonizing rules, and of 
promoting flexibility. OSTP has assessed the costs and benefits of this 
regulation and believes that the regulatory approach selected maximizes 
net benefits.

Paperwork Reduction Act

    OSTP has determined that the Paperwork Reduction Act, 44 U.S.C. 
3501 et seq., does not apply because these regulations do not contain 
any information collection requirements subject to OMB's approval.

Executive Order 12988

    These regulations meet the applicable standards set forth in 
Executive Order 12988, Civil Justice Reform.

Executive Order 13132

    These regulations will not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government. Therefore, in accordance with Executive 
Order 13132, OSTP has determined that these regulations do not have 
sufficient federalism implications to warrant the preparation of a 
federalism summary impact statement.

Regulatory Flexibility Act

    OSTP, in accordance with the Regulatory Flexibility Act, 5 U.S.C. 
605(b), has reviewed these proposed regulations and certifies that they 
will not have a significant economic impact on a substantial number of 
small entities because they pertain to administrative matters affecting 
the agency.

Unfunded Mandates Reform Act of 1995

    These regulations will not result in the expenditure by State, 
local, and tribal governments, in the aggregate, or by the private 
sector, of $100 million or more in any one year, and it will not 
significantly or uniquely affect small governments. Therefore, no 
actions are necessary under the provisions of the Unfunded Mandates 
Reform Act of 1995, 2 U.S.C. 1501, et seq.

Small Business Regulatory Enforcement Fairness Act of 1996

    These regulations are not major rules as defined by the Small 
Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 804. 
They will not result in an annual effect on the economy of $100 million 
or more, a major increase in costs or prices, or significant adverse 
effects on competition, employment, investment, productivity, 
innovation, or the ability of United States-based enterprises to 
compete with foreign-based enterprises in domestic and export markets.

National Environmental Policy Act of 1969

    OSTP has reviewed this action for purposes of the National 
Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321-4347, and has 
determined that this action will not have a significant effect on the 
human environment.

List of Subjects in 32 CFR Part 2402

    Administrative practice and procedure, Freedom of information.

0
For the reasons set forth in the preamble, OSTP proposes to amend 
Chapter XXIV by revising 32 CFR part 2402 to read as follows:

PART 2402--REGULATIONS IMPLEMENTING THE FREEDOM OF INFORMATION ACT

Sec.
2402.1 Purpose and scope.
2402.2 Delegation of authority and responsibilities.
2402.3 General policy and definitions.
2402.4 Procedure for requesting records.
2402.5 Responses to requests.
2402.6 Timing of Responses to Requests.
2402.7 Confidential commercial information.
2402.8 Appeal of denials.
2402.9 Fees.
2402.10 Waiver of fees.
2402.11 Maintenance of statistics.
2402.12 Disclaimer.

    Authority: 5 U.S.C. 552; E.O. 13392, 70 FR 75373, 3 CFR, 2005 
Comp., p. 216.


Sec.  2402.1  Purpose and scope.

    The regulations in this part prescribe procedures by which 
individuals may obtain access to the Office of Science and Technology 
Policy (OSTP) agency records under the Freedom of Information Act, 5 
U.S.C. 552, as amended (FOIA), as well as the procedures OSTP must 
follow in response to requests for records under FOIA. The regulations 
should be read together with the FOIA and the Office of Management and 
Budget's (OMB) ``Uniform Freedom of Information Fee Schedule and 
Guidelines,'' which provides information about access to records. All 
requests for access to information contained within a system of records 
pursuant to the Privacy Act of 1974, 5 U.S.C. 552a, shall be processed 
in accordance with these regulations as well as those contained in 32 
CFR part 2403.


Sec.  2402.2  Delegation of authority and responsibilities.

    (a) The Director of OSTP designates the OSTP General Counsel as the 
Chief FOIA Officer, and hereby delegates to the Chief FOIA Officer the 
authority to act upon all requests for agency records and to re-
delegate such authority at his or her discretion.
    (b) The Chief FOIA Officer shall designate a FOIA Public Liaison, 
who shall serve as the supervisory official to whom a FOIA requester 
can raise concerns about the service the FOIA requester has received 
following an initial response. The FOIA Public Liaison will be listed 
on the OSTP website (https://www.whitehouse.gov/ostp/foia) and may re-
delegate the FOIA Public Liaison's authority at his or her discretion.
    (c) The Director establishes a FOIA Requester Service Center that 
shall be staffed by the Chief FOIA Officer and the FOIA Public Liaison. 
The contact information for the FOIA Requester Service Center is Office 
of Science and Technology Policy, Eisenhower Executive Office Building, 
1650 Pennsylvania Avenue NW, Washington, DC 20504; Telephone: (202) 
456-4444; Fax: (202) 395-1224; Email: [email protected]. Updates to 
this contact information will be made on the OSTP website.


Sec.  2402.3  General policy and definitions.

    (a) Non-exempt records available to public. Except for records 
exempt from disclosure by 5 U.S.C. 552(b) or published in the Federal 
Register under 5 U.S.C. 552(a)(1), OSTP's agency records subject to 
FOIA are available to any requester who requests them in accordance 
with these regulations.
    (b) Record availability on the OSTP website. OSTP shall make 
records available on its website in accordance with 5 U.S.C. 552(a)(2), 
as amended, and other documents that, because of the nature of their 
subject matter, are likely to be the subject of FOIA requests. To save 
both time and money, OSTP strongly urges requesters to review documents 
available on the OSTP website before submitting a request.
    (c) Definitions. For purposes of this part:
    (1) All of the terms defined in the Freedom of Information Act, and 
the

[[Page 54686]]

definitions included in OMB's ``Uniform Freedom of Information Act Fee 
Schedule and Guidelines'' apply, unless otherwise defined in this 
subpart.
    (2) The term ``agency record'' means records that are:
    (i) Either created or obtained by OSTP; and
    (ii) Under OSTP control at the time of the FOIA request.
    (3) The term ``commercial use request'' means a request from or on 
behalf of a person who seeks information for a use or purpose that 
furthers his or her commercial, trade, or profit interests, which can 
include furthering those interests through litigation. OSTP shall 
determine, whenever reasonably possible, the use to which a requester 
will put the requested records. When it appears that the requester will 
put the records to a commercial use, either because of the nature of 
the request itself or because OSTP has reasonable cause to doubt a 
requester's stated use, OSTP shall provide the requester a reasonable 
opportunity to submit further clarification.
    (4) The terms ``disclose'' or ``disclosure'' refer to making 
records available, upon request, for examination and copying, or 
furnishing a copy of records.
    (5) The term ``direct cost'' means those expenditures by OSTP 
actually incurred in searching for and duplicating (and, in the case of 
commercial use requests, reviewing) records in response to the FOIA 
request. Direct costs include the salary of the employee or employees 
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, such as photocopiers and 
scanners. Direct costs do not include overhead expenses, such as the 
cost of space, heating, or lighting of the facility in which the 
records are stored.
    (6) The term ``duplication'' means the making of 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, microform, 
audiovisual materials, or electronic records (for example, magnetic 
tape or disk), among others.
    (7) The term ``educational institution'' means a preschool, a 
public or private elementary or secondary school, an institution of 
undergraduate higher education, an institution of graduate higher 
education, an institution of professional education, or an institution 
of vocational education that operates a program of scholarly research. 
To be in this category, a requester must show that the request is 
authorized by and is made under the auspices of a qualifying 
institution and that the records are not sought for a commercial use, 
but are sought to further scholarly research.
    (8) The term ``fee waiver'' means the waiver or reduction of 
processing fees if a requester can demonstrate that certain statutory 
standards are satisfied.
    (9) The term ``FOIA Public Liaison'' means an agency official who 
is responsible for assisting requesters in defining the scope of their 
request to reduce processing time, increasing transparency and 
understanding of the status of requests, as well as assisting in the 
resolution of disputes.
    (10) The term ``noncommercial scientific institution'' means an 
institution that is not operated on a ``commercial'' basis, as that 
term is defined in these regulations, 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. To be in 
this category, a requester must show that the request is authorized by 
and is made under the auspices of a qualifying institution and that the 
records are not sought for a commercial use but are sought to further 
scientific research.
    (11) The term ``perfected request'' means a FOIA request for 
records that reasonably describes the records sought, that has been 
received by OSTP in accordance with the requirements set forth in Sec.  
2402.4.
    (12) The terms ``representative of the news media'' or ``news media 
requester'' mean 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. In this clause, 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 are television 
or radio stations broadcasting to the public at large and publishers of 
periodicals (but only if such entities qualify as disseminators of 
news) who make their products available for purchase by or subscription 
by or free distribution to the general public. These examples are not 
all-inclusive. Moreover, as methods of news delivery evolve, such as 
through electronic or digital means, such news sources shall be 
considered to be news media entities. A freelance journalist shall be 
regarded as working for a news-media entity if the journalist can 
demonstrate a solid basis for expecting publication through that 
entity, whether or not the journalist is actually employed by the 
entity. A publication contract would present a solid basis for such an 
expectation; the Government may also consider the past publication 
record of the requester in making such a determination.
    (13) The term ``requester'' means any person, including an 
individual, partnership, corporation, association, Native American 
tribe, or other public or private organization other than a Federal 
agency that requests access to records.
    (14) The term ``review'' means the process of examining documents 
located in response to a request that is for a commercial use to 
determine whether any portion of any document located is permitted to 
be withheld. It includes processing of any documents for disclosure, 
e.g., doing all that is necessary to excise exempt information and 
otherwise prepare them for release. Review does not include time spent 
resolving general legal or policy issues regarding the application of 
exemptions.
    (15) The term ``search'' refers to the process of looking for and 
retrieving records or information responsive to a request. It includes 
page-by-page or line-by-line identification of information within 
records and also includes reasonable efforts to locate and retrieve 
information from records maintained in electronic form or format.
    (16) The term ``working day'' means a regular Federal working day 
between the hours of 9:00AM and 5:00PM. It does not include Saturdays, 
Sundays, or legal Federal holidays. Any requests received after 5:00PM 
on any given working day will be considered received on the next 
working day.


Sec.  2402.4  Procedure for requesting records.

    (a) Format of requests--(1) In general. Requests for information 
must be made in writing and may be delivered by mail, fax, or 
electronic mail, as specified in Sec.  2402.2(c). All requests must be 
made in English. Requests for information may specify the preferred 
format (including electronic formats) of the response. When requesters 
do not specify the preferred format of the response, OSTP shall produce 
scanned records to be delivered electronically.
    (2) Electronic format records. (i) OSTP shall provide the 
responsive records in the format requested if the record or records are 
readily reproducible by OSTP in that format. OSTP shall make reasonable 
efforts to maintain its records in formats that are reproducible for 
the purpose of disclosure. For purposes of this paragraph, the term 
readily reproducible means, with respect to electronic format, a record 
that can be downloaded or transferred intact to an

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electronic medium using equipment currently in use by the office 
processing the request. Even though some records may initially be 
readily reproducible, the need to segregate exempt from nonexempt 
records may cause the releasable material to be not readily 
reproducible.
    (ii) In responding to a request for records, OSTP shall make 
reasonable efforts to search for the records in electronic format, 
except where such efforts would interfere with the operation of the 
agency's automated information system(s). For purposes of this 
paragraph, the term ``search'' means to locate, manually or by 
automated means, agency records for the purpose of identifying those 
records that are responsive to a request.
    (iii) Searches for records maintained in electronic format may 
require the application of codes, queries, or other minor forms of 
programming to retrieve the requested records.
    (3) Attachment restrictions. To protect OSTP's computer systems, 
OSTP will not accept files sent as email attachments or as web links. 
Requesters can submit requests by postal mail, by fax, or in the body 
of the email text.
    (b) Contents. A request must describe the records sought in 
sufficient detail to enable OSTP personnel to locate the records with a 
reasonable amount of effort. To the extent possible, requesters should 
include specific information that may assist OSTP personnel in 
identifying the requested records, such as the date, title or name, 
author, recipient, and subject matter of the record. In general, 
requesters should include as much detail as possible about the specific 
records or the types of records he or she is seeking. Before submitting 
a request, requesters may contact the OSTP FOIA Public Liaison to 
discuss the records they are seeking and to receive assistance in 
describing the records. If, after receiving a request, OSTP determines 
that it does not reasonably describe the records sought or that the 
request will be unduly burdensome to process, OSTP shall inform the 
requester what additional information is needed or how the request may 
be modified. Requesters who are attempting to reformulate or modify 
such a request may discuss their request with OSTP's FOIA Public 
Liaison, who is available to assist.
    (c) Date of receipt. A request that complies with paragraphs (a) 
and (b) of this section is deemed a ``perfected request.'' A perfected 
request is deemed received on the actual date it is received by OSTP. A 
request that does not comply with paragraphs (a) and (b) of this 
section is deemed received when sufficient information to perfect the 
request is actually received by OSTP.
    (d) Contact information. Requesters must provide contact 
information, such as the requester's phone number, email address, or 
mailing address, to enable OSTP to communicate with the requester about 
the request and provide released records. If OSTP cannot contact the 
requester, or the requester does not respond within 30 calendar days to 
OSTP's requests for clarification, OSTP will administratively close the 
request.
    (e) Types of records not available. The FOIA does not require OSTP 
to:
    (1) Compile or create records solely for the purpose of satisfying 
a request for records;
    (2) Provide records not yet in existence, even if such records may 
be expected to come into existence at some future time;
    (3) Restore records destroyed or otherwise disposed of, except that 
OSTP must notify the requester that the requested records have been 
destroyed or disposed.


Sec.  2402.5  Responses to requests.

    (a) In general. In determining which records are responsive to a 
request, OSTP will ordinarily include only records in its possession as 
of the date it begins its search for records. If any other date is 
used, the OSTP shall inform the requester of that date.
    (b) Authority to grant or deny requests. OSTP shall make initial 
determinations to grant or deny in whole or in part a request for 
records.
    (c) Granting of Requests. When OSTP determines that any responsive 
records shall be made available, OSTP shall notify the requester in 
writing and provide copies of the requested records in whole or in 
part. Records disclosed in part shall be marked or annotated to show 
the exemption applied to the withheld information and the amount of 
information withheld unless to do so would harm the interest protected 
by an applicable exemption. If a requested record contains exempted 
material along with nonexempt material, all reasonable segregable 
material shall be disclosed.
    (d) Adverse determinations. If OSTP makes an adverse determination 
denying a request in any respect, it must notify the requester of that 
adverse determination in writing. Adverse determinations include 
decisions that: The requested record is exempt from disclosure, in 
whole or in part; the request does not reasonably describe the records 
sought, but only if, after discussion with the FOIA Public Liaison, the 
requester refuses to modify the terms of the request; 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; denials involving fees or fee waiver matters; 
and denials of requests for expedited processing.
    (e) Content of adverse determinations. Any adverse determination 
issued by OSTP must include:
    (1) A brief statement of the reasons for the adverse determination, 
including any FOIA exemption applied by the agency in denying access to 
a record unless to do so would harm the interest protected by an 
applicable exemption;
    (2) An estimate of the volume of any records or information 
withheld, such as the number of pages or other reasonable form of 
estimation, although such an estimate 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;
    (3) A statement that the adverse determination may be appealed 
under Sec.  2402.8 and a description of the appeal requirements.
    (4) A statement notifying the requester of the assistance available 
from OSTP's FOIA Public Liaison and the dispute resolution services 
offered by the Office of Government Information Services.
    (f) Consultations, referrals, and coordinations. When OSTP receives 
a request for a record in its possession, it shall determine whether 
another agency of the Federal Government is better able to determine 
whether the record is exempt from disclosure under FOIA and, if so, 
whether it should be disclosed as a matter of administrative 
discretion. If OSTP determines that it is best able to process the 
record in response to the request, then it shall do so. If OSTP 
determines that it is not best able to process the record, then it 
shall proceed in one of the following ways:
    (1) Consultation. When records originating with OSTP contain 
information of interest to another Federal agency, OSTP should 
typically consult with that Federal agency prior to making a release 
determination.
    (2) Referral. (i) When OSTP believes that a different Federal 
agency is best able to determine whether to disclose the record, OSTP 
should 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. If OSTP and another Federal agency jointly 
agree that the

[[Page 54688]]

agency processing the request is in the best position to respond 
regarding the record, then the record may be handled as a consultation.
    (ii) Whenever OSTP refers any part of the responsibility for 
responding to a request to another agency, OSTP must document the 
referral, maintain a copy of the record that it refers, and notify the 
requester of the referral.
    (iii) After OSTP refers a record to another Federal agency, the 
agency receiving the referral shall make a disclosure determination and 
respond directly to the requester. The referral of a record is not an 
adverse determination and no appeal rights accrue to the requester.
    (3) Coordination. The standard referral procedure is not 
appropriate where disclosure of the identity of the Federal 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 a non-law 
enforcement agency responding to a request for records on a living 
third party 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 an agency 
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, OSTP 
will coordinate with the originating agency to seek its views on 
disclosure of the record. OSTP will then notify the requester of the 
release determination for the record that is the subject of the 
coordination.


Sec.  2402.6  Timing of Responses to Requests.

    (a) In general. OSTP shall ordinarily respond to requests according 
to their order of receipt.
    (b) Initial determinations. OSTP will exercise all reasonable 
efforts to make an initial determination acknowledging, granting, 
partially granting, or denying a request for records within 20 working 
days after receiving a perfected request.
    (c) Extensions of response time in ``unusual circumstances.'' (1) 
The 20 working day period provided in paragraph (b) of this section may 
be extended if unusual circumstances arise. If an extension is 
necessary, OSTP shall promptly notify the requester of the extension, 
briefly stating the reasons for the extension, and estimating when a 
response will be issued. Unusual circumstances warranting extension 
are:
    (i) The need to search for and collect the requested records from 
field facilities or other establishments that are separate from the 
office processing the request;
    (ii) The need to search for, collect, and appropriately examine a 
voluminous amount of separate and distinct records which are demanded 
in a single request; or
    (iii) The need for consultation, which shall be conducted with all 
practicable speed, with another agency having a substantial interest in 
the determination of the request or among two or more components of the 
agency having a substantial subject-matter interest therein.
    (2) After OSTP notifies the requester of the reasons for the delay, 
the requester will have an opportunity to modify the request or arrange 
for an alternative time frame for completion of the request. To assist 
in this process, OSTP shall advise the requester of the availability of 
OSTP's FOIA Public Liaison to aid in the resolution of any disputes 
between the requester and OSTP, and notify the requester of his or her 
right to seek dispute resolution services from the Office of Government 
Information Services.
    (3) If no initial determination is made at the end of the 20 day 
period provided for in paragraph (b) of this section, including any 
extension, the requester may appeal the action to the FOIA Appeals 
Officer.
    (d) Expedited processing of request. (1) A requester may make a 
request for expedited processing at any time.
    (2) When a request for expedited processing is received, OSTP must 
determine whether to grant the request for expedited processing within 
ten (10) calendar days of its receipt. Requests will receive expedited 
processing if one of the following compelling needs is met:
    (i) The requester can establish that failure to receive the records 
quickly could reasonably be expected to pose an imminent threat to the 
life or physical safety of an individual; or
    (ii) The requester is primarily engaged in disseminating 
information and can demonstrate that an urgency to inform the public 
concerning actual or alleged federal government activity exists.
    (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. As a matter of 
administrative discretion, OSTP may waive the formal certification 
requirement.
    (4) Administrative appeals of denials of expedited processing will 
be given expeditious consideration. If the FOIA Appeals Officer upholds 
the denial of expedited processing, that decision is immediately 
subject to judicial review in the appropriate Federal district court.
    (e) Multi-track processing. (1) OSTP may use multi-track processing 
in responding to requests. Multi-track processing means placing simple 
requests that require limited review in one processing track and 
placing more voluminous and complex requests in one or more other 
tracks. Requests in each track are processed on a first-in/first-out 
basis.
    (i) Track one--expedited requests. Track one is made up of requests 
that sought and received expedited processing as provided for in 
paragraph (d)(2) of this section.
    (ii) Track two--simple requests. Track two is for requests of 
simple to moderate complexity that do not require consultations with 
other entities and do not involve voluminous records.
    (iii) Track three--complex requests. Track three is for complex 
requests that involve voluminous records, require lengthy or numerous 
consultations, raise unique or novel legal questions, or require 
submitter review under Sec.  2402.7.
    (2) OSTP may provide requesters with requests in slower track(s) 
with an opportunity to limit the scope of their requests in order to 
qualify for faster processing within the specified limits of faster 
track(s). OSTP will do so by contracting the requester by letter, 
telephone, email, or facsimile, whichever is more efficient in each 
case. When providing a requester with the opportunity to limit the 
scope of a request, OSTP shall also advise the requester of OSTP's FOIA 
Public Liaison to aid in the resolution of any dispute arising between 
the requester and OSTP as well as the requester's right to seek dispute 
resolution services from the Office of Government Information Services.
    (f) Aggregating requests. OSTP may aggregate requests if it 
reasonably appears that multiple requests submitted either by a single 
requester, or by a group of requesters acting in concert, involve 
related matters and constitute a single request that otherwise would 
involve unusual circumstances. For example, OSTP may aggregate multiple 
requests for similar

[[Page 54689]]

information filed by a single requester within a short period of time.


 Sec.  2402.7  Confidential commercial information.

    (a) In general. Business information obtained by OSTP from a 
submitter will be disclosed under FOIA only under this section.
    (b) Definitions. For purposes of this section:
    (1) Confidential commercial information means records provided to 
the government by a submitter that arguably contain material exempt 
from release under 5 U.S.C. 552(b)(4).
    (2) Submitter means any person or entity from whom OSTP obtains 
confidential commercial information, directly or indirectly. The term 
includes corporations; state, local, and tribal governments; 
universities; non-profit organizations; associations; and foreign 
governments.
    (c) Designation of business information. A submitter of business 
information will use good-faith efforts to designate, by appropriate 
markings, either at the time of submission or at a reasonable time 
thereafter, any portions of its submission that it considers to be 
protected from disclosure under 5 U.S.C. 552(b)(4). These designations 
will expire ten years after the date of the submission unless the 
submitter requests, and provides justification for, a longer 
designation period.
    (d) Notice to submitters. OSTP shall provide a submitter with 
prompt written notice of a FOIA request or administrative appeal that 
seeks its business information, in order to give the submitter an 
opportunity to object to disclosure of any specified portion of that 
information. The notice shall either describe the business information 
requested or include copies of the requested records or record portions 
containing the information. When notification of a voluminous number of 
submitters is required, notification may be made by posting or 
publishing the notice in a place reasonably likely to accomplish it.
    (e) Where notice is required. Notice shall be given to a submitter 
wherever:
    (1) The information has been designated in good faith by the 
submitter as information considered protected from disclosure under 
Exemption 4; or
    (2) OSTP has reason to believe that the information may be 
protected from disclosure under Exemption 4.
    (f) Opportunity to object to disclosure. OSTP will allow a 
submitter a reasonable time to respond to the notice described in 
paragraph (d) of this section and will specify that time period within 
the notice. If a submitter has any objection to disclosure, the 
submitter is required to provide a detailed written statement of 
objections. The statement must specify all grounds for withholding any 
portion of the information under any exemption of FOIA and, in the case 
of information withheld under 5 U.S.C. 552(b)(4), the submitter must 
demonstrate the reasons the submitter believes the information is a 
trade secret or commercial or financial information that is privileged 
or confidential. In the event that a submitter fails to adequately 
respond to the notice within the time specified, the submitter will be 
considered to have no objection to disclosure of the information. 
Information provided by the submitter that OSTP does not receive within 
the time specified shall not be considered by OSTP. Information 
provided by a submitter under this paragraph may itself be subject to 
disclosure under FOIA.
    (g) Notice of intent to disclose. OSTP shall consider a submitter's 
objections and specific grounds for nondisclosure in deciding whether 
to disclose business information. Whenever OSTP determines that 
disclosure is appropriate over the objection of a submitter, OSTP 
shall, within a reasonable number of days prior to disclosure, provide 
the submitter with written notice of the intent to disclose, which 
shall include:
    (1) A statement of the reason(s) why each of the submitter's 
disclosure objections was not sustained;
    (2) A description of the business information to be disclosed; and
    (3) A specified disclosure date, which shall be a reasonable time 
subsequent to the notice.
    (h) Exceptions to notice requirements. The notice requirements of 
paragraphs (d) and (g) of this section shall not apply if:
    (1) OSTP determines that the information should not be disclosed;
    (2) The information lawfully has been published or has been 
officially made available to the public;
    (3) Disclosure of the information is required by statute (other 
than FOIA) or by a regulation issued in accordance with the 
requirements of Executive Order 12600 of June 23, 1987.
    (4) The designation made by the submitter under paragraph (c) of 
this section appears obviously frivolous. In such a case, OSTP shall, 
within a reasonable time prior to a specified disclosure date, give the 
submitter written notice of any final decision to disclose the 
information within a reasonable number of days prior to the specified 
disclosure date, but no opportunity to object will be offered; or
    (5) The information requested was not designated by the submitter 
as exempt from disclosure in accordance with this part, when the 
submitter had an opportunity to do so at the time of submission of the 
information or a reasonable time thereafter, unless OSTP has 
substantial reason to believe that disclosure of the information would 
result in competitive harm.
    (i) Notice of FOIA lawsuit. Whenever a requester files a lawsuit 
seeking to compel the disclosure of business information, OSTP shall 
promptly notify the submitter.
    (j) Notice to requesters. Whenever OSTP provides a submitter with 
notice and an opportunity to object to disclosure under paragraph (d) 
of this section, OSTP shall also notify the requester(s). Whenever OSTP 
notifies a submitter of its intent to disclose requested information 
under paragraph (g) of this section, OSTP shall also notify the 
requester(s). Whenever a submitter files a lawsuit seeking to prevent 
the disclosure of business information, OSTP shall notify the 
requester(s).


Sec.  2402.8  Appeal of denials.

    (a) Right to administrative appeal. The requester has the right to 
appeal to the FOIA Appeals Officer any adverse determination.
    (b) Notice of appeal--(1) Time for appeal. To be considered timely, 
an appeal must be postmarked, or in the case of electronic submissions, 
transmitted no later than ninety (90) calendar days after the date of 
the initial adverse determination or after the time limit for response 
by OSTP has expired. Prior to submitting an appeal, the requester must 
pay in full any outstanding fess associated with the request.
    (2) Form of appeal. An appeal shall be initiated by filing a 
written notice of appeal. The notice shall specify the internal control 
number assigned to the FOIA request by OSTP and be accompanied by 
copies of the original request and adverse determination. To expedite 
the appellate process and give the requester an opportunity to present 
his or her arguments, the notice should contain a brief statement of 
the reasons why the requester believes the adverse determination to be 
in error. Requesters may submit appeals by mail or electronically. 
Appeals sent via electronic mail shall be submitted to 
[email protected]. If sent by regular mail, appeals shall be sent 
to: Chief FOIA Officer, Office of Science and Technology Policy, 
Eisenhower

[[Page 54690]]

Executive Office Building, 1650 Pennsylvania Ave NW, Washington, DC 
20504. Updates to this contact information will be made on the OSTP 
website. To facilitate handling, the requester should mark both the 
appeal letter and envelop or subject line of the electronic 
transmission ``Freedom of Information Act Appeal.''
    (c) Decisions on Appeals. The Chief FOIA Officer (or designee) 
shall make a determination in writing on the appeal under 5 U.S.C. 
552(a)(6)(A)(ii) within 20 working days after the receipt of the 
appeal. If the denial is wholly or partially upheld, the Chief FOIA 
Officer shall:
    (1) Notify the requester that judicial review is available pursuant 
to 5 U.S.C. 552(a)(4)(B)-(G); and
    (2) Notify the requester that the Office of Government Information 
Services (OGIS) offers mediation services to resolve disputes between 
FOIA requesters and federal agencies as a non-exclusive alternative to 
litigation. Contact information for OGIS is: Office of Government 
Information Services, National Archives and Records Administration, 
8601 Adelphi Road-OGIS, College Park, MD 20740, Email: [email protected], 
Telephone: 202-741-5770, Facsimile: 202-741-5769, Toll-free: 1-877-684-
6448.
    (d) Dispute resolution services. Dispute resolution is a voluntary 
process. If OSTP agrees to participate in the dispute resolution 
services provided by the Office of Government Information Services, it 
will actively engage as a partner to the process in an attempt to 
resolve the dispute.
    (e) When appeal is required. Before seeking judicial review by a 
court of OSTP's adverse determination, a requester generally must first 
submit a timely administrative appeal.


Sec.  2402.9  Fees.

    (a) Fees generally required. OSTP shall use the most efficient and 
least costly methods to comply with requests for documents made under 
FOIA. OSTP shall charge fees in accordance with paragraph (b) of this 
section unless fees are waived or reduced in accordance with Sec.  
2402.10.
    (b) Calculation of fees. In general, fees for searching, reviewing, 
and duplication will be based on the direct costs of these services, 
including the average hourly salary (basic pay plus 16% for benefits) 
for the employee(s) conducting the search, reviewing the records for 
exemption, or duplicating the records. Charges for time less than a 
full hour will be in increments of quarter hours.
    (1) Search fee. Search fees may be charged even if responsive 
documents are not located or if they are located but withheld on the 
basis of an exemption. However, search fees shall be limited or not 
charged as follows:
    (i) Educational, scientific or news media requests. No search fee 
shall be charged if the request is not sought for a commercial use and 
is made by an educational or scientific institution, whose purpose is 
scholarly or scientific research, or by a representative of the news 
media.
    (ii) Other non-commercial requests. No search fee shall be charged 
for the first two hours of searching if the request is not for a 
commercial use and is submitted by an entity that is not an educational 
or scientific institution, or a representative of the news media.
    (iii) Requests for records about self. No search fee shall be 
charged to search for records performed under the terms of the Privacy 
Act, 5 U.S.C. 552a(f)(5).
    (2) Review fee. Review fees shall be assessed only with respect to 
those requesters who seek records for a commercial use. A review fee 
shall be charged for the initial examination of documents located in 
response to a request to determine whether the documents may be 
withheld from disclosure and for the redaction of document portions 
exempt from disclosure. Records or portions of records withheld in full 
under an exemption that is subsequently determined not to apply may be 
reviewed again to determine the applicability of other exemptions not 
previously considered. The costs for such a subsequent review are also 
assessable.
    (3) Duplication fee. Records will be photocopied at a rate of $0.10 
per page. For other methods of reproduction or duplication, OSTP will 
charge the actual direct costs of producing the document(s). 
Duplication fees shall not be charged for the first 100 pages of copies 
unless the copies are requested for a commercial use.
    (c) Aggregation of requests. When OSTP determines that a requester, 
or a group of requesters acting in concert, is attempting to evade the 
assessment of fees by submitting multiple requests in the place of a 
single more complex request, OSTP may aggregate any such requests and 
assess fees accordingly.
    (d) Fees likely to exceed $25. If the total fee charges are likely 
to exceed $25, OSTP shall notify the requester of the estimated amount 
of the charges. The notification shall offer the requester an 
opportunity to confer with the FOIA Public Liaison to reformulate the 
request to meet the requester's needs at a lower cost. OSTP may 
administratively close a submitted FOIA request if the requester does 
not respond in writing within 30 calendar days after the date on which 
OSTP notifies the requester of the fee estimate.
    (e) Advance payments. Fees may be paid upon provision of the 
requested records, except that payment may be required prior to that 
time if the requester has previously failed to pay fees or if OSTP 
determines that the total fee will exceed $250.00. When payment is 
required in advance of the processing of a request, the time limits 
prescribed in Sec.  2402.6 shall not be deemed to begin until OSTP has 
received payment of the assessed fee. If the requester has previously 
failed to pay fees or charges are likely to exceed $250, OSTP shall 
notify the requester of the estimated cost and:
    (1) Obtain satisfactory assurance from the requester, in writing, 
of full payment; or
    (2) OSTP may require the requester to pay the full amount of any 
fees owed and/or make an advance payment of the full amount of OSTP's 
estimated charges.
    (3) If OSTP does not receive an adequate response, assurance, or 
advanced payment within 30 calendar days of a fee determination or 
notification issued under the authority of this section, OSTP will 
administratively close the corresponding request.
    (f) Other charges. OSTP will recover the full costs of providing 
services such as those enumerated below when it elects to provide them:
    (1) Certifying that records are true copies;
    (2) Sending records by special methods such as express mail.
    (g) Remittances. Remittances shall be in the form either of a 
personal check or bank draft drawn on a bank in the United States, or a 
postal money order. Remittances shall be made payable to the Treasury 
of the United States and mailed to the Chief FOIA Officer, Office of 
Science and Technology Policy, Eisenhower Executive Office Building, 
1650 Pennsylvania Avenue NW, Washington, DC 20504. Updates to this 
contact information will be made on the OSTP website.
    (h) Receipts and refunds. A receipt for fees paid will be given 
upon request. A refund of fees paid for services actually rendered will 
not be made.


Sec.  2402.10  Waiver of fees.

    (a) In general. OSTP shall waive part or all of the fees assessed 
under Sec.  2402.9 if, based upon information provided by a requester 
or otherwise made known to

[[Page 54691]]

OSTP, the disclosure of the requested information is in the public 
interest. Disclosure is in the public interest if it is likely to 
contribute significantly to public understanding of government 
operations and is not primarily for commercial purposes. Requests for a 
waiver or reduction of fees shall be considered on a case by case 
basis. To determine whether a fee waiver requirement is met, OSTP shall 
consider the following factors:
    (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 the requester's ability and 
intention to effectively convey information to the public must be 
considered. OSTP will presume that a representative of the news media 
will satisfy 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, 
OSTP will consider the following criteria:
    (i) OSTP will 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 are encouraged to provide explanatory information regarding 
this consideration.
    (ii) If there is an identified commercial interest, OSTP will 
determine whether that is the primary interest furthered by the 
request. OSTP will ordinarily presume that when a news media requester 
has satisfied factors in paragraphs (a)(1) and (2) of this section, the 
request is not primarily in the commercial interest of the requester. 
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.
    (b) Timing of fee waivers. 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 in paragraph (a) of this 
section. 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 must pay any costs incurred up to the date of the fee waiver 
request was received.
    (b) Clarification. Where OSTP has reasonable cause to doubt the use 
to which a requester will put the records sought, or where that use is 
not clear from the request itself, OSTP may seek clarification from the 
requester before assigning the request to a specific category for fee 
assessment purposes.
    (c) Restrictions on charging fees. Except as described in 
paragraphs (c)(1) through (3) of this section, if OSTP fails to comply 
with the FOIA's time limits for responding to a request, it may not 
charge search fees. In addition, subject to the exceptions set forth in 
(c)(1) through (3) of this section, if OSTP does not comply with the 
FOIA's time limits for responding to a request, it may not charge 
duplication fees when records are not sought for a commercial use and 
the request is made by an educational institution, non-commercial 
scientific institution, or representative of the news media.
    (1) If OSTP determines that unusual circumstances, as defined by 
the FOIA, apply and provides timely written notice to the requester in 
accordance with the FOIA, then a failure to comply with the statutory 
time limit shall be excused for an additional 10 days.
    (2) If OSTP determines that unusual circumstances, as defined by 
the FOIA, apply and more than 5,000 pages are necessary to respond to 
the request, then OSTP may charge search fees and duplication fees, 
where applicable, if the following steps are taken. OSTP must (1) 
provide timely written notice of unusual circumstances to the requester 
in accordance with the FOIA; and (2) discuss 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).
    (3) If a court determines that exceptional circumstances exist, as 
defined by the FOIA, then a failure to comply with the time limits 
shall be excused for the length of time provided by the court order.


Sec.  2402.11  Maintenance of statistics.

    (a) OSTP shall maintain records that are sufficient to allow 
accurate reporting of FOIA processing statistics, as required under 5 
U.S.C. 552(e) and all guidelines for the preparation of annual FOIA 
reports issued by the Department of Justice.
    (b) OSTP shall annually, on or before February 1 of each year, 
prepare and submit to the Attorney General an annual report compiling 
the statistics maintained in accordance with paragraph (a) of this 
section for the previous fiscal year. A copy of the report will be 
available for public inspection at the OSTP website.


Sec.  2402.12  Disclaimer.

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

Ted Wackler,
Deputy Chief of Staff and Assistant Director.
[FR Doc. 2018-23606 Filed 10-30-18; 8:45 am]
 BILLING CODE 3270-F9-P