Freedom of Information Act, 22947-22957 [2019-10269]

Download as PDF Federal Register / Vol. 84, No. 98 / Tuesday, May 21, 2019 / Rules and Regulations the agency has determined that unusual circumstances apply and more than 5,000 pages are necessary to respond to the request. * * * * * ■ 19. Amend § 1184.8 by revising the second sentence of paragraph (b) to read as follows: § 1184.8 How can I address concerns regarding my request? * * * * * (b) * * * If you seek information regarding OGIS and/or the services it offers, please contact OGIS directly at Office of Government Information Services, National Archives and Records Administration, 8601 Adelphi RoadOGIS, College Park, MD 20740–6001, Email: ogis@nara.gov, Phone: (202) 741– 5770 or toll free (877) 684–6448, Fax: (202) 741–5769. * * * § 1184.9 [Amended] 20. Amend § 1184.9(b)(2) by adding a comma after ‘‘local’’. ■ Dated: May 13, 2019. Kim Miller, Grants Management Specialist, Institute of Museum and Library Services. [FR Doc. 2019–10212 Filed 5–20–19; 8:45 am] BILLING CODE 7036–01–P OFFICE OF MANAGEMENT AND BUDGET 5 CFR Part 1303 RIN 0348–AB42 Freedom of Information Act Office of Management and Budget, Executive Office of the President. ACTION: Final rule. AGENCY: jbell on DSK3GLQ082PROD with RULES VerDate Sep<11>2014 17:11 May 20, 2019 Jkt 247001 FOR FURTHER INFORMATION CONTACT: 1. Section 1303.21 Dionne Hardy, Office of Management and Budget, Office of General Counsel, at OMBFOIA@omb.eop.gov, 202–395– FOIA. One commenter suggested a change to this section’s provision stating how a requester can access certain information about a person other than the requester which would otherwise be withheld. OMB’s proposal provided that if the requester includes authorization for full disclosure given by the individual whom the information is about, or a death certificate or other proof that that person is deceased, the requester can receive ‘‘greater access’’ to the information about that individual. The commenter suggested that the rule should limit the people for whom ‘‘greater access’’ can be withheld by OMB in the first place, without such proof or authorization, to only people who are not ‘‘government officials.’’ The commenter suggested that this change would facilitate ‘‘open access to government records about government officials.’’ For this section, OMB used the text found in the DOJ OIP’s Guidance for Agency FOIA Regulations without modification except to insert the name of the agency. OMB’s purpose for including this provision was to facilitate greater access to information which is permitted to be withheld by an agency under exemptions b(6) and b(7)(C) in the FOIA statute which protect against unwarranted invasions of personal privacy. There is no basis in the FOIA statute allowing or directing agencies to make a distinction between ‘‘government officials’’ and other people who are the subject of requested information when it comes to what information will be released. Indeed, the FOIA’s exemptions from release for personal privacy interests (5 U.S.C. 552(b)(6), (7)(C)) are often invoked to withhold sensitive personal information of government employees. OMB’s rule directs requesters to provide specified documentation showing that no invasion of personal privacy would result from the release of the requested records (i.e., because the subject of the personal information has authorized the release or is deceased). Personal information is protected by exemption b(6) regardless of whether the subject of the information is a government official. For these reasons, OMB declines to make the change requested to distinguish government officials. SUPPLEMENTARY INFORMATION: Background: On August 23, 2018, OMB proposed revisions (43 FR 42610– 42618) to its existing regulations under the CFR at part 1303 governing requests and responses for agency records under the Freedom of Information Act (FOIA), 5 U.S.C. 552. These revisions are now being finalized to implement the FOIA and incorporate the provisions of the OPEN Government Act of 2007 (Pub. L. 110–81) and the FOIA Improvement Act of 2016 (Pub. L. 114–185) as well as streamline OMB’s FOIA regulations by structuring the text of the regulation in an order more similar to that of DOJ’s FOIA regulation and the DOJ Office of Information Policy’s (OIP) Guidance for Agency FOIA Regulations (‘‘the DOJ FOIA Regulation Guidance’’), thus promoting uniformity of FOIA regulations across agencies. Additionally, the regulations are updated to reflect developments in the case law. OMB proposed these revisions after conducting the review made in accordance with section 3(a) of the FOIA Improvement Act of 2016, which provides that each agency ‘‘shall review the regulations of such agency and shall issue regulations on procedures for the disclosure of records under [the FOIA].’’ With this final rule OMB is adopting the revision to its FOIA regulation as previously proposed, with amendments included in response to public comments regarding OMB’s proposal. Public Comments OMB is issuing a final rule revising its regulations implementing the Freedom of Information Act (FOIA). These regulations are being revised to implement the FOIA and incorporate the provisions of the OPEN Government Act of 2007 and the FOIA Improvement Act of 2016 as well as streamline OMB’s FOIA regulations by structuring the text of the regulation in an order more similar to that of the Department of Justice’s (DOJ) FOIA regulation and the DOJ Office of Information Policy’s (OIP) Guidance for Agency FOIA Regulations, thus promoting uniformity of FOIA regulations across agencies. Additionally, the regulations are being updated to reflect developments in case law regarding the FOIA. DATES: The final rule is effective June 20, 2019. SUMMARY: 22947 Interested persons were afforded the opportunity to participate in the rulemaking process through submission of written comments to the proposed rule during the 30-day public comment period. OMB received twelve public submissions in response to the proposed rulemaking. Due consideration was given to each submission received and a determination was made that four of the submissions were relevant comments to the proposed rule and that the remaining eight submissions were unrelated to the subject matter of the proposal. Overall, OMB adopted all four of these relevant comments in part. Three of these four comments contained discussion of multiple sections of the proposed revised rule. Discussion of each of the comments and OMB’s responses follows in order of the relevant section of the revised regulation. PO 00000 Frm 00005 Fmt 4700 Sfmt 4700 2. Section 1303.22 The same commenter suggested that OMB remove this section’s proposed statement of the requirement that ‘‘requesters must describe the records sought in sufficient detail to enable E:\FR\FM\21MYR1.SGM 21MYR1 jbell on DSK3GLQ082PROD with RULES 22948 Federal Register / Vol. 84, No. 98 / Tuesday, May 21, 2019 / Rules and Regulations OMB personnel to locate them with a reasonable amount of effort.’’ The commenter stated that a requirement that requesters provide ‘‘sufficient detail’’ in their requests is not required by the FOIA statute and removing this requirement ‘‘avoids the unnecessary delays introduced by’’ such a requirement. The commenter linked the proposed rule’s requirement for sufficient detail in FOIA requests with language in OMB’s regulation guiding OMB to conduct searches efficiently and without unnecessary expense. For this section, OMB used the text found in the DOJ OIP’s Guidance for Agency FOIA Regulations without modification except to insert the name of the agency. OMB’s purpose for including this language was to reflect prevailing case law that has consistently held that a request failing to provide sufficient detail or particular specificity may be a basis for an agency to validly reject the request. See Judicial Watch, Inc. v. Exp.-Imp. Bank, 108 F. Supp. 2d 19, 27–28 (D.D.C. 2000) (agency motion for summary judgment based on requester’s failure to exhaust administrative remedies was granted because requester ‘‘fail[ed] to state its request with sufficient particularity.’’). Failing to provide sufficient detail in a request is one of several ways a plaintiff may fail to ‘‘reasonably describe’’ the records sought. See James Madison Project v. CIA, No. 08–1323, 2009 U.S. Dist. LEXIS 78671, *8 (E.D. Va., August 31, 2009). OMB’s revision provides ways for requesters to prevent a FOIA request from being deficient for failure to reasonably describe the records sought, both before and after the request is submitted. Moreover, OMB’s revision provides requesters an additional accommodation not required by the FOIA statute, namely that OMB will contact requesters for clarification in cases where the request fails to reasonably describe the records sought. Finally, OMB does not intend for this provision to change OMB’s procedures for searching for records in response to FOIA requests. The text of § 1303.91 of OMB’s revised regulation includes text that is unchanged from OMB’s previous rule (formerly in § 1303.40) that states that OMB will use the ‘‘most efficient and least costly methods’’ in complying with requests for responsive documents. For these reasons, OMB declines to make the suggested change to this section. 3. Section 1303.30 The same commenter opposed the inclusion of parts (a) and (b) of this new section stating that they would curtail VerDate Sep<11>2014 16:19 May 20, 2019 Jkt 247001 the processing of valid FOIA requests. Specifically, the commenter stated that the provisions for when searches are cut off from including later, newly created records, and for exclusion of records from searches when those records have been transferred to the control of the National Archives and Records Administration (NARA) may make the request process more difficult. The comment notes that the proposed regulation’s provision in part (a) of a search cutoff date ‘‘does not delineate the search cutoff in its text.’’ For part (a) of this section, OMB used text found in the DOJ OIP’s Guidance for Agency FOIA Regulations without modification except to insert the name of the agency. This section is intended to provide notice to requesters that OMB uses the date the search is begun by agency staff as the search cutoff date, designating records created after that date as not responsive to the request. This procedure is favored by courts over the use of a date-of-receipt search cutoff policy. See, e.g., McGehee v. CIA, 697 F.2d 1095, 1104 (D.C. Cir. 1983) (holding that a date-of-search cutoff is more reasonable because it ‘‘results in a much fuller search and disclosure’’ than does a date-of-request cut-off). Using the date that the search begins is more reasonable than a later date because one of the first steps in the search is often a request for collection of documents currently in possession of agency staff or in file systems. A later cutoff would potentially require multiple successive requests for additional documents in response to the same FOIA request. Additionally, this comment opposed inclusion of part (b) of this section, which provides notice that records that have been transferred to the control of NARA are not accessible by submitting a FOIA request to OMB. The commenter requested that this provision be removed because ‘‘it does not make explicit that recent records created under the Obama Administration are no longer within the OMB’s control for FOIA request purposes.’’ OMB chose to add both paragraph (a) and paragraph (b) to the regulation in order to provide requesters some notice where there previously was none, of the possible limits of the scope of searches conducted by OMB in response to FOIA requests. In the case of paragraph (b), OMB intends this provision to notify requesters of a limitation of the FOIA which commonly affects the scope of searches conducted by OMB. A listing of particular instances of the transfer of records to NARA such as happened with emails at the end of the Obama Administration, as requested by this comment, was not included in the rule PO 00000 Frm 00006 Fmt 4700 Sfmt 4700 because such changes to OMB’s records holdings typically happen too frequently to include an up-to-date listing of OMB’s records retention schedules in OMB’s regulation. OMB’s records holdings, including documentation of the Obama Administration email accession to NARA are publicly listed on NARA’s website for Records Control Schedules of agencies here: https:// www.archives.gov/records-mgmt/rcs/ schedules/index.html?dir=/executiveoffice-of-the-president/rg-0051. For these reasons, OMB declines to make the change requested. 4. Section 1303.40(a) One commenter pointed out that this section’s statement of when the FOIA Officer is to determine whether it is appropriate to grant requests and what the notification of that determination back to the requester must include does not list the same items that were listed in the D.C. Circuit’s opinion in Citizens for Responsibility & Ethics in Washington v. FEC, 711 F.3d 180 (D.C. Cir. 2013), including, among other items, the right of the requester to appeal the agency’s determination. In that case, the D.C. Circuit gave a description of the minimum requirements for an agency’s determination regarding a FOIA request in order for that communication to be effective to require a requester to exhaust their administrative remedies prior to filing suit over that FOIA request pursuant to the FOIA’s provisions at 5 U.S.C. 552(a)(6)(C). OMB does not intend for this provision in its regulation to change the statutory requirements for OMB to provide notification of the agency’s determination of whether to comply with a request in the FOIA at 5 U.S.C. 552(a)(6)(A). Nor does OMB intend for this section to reflect a comprehensive description of the information that the FOIA requires to be included in a notification of a determination of a request, which can be found by examining the FOIA itself. This section only intends to briefly describe the timing of responses to a request, including the basic 20-day time period and the requirement of immediate notification to the requester of a determination regarding the request. For these reasons, OMB declines to make the requested change. The same commenter stated that this section includes an erroneous method for calculating the date of receipt of a FOIA request. Specifically, the commenter stated that the proposed rule’s provision that ‘‘the 20-day period, as used herein, shall commence on the E:\FR\FM\21MYR1.SGM 21MYR1 Federal Register / Vol. 84, No. 98 / Tuesday, May 21, 2019 / Rules and Regulations jbell on DSK3GLQ082PROD with RULES date on which the FOIA Officer or the FOIA Public Liaison first receives the request’’ conflicts with the FOIA’s requirement that the 20-day period commences no later than ten days after the request is first received by any component of the agency designated to receive FOIA requests. OMB does not intend for this provision to modify the statutory requirement that the 20-day period should commence no less than ten days after the request is first received by the agency. OMB agrees with the commenter that this section will more accurately reflect OMB’s duties under the FOIA by including an additional clause which is included in the DOJ OIP’s Guidance for Agency FOIA Regulations. Specifically, OMB has added to this subsection the following text: ‘‘but in any event not later than 10 working days after the request is first received by any component’s office that is designated by these regulations to receive requests.’’ 5. Section 1303.40(d) Four commenters raised concerns that this section of the proposal’s provision regarding the aggregating of requests for the purposes of triggering the FOIA’s provision for extending the time period for the agency to respond to FOIA requests in cases of unusual circumstances stated in the FOIA at 5 U.S.C. 552(a)(6)(B), are overly broad. Each of the comments opposed OMB’s proposal of a 45-day period within which OMB would presume requests can be aggregated if other circumstances listed in the regulation and statute apply. One commenter stated that this provision would extend OMB’s response time for requests ‘‘from 20 days to 40 days, or longer.’’ Another commenter disagreed with OMB’s explanation for the proposed time period in the proposal’s summary of changes, that the 45-day period accounts for the FOIA statute’s provision of ten working days for routing of FOIA requests, 20 days for an initial response, and 20 days for an appeal response, and suggested that the time period for appeal responses should be ignored because appeals are relatively rare. This comment also noted that most agencies have a 30-day aggregation period included in the feecalculation portion of their regulations in accordance with the DOJ OIP’s Guidance for Agency FOIA Regulations. Another commenter stated that this section would have set an overly broad standard for aggregating requests by omitting the requirement of the FOIA’s aggregation provision (5 U.S.C. 552(a)(6)(B)(iv)) that aggregated requests VerDate Sep<11>2014 16:19 May 20, 2019 Jkt 247001 involve ‘‘clearly related matters.’’ Another commenter stated more generally that this provision was overly broad because it did not stipulate that the requests must ‘‘otherwise satisfy the unusual circumstances’’ standard in the FOIA in order to be eligible for aggregation. After careful consideration of these comments, OMB agrees that including the proposed 45-day period for aggregating requests could lead to confusion and potentially overly broad application of the FOIA’s aggregation provision for the agency to claim ‘‘unusual circumstances’’ regarding a request. As proposed, the regulation would not have affected the 20-day time limit for requests, and therefore would only be applied to claim the ‘‘unusual circumstances’’ timing provision of the FOIA on the later of multiple aggregated requests when the earlier request’s 20day time period had expired. However, OMB agrees with commenter’s arguments that the proposed provision could have been misinterpreted, leading to unnecessary confusion. Further, OMB agrees with commenters who suggested that OMB should revise this section to align with the corresponding provision of the DOJ OIP’s Guidance for Agency FOIA Regulations. Doing so will add to uniformity across regulations and reduce the potential for confusion and delays in processing FOIA requests. For these reasons, OMB is adopting changes to this section suggested by the comments. Specifically, OMB has amended this section to align with the DOJ OIP’s Guidance for Agency FOIA Regulations. 6. Section 1303.70 One commenter suggested that a provision of this section could be confusing to requesters who wish to seek review by a court of an agency’s adverse determination. Specifically, the comment highlighted the final sentence of this section in the proposal, which states, ‘‘[b]efore seeking review by a court of an agency’s adverse determination, a requester generally must first submit a timely administrative appeal.’’ The commenter noted that the FOIA statute at 5 U.S.C. 552(a)(6)(C)(i) provides that a requester ‘‘shall be deemed to have exhausted [her or his] administrative remedies with respect to such request if the agency fails to comply with the applicable time limit provisions. . . .’’ The comment concluded that the regulation’s statement of the requirement that that requester to appeal an adverse ruling before seeking review by a court conflicts with the FOIA’s provision granting requesters leave to seek court PO 00000 Frm 00007 Fmt 4700 Sfmt 4700 22949 review when the 20-day time limit for agency responses expires, regardless of whether the requester has appealed their case. For the provision of the rule highlighted by this comment, OMB used the text found in the DOJ OIP’s Guidance for Agency FOIA Regulations without modification. This provision was included in OMB’s rule to give notice to requesters of the uniform treatment by courts of the FOIA as requiring plaintiffs who are challenging an agency’s adverse determinations in court to first exhaust their administrative remedies by appealing to the agency for administrative review. See, e.g., Wilbur v. CIA, 355 F.3d 675, 677 (D.C. Cir. 2004). OMB agrees with the commenter that in those cases where an agency has not issued a determination when the 20-day time limit has passed, the FOIA’s constructive exhaustion provision, cited by this comment, applies unless and until the agency does issue a determination. See Judicial Watch, Inc. v. Rossotti, 326 F.3d 1309, 1310 (D.C. Cir. 2003) (‘‘A requester is considered to have constructively exhausted administrative remedies and may seek judicial review immediately if . . . the agency fails to answer the request within twenty days. If the agency responds to the request after the twentyday statutory window, but before the requester files suit, the administrative exhaustion requirement still applies.’’). This provision of the proposed rule does not concern situations where an agency has not issued an adverse determination and therefore does not conflict with the provision of the FOIA statute highlighted in the comment. For these reasons, OMB declines to make the change requested by this comment. 7. Section 1303.80 One commenter advised that this section’s reference to NARA’s General Records Schedule (GRS) 14 should be changed to ‘‘GRS 4.2.’’ The commenter noted that NARA’s GRS 14 was updated to ‘‘GRS 4.2’’ in January 2017. OMB agrees with this comment and has made the requested change in the rule. 8. Section 1303.90(j) One commenter requested a change to OMB’s definition of ‘‘news’’ for purposes of applying the FOIA’s reduced fees for news media requesters. Specifically, the requester asked that OMB amend the part of the definition of ‘‘news’’ that provides examples of newsmedia entities by amending the parenthetical phrase referring to periodicals which says ‘‘(but only in those instances when they can qualify E:\FR\FM\21MYR1.SGM 21MYR1 22950 Federal Register / Vol. 84, No. 98 / Tuesday, May 21, 2019 / Rules and Regulations jbell on DSK3GLQ082PROD with RULES as disseminators of ‘news’).’’ The commenter stated that this text improperly limits the definition of ‘‘news’’ and therefore the definition of ‘‘representative of the news media’’ in contradiction with the FOIA. Specifically, the commenter expressed concerns that the use of the phrase ‘‘in those instances’’ suggests that OMB will determine on a case-by-case basis, whether a requester qualifies for this provision. Furthermore, the commenter noted that the FOIA statute includes a definition of ‘‘news’’ that differs from the one in OMB’s prior rule and proposed revision. OMB did not propose changes to this provision in the regulation in its rule proposal but it did generally propose to make changes to comply with updates to the FOIA statute. Definitions of ‘‘representative of the news media’’ and ‘‘news’’ were added to the FOIA statute as part of the OPEN Government Act amendments made to the law in 2007. The definition in OMB’s prior regulation predated the 2007 FOIA amendments and closely adhered to the definition originally created by OMB and included in OMB’s ‘‘Uniform Freedom of Information Fee Schedule and Guidelines’’ in 1987. OMB agrees with the requester that OMB must comply with the definitions of ‘‘news’’ and ‘‘news media requester’’ set out in the FOIA, and further agrees that continued textual deviations from the statutory definition in OMB’s regulation may add confusion and uncertainty for requesters who may seek reduced fees for this category of requests. Therefore, OMB has revised the text of this section by aligning the definition ‘‘news’’ with the statutory definition in the FOIA. OMB intends that this change will relieve requesters of any uncertainty that OMB will adhere to the FOIA’s statutory definition of ‘‘news’’ when assessing fees. 9. Section 1303.91(b) One commenter expressed confusion with a sentence in this subsection which included ‘‘i.e.’’ but the phrase following it did not appear to be connected with the phrase preceding it. OMB had inadvertently omitted language from this sentence which would have illustrated the concept of an ‘‘initial review’’ of a record which is drawn from the DOJ OIP’s Guidance for Agency FOIA Regulations without modification. Including this text will correct a typographical error and will also provide information to requesters about the record review process, while promoting uniformity of FOIA regulations across agencies. For these reasons, OMB has added the illustrative VerDate Sep<11>2014 16:19 May 20, 2019 Jkt 247001 phrase found in that guidance to this subsection of the regulation. 10. Section 1303.91(g) One commenter advised that this section as proposed did not appear to distinguish between ‘‘all other’’ requesters and the educational institutions, noncommercial scientific institutions, and representatives of the news media with regard to charges for search time. The commenter noted that the FOIA states at 5 U.S.C. 552(a)(4)(A)(ii) that educational, noncommercial scientific institution, and news media requesters should not be charged search fees, and should only be charged duplication fees. OMB does not intend to omit this overall distinction in the FOIA regarding search fees in its rule revision and both OMB’s proposal and final rule include the general distinction for fees to be charged to these groups in § 1303.91(a) and (b), as well as 1303.92(a) through (c). Section 1303.91(g) of OMB’s rule states that the first 100 pages of duplication and the first two hours of search time will be provided without charge to noncommercial requests. For this subsection OMB used text similar to that found in the DOJ OIP’s Guidance for Agency FOIA Regulations, which also does not make its distinction regarding these restrictions on assessing fees with regard explicitly to educational, non-commercial scientific institution, and news media requesters. Instead, the rule provides the benefit of this restriction on the charging of fees to a category of requests that includes ‘‘all requests other than those seeking documents for a commercial use.’’ Because requests for ‘‘commercial use’’ are explicitly excluded from each of the above-listed special requester categories, the category ‘‘noncommercial requests’’ necessarily includes all requests that would be in any of the above listed requester categories. Therefore, it would be redundant and potentially confusing to further stipulate in the regulation that the above listed categories of requesters should also receive the benefit of this subsection. For this reason, OMB declines to make the requested change to this section. 11. Section 1303.92 One commenter noted incorrect cross references included in this section intended to point to definitions in § 1303.90. Those references have been corrected in this rule. PO 00000 Frm 00008 Fmt 4700 Sfmt 4700 12. Section 1303.93 One commenter that also commented on the proposal’s aggregation provision for purposes of timing of responses to requests (see discussion of comments to § 1303.40 above) stated that its comments equally apply to the rule’s provision for aggregating requests for purposes of calculating fees. This commenter stated that the proposed 45day period for presumption that requests can be aggregated should be reduced to 30 days in order to align with the DOJ OIP’s Guidance for Agency FOIA Regulations. Additionally this commenter suggested that the rule does not provide guidelines for overcoming a presumption that multiple requests can be aggregated, and also suggested that the regulation could allow the charging of one requester fees incurred in replying to another requester. Finally, this commenter stated that the proposed regulation conflicts with the FOIA’s requirement that agencies only charge ‘‘direct costs of search, duplication, or review,’’ 5 U.S.C. 552(a)(4)(A)(iv). OMB agrees with the commenter that using the 30-day period suggested by DOJ OIP will better promote uniformity of FOIA regulations across agencies. OMB disagrees that a version of this section that uses a 30-day time period will allow charging of one requester for work done for another requester. Under this rule, any fee charged will still be a direct cost of the search, processing, and duplication done for that requester’s request. OMB also disagrees that more specificity is required regarding how OMB will determine that the presumption that requests can be aggregated has been overcome. OMB will administer this provision within the bounds of the FOIA, while addressing the circumstances of each case to promote the purposes of the statute. This provision has been included in the rule in order to prevent abuse of the FOIA’s provision of the first 100 pages of duplication and the first two hours of search time to noncommercial requesters. For these reasons as well as the same reasons stated in the discussion of the comments to § 1303.40, OMB has revised this section to align with the corresponding provision of DOJ OIP’s Guidance for Agency FOIA Regulations, including by changing the proposed 45day period for presumption that requests can be aggregated to a 30-day period. OMB declines to make any of the other changes sought by the commenter. E:\FR\FM\21MYR1.SGM 21MYR1 Federal Register / Vol. 84, No. 98 / Tuesday, May 21, 2019 / Rules and Regulations 13. Foreseeable Harm Standard One commenter suggested that the FOIA’s standard for withholding documents based on foreseeable harm should be addressed in OMB’s FOIA rule. OMB recognizes that the FOIA Improvement Act of 2016 requires that an agency may withhold information ‘‘only if the agency reasonably foresees that disclosure would harm an interest protected by an exemption’’ or ‘‘disclosure is prohibited by law.’’ 5 U.S.C. 552(a)(8)(A)(i). However, OMB does not agree that it is necessary to include language confirming OMB’s compliance with this standard or a provision requiring adverse agency determinations to include an explanation of foreseeable harms in its rule. For these reasons, OMB declines to make the changes requested in the comment. 14. Final Amendments OMB has made the following clarifying amendments to the rule in response to comments and on its own. • Section 1303.1 Æ This section was revised to add that this regulation should be read in conjunction with the text of the FOIA. • Section 1303.40 Æ As discussed above, in response to a comment this section was revised to comply with the FOIA by adding the stipulation that the 20-day period for making determinations regarding requests will begin within 10 working days after the request is first received by any component’s office that is designated to receive requests. Æ As discussed above, in response to a comment paragraph (d) was revised to remove the proposed 45-day period for presumption that multiple requests can be aggregated and otherwise to align with the DOJ regulation template. • Section 1303.80 Æ As discussed above, in response to a comment this section was revised to update a reference to NARA’s General Records Schedule 4.2. jbell on DSK3GLQ082PROD with RULES • Section 1303.90(j) Æ As discussed above, in response to a comment this section was revised to align the definition of ‘‘news’’ with the definition now included in the FOIA statute. • Section 1303.91 Æ As discussed above, in response to a comment this section is revised with added text to illustrate the concept of an ‘‘initial review’’ of a record which is drawn from the DOJ OIP’s Guidance for VerDate Sep<11>2014 16:19 May 20, 2019 Jkt 247001 Agency FOIA Regulations without modification. Æ Paragraph (b) of this section was amended to clarify that review fees will be charged at the same rate as search fees. • Section 1303.93(c) Æ This subsection was revised to change the proposed 45-day period for presumption that multiple requests can be aggregated to 30 days and otherwise to align with the DOJ regulation template. Classification of This Rule Under Relevant Statutes Regulatory Flexibility Act OMB, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this rule and certifies that this rule will not have a significant economic impact on a substantial number of small entities. Under the FOIA, agencies may recover only the direct costs of searching for, reviewing, and duplicating the records processed for requesters, and only for certain classes of requesters and when particular conditions are satisfied. Thus, fees assessed by the OMB are nominal. Executive Orders 12866 and 13771 For purposes of Executive Order (E.O.) 13771 on Reducing Regulation and Controlling Regulatory Costs, this rule is not an E.O. 13771 regulatory action because this rule is not a significant regulatory action under section 3(f) of E.O. 12866. Unfunded Mandates Reform Act of 1995 This rule will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995. Small Business Regulatory Enforcement Fairness Act of 1995 This rule is not a major rule as defined by section 251 of the Small Business Regulatory Enforcement Fairness Act of 1996 (as amended), 5 U.S.C. 804. This rule will not result in an annual effect on the economy of $100,000,000 or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreignbased companies in domestic and export markets. PO 00000 Frm 00009 Fmt 4700 Sfmt 4700 22951 List of Subjects in 5 CFR Part 1303 Administrative practice and procedure, Archives and records, Freedom of information. For the reasons stated in the preamble, OMB revises 5 CFR part 1303 to read as follows: PART 1303—PUBLIC INFORMATION PROVISIONS OF THE ADMINISTRATIVE PROCEDURES ACT Sec. General 1303.1 Purpose. 1303.2 Authority and functions. 1303.3 Organization. Proactive Disclosures 1303.10 Availability of proactive disclosures. Requirements for Making Requests 1303.20 Where to send requests. 1303.21 Requesters making requests about themselves or others. 1303.22 Requirement for providing description of the records sought. Responsibility for Responding to Requests 1303.30 Responsibility for responding to requests. Timing of Responses to Requests 1303.40 Timing of responses to requests. Responses to Requests 1303.50 Responses to requests. Confidential Commercial Information 1303.60 Notification procedures for confidential commercial information. Appeals 1303.70 Appeals. Preservation of Records 1303.80 Preservation of records. Fees 1303.90 Definitions. 1303.91 Fees to be charged—general. 1303.92 Fees to be charged—categories of requesters. 1303.93 Miscellaneous fee provisions. 1303.94 Waiver or reduction of charges. Authority: 5 U.S.C. 301 and 5 U.S.C. 552, unless otherwise noted. General § 1303.1 Purpose. This part implements the Freedom of Information Act (FOIA), 5 U.S.C. 552, as amended, and prescribes the rules governing the public availability of Office of Management and Budget (OMB) records. The rules in this subpart should be read in conjunction with the text of the FOIA. § 1303.2 Authority and functions. The general functions of OMB, as provided by statute and by executive E:\FR\FM\21MYR1.SGM 21MYR1 22952 Federal Register / Vol. 84, No. 98 / Tuesday, May 21, 2019 / Rules and Regulations order, are to develop and to execute the budget, oversee implementation of Administration policies and programs, advise and assist the President, and develop and implement management policies for the government. § 1303.3 Organization. (a) The central organization of OMB is as follows: (1) The Director’s Office includes the Director, the Deputy Director, the Deputy Director for Management, and the Executive Associate Director. (2) Staff Offices include General Counsel, Legislative Affairs, Communications, Management and Operations, and Economic Policy. (3) Offices that provide OMB-wide support include the Legislative Reference Division and the Budget Review Division. (4) Resource Management Offices, which develop and support the President’s management and budget agenda in the areas of Natural Resources, Energy and Science; National Security; Health; Education, Income Maintenance and Labor; and General Government Programs. (5) Statutory offices include the Offices of Federal Financial Management, Federal Procurement Policy, Intellectual Property Enforcement Coordinator; E-government and Information Technology; and Information and Regulatory Affairs. (b) OMB is located in the Eisenhower Executive Office Building, 17th Street and Pennsylvania Avenue NW, and the New Executive Office Building, 725 17th Street NW, Washington, DC 20503. OMB has no field offices. Security in both buildings prevents visitors from entering the building without an appointment. Proactive Disclosures § 1303.10 Availability of proactive disclosures. jbell on DSK3GLQ082PROD with RULES OMB makes available records that are required by the FOIA to be made available for public inspection in an electronic format. OMB information pertaining to matters issued, adopted, or promulgated by OMB that is within the scope of 5 U.S.C. 552(a)(2) is available electronically on OMB’s website at www.whitehouse.gov/omb/. Additionally, for help accessing these materials, you may contact OMB’s FOIA Officer at (202) 395–3642. Requirements for Making Requests § 1303.20 Where to send requests. The FOIA Officer is responsible for acting on all initial requests. Individuals wishing to file a request under the FOIA VerDate Sep<11>2014 16:19 May 20, 2019 Jkt 247001 should address their request in writing to FOIA Officer, Office of Management and Budget, 725 17th Street NW, Room 9204, Washington, DC 20503, via fax to (202) 395–3504, or by email at OMBFOIA@omb.eop.gov. Additionally, OMB’s FOIA Public Liaison is available to assist requesters who have questions and can be reached at (202) 395–7545 or in writing at the address provided in this section. § 1303.21 Requesters making requests about themselves or others. A requester who is making a request for records about himself or herself pursuant to 5 U.S.C. 552a must comply with the verification of identity requirements as determined by OMB pursuant to OMB’s Rules For Determining if an Individual Is the Subject of a Record in 5 CFR 1302.1. Where a request for records pertains to another individual, a requester may receive greater access by submitting either a notarized authorization signed by that individual or a declaration made in compliance with the requirements set forth in 28 U.S.C. 1746 by that individual authorizing disclosure of the records to the requester, or by submitting proof that the individual is deceased (e.g., a copy of a death certificate or an obituary). As an exercise of administrative discretion, OMB may require a requester to supply additional information if necessary in order to verify that a particular individual has consented to disclosure. § 1303.22 Requirement for providing description of the records sought. (a) Requesters must describe the records sought in sufficient detail to enable OMB personnel to locate them with a reasonable amount of effort. To the extent possible, requesters should include specific information that may help the agency identify the requested records, such as the date, title or name, author, recipient, subject matter of the record, case number, file designation, or reference number. Before submitting their requests, requesters may contact the FOIA Officer or FOIA Public Liaison to discuss the records they seek and to receive assistance in describing the records. (b) If, after receiving a request, OMB determines that the request does not reasonably describe the records sought, OMB will inform the requester what additional information is needed and why the request is otherwise insufficient. Requesters who are attempting to reformulate or modify such a request may discuss their request with the FOIA Officer or the FOIA Public Liaison. If a request does not PO 00000 Frm 00010 Fmt 4700 Sfmt 4700 reasonably describe the records sought, OMB’s response to the request may be delayed. Responsibility for Responding to Requests § 1303.30 Responsibility for responding to requests. (a) Search cutoff date. In determining which records are responsive to a request, OMB ordinarily will include only records in its possession as of the date that it begins its search. If any other date is used, OMB will inform the requester of that date. (b) Transfer of records to the National Archives and Records Administration (NARA). Permanent records of OMB which have been transferred to the control of NARA under the Federal Records Act are not in the control of OMB and are therefore not accessible by a FOIA request to OMB. Requests for such records should be directed to NARA. (c) Consultation and referral. When reviewing records, OMB 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, OMB will proceed in one of the following ways: (1) Consultation. When records contain information of interest to another agency, OMB typically will consult with that agency prior to making a release determination. (2) Referral. (i) When OMB believes that a different agency is best able to determine whether to disclose the record, OMB will refer the responsibility for responding to the request regarding that record to that agency. Ordinarily, the agency that originated the record is best situated to make the disclosure determination. However, if OMB and the originating agency jointly agree that OMB is in the best position to respond regarding the record, then OMB may provide it. (ii) If OMB determines that another agency is best situated to consider a request, OMB promptly will notify the requestor and inform him of the agency which will be processing his request, except when disclosure of the identity of the agency could harm an interest protected by an applicable FOIA exemption. In those instances, in order to avoid harm to an interest protected by an applicable exemption, OMB will coordinate with the originating agency to seek its views on the disclosability of the record and convey the release determination for the record that is the subject of the coordination to the requester. E:\FR\FM\21MYR1.SGM 21MYR1 Federal Register / Vol. 84, No. 98 / Tuesday, May 21, 2019 / Rules and Regulations Timing of Responses to Requests jbell on DSK3GLQ082PROD with RULES § 1303.40 Timing of responses to requests. (a) In general. Upon receipt of any request for information or records, the FOIA Officer will determine within 20 working days (excepting Saturdays, Sundays, and legal public holidays) after the receipt of such request whether it is appropriate to grant the request and will immediately notify the requester of such determination and the reasons therefore and the right of such person to seek assistance from the FOIA Public Liaison. The 20-day period, as used herein, shall commence on the date on which the FOIA Officer or the FOIA Public Liaison first receives the request but in any event not later than 10 working days after the request is first received by any component’s office that is designated by these regulations to receive requests. OMB may toll this 20day period either one time while OMB is awaiting information that it has reasonably requested from the requester or any time when necessary to clarify with the requester issues regarding fee assessment. OMB’s receipt of the requester’s response to OMB’s request for information ends the tolling period. (b) Multitrack processing. (1) FOIA requests are placed on one of three tracks: (i) Track one covers those requests that seek and receive expedited processing pursuant to subsection (a)(6)(E) of the FOIA and in accordance with paragraph (e) of this section; (ii) Track two covers simple requests; (iii) Track three covers complex requests. (2) Whether a request is simple or complex is based on the amount of work or time needed to process the request. OMB considers various factors, including the number of records requested, the number of pages involved in processing the request, and the need for consultations or referrals. OMB will advise the requester of the processing track in which their request has been placed and provide an opportunity to narrow or modify their request so that the request can be placed in a different processing track. (c) Unusual circumstances. Whenever the statutory time limit for processing a request cannot be met because of ‘‘unusual circumstances,’’ as defined in the FOIA, and OMB extends the time limit on that basis, OMB will, before expiration of the 20-day period to respond, notify the requester in writing of the unusual circumstances involved and of the date by which processing of the request can be expected to be completed. Where the extension VerDate Sep<11>2014 16:19 May 20, 2019 Jkt 247001 exceeds 10 working days, OMB will, as described by the FOIA, provide the requester with an opportunity to modify the request or arrange an alternative time period for processing. OMB will alert requesters to the availability of its FOIA Public Liaison, who will assist in the resolution of any disputes between the requester and OMB, and notify the requester of the right of the requester to seek dispute resolution services from the Office of Government Information Services (OGIS). (d) Aggregating requests. To satisfy unusual circumstances under the FOIA, OMB may aggregate those requests for the purposes of this section when OMB reasonably believes that a requester, or a group of requesters acting in concert, has submitted requests that constitute a single request, that would otherwise satisfy the unusual circumstances specified in this section. Multiple requests involving unrelated matters will not be aggregated. (e) Expedited processing. (1) Requests and appeals will be given expedited treatment in cases where OMB determines: (i) The lack of expedited treatment could reasonably be expected to pose an imminent threat to the life or physical safety of an individual; (ii) There is an urgency to inform the public about an actual or alleged Federal Government activity; (iii) Failure to respond to the request expeditiously would result in the loss of due process rights in other proceedings; or (iv) There are possible questions, in a matter of widespread and exceptional public interest, about the government’s integrity which effect public confidence. (2) A request for expedited processing may be made at the time of the initial request for records or at any later time. (3) A requester who seeks expedited processing must submit a statement, certified to be true and correct to the best of the requester’s knowledge and belief, explaining in detail the basis for requesting expedited processing. OMB may waive this certification requirement at its discretion. (4) OMB will decide whether to grant expedited processing and will notify the requester within 10 days after the date of the request. If a request for expedited treatment is granted, OMB will prioritize the request and process the request as soon as practicable. If a request for expedited processing is denied, any appeal of that decision will be acted on expeditiously. PO 00000 Frm 00011 Fmt 4700 Sfmt 4700 22953 Responses to Requests § 1303.50 Responses to requests. (a) Acknowledgements of requests. OMB will assign an individualized tracking number to each request received that will take longer than ten days to process; and acknowledge each request, informing the requestor of their tracking number if applicable; and, upon request, make available information about the status of a request to the requester using the assigned tracking number, including— (1) The date on which OMB originally received the request; and (2) An estimated date on which OMB will complete action on the request. (b) Grants of requests. Once OMB makes a determination to grant a request in full or in part, it will notify the requester in writing. OMB also will inform the requester of any fees charged under § 1303.9 and shall provide the requested records to the requester promptly upon payment of any applicable fees. OMB will inform the requester of the availability of the FOIA Public Liaison to offer assistance. (c) Adverse determinations of requests. In the case of an adverse determination, the FOIA Officer will immediately notify the requester of— (1) The right of the requester to appeal to the head of OMB within 90 calendar days after the date of such adverse determination in accordance with § 1303.70; (2) The right of such person to seek dispute resolution services from the FOIA Public Liaison or the OGIS at NARA; (3) The names and titles or positions of each person responsible for the denial of such request; and (4) OMB’s estimate of the volume of any requested records OMB is withholding, unless providing such estimate would harm an interest protected by the exemption in 5 U.S.C. 552(b). Confidential Commercial Information § 1303.60 Notification procedures for confidential commercial information. (a) Definitions. (1) ‘‘Confidential commercial information’’ means commercial or financial information obtained by OMB from a submitter that may be protected from disclosure under Exemption 4 of the FOIA, 5 U.S.C. 552(b)(4). (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, either directly or indirectly to the Federal Government. E:\FR\FM\21MYR1.SGM 21MYR1 jbell on DSK3GLQ082PROD with RULES 22954 Federal Register / Vol. 84, No. 98 / Tuesday, May 21, 2019 / Rules and Regulations (b) Designation of confidential commercial information. A submitter of confidential commercial information must use good faith efforts to designate by appropriate markings, at the time of submission, any portion of its submission that it considers to be protected from disclosure under Exemption 4 of the FOIA. These designations expire 10 years after the date of the submission unless the submitter requests and provides justification for a longer designation period. (c) When notice to submitters is required. (1) OMB will promptly notify a submitter when OMB determines that a pending FOIA lawsuit seeks to compel the disclosure of records containing the submitter’s confidential information, or if OMB determines that it may be required to disclose such records, provided: (i) The requested information has been designated by the submitter as information considered protected from disclosure under Exemption 4 in accordance with paragraph (b) of this section; or (ii) OMB has a 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) The notice will describe the commercial information requested or include a copy of the requested records or portions of records containing the information. In cases involving a voluminous number of submitters, OMB may post or publish a 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 do not apply if: (1) OMB 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 law, including regulation issued in accordance with the requirements of Executive Order 12,600 of June 23, 1987; or (4) The designation made by the submitter under paragraph (b) of this section appears obviously frivolous. In such case, OMB 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. VerDate Sep<11>2014 16:19 May 20, 2019 Jkt 247001 (e) Opportunity to object to disclosure. (1) Unless OMB specifies a different period, submitters who fail to respond to OMB’s notice within 30 days of OMB’s notice will be deemed to have consented to disclosure. (2) If a submitter has any objections to disclosure, it should provide OMB a detailed written statement that specifies all grounds for withholding the particular information under any exemption of the FOIA. In order to rely on Exemption 4 as basis for nondisclosure, the submitter must explain why the information constitutes a trade secret or commercial or financial information that is confidential. OMB is not required to consider any information received after the date of any disclosure decision. (3) Any information provided by a submitter under this section may itself be subject to disclosure under the FOIA. (f) Analysis of objections. OMB will consider a submitter’s objections and specific grounds for nondisclosure in deciding whether to disclose the requested information. (g) Notice of intent to disclose. Whenever OMB decides to disclose information over the objection of a submitter, OMB will provide the submitter written notice, which will include: (1) A statement of the reasons why each of the submitter’s disclosure objections were not sustained; (2) A description of the information to be disclosed or copies of the records as OMB intends to release them; and (3) A specified disclosure date, at least 30 days after OMB transmits its notice of intent to disclose, except for good cause. (h) Requester notification. OMB will notify the 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. Appeals § 1303.70 Appeals. (a) A requester must appeal to the head of OMB in writing within 90 calendar days after the date of such adverse determination addressed to the FOIA Officer at the address specified in § 1303.20. The appeal must include a statement explaining the basis for the appeal. Determinations of appeals will be set forth in writing and signed by the Deputy Director, or his designee, within 20 working days. If on appeal the denial is upheld in whole or in part, the PO 00000 Frm 00012 Fmt 4700 Sfmt 4700 written determination will also contain a notification of the provisions for judicial review, the names of the persons who participated in the determination, and notice of the services offered by the OGIS as a nonexclusive alternative to litigation. (b) OGIS’s dispute resolution services is a voluntary process. If OMB agrees to participate in the mediation services provided by OGIS, OMB will actively engage as a partner to the process in an attempt to resolve the dispute. An appeal ordinarily will not be adjudicated if the request becomes a matter of FOIA litigation. Before seeking review by a court of an agency’s adverse determination, a requester generally must first submit a timely administrative appeal. Preservation of Records § 1303.80 Preservation of records. OMB will preserve all correspondence pertaining to the requests that it receives under this section, as well as copies of all requested records, until disposition or destruction is authorized pursuant to title 44 of the United States Code or NARA’s General Records Schedule 4.2. OMB will not dispose of or destroy records while they are the subject of a pending request, appeal, or lawsuit under the FOIA. Fees § 1303.90 Definitions. For the purpose of this part, all definitions set forth in the FOIA apply. (a) The term ‘‘direct costs’’ means those expenditures that OMB actually incurs in searching for and duplicating (and in the case of commercial requesters, reviewing) documents to respond to a FOIA request. Not included in direct costs are overhead expenses such as costs of space, heating, or lighting the facility in which the records are stored. (b) The term ‘‘search’’ means the process of looking for and retrieving records or information responsive to a request. It includes page-by-page or lineby-line identification of information within records and also includes reasonable efforts to locate and retrieve information from records maintained in electronic form or format. (c) The term ‘‘duplication’’ means the making of a copy of a document, or of the information contained in it, that is necessary to respond to a FOIA request. Such copies can be in the form of paper, microform, audio-visual materials, or electronic records (e.g., magnetic tape or disk), among others. (d) The term ‘‘review’’ refers to the process of examining documents located E:\FR\FM\21MYR1.SGM 21MYR1 jbell on DSK3GLQ082PROD with RULES Federal Register / Vol. 84, No. 98 / Tuesday, May 21, 2019 / Rules and Regulations in response to a request to determine whether any portion of any document located is permitted to be withheld. It also refers to the processing of any documents for disclosure, e.g., doing all that is necessary to excise them and otherwise prepare them for release. Review does not include time spent resolving general legal or policy issues regarding the application of exemptions. (e) The term ‘‘commercial use request’’ is a request that asks for information for a use or purpose that furthers a commercial, trade, or profit interest, which can include furthering those interests through litigation. (f) The term ‘‘educational institution’’ is any school that operates a program of teaching or scholarly research. To be eligible for inclusion in this category, requesters must show that the request is being made as authorized by and in connection with the requester’s role at a qualifying institution and that the records are not sought for commercial use, but are sought in furtherance of teaching or scholarly research. OMB may seek assurance from the requester that the request is in furtherance of teaching or scholarly research and will advise requesters of their placement in this category. (g) The term ‘‘non-commercial scientific institution’’ refers to an institution that is not operated on a commercial basis (as that term is referenced in paragraph (e) of this section) and that is operated solely for the purpose of conducting scientific research where the results of the research 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 are not for a commercial use. (h) The term ‘‘representative of the news media’’ refers to 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. (i) 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, including news organizations that disseminate solely on the internet. A request for records VerDate Sep<11>2014 16:19 May 20, 2019 Jkt 247001 supporting the news-dissemination function of the requester will not be considered to be for a commercial use. ‘‘Freelance’’ journalists who demonstrate a solid basis for expecting publication through a news media entity will be considered as a representative of the news media. A publishing contract would provide the clearest evidence that publication is expected; however, OMB can also consider a requester’s past publication record in making this determination. OMB will advise requesters of their placement in this category. § 1303.91 Fees to be charged—general. OMB will charge fees that recoup the full allowable direct costs it incurs. Moreover, it will use the most efficient and least costly methods to comply with requests for documents made under the FOIA. For example, employees should not engage in line-by-line search when merely duplicating an entire document would prove the less expensive and quicker method of complying with a request. Search should be distinguished, moreover, from review of material in order to determine whether the material is exempt from disclosure. When documents that would be responsive to a request are maintained for distribution by agencies operating statutory-based fee schedule programs (see definition in § 1303.30(b)), such as the NTIS, OMB will inform requesters of the steps necessary to obtain records from those sources. (a) Search. Requests made by educational institutions, noncommercial scientific institutions, or representatives of the news media are not subject to search fees. OMB will charge search fees for all other requesters, subject to the restrictions of paragraph (h) of this section. (1) For each quarter hour spent by personnel searching for requested records, including electronic searches that do not require new programming, the fees will be charged as follows: Professional—$10.00; and clerical/ administrative—$4.75. (2) Requesters shall be charged the direct costs associated with conducting any search that requires the creation of a new computer program to locate the requested records. Requesters shall be notified of the costs associated with creating such a program and must agree to pay the associated costs before the costs may be incurred. (b) Review of records. Only requesters who are seeking documents for commercial use may be charged for time spent reviewing records to determine whether they are exempt from mandatory disclosure. Charges may be PO 00000 Frm 00013 Fmt 4700 Sfmt 4700 22955 assessed only for the initial review; i.e., the review conducted by an agency to determine whether an exemption applies to a particular record or portion of a record. 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 direct costs for such a subsequent review are assessable. However, review costs will not include any costs incurred in resolving issues of law or policy that may be raised in the course of processing a request under this section. Review fees will be charged at the same rates as those charged for a search under paragraph (a)(1) of this section. (c) Duplication of records. The requester’s specified preference of form or format of disclosure will be honored if the record is readily reproducible in that format. Where photocopies are supplied, OMB will provide one copy per request at a cost of five cents per page. For copies prepared by computer, such as tapes or printouts, OMB will charge the actual cost, including operator time, of production of the tape or printout. For other methods of reproduction or duplication, OMB will charge the actual direct costs of producing the document(s). (d) Other charges. OMB 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; or (2) Sending records by special methods, such as express mail. (e) Remittances. Remittances shall be in the form of either a personal check, a bank draft drawn on a bank in the United States, or a postal money order. Remittances shall be made payable to the order of the Treasury of the United States and mailed to the FOIA Officer at the address found in § 1303.10(b). (f) Receipts and refunds. A receipt for fees paid will be provided upon request. Refund of fees paid for services actually rendered will not be made. (g) First 100 pages and two hours of search time. With the exception of requesters seeking documents for a commercial use, OMB will provide the first 100 pages of duplication (or the cost equivalent for other media) and the first two hours of search time without charge. (h) Restrictions on assessing fees. If OMB fails to comply with the FOIA’s 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 § 1303.90(g) E:\FR\FM\21MYR1.SGM 21MYR1 22956 Federal Register / Vol. 84, No. 98 / Tuesday, May 21, 2019 / Rules and Regulations through (i), may not charge duplication fees, except as described in the following circumstances: (1) If OMB has determined that unusual circumstances, as defined by the FOIA, apply, and OMB provided timely written notice to the requester in accordance with the FOIA, a failure to comply with the time limit will be excused for an additional 10 days. (2) If OMB has determined that unusual circumstances, as defined by the FOIA, apply, and more than 5,000 pages are necessary to respond to the request, OMB may charge search fees, or, in the case of requesters described in § 1303.90(g) through (i), may charge duplication fees, if OMB has provided timely written notice to the requester in accordance with the FOIA and OMB 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). (3) If a court determines 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. (i) No Fees under $25. No fee will be charged when the total fee, after deducting the 100 free pages (or its cost equivalent) and the first two hours of search, is equal to or less than $25. If OMB estimates that the charges are likely to exceed $25, it will notify the requester of the estimated amount of fees, unless the requester has indicated in advance his willingness to pay fees as high as those anticipated. Such a notice shall offer a requester the opportunity to confer with agency personnel to meet the requester’s needs at a lower cost. jbell on DSK3GLQ082PROD with RULES § 1303.92 Fees to be charged—categories of requesters. There are four categories of FOIA requesters: Commercial use requesters; educational and non-commercial scientific institutions; representatives of the news media; and all other requesters. The specific levels of fees for each of these categories are: (a) Commercial use requesters. When OMB receives a request for documents for commercial use, it will assess charges that recover the full direct costs of searching for, reviewing for release, and duplicating the record sought. Commercial use requesters are not entitled to two hours of free search time nor 100 free pages of reproduction of documents. OMB may recover the cost of searching for and reviewing records VerDate Sep<11>2014 16:19 May 20, 2019 Jkt 247001 even if there is ultimately no disclosure of records (see § 1303.93(b)). (b) Educational and non-commercial scientific institution requesters. OMB will provide documents to requesters in this category for the cost of reproduction alone, excluding charges for the first 100 pages. To be eligible for inclusion in this category, a requester must meet the criteria in § 1303.90(g) or (h). OMB may seek evidence from the requester that the request is in furtherance of scholarly research and will advise requesters of their placement in this category. (c) Requesters who are representatives of the news media. OMB will provide documents to requesters in this category for the cost of reproduction alone, excluding charges for the first 100 pages. To be eligible for inclusion in this category, a requester must meet the criteria in § 1303.90(i) and (j) and not make the request for commercial use. A request for records supporting the news dissemination function of the requester is not a commercial use for this category. (d) All other requesters. OMB will charge requesters who do not fit into any of the categories above fees that recover the full reasonable direct cost of searching for and reproducing records that are responsive to the request, except that the first 100 pages of reproduction and the first two hours of search time will be furnished without charge. Moreover, requests for records about the requesters filed in OMB’s systems of records will continue to be treated under the fee provisions of the Privacy Act of 1974, which permit fees only for reproduction. § 1303.93 Miscellaneous fee provisions. (a) Charging interest—notice and rate. OMB may begin assessing interest charges on an unpaid bill starting on the 31st day after OMB sends the bill. If OMB receives the fee within the thirtyday grace period, interest will not accrue on the paid portion of the bill, even if the payment is unprocessed. Interest will be at the rate prescribed in section 3717 of title 31 of the United States Code and will accrue from the date of the billing. (b) Charges for unsuccessful search. OMB may properly charge for time spent searching even if it does not locate any responsive records or if OMB determines that the records are entirely exempt from disclosure. (c) Aggregating requests. When OMB reasonably believes that a requester, or a group of requestors acting in concert, is attempting to divide a single request into a series of requests for the purpose of avoiding fees, OMB may aggregate those requests and charge fees PO 00000 Frm 00014 Fmt 4700 Sfmt 4700 accordingly. OMB 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, OMB 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 shall not be aggregated. (d) Advance payments. (1) OMB will not require a requester to make an advance payment, i.e., payment before work is commenced or continued on a request, unless OMB estimates or determines that allowable charges that a requester may be required to pay are likely to exceed $250 or the requester has previously failed to make payments due within 30 days of billing. (2) In cases in which OMB requires advance payment, the request will not be considered received and further work will not be completed until the required payment is received. If the requester does not pay the advance payment within 30 calendar days after the date of OMB’s fee determination, the request will be closed. (e) Effect of the Debt Collection Act of 1982 (Pub. L. 97–365). OMB will comply with applicable provisions of the Debt Collection Act, including disclosure to consumer reporting agencies and use of collection agencies, where appropriate, to encourage repayment. § 1303.94 Waiver or reduction of charges. (a) How to apply for a fee waiver. 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 or activities of the government and is not primarily in the commercial interest of the requester. (b) Factors for approving fee waivers. OMB will furnish records responsive to a request without charge or at a reduced rate when it determines, based on all available information, that the following factors 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 both of the following criteria are met: E:\FR\FM\21MYR1.SGM 21MYR1 jbell on DSK3GLQ082PROD with RULES Federal Register / Vol. 84, No. 98 / Tuesday, May 21, 2019 / Rules and Regulations (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. OMB 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, OMB will consider the following criteria: (i) OMB 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 must be given an opportunity to provide explanatory information regarding this consideration. (ii) If there is an identified commercial interest, OMB must 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) of this section are satisfied and any commercial interest is not the primary interest furthered by the request. OMB ordinarily will presume that when a news media requester has satisfied the requirements of paragraphs (b)(1) and (2) of this section, the request is not primarily in the 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) Timing of requests for fee waivers. Requests for a waiver or reduction of fees should be made when the request is first submitted to OMB 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 VerDate Sep<11>2014 16:19 May 20, 2019 Jkt 247001 requester shall be required to pay any costs incurred up to the date the fee waiver request was received. Mark R. Paoletta, General Counsel and Chief FOIA Officer. [FR Doc. 2019–10269 Filed 5–20–19; 8:45 am] BILLING CODE 3110–01–P DEPARTMENT OF AGRICULTURE Agricultural Marketing Service 7 CFR Part 948 [Doc. No. AMS–SC–18–0067; SC18–948–2 FR] Irish Potatoes Grown in Colorado; Modification of the Handling Regulations for Area No. 2 Agricultural Marketing Service, USDA. ACTION: Final rule. AGENCY: This final rule revises the size requirements currently prescribed under the federal marketing order for Irish potatoes grown in Colorado. This action revises the minimum size requirement for U.S. No. 2 or better grade round potatoes to align with the current size requirements for all other types of U.S. No. 2 or better grade potatoes. In addition, this rule revises the size requirements for smaller size profile U.S. Commercial grade or better potatoes. SUMMARY: DATES: Effective June 20, 2019. FOR FURTHER INFORMATION CONTACT: Barry Broadbent, Senior Marketing Specialist, or Gary D. Olson, Regional Director, Northwest Marketing Field Office, Marketing Order and Agreement Division, Specialty Crops Program, AMS, USDA; Telephone: (503) 326– 2724, Fax: (503) 326–7440, or Email: Barry.Broadbent@usda.gov or GaryD.Olson@usda.gov. Small businesses may request information on complying with this regulation by contacting Richard Lower, Marketing Order and Agreement Division, Specialty Crops Program, AMS, USDA, 1400 Independence Avenue SW, STOP 0237, Washington, DC 20250–0237; Telephone: (202) 720– 2491, Fax: (202) 720–8938, or Email: Richard.Lower@usda.gov. SUPPLEMENTARY INFORMATION: This action, pursuant to 5 U.S.C. 553, amends regulations issued to carry out a marketing order as defined in 7 CFR 900.2(j). This rule is issued under Marketing Agreement No. 97 and Order No. 948, as amended (7 CFR part 948), regulating the handling of Irish potatoes PO 00000 Frm 00015 Fmt 4700 Sfmt 4700 22957 grown in Colorado. Part 948, (referred to as the ‘‘Order’’) is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601–674), hereinafter referred to as the ‘‘Act.’’ The Colorado Potato Administrative Committee, Area 2 (Committee) locally administers the Order and is comprised of potato producers and handlers operating within the area of production. This rule is also issued pursuant to section 8e of the Act (7 U.S.C. 608e–1), which provides that whenever certain specified commodities, including potatoes, are regulated under a Federal marketing order, imports of these commodities into the United States are prohibited unless they meet the same or comparable grade, size, quality, or maturity requirements as those in effect for the domestically produced commodities. The Department of Agriculture (USDA) is issuing this final rule in conformance with Executive Orders 13563 and 13175. This action falls within a category of regulatory actions that the Office of Management and Budget (OMB) exempted from Executive Order 12866 review. Additionally, because this final rule does not meet the definition of a significant regulatory action, it does not trigger the requirements contained in Executive Order 13771. See OMB’s Memorandum titled ‘‘Interim Guidance Implementing Section 2 of the Executive Order of January 30, 2017, titled ‘Reducing Regulation and Controlling Regulatory Costs’ ’’ (February 2, 2017). This final rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule is not intended to have retroactive effect. The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. Such handler is afforded the opportunity for a hearing on the petition. After the hearing, USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA’s ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling. There are no administrative procedures which must be exhausted E:\FR\FM\21MYR1.SGM 21MYR1

Agencies

[Federal Register Volume 84, Number 98 (Tuesday, May 21, 2019)]
[Rules and Regulations]
[Pages 22947-22957]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-10269]


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OFFICE OF MANAGEMENT AND BUDGET

5 CFR Part 1303

RIN 0348-AB42


Freedom of Information Act

AGENCY: Office of Management and Budget, Executive Office of the 
President.

ACTION: Final rule.

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

SUMMARY: OMB is issuing a final rule revising its regulations 
implementing the Freedom of Information Act (FOIA). These regulations 
are being revised to implement the FOIA and incorporate the provisions 
of the OPEN Government Act of 2007 and the FOIA Improvement Act of 2016 
as well as streamline OMB's FOIA regulations by structuring the text of 
the regulation in an order more similar to that of the Department of 
Justice's (DOJ) FOIA regulation and the DOJ Office of Information 
Policy's (OIP) Guidance for Agency FOIA Regulations, thus promoting 
uniformity of FOIA regulations across agencies. Additionally, the 
regulations are being updated to reflect developments in case law 
regarding the FOIA.

DATES: The final rule is effective June 20, 2019.

FOR FURTHER INFORMATION CONTACT: Dionne Hardy, Office of Management and 
Budget, Office of General Counsel, at [email protected], 202-395-
FOIA.

SUPPLEMENTARY INFORMATION: Background: On August 23, 2018, OMB proposed 
revisions (43 FR 42610-42618) to its existing regulations under the CFR 
at part 1303 governing requests and responses for agency records under 
the Freedom of Information Act (FOIA), 5 U.S.C. 552. These revisions 
are now being finalized to implement the FOIA and incorporate the 
provisions of the OPEN Government Act of 2007 (Pub. L. 110-81) and the 
FOIA Improvement Act of 2016 (Pub. L. 114-185) as well as streamline 
OMB's FOIA regulations by structuring the text of the regulation in an 
order more similar to that of DOJ's FOIA regulation and the DOJ Office 
of Information Policy's (OIP) Guidance for Agency FOIA Regulations 
(``the DOJ FOIA Regulation Guidance''), thus promoting uniformity of 
FOIA regulations across agencies. Additionally, the regulations are 
updated to reflect developments in the case law. OMB proposed these 
revisions after conducting the review made in accordance with section 
3(a) of the FOIA Improvement Act of 2016, which provides that each 
agency ``shall review the regulations of such agency and shall issue 
regulations on procedures for the disclosure of records under [the 
FOIA].'' With this final rule OMB is adopting the revision to its FOIA 
regulation as previously proposed, with amendments included in response 
to public comments regarding OMB's proposal.

Public Comments

    Interested persons were afforded the opportunity to participate in 
the rulemaking process through submission of written comments to the 
proposed rule during the 30-day public comment period. OMB received 
twelve public submissions in response to the proposed rulemaking. Due 
consideration was given to each submission received and a determination 
was made that four of the submissions were relevant comments to the 
proposed rule and that the remaining eight submissions were unrelated 
to the subject matter of the proposal. Overall, OMB adopted all four of 
these relevant comments in part. Three of these four comments contained 
discussion of multiple sections of the proposed revised rule. 
Discussion of each of the comments and OMB's responses follows in order 
of the relevant section of the revised regulation.

1. Section 1303.21

    One commenter suggested a change to this section's provision 
stating how a requester can access certain information about a person 
other than the requester which would otherwise be withheld. OMB's 
proposal provided that if the requester includes authorization for full 
disclosure given by the individual whom the information is about, or a 
death certificate or other proof that that person is deceased, the 
requester can receive ``greater access'' to the information about that 
individual. The commenter suggested that the rule should limit the 
people for whom ``greater access'' can be withheld by OMB in the first 
place, without such proof or authorization, to only people who are not 
``government officials.'' The commenter suggested that this change 
would facilitate ``open access to government records about government 
officials.''
    For this section, OMB used the text found in the DOJ OIP's Guidance 
for Agency FOIA Regulations without modification except to insert the 
name of the agency. OMB's purpose for including this provision was to 
facilitate greater access to information which is permitted to be 
withheld by an agency under exemptions b(6) and b(7)(C) in the FOIA 
statute which protect against unwarranted invasions of personal 
privacy.
    There is no basis in the FOIA statute allowing or directing 
agencies to make a distinction between ``government officials'' and 
other people who are the subject of requested information when it comes 
to what information will be released. Indeed, the FOIA's exemptions 
from release for personal privacy interests (5 U.S.C. 552(b)(6), 
(7)(C)) are often invoked to withhold sensitive personal information of 
government employees. OMB's rule directs requesters to provide 
specified documentation showing that no invasion of personal privacy 
would result from the release of the requested records (i.e., because 
the subject of the personal information has authorized the release or 
is deceased). Personal information is protected by exemption b(6) 
regardless of whether the subject of the information is a government 
official. For these reasons, OMB declines to make the change requested 
to distinguish government officials.

2. Section 1303.22

    The same commenter suggested that OMB remove this section's 
proposed statement of the requirement that ``requesters must describe 
the records sought in sufficient detail to enable

[[Page 22948]]

OMB personnel to locate them with a reasonable amount of effort.'' The 
commenter stated that a requirement that requesters provide 
``sufficient detail'' in their requests is not required by the FOIA 
statute and removing this requirement ``avoids the unnecessary delays 
introduced by'' such a requirement. The commenter linked the proposed 
rule's requirement for sufficient detail in FOIA requests with language 
in OMB's regulation guiding OMB to conduct searches efficiently and 
without unnecessary expense.
    For this section, OMB used the text found in the DOJ OIP's Guidance 
for Agency FOIA Regulations without modification except to insert the 
name of the agency. OMB's purpose for including this language was to 
reflect prevailing case law that has consistently held that a request 
failing to provide sufficient detail or particular specificity may be a 
basis for an agency to validly reject the request. See Judicial Watch, 
Inc. v. Exp.-Imp. Bank, 108 F. Supp. 2d 19, 27-28 (D.D.C. 2000) (agency 
motion for summary judgment based on requester's failure to exhaust 
administrative remedies was granted because requester ``fail[ed] to 
state its request with sufficient particularity.''). Failing to provide 
sufficient detail in a request is one of several ways a plaintiff may 
fail to ``reasonably describe'' the records sought. See James Madison 
Project v. CIA, No. 08-1323, 2009 U.S. Dist. LEXIS 78671, *8 (E.D. Va., 
August 31, 2009).
    OMB's revision provides ways for requesters to prevent a FOIA 
request from being deficient for failure to reasonably describe the 
records sought, both before and after the request is submitted. 
Moreover, OMB's revision provides requesters an additional 
accommodation not required by the FOIA statute, namely that OMB will 
contact requesters for clarification in cases where the request fails 
to reasonably describe the records sought.
    Finally, OMB does not intend for this provision to change OMB's 
procedures for searching for records in response to FOIA requests. The 
text of Sec.  1303.91 of OMB's revised regulation includes text that is 
unchanged from OMB's previous rule (formerly in Sec.  1303.40) that 
states that OMB will use the ``most efficient and least costly 
methods'' in complying with requests for responsive documents. For 
these reasons, OMB declines to make the suggested change to this 
section.

3. Section 1303.30

    The same commenter opposed the inclusion of parts (a) and (b) of 
this new section stating that they would curtail the processing of 
valid FOIA requests. Specifically, the commenter stated that the 
provisions for when searches are cut off from including later, newly 
created records, and for exclusion of records from searches when those 
records have been transferred to the control of the National Archives 
and Records Administration (NARA) may make the request process more 
difficult. The comment notes that the proposed regulation's provision 
in part (a) of a search cutoff date ``does not delineate the search 
cutoff in its text.''
    For part (a) of this section, OMB used text found in the DOJ OIP's 
Guidance for Agency FOIA Regulations without modification except to 
insert the name of the agency. This section is intended to provide 
notice to requesters that OMB uses the date the search is begun by 
agency staff as the search cutoff date, designating records created 
after that date as not responsive to the request. This procedure is 
favored by courts over the use of a date-of-receipt search cutoff 
policy. See, e.g., McGehee v. CIA, 697 F.2d 1095, 1104 (D.C. Cir. 1983) 
(holding that a date-of-search cutoff is more reasonable because it 
``results in a much fuller search and disclosure'' than does a date-of-
request cut-off). Using the date that the search begins is more 
reasonable than a later date because one of the first steps in the 
search is often a request for collection of documents currently in 
possession of agency staff or in file systems. A later cutoff would 
potentially require multiple successive requests for additional 
documents in response to the same FOIA request.
    Additionally, this comment opposed inclusion of part (b) of this 
section, which provides notice that records that have been transferred 
to the control of NARA are not accessible by submitting a FOIA request 
to OMB. The commenter requested that this provision be removed because 
``it does not make explicit that recent records created under the Obama 
Administration are no longer within the OMB's control for FOIA request 
purposes.''
    OMB chose to add both paragraph (a) and paragraph (b) to the 
regulation in order to provide requesters some notice where there 
previously was none, of the possible limits of the scope of searches 
conducted by OMB in response to FOIA requests. In the case of paragraph 
(b), OMB intends this provision to notify requesters of a limitation of 
the FOIA which commonly affects the scope of searches conducted by OMB. 
A listing of particular instances of the transfer of records to NARA 
such as happened with emails at the end of the Obama Administration, as 
requested by this comment, was not included in the rule because such 
changes to OMB's records holdings typically happen too frequently to 
include an up-to-date listing of OMB's records retention schedules in 
OMB's regulation. OMB's records holdings, including documentation of 
the Obama Administration email accession to NARA are publicly listed on 
NARA's website for Records Control Schedules of agencies here: https://www.archives.gov/records-mgmt/rcs/schedules/index.html?dir=/executive-office-of-the-president/rg-0051. For these reasons, OMB declines to 
make the change requested.

4. Section 1303.40(a)

    One commenter pointed out that this section's statement of when the 
FOIA Officer is to determine whether it is appropriate to grant 
requests and what the notification of that determination back to the 
requester must include does not list the same items that were listed in 
the D.C. Circuit's opinion in Citizens for Responsibility & Ethics in 
Washington v. FEC, 711 F.3d 180 (D.C. Cir. 2013), including, among 
other items, the right of the requester to appeal the agency's 
determination. In that case, the D.C. Circuit gave a description of the 
minimum requirements for an agency's determination regarding a FOIA 
request in order for that communication to be effective to require a 
requester to exhaust their administrative remedies prior to filing suit 
over that FOIA request pursuant to the FOIA's provisions at 5 U.S.C. 
552(a)(6)(C).
    OMB does not intend for this provision in its regulation to change 
the statutory requirements for OMB to provide notification of the 
agency's determination of whether to comply with a request in the FOIA 
at 5 U.S.C. 552(a)(6)(A). Nor does OMB intend for this section to 
reflect a comprehensive description of the information that the FOIA 
requires to be included in a notification of a determination of a 
request, which can be found by examining the FOIA itself. This section 
only intends to briefly describe the timing of responses to a request, 
including the basic 20-day time period and the requirement of immediate 
notification to the requester of a determination regarding the request. 
For these reasons, OMB declines to make the requested change.
    The same commenter stated that this section includes an erroneous 
method for calculating the date of receipt of a FOIA request. 
Specifically, the commenter stated that the proposed rule's provision 
that ``the 20-day period, as used herein, shall commence on the

[[Page 22949]]

date on which the FOIA Officer or the FOIA Public Liaison first 
receives the request'' conflicts with the FOIA's requirement that the 
20-day period commences no later than ten days after the request is 
first received by any component of the agency designated to receive 
FOIA requests.
    OMB does not intend for this provision to modify the statutory 
requirement that the 20-day period should commence no less than ten 
days after the request is first received by the agency. OMB agrees with 
the commenter that this section will more accurately reflect OMB's 
duties under the FOIA by including an additional clause which is 
included in the DOJ OIP's Guidance for Agency FOIA Regulations. 
Specifically, OMB has added to this subsection the following text: 
``but in any event not later than 10 working days after the request is 
first received by any component's office that is designated by these 
regulations to receive requests.''

5. Section 1303.40(d)

    Four commenters raised concerns that this section of the proposal's 
provision regarding the aggregating of requests for the purposes of 
triggering the FOIA's provision for extending the time period for the 
agency to respond to FOIA requests in cases of unusual circumstances 
stated in the FOIA at 5 U.S.C. 552(a)(6)(B), are overly broad. Each of 
the comments opposed OMB's proposal of a 45-day period within which OMB 
would presume requests can be aggregated if other circumstances listed 
in the regulation and statute apply. One commenter stated that this 
provision would extend OMB's response time for requests ``from 20 days 
to 40 days, or longer.''
    Another commenter disagreed with OMB's explanation for the proposed 
time period in the proposal's summary of changes, that the 45-day 
period accounts for the FOIA statute's provision of ten working days 
for routing of FOIA requests, 20 days for an initial response, and 20 
days for an appeal response, and suggested that the time period for 
appeal responses should be ignored because appeals are relatively rare. 
This comment also noted that most agencies have a 30-day aggregation 
period included in the fee-calculation portion of their regulations in 
accordance with the DOJ OIP's Guidance for Agency FOIA Regulations. 
Another commenter stated that this section would have set an overly 
broad standard for aggregating requests by omitting the requirement of 
the FOIA's aggregation provision (5 U.S.C. 552(a)(6)(B)(iv)) that 
aggregated requests involve ``clearly related matters.'' Another 
commenter stated more generally that this provision was overly broad 
because it did not stipulate that the requests must ``otherwise satisfy 
the unusual circumstances'' standard in the FOIA in order to be 
eligible for aggregation.
    After careful consideration of these comments, OMB agrees that 
including the proposed 45-day period for aggregating requests could 
lead to confusion and potentially overly broad application of the 
FOIA's aggregation provision for the agency to claim ``unusual 
circumstances'' regarding a request. As proposed, the regulation would 
not have affected the 20-day time limit for requests, and therefore 
would only be applied to claim the ``unusual circumstances'' timing 
provision of the FOIA on the later of multiple aggregated requests when 
the earlier request's 20-day time period had expired. However, OMB 
agrees with commenter's arguments that the proposed provision could 
have been misinterpreted, leading to unnecessary confusion. Further, 
OMB agrees with commenters who suggested that OMB should revise this 
section to align with the corresponding provision of the DOJ OIP's 
Guidance for Agency FOIA Regulations. Doing so will add to uniformity 
across regulations and reduce the potential for confusion and delays in 
processing FOIA requests.
    For these reasons, OMB is adopting changes to this section 
suggested by the comments. Specifically, OMB has amended this section 
to align with the DOJ OIP's Guidance for Agency FOIA Regulations.

6. Section 1303.70

    One commenter suggested that a provision of this section could be 
confusing to requesters who wish to seek review by a court of an 
agency's adverse determination. Specifically, the comment highlighted 
the final sentence of this section in the proposal, which states, 
``[b]efore seeking review by a court of an agency's adverse 
determination, a requester generally must first submit a timely 
administrative appeal.'' The commenter noted that the FOIA statute at 5 
U.S.C. 552(a)(6)(C)(i) provides that a requester ``shall be deemed to 
have exhausted [her or his] administrative remedies with respect to 
such request if the agency fails to comply with the applicable time 
limit provisions. . . .'' The comment concluded that the regulation's 
statement of the requirement that that requester to appeal an adverse 
ruling before seeking review by a court conflicts with the FOIA's 
provision granting requesters leave to seek court review when the 20-
day time limit for agency responses expires, regardless of whether the 
requester has appealed their case.
    For the provision of the rule highlighted by this comment, OMB used 
the text found in the DOJ OIP's Guidance for Agency FOIA Regulations 
without modification. This provision was included in OMB's rule to give 
notice to requesters of the uniform treatment by courts of the FOIA as 
requiring plaintiffs who are challenging an agency's adverse 
determinations in court to first exhaust their administrative remedies 
by appealing to the agency for administrative review. See, e.g., Wilbur 
v. CIA, 355 F.3d 675, 677 (D.C. Cir. 2004). OMB agrees with the 
commenter that in those cases where an agency has not issued a 
determination when the 20-day time limit has passed, the FOIA's 
constructive exhaustion provision, cited by this comment, applies 
unless and until the agency does issue a determination. See Judicial 
Watch, Inc. v. Rossotti, 326 F.3d 1309, 1310 (D.C. Cir. 2003) (``A 
requester is considered to have constructively exhausted administrative 
remedies and may seek judicial review immediately if . . . the agency 
fails to answer the request within twenty days. If the agency responds 
to the request after the twenty-day statutory window, but before the 
requester files suit, the administrative exhaustion requirement still 
applies.''). This provision of the proposed rule does not concern 
situations where an agency has not issued an adverse determination and 
therefore does not conflict with the provision of the FOIA statute 
highlighted in the comment. For these reasons, OMB declines to make the 
change requested by this comment.

7. Section 1303.80

    One commenter advised that this section's reference to NARA's 
General Records Schedule (GRS) 14 should be changed to ``GRS 4.2.'' The 
commenter noted that NARA's GRS 14 was updated to ``GRS 4.2'' in 
January 2017. OMB agrees with this comment and has made the requested 
change in the rule.

8. Section 1303.90(j)

    One commenter requested a change to OMB's definition of ``news'' 
for purposes of applying the FOIA's reduced fees for news media 
requesters. Specifically, the requester asked that OMB amend the part 
of the definition of ``news'' that provides examples of news-media 
entities by amending the parenthetical phrase referring to periodicals 
which says ``(but only in those instances when they can qualify

[[Page 22950]]

as disseminators of `news').'' The commenter stated that this text 
improperly limits the definition of ``news'' and therefore the 
definition of ``representative of the news media'' in contradiction 
with the FOIA. Specifically, the commenter expressed concerns that the 
use of the phrase ``in those instances'' suggests that OMB will 
determine on a case-by-case basis, whether a requester qualifies for 
this provision. Furthermore, the commenter noted that the FOIA statute 
includes a definition of ``news'' that differs from the one in OMB's 
prior rule and proposed revision.
    OMB did not propose changes to this provision in the regulation in 
its rule proposal but it did generally propose to make changes to 
comply with updates to the FOIA statute. Definitions of 
``representative of the news media'' and ``news'' were added to the 
FOIA statute as part of the OPEN Government Act amendments made to the 
law in 2007. The definition in OMB's prior regulation predated the 2007 
FOIA amendments and closely adhered to the definition originally 
created by OMB and included in OMB's ``Uniform Freedom of Information 
Fee Schedule and Guidelines'' in 1987. OMB agrees with the requester 
that OMB must comply with the definitions of ``news'' and ``news media 
requester'' set out in the FOIA, and further agrees that continued 
textual deviations from the statutory definition in OMB's regulation 
may add confusion and uncertainty for requesters who may seek reduced 
fees for this category of requests. Therefore, OMB has revised the text 
of this section by aligning the definition ``news'' with the statutory 
definition in the FOIA. OMB intends that this change will relieve 
requesters of any uncertainty that OMB will adhere to the FOIA's 
statutory definition of ``news'' when assessing fees.

9. Section 1303.91(b)

    One commenter expressed confusion with a sentence in this 
subsection which included ``i.e.'' but the phrase following it did not 
appear to be connected with the phrase preceding it. OMB had 
inadvertently omitted language from this sentence which would have 
illustrated the concept of an ``initial review'' of a record which is 
drawn from the DOJ OIP's Guidance for Agency FOIA Regulations without 
modification. Including this text will correct a typographical error 
and will also provide information to requesters about the record review 
process, while promoting uniformity of FOIA regulations across 
agencies. For these reasons, OMB has added the illustrative phrase 
found in that guidance to this subsection of the regulation.

10. Section 1303.91(g)

    One commenter advised that this section as proposed did not appear 
to distinguish between ``all other'' requesters and the educational 
institutions, noncommercial scientific institutions, and 
representatives of the news media with regard to charges for search 
time. The commenter noted that the FOIA states at 5 U.S.C. 
552(a)(4)(A)(ii) that educational, non-commercial scientific 
institution, and news media requesters should not be charged search 
fees, and should only be charged duplication fees.
    OMB does not intend to omit this overall distinction in the FOIA 
regarding search fees in its rule revision and both OMB's proposal and 
final rule include the general distinction for fees to be charged to 
these groups in Sec.  1303.91(a) and (b), as well as 1303.92(a) through 
(c). Section 1303.91(g) of OMB's rule states that the first 100 pages 
of duplication and the first two hours of search time will be provided 
without charge to non-commercial requests.
    For this subsection OMB used text similar to that found in the DOJ 
OIP's Guidance for Agency FOIA Regulations, which also does not make 
its distinction regarding these restrictions on assessing fees with 
regard explicitly to educational, non-commercial scientific 
institution, and news media requesters. Instead, the rule provides the 
benefit of this restriction on the charging of fees to a category of 
requests that includes ``all requests other than those seeking 
documents for a commercial use.''
    Because requests for ``commercial use'' are explicitly excluded 
from each of the above-listed special requester categories, the 
category ``non-commercial requests'' necessarily includes all requests 
that would be in any of the above listed requester categories. 
Therefore, it would be redundant and potentially confusing to further 
stipulate in the regulation that the above listed categories of 
requesters should also receive the benefit of this subsection. For this 
reason, OMB declines to make the requested change to this section.

11. Section 1303.92

    One commenter noted incorrect cross references included in this 
section intended to point to definitions in Sec.  1303.90. Those 
references have been corrected in this rule.

12. Section 1303.93

    One commenter that also commented on the proposal's aggregation 
provision for purposes of timing of responses to requests (see 
discussion of comments to Sec.  1303.40 above) stated that its comments 
equally apply to the rule's provision for aggregating requests for 
purposes of calculating fees. This commenter stated that the proposed 
45-day period for presumption that requests can be aggregated should be 
reduced to 30 days in order to align with the DOJ OIP's Guidance for 
Agency FOIA Regulations. Additionally this commenter suggested that the 
rule does not provide guidelines for overcoming a presumption that 
multiple requests can be aggregated, and also suggested that the 
regulation could allow the charging of one requester fees incurred in 
replying to another requester. Finally, this commenter stated that the 
proposed regulation conflicts with the FOIA's requirement that agencies 
only charge ``direct costs of search, duplication, or review,'' 5 
U.S.C. 552(a)(4)(A)(iv).
    OMB agrees with the commenter that using the 30-day period 
suggested by DOJ OIP will better promote uniformity of FOIA regulations 
across agencies. OMB disagrees that a version of this section that uses 
a 30-day time period will allow charging of one requester for work done 
for another requester. Under this rule, any fee charged will still be a 
direct cost of the search, processing, and duplication done for that 
requester's request. OMB also disagrees that more specificity is 
required regarding how OMB will determine that the presumption that 
requests can be aggregated has been overcome. OMB will administer this 
provision within the bounds of the FOIA, while addressing the 
circumstances of each case to promote the purposes of the statute. This 
provision has been included in the rule in order to prevent abuse of 
the FOIA's provision of the first 100 pages of duplication and the 
first two hours of search time to non-commercial requesters.
    For these reasons as well as the same reasons stated in the 
discussion of the comments to Sec.  1303.40, OMB has revised this 
section to align with the corresponding provision of DOJ OIP's Guidance 
for Agency FOIA Regulations, including by changing the proposed 45-day 
period for presumption that requests can be aggregated to a 30-day 
period. OMB declines to make any of the other changes sought by the 
commenter.

[[Page 22951]]

13. Foreseeable Harm Standard

    One commenter suggested that the FOIA's standard for withholding 
documents based on foreseeable harm should be addressed in OMB's FOIA 
rule. OMB recognizes that the FOIA Improvement Act of 2016 requires 
that an agency may withhold information ``only if the agency reasonably 
foresees that disclosure would harm an interest protected by an 
exemption'' or ``disclosure is prohibited by law.'' 5 U.S.C. 
552(a)(8)(A)(i). However, OMB does not agree that it is necessary to 
include language confirming OMB's compliance with this standard or a 
provision requiring adverse agency determinations to include an 
explanation of foreseeable harms in its rule. For these reasons, OMB 
declines to make the changes requested in the comment.

14. Final Amendments

    OMB has made the following clarifying amendments to the rule in 
response to comments and on its own.
 Section 1303.1
    [cir] This section was revised to add that this regulation should 
be read in conjunction with the text of the FOIA.
 Section 1303.40
    [cir] As discussed above, in response to a comment this section was 
revised to comply with the FOIA by adding the stipulation that the 20-
day period for making determinations regarding requests will begin 
within 10 working days after the request is first received by any 
component's office that is designated to receive requests.
    [cir] As discussed above, in response to a comment paragraph (d) 
was revised to remove the proposed 45-day period for presumption that 
multiple requests can be aggregated and otherwise to align with the DOJ 
regulation template.
 Section 1303.80
    [cir] As discussed above, in response to a comment this section was 
revised to update a reference to NARA's General Records Schedule 4.2.
 Section 1303.90(j)
    [cir] As discussed above, in response to a comment this section was 
revised to align the definition of ``news'' with the definition now 
included in the FOIA statute.
 Section 1303.91
    [cir] As discussed above, in response to a comment this section is 
revised with added text to illustrate the concept of an ``initial 
review'' of a record which is drawn from the DOJ OIP's Guidance for 
Agency FOIA Regulations without modification.
    [cir] Paragraph (b) of this section was amended to clarify that 
review fees will be charged at the same rate as search fees.
 Section 1303.93(c)
    [cir] This subsection was revised to change the proposed 45-day 
period for presumption that multiple requests can be aggregated to 30 
days and otherwise to align with the DOJ regulation template.

Classification of This Rule Under Relevant Statutes

Regulatory Flexibility Act

    OMB, in accordance with the Regulatory Flexibility Act (5 U.S.C. 
605(b)), has reviewed this rule and certifies that this rule will not 
have a significant economic impact on a substantial number of small 
entities. Under the FOIA, agencies may recover only the direct costs of 
searching for, reviewing, and duplicating the records processed for 
requesters, and only for certain classes of requesters and when 
particular conditions are satisfied. Thus, fees assessed by the OMB are 
nominal.

Executive Orders 12866 and 13771

    For purposes of Executive Order (E.O.) 13771 on Reducing Regulation 
and Controlling Regulatory Costs, this rule is not an E.O. 13771 
regulatory action because this rule is not a significant regulatory 
action under section 3(f) of E.O. 12866.

Unfunded Mandates Reform Act of 1995

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

Small Business Regulatory Enforcement Fairness Act of 1995

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

List of Subjects in 5 CFR Part 1303

    Administrative practice and procedure, Archives and records, 
Freedom of information.

    For the reasons stated in the preamble, OMB revises 5 CFR part 1303 
to read as follows:

PART 1303--PUBLIC INFORMATION PROVISIONS OF THE ADMINISTRATIVE 
PROCEDURES ACT

Sec.

General

1303.1 Purpose.
1303.2 Authority and functions.
1303.3 Organization.

Proactive Disclosures

1303.10 Availability of proactive disclosures.

Requirements for Making Requests

1303.20 Where to send requests.
1303.21 Requesters making requests about themselves or others.
1303.22 Requirement for providing description of the records sought.

Responsibility for Responding to Requests

1303.30 Responsibility for responding to requests.

Timing of Responses to Requests

1303.40 Timing of responses to requests.

Responses to Requests

1303.50 Responses to requests.

Confidential Commercial Information

1303.60 Notification procedures for confidential commercial 
information.

Appeals

1303.70 Appeals.

Preservation of Records

1303.80 Preservation of records.

Fees

1303.90 Definitions.
1303.91 Fees to be charged--general.
1303.92 Fees to be charged--categories of requesters.
1303.93 Miscellaneous fee provisions.
1303.94 Waiver or reduction of charges.

    Authority: 5 U.S.C. 301 and 5 U.S.C. 552, unless otherwise 
noted.

General


Sec.  1303.1  Purpose.

    This part implements the Freedom of Information Act (FOIA), 5 
U.S.C. 552, as amended, and prescribes the rules governing the public 
availability of Office of Management and Budget (OMB) records. The 
rules in this subpart should be read in conjunction with the text of 
the FOIA.


Sec.  1303.2  Authority and functions.

    The general functions of OMB, as provided by statute and by 
executive

[[Page 22952]]

order, are to develop and to execute the budget, oversee implementation 
of Administration policies and programs, advise and assist the 
President, and develop and implement management policies for the 
government.


Sec.  1303.3  Organization.

    (a) The central organization of OMB is as follows:
    (1) The Director's Office includes the Director, the Deputy 
Director, the Deputy Director for Management, and the Executive 
Associate Director.
    (2) Staff Offices include General Counsel, Legislative Affairs, 
Communications, Management and Operations, and Economic Policy.
    (3) Offices that provide OMB-wide support include the Legislative 
Reference Division and the Budget Review Division.
    (4) Resource Management Offices, which develop and support the 
President's management and budget agenda in the areas of Natural 
Resources, Energy and Science; National Security; Health; Education, 
Income Maintenance and Labor; and General Government Programs.
    (5) Statutory offices include the Offices of Federal Financial 
Management, Federal Procurement Policy, Intellectual Property 
Enforcement Coordinator; E-government and Information Technology; and 
Information and Regulatory Affairs.
    (b) OMB is located in the Eisenhower Executive Office Building, 
17th Street and Pennsylvania Avenue NW, and the New Executive Office 
Building, 725 17th Street NW, Washington, DC 20503. OMB has no field 
offices. Security in both buildings prevents visitors from entering the 
building without an appointment.

Proactive Disclosures


Sec.  1303.10  Availability of proactive disclosures.

    OMB makes available records that are required by the FOIA to be 
made available for public inspection in an electronic format. OMB 
information pertaining to matters issued, adopted, or promulgated by 
OMB that is within the scope of 5 U.S.C. 552(a)(2) is available 
electronically on OMB's website at www.whitehouse.gov/omb/. 
Additionally, for help accessing these materials, you may contact OMB's 
FOIA Officer at (202) 395-3642.

Requirements for Making Requests


Sec.  1303.20  Where to send requests.

    The FOIA Officer is responsible for acting on all initial requests. 
Individuals wishing to file a request under the FOIA should address 
their request in writing to FOIA Officer, Office of Management and 
Budget, 725 17th Street NW, Room 9204, Washington, DC 20503, via fax to 
(202) 395-3504, or by email at [email protected]. Additionally, OMB's 
FOIA Public Liaison is available to assist requesters who have 
questions and can be reached at (202) 395-7545 or in writing at the 
address provided in this section.


Sec.  1303.21  Requesters making requests about themselves or others.

    A requester who is making a request for records about himself or 
herself pursuant to 5 U.S.C. 552a must comply with the verification of 
identity requirements as determined by OMB pursuant to OMB's Rules For 
Determining if an Individual Is the Subject of a Record in 5 CFR 
1302.1. Where a request for records pertains to another individual, a 
requester may receive greater access by submitting either a notarized 
authorization signed by that individual or a declaration made in 
compliance with the requirements set forth in 28 U.S.C. 1746 by that 
individual authorizing disclosure of the records to the requester, or 
by submitting proof that the individual is deceased (e.g., a copy of a 
death certificate or an obituary). As an exercise of administrative 
discretion, OMB may require a requester to supply additional 
information if necessary in order to verify that a particular 
individual has consented to disclosure.


Sec.  1303.22  Requirement for providing description of the records 
sought.

    (a) Requesters must describe the records sought in sufficient 
detail to enable OMB personnel to locate them with a reasonable amount 
of effort. To the extent possible, requesters should include specific 
information that may help the agency identify the requested records, 
such as the date, title or name, author, recipient, subject matter of 
the record, case number, file designation, or reference number. Before 
submitting their requests, requesters may contact the FOIA Officer or 
FOIA Public Liaison to discuss the records they seek and to receive 
assistance in describing the records.
    (b) If, after receiving a request, OMB determines that the request 
does not reasonably describe the records sought, OMB will inform the 
requester what additional information is needed and why the request is 
otherwise insufficient. Requesters who are attempting to reformulate or 
modify such a request may discuss their request with the FOIA Officer 
or the FOIA Public Liaison. If a request does not reasonably describe 
the records sought, OMB's response to the request may be delayed.

Responsibility for Responding to Requests


Sec.  1303.30  Responsibility for responding to requests.

    (a) Search cutoff date. In determining which records are responsive 
to a request, OMB ordinarily will include only records in its 
possession as of the date that it begins its search. If any other date 
is used, OMB will inform the requester of that date.
    (b) Transfer of records to the National Archives and Records 
Administration (NARA). Permanent records of OMB which have been 
transferred to the control of NARA under the Federal Records Act are 
not in the control of OMB and are therefore not accessible by a FOIA 
request to OMB. Requests for such records should be directed to NARA.
    (c) Consultation and referral. When reviewing records, OMB 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, OMB will proceed in one of the 
following ways:
    (1) Consultation. When records contain information of interest to 
another agency, OMB typically will consult with that agency prior to 
making a release determination.
    (2) Referral. (i) When OMB believes that a different agency is best 
able to determine whether to disclose the record, OMB will refer the 
responsibility for responding to the request regarding that record to 
that agency. Ordinarily, the agency that originated the record is best 
situated to make the disclosure determination. However, if OMB and the 
originating agency jointly agree that OMB is in the best position to 
respond regarding the record, then OMB may provide it.
    (ii) If OMB determines that another agency is best situated to 
consider a request, OMB promptly will notify the requestor and inform 
him of the agency which will be processing his request, except when 
disclosure of the identity of the agency could harm an interest 
protected by an applicable FOIA exemption. In those instances, in order 
to avoid harm to an interest protected by an applicable exemption, OMB 
will coordinate with the originating agency to seek its views on the 
disclosability of the record and convey the release determination for 
the record that is the subject of the coordination to the requester.

[[Page 22953]]

Timing of Responses to Requests


Sec.  1303.40  Timing of responses to requests.

    (a) In general. Upon receipt of any request for information or 
records, the FOIA Officer will determine within 20 working days 
(excepting Saturdays, Sundays, and legal public holidays) after the 
receipt of such request whether it is appropriate to grant the request 
and will immediately notify the requester of such determination and the 
reasons therefore and the right of such person to seek assistance from 
the FOIA Public Liaison. The 20-day period, as used herein, shall 
commence on the date on which the FOIA Officer or the FOIA Public 
Liaison first receives the request but in any event not later than 10 
working days after the request is first received by any component's 
office that is designated by these regulations to receive requests. OMB 
may toll this 20-day period either one time while OMB is awaiting 
information that it has reasonably requested from the requester or any 
time when necessary to clarify with the requester issues regarding fee 
assessment. OMB's receipt of the requester's response to OMB's request 
for information ends the tolling period.
    (b) Multitrack processing. (1) FOIA requests are placed on one of 
three tracks:
    (i) Track one covers those requests that seek and receive expedited 
processing pursuant to subsection (a)(6)(E) of the FOIA and in 
accordance with paragraph (e) of this section;
    (ii) Track two covers simple requests;
    (iii) Track three covers complex requests.
    (2) Whether a request is simple or complex is based on the amount 
of work or time needed to process the request. OMB considers various 
factors, including the number of records requested, the number of pages 
involved in processing the request, and the need for consultations or 
referrals. OMB will advise the requester of the processing track in 
which their request has been placed and provide an opportunity to 
narrow or modify their request so that the request can be placed in a 
different processing track.
    (c) Unusual circumstances. Whenever the statutory time limit for 
processing a request cannot be met because of ``unusual 
circumstances,'' as defined in the FOIA, and OMB extends the time limit 
on that basis, OMB will, before expiration of the 20-day period to 
respond, notify the requester in writing of the unusual circumstances 
involved and of the date by which processing of the request can be 
expected to be completed. Where the extension exceeds 10 working days, 
OMB will, as described by the FOIA, provide the requester with an 
opportunity to modify the request or arrange an alternative time period 
for processing. OMB will alert requesters to the availability of its 
FOIA Public Liaison, who will assist in the resolution of any disputes 
between the requester and OMB, and notify the requester of the right of 
the requester to seek dispute resolution services from the Office of 
Government Information Services (OGIS).
    (d) Aggregating requests. To satisfy unusual circumstances under 
the FOIA, OMB may aggregate those requests for the purposes of this 
section when OMB reasonably believes that a requester, or a group of 
requesters acting in concert, has submitted requests that constitute a 
single request, that would otherwise satisfy the unusual circumstances 
specified in this section. Multiple requests involving unrelated 
matters will not be aggregated.
    (e) Expedited processing. (1) Requests and appeals will be given 
expedited treatment in cases where OMB determines:
    (i) The lack of expedited treatment could reasonably be expected to 
pose an imminent threat to the life or physical safety of an 
individual;
    (ii) There is an urgency to inform the public about an actual or 
alleged Federal Government activity;
    (iii) Failure to respond to the request expeditiously would result 
in the loss of due process rights in other proceedings; or
    (iv) There are possible questions, in a matter of widespread and 
exceptional public interest, about the government's integrity which 
effect public confidence.
    (2) A request for expedited processing may be made at the time of 
the initial request for records or at any later time.
    (3) A requester who seeks expedited processing must submit a 
statement, certified to be true and correct to the best of the 
requester's knowledge and belief, explaining in detail the basis for 
requesting expedited processing. OMB may waive this certification 
requirement at its discretion.
    (4) OMB will decide whether to grant expedited processing and will 
notify the requester within 10 days after the date of the request. If a 
request for expedited treatment is granted, OMB will prioritize the 
request and process the request as soon as practicable. If a request 
for expedited processing is denied, any appeal of that decision will be 
acted on expeditiously.

Responses to Requests


Sec.  1303.50  Responses to requests.

    (a) Acknowledgements of requests. OMB will assign an individualized 
tracking number to each request received that will take longer than ten 
days to process; and acknowledge each request, informing the requestor 
of their tracking number if applicable; and, upon request, make 
available information about the status of a request to the requester 
using the assigned tracking number, including--
    (1) The date on which OMB originally received the request; and
    (2) An estimated date on which OMB will complete action on the 
request.
    (b) Grants of requests. Once OMB makes a determination to grant a 
request in full or in part, it will notify the requester in writing. 
OMB also will inform the requester of any fees charged under Sec.  
1303.9 and shall provide the requested records to the requester 
promptly upon payment of any applicable fees. OMB will inform the 
requester of the availability of the FOIA Public Liaison to offer 
assistance.
    (c) Adverse determinations of requests. In the case of an adverse 
determination, the FOIA Officer will immediately notify the requester 
of--
    (1) The right of the requester to appeal to the head of OMB within 
90 calendar days after the date of such adverse determination in 
accordance with Sec.  1303.70;
    (2) The right of such person to seek dispute resolution services 
from the FOIA Public Liaison or the OGIS at NARA;
    (3) The names and titles or positions of each person responsible 
for the denial of such request; and
    (4) OMB's estimate of the volume of any requested records OMB is 
withholding, unless providing such estimate would harm an interest 
protected by the exemption in 5 U.S.C. 552(b).

Confidential Commercial Information


Sec.  1303.60  Notification procedures for confidential commercial 
information.

    (a) Definitions. (1) ``Confidential commercial information'' means 
commercial or financial information obtained by OMB from a submitter 
that may be protected from disclosure under Exemption 4 of the FOIA, 5 
U.S.C. 552(b)(4).
    (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, either directly or indirectly to the Federal Government.

[[Page 22954]]

    (b) Designation of confidential commercial information. A submitter 
of confidential commercial information must use good faith efforts to 
designate by appropriate markings, at the time of submission, any 
portion of its submission that it considers to be protected from 
disclosure under Exemption 4 of the FOIA. These designations expire 10 
years after the date of the submission unless the submitter requests 
and provides justification for a longer designation period.
    (c) When notice to submitters is required. (1) OMB will promptly 
notify a submitter when OMB determines that a pending FOIA lawsuit 
seeks to compel the disclosure of records containing the submitter's 
confidential information, or if OMB determines that it may be required 
to disclose such records, provided:
    (i) The requested information has been designated by the submitter 
as information considered protected from disclosure under Exemption 4 
in accordance with paragraph (b) of this section; or
    (ii) OMB has a 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) The notice will describe the commercial information requested 
or include a copy of the requested records or portions of records 
containing the information. In cases involving a voluminous number of 
submitters, OMB may post or publish a 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 do not apply if:
    (1) OMB 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 law, including 
regulation issued in accordance with the requirements of Executive 
Order 12,600 of June 23, 1987; or
    (4) The designation made by the submitter under paragraph (b) of 
this section appears obviously frivolous. In such case, OMB 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) Unless OMB specifies a 
different period, submitters who fail to respond to OMB's notice within 
30 days of OMB's notice will be deemed to have consented to disclosure.
    (2) If a submitter has any objections to disclosure, it should 
provide OMB a detailed written statement that specifies all grounds for 
withholding the particular information under any exemption of the FOIA. 
In order to rely on Exemption 4 as basis for nondisclosure, the 
submitter must explain why the information constitutes a trade secret 
or commercial or financial information that is confidential. OMB is not 
required to consider any information received after the date of any 
disclosure decision.
    (3) Any information provided by a submitter under this section may 
itself be subject to disclosure under the FOIA.
    (f) Analysis of objections. OMB will consider a submitter's 
objections and specific grounds for nondisclosure in deciding whether 
to disclose the requested information.
    (g) Notice of intent to disclose. Whenever OMB decides to disclose 
information over the objection of a submitter, OMB will provide the 
submitter written notice, which will include:
    (1) A statement of the reasons why each of the submitter's 
disclosure objections were not sustained;
    (2) A description of the information to be disclosed or copies of 
the records as OMB intends to release them; and
    (3) A specified disclosure date, at least 30 days after OMB 
transmits its notice of intent to disclose, except for good cause.
    (h) Requester notification. OMB will notify the 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.

Appeals


Sec.  1303.70  Appeals.

    (a) A requester must appeal to the head of OMB in writing within 90 
calendar days after the date of such adverse determination addressed to 
the FOIA Officer at the address specified in Sec.  1303.20. The appeal 
must include a statement explaining the basis for the appeal. 
Determinations of appeals will be set forth in writing and signed by 
the Deputy Director, or his designee, within 20 working days. If on 
appeal the denial is upheld in whole or in part, the written 
determination will also contain a notification of the provisions for 
judicial review, the names of the persons who participated in the 
determination, and notice of the services offered by the OGIS as a non-
exclusive alternative to litigation.
    (b) OGIS's dispute resolution services is a voluntary process. If 
OMB agrees to participate in the mediation services provided by OGIS, 
OMB will actively engage as a partner to the process in an attempt to 
resolve the dispute. An appeal ordinarily will not be adjudicated if 
the request becomes a matter of FOIA litigation. Before seeking review 
by a court of an agency's adverse determination, a requester generally 
must first submit a timely administrative appeal.

Preservation of Records


Sec.  1303.80  Preservation of records.

    OMB will preserve all correspondence pertaining to the requests 
that it receives under this section, as well as copies of all requested 
records, until disposition or destruction is authorized pursuant to 
title 44 of the United States Code or NARA's General Records Schedule 
4.2. OMB will not dispose of or destroy records while they are the 
subject of a pending request, appeal, or lawsuit under the FOIA.

Fees


Sec.  1303.90  Definitions.

    For the purpose of this part, all definitions set forth in the FOIA 
apply.
    (a) The term ``direct costs'' means those expenditures that OMB 
actually incurs in searching for and duplicating (and in the case of 
commercial requesters, reviewing) documents to respond to a FOIA 
request. Not included in direct costs are overhead expenses such as 
costs of space, heating, or lighting the facility in which the records 
are stored.
    (b) The term ``search'' means 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.
    (c) The term ``duplication'' means the making of a copy of a 
document, or of the information contained in it, that is necessary to 
respond to a FOIA request. Such copies can be in the form of paper, 
microform, audio-visual materials, or electronic records (e.g., 
magnetic tape or disk), among others.
    (d) The term ``review'' refers to the process of examining 
documents located

[[Page 22955]]

in response to a request to determine whether any portion of any 
document located is permitted to be withheld. It also refers to the 
processing of any documents for disclosure, e.g., doing all that is 
necessary to excise them and otherwise prepare them for release. Review 
does not include time spent resolving general legal or policy issues 
regarding the application of exemptions.
    (e) The term ``commercial use request'' is a request that asks for 
information for a use or purpose that furthers a commercial, trade, or 
profit interest, which can include furthering those interests through 
litigation.
    (f) The term ``educational institution'' is any school that 
operates a program of teaching or scholarly research. To be eligible 
for inclusion in this category, requesters must show that the request 
is being made as authorized by and in connection with the requester's 
role at a qualifying institution and that the records are not sought 
for commercial use, but are sought in furtherance of teaching or 
scholarly research. OMB may seek assurance from the requester that the 
request is in furtherance of teaching or scholarly research and will 
advise requesters of their placement in this category.
    (g) The term ``non-commercial scientific institution'' refers to an 
institution that is not operated on a commercial basis (as that term is 
referenced in paragraph (e) of this section) and that is operated 
solely for the purpose of conducting scientific research where the 
results of the research 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 are not for a commercial use.
    (h) The term ``representative of the news media'' refers to 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.
    (i) 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, including news organizations 
that disseminate solely on the internet. A request for records 
supporting the news-dissemination function of the requester will not be 
considered to be for a commercial use. ``Freelance'' journalists who 
demonstrate a solid basis for expecting publication through a news 
media entity will be considered as a representative of the news media. 
A publishing contract would provide the clearest evidence that 
publication is expected; however, OMB can also consider a requester's 
past publication record in making this determination. OMB will advise 
requesters of their placement in this category.


Sec.  1303.91  Fees to be charged--general.

    OMB will charge fees that recoup the full allowable direct costs it 
incurs. Moreover, it will use the most efficient and least costly 
methods to comply with requests for documents made under the FOIA. For 
example, employees should not engage in line-by-line search when merely 
duplicating an entire document would prove the less expensive and 
quicker method of complying with a request. Search should be 
distinguished, moreover, from review of material in order to determine 
whether the material is exempt from disclosure. When documents that 
would be responsive to a request are maintained for distribution by 
agencies operating statutory-based fee schedule programs (see 
definition in Sec.  1303.30(b)), such as the NTIS, OMB will inform 
requesters of the steps necessary to obtain records from those sources.
    (a) Search. Requests made by educational institutions, 
noncommercial scientific institutions, or representatives of the news 
media are not subject to search fees. OMB will charge search fees for 
all other requesters, subject to the restrictions of paragraph (h) of 
this section.
    (1) For each quarter hour spent by personnel searching for 
requested records, including electronic searches that do not require 
new programming, the fees will be charged as follows: Professional--
$10.00; and clerical/administrative--$4.75.
    (2) Requesters shall be charged the direct costs associated with 
conducting any search that requires the creation of a new computer 
program to locate the requested records. Requesters shall be notified 
of the costs associated with creating such a program and must agree to 
pay the associated costs before the costs may be incurred.
    (b) Review of records. Only requesters who are seeking documents 
for commercial use may be charged for time spent reviewing records to 
determine whether they are exempt from mandatory disclosure. Charges 
may be assessed only for the initial review; i.e., the review conducted 
by an agency to determine whether an exemption applies to a particular 
record or portion of a record. 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 direct costs for such a 
subsequent review are assessable. However, review costs will not 
include any costs incurred in resolving issues of law or policy that 
may be raised in the course of processing a request under this section. 
Review fees will be charged at the same rates as those charged for a 
search under paragraph (a)(1) of this section.
    (c) Duplication of records. The requester's specified preference of 
form or format of disclosure will be honored if the record is readily 
reproducible in that format. Where photocopies are supplied, OMB will 
provide one copy per request at a cost of five cents per page. For 
copies prepared by computer, such as tapes or printouts, OMB will 
charge the actual cost, including operator time, of production of the 
tape or printout. For other methods of reproduction or duplication, OMB 
will charge the actual direct costs of producing the document(s).
    (d) Other charges. OMB 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; or
    (2) Sending records by special methods, such as express mail.
    (e) Remittances. Remittances shall be in the form of either a 
personal check, a bank draft drawn on a bank in the United States, or a 
postal money order. Remittances shall be made payable to the order of 
the Treasury of the United States and mailed to the FOIA Officer at the 
address found in Sec.  1303.10(b).
    (f) Receipts and refunds. A receipt for fees paid will be provided 
upon request. Refund of fees paid for services actually rendered will 
not be made.
    (g) First 100 pages and two hours of search time. With the 
exception of requesters seeking documents for a commercial use, OMB 
will provide the first 100 pages of duplication (or the cost equivalent 
for other media) and the first two hours of search time without charge.
    (h) Restrictions on assessing fees. If OMB fails to comply with the 
FOIA's 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 Sec.  1303.90(g)

[[Page 22956]]

through (i), may not charge duplication fees, except as described in 
the following circumstances:
    (1) If OMB has determined that unusual circumstances, as defined by 
the FOIA, apply, and OMB provided timely written notice to the 
requester in accordance with the FOIA, a failure to comply with the 
time limit will be excused for an additional 10 days.
    (2) If OMB has determined that unusual circumstances, as defined by 
the FOIA, apply, and more than 5,000 pages are necessary to respond to 
the request, OMB may charge search fees, or, in the case of requesters 
described in Sec.  1303.90(g) through (i), may charge duplication fees, 
if OMB has provided timely written notice to the requester in 
accordance with the FOIA and OMB 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).
    (3) If a court determines 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.
    (i) No Fees under $25. No fee will be charged when the total fee, 
after deducting the 100 free pages (or its cost equivalent) and the 
first two hours of search, is equal to or less than $25. If OMB 
estimates that the charges are likely to exceed $25, it will notify the 
requester of the estimated amount of fees, unless the requester has 
indicated in advance his willingness to pay fees as high as those 
anticipated. Such a notice shall offer a requester the opportunity to 
confer with agency personnel to meet the requester's needs at a lower 
cost.


Sec.  1303.92  Fees to be charged--categories of requesters.

    There are four categories of FOIA requesters: Commercial use 
requesters; educational and non-commercial scientific institutions; 
representatives of the news media; and all other requesters. The 
specific levels of fees for each of these categories are:
    (a) Commercial use requesters. When OMB receives a request for 
documents for commercial use, it will assess charges that recover the 
full direct costs of searching for, reviewing for release, and 
duplicating the record sought. Commercial use requesters are not 
entitled to two hours of free search time nor 100 free pages of 
reproduction of documents. OMB may recover the cost of searching for 
and reviewing records even if there is ultimately no disclosure of 
records (see Sec.  1303.93(b)).
    (b) Educational and non-commercial scientific institution 
requesters. OMB will provide documents to requesters in this category 
for the cost of reproduction alone, excluding charges for the first 100 
pages. To be eligible for inclusion in this category, a requester must 
meet the criteria in Sec.  1303.90(g) or (h). OMB may seek evidence 
from the requester that the request is in furtherance of scholarly 
research and will advise requesters of their placement in this 
category.
    (c) Requesters who are representatives of the news media. OMB will 
provide documents to requesters in this category for the cost of 
reproduction alone, excluding charges for the first 100 pages. To be 
eligible for inclusion in this category, a requester must meet the 
criteria in Sec.  [thinsp]1303.90(i) and (j) and not make the request 
for commercial use. A request for records supporting the news 
dissemination function of the requester is not a commercial use for 
this category.
    (d) All other requesters. OMB will charge requesters who do not fit 
into any of the categories above fees that recover the full reasonable 
direct cost of searching for and reproducing records that are 
responsive to the request, except that the first 100 pages of 
reproduction and the first two hours of search time will be furnished 
without charge. Moreover, requests for records about the requesters 
filed in OMB's systems of records will continue to be treated under the 
fee provisions of the Privacy Act of 1974, which permit fees only for 
reproduction.


Sec.  1303.93  Miscellaneous fee provisions.

    (a) Charging interest--notice and rate. OMB may begin assessing 
interest charges on an unpaid bill starting on the 31st day after OMB 
sends the bill. If OMB receives the fee within the thirty-day grace 
period, interest will not accrue on the paid portion of the bill, even 
if the payment is unprocessed. Interest will be at the rate prescribed 
in section 3717 of title 31 of the United States Code and will accrue 
from the date of the billing.
    (b) Charges for unsuccessful search. OMB may properly charge for 
time spent searching even if it does not locate any responsive records 
or if OMB determines that the records are entirely exempt from 
disclosure.
    (c) Aggregating requests. When OMB reasonably believes that a 
requester, or a group of requestors acting in concert, is attempting to 
divide a single request into a series of requests for the purpose of 
avoiding fees, OMB may aggregate those requests and charge fees 
accordingly. OMB 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, OMB 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 shall not be aggregated.
    (d) Advance payments. (1) OMB will not require a requester to make 
an advance payment, i.e., payment before work is commenced or continued 
on a request, unless OMB estimates or determines that allowable charges 
that a requester may be required to pay are likely to exceed $250 or 
the requester has previously failed to make payments due within 30 days 
of billing.
    (2) In cases in which OMB requires advance payment, the request 
will not be considered received and further work will not be completed 
until the required payment is received. If the requester does not pay 
the advance payment within 30 calendar days after the date of OMB's fee 
determination, the request will be closed.
    (e) Effect of the Debt Collection Act of 1982 (Pub. L. 97-365). OMB 
will comply with applicable provisions of the Debt Collection Act, 
including disclosure to consumer reporting agencies and use of 
collection agencies, where appropriate, to encourage repayment.


Sec.  1303.94  Waiver or reduction of charges.

    (a) How to apply for a fee waiver. 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 or activities of the government and is not primarily in the 
commercial interest of the requester.
    (b) Factors for approving fee waivers. OMB will furnish records 
responsive to a request without charge or at a reduced rate when it 
determines, based on all available information, that the following 
factors 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 both of the following 
criteria are met:

[[Page 22957]]

    (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. OMB 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, 
OMB will consider the following criteria:
    (i) OMB 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 must be given an opportunity to provide explanatory 
information regarding this consideration.
    (ii) If there is an identified commercial interest, OMB must 
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) of this section are satisfied 
and any commercial interest is not the primary interest furthered by 
the request. OMB ordinarily will presume that when a news media 
requester has satisfied the requirements of paragraphs (b)(1) and (2) 
of this section, the request is not primarily in the 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) Timing of requests for fee waivers. Requests for a waiver or 
reduction of fees should be made when the request is first submitted to 
OMB 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 shall be required to pay 
any costs incurred up to the date the fee waiver request was received.

Mark R. Paoletta,
General Counsel and Chief FOIA Officer.
[FR Doc. 2019-10269 Filed 5-20-19; 8:45 am]
BILLING CODE 3110-01-P