Freedom of Information Act Regulations, 27721-27734 [2019-11775]

Download as PDF jbell on DSK3GLQ082PROD with RULES Federal Register / Vol. 84, No. 115 / Friday, June 14, 2019 / Rules and Regulations from 10 p.m. to 10:30 p.m. on July 4, 2019. In the case of inclement weather on July 4, 2019, this safety zone will be enforced from 10 p.m. to 10:30 p.m. on July 5, 2019. (16) Port Sanilac Fireworks, Port Sanilac, MI. The safety zone listed in § 165.941, Table 1(20), will be enforced from 10 p.m. to 11 p.m. on July 6, 2019. In the case of inclement weather on July 6, 2019, this safety zone will be enforced from 10 p.m. to 11 p.m. on July 7, 2019. (17) St. Clair Fireworks, St. Clair, MI. The safety zone listed in § 165.941, Table 1(21), will be enforced from 10 p.m. to 10:45 p.m. on July 4, 2019. In the case of inclement weather on July 4, 2019, this safety zone will be enforced from 10 p.m. to 10:45 p.m. on July 5, 2019. (18) St. Clair Shores Fireworks, St. Clair Shores, MI. The safety zone listed in § 165.941, Table 1(22), will be enforced from 9:15 p.m. to 9:45 p.m. on June 28, 2019. In the case of inclement weather on June 28, 2019, this safety zone will be enforced from 9:15 p.m. to 9:45 p.m. on June 29, 2019. (19) Tawas Fireworks, Tawas, MI. The safety zone listed in § 165.941, Table 1(23), will be enforced from 10 p.m. to 11 p.m. on July 4, 2019. In the case of inclement weather on July 4, 2019, this safety zone will be enforced from 10 p.m. to 11 p.m. on July 5, 2019. (20) Arenac Fireworks, Au Gres, MI. The safety zone listed in § 165.941, Table 1(24), will be enforced from 10 p.m. to 10:45 p.m. on July 6, 2019. In the case of inclement weather on July 6, 2019, this safety zone will be enforced from 10 p.m. to 10:45 p.m. on July 7, 2019. (21) Port Huron Blue Water Festival Fireworks, Port Huron, MI. The safety zone listed in § 165.941, Table 1(27), will be enforced from 10 p.m. to 11 p.m. on July 18, 2019. In the case of inclement weather on July 18, 2019, this safety zone will be enforced from 10 p.m. to 11 p.m. on July 19, 2019. (22) Detroit Symphony Orchestra Fireworks, Grosse Pointe Shores, MI. The safety zone listed in § 165.941, Table 1(28), will be enforced from 10 p.m. to 11 p.m. on July 12 and July 13, 2019. In the case of inclement weather on July 12 or July 13, 2019, this safety zone will be enforced from 10 p.m. to 11 p.m. on July 19, 2019. (23) Trenton Fireworks, Trenton, MI. The safety zone listed in § 165.941, Table 1(29), will be enforced from 10 p.m. to 11 p.m. on July 4, 2019. In the case of inclement weather on July 4, 2019, this safety zone will be enforced from 10 p.m. to 11 p.m. on July 5, 2019. VerDate Sep<11>2014 16:06 Jun 13, 2019 Jkt 247001 (24) Marine City Maritime Days Fireworks, Marine City, MI. The safety zone listed in § 165.941, Table 1(33), will be enforced from 10 p.m. to 11 p.m. on August 2, 2019. In the case of inclement weather on August 2, 2019, this safety zone will be enforced from 10 p.m. to 11 p.m. on August 3, 2019. (25) Catawba Island Club Fireworks, Catawba Island, OH. The safety zone listed in § 165.941, Table 1(41), will be enforced from 8 p.m. to 9:30 p.m. on July 5, 2019. (26) Lakeside July 4th Fireworks, Lakeside, OH. The safety zone listed in § 165.941, Table 1(40), will be enforced from 9:45 p.m. to 10:15 p.m. on July 4, 2019 with an inclement weather date of July 5, 2019. (27) Annual Labor Day Weekend Fireworks Show, Catawba Island, OH. The safety zone listed in § 165.941, Table 1(45), will be enforced from 8 p.m. to 9:30 p.m. on September 1, 2019. (28) Put-In-Bay Fourth of July Fireworks, Put-In-Bay, OH. The safety zone listed in § 165.941, Table 1(36), will be enforced from 9 p.m. to 10:30 p.m. on July 4, 2019 with an inclement weather date of July 5, 2019. (29) Huron Riverfest Fireworks, Huron, OH. The safety zone listed in § 165.941, Table 1(43), will be enforced between from 9:15 p.m. to 10:45 p.m. on July 12, 2019 with an inclement weather date of July 13, 2019. (30) Freedom Festival, Luna Pier, MI. The safety zone listed in § 165.941, Table 1(38), will be enforced from 9 p.m. to 10:30 p.m. on June 29, 2019. (31) Red, White and Blues Bang Fireworks, Huron, OH. The safety zone listed in § 165.941, Table 1(42), will be enforced between from 9:15 p.m. until 10:45 p.m. on July 6, 2019 with an inclement weather date of July 13, 2019. (32) Washington Township Firefighters Summerfest, Toledo, OH. The safety zone listed in § 165.941, Table 1(35), will be enforced from 8 p.m. to 11 p.m. on June 22, 2019 with an inclement weather date of June 23, 2019. (33) Toledo 4th Fireworks, Toledo, OH. The safety zone listed in § 165.941, Table 1(46), will be enforced from 8:30 p.m. to 10 p.m. on July 4, 2019 with an inclement weather date of July 5, 2019. Under the provisions of § 165.23, entry into, transiting, or anchoring within these safety zones during the enforcement period is prohibited unless authorized by the Captain of the Port Detroit or his designated representative. Vessels that wish to transit through the safety zones may request permission from the Captain of the Port Detroit or his designated representative. Requests must be made in advance and approved PO 00000 Frm 00019 Fmt 4700 Sfmt 4700 27721 by the Captain of Port before transits will be authorized. Approvals will be granted on a case by case basis. The Captain of the Port may be contacted via U.S. Coast Guard Sector Detroit on channel 16, VHF–FM or by calling (313) 568–9564. The Coast Guard will give notice to the public via Local Notice to Mariners and VHF radio broadcasts that the regulation is in effect. This document is issued under authority of § 165.941, Table 1, and 5 U.S.C. 552 (a). If the Captain of the Port determines that any of these safety zones need not be enforced for the full duration stated in this document, he may suspend such enforcement and notify the public of the suspension via a Broadcast Notice to Mariners. Dated: June 10, 2019. Jeffrey W. Novak, Captain, U.S. Coast Guard, Captain of the Port Detroit. [FR Doc. 2019–12598 Filed 6–13–19; 8:45 am] BILLING CODE 9110–04–P COMMISSION OF FINE ARTS 45 CFR Part 2105 Freedom of Information Act Regulations Commission of Fine Arts. Final rule. AGENCY: ACTION: This rule replaces the Commission of Fine Arts (CFA) Freedom of Information Act (FOIA) regulations, last updated in 1986, with regulations that incorporate FOIArelated mandates since the last update, including the FOIA Improvement Act of 2016. DATES: This rule is effective June 14, 2019. ADDRESSES: Please address comments concerning this rule to foia@cfa.gov. FOR FURTHER INFORMATION CONTACT: Thomas Luebke, Secretary, (202) 504– 2200. SUPPLEMENTARY INFORMATION: As established by Congress in 1910, the Commission of Fine Arts (CFA) is a small independent advisory body made up of seven presidentially appointed ‘‘well qualified judges of the arts’’ whose primary role is architectural review of designs for buildings, parks, monuments and memorials erected by the Federal or District of Columbia governments in Washington, DC. In addition to architectural review, the Commission considers and advises on the designs for coins, medals, and U.S. memorials on foreign soil. The Commission also advises the District of SUMMARY: E:\FR\FM\14JNR1.SGM 14JNR1 27722 Federal Register / Vol. 84, No. 115 / Friday, June 14, 2019 / Rules and Regulations Columbia government on private building projects within the Georgetown Historic District, the Rock Creek Park perimeter, and the Monumental Core area. The Commission advises Congress, the President, Federal agencies, and the District of Columbia government on the general subjects of design, historic preservation, and on orderly planning on matters within its jurisdiction. The Commission of Fine Arts routinely and promptly responds to requests from concerned citizens and interested parties to review a wide variety of agency documents. To this end, the staff regularly posts agendas for upcoming meetings and draft documents relevant to those meetings to the agency website (https:// www.cfa.gov/). Agendas, meeting minutes, recommendation letters, and actions taken under the Shipstead-Luce and Old Georgetown Acts are posted on the website in a timely manner. In that same spirit of openness and transparency, the CFA strives to organize and fulfill Freedom of Information Act (FOIA) requests efficiently and expediently, within the perimeters of current legislation. The CFA published revised regulations to replace those published in 1986 and invited public commentary. Commentary was received, reviewed and incorporated into this final rule. The Commission adopts the interim rule published in Federal Register on April 16, 2019, at 84 FR 15512, as final with changes. The changes were incorporated from the comments received on the interim rule and for the convenience of the reader, the Commission is setting out the part revised in its entirety. Comments received include identification of unnecessary repetition, clarification on fee categories specified in FOIA legislation, suggestions to highlight the availability of a FOIA Public Liaison and other minor copy and wording suggestions. List of Subjects 45 CFR Part 2105 Administrative practice and procedure, Freedom of information. For reasons stated in the preamble, the Commission of Fine Arts revises 45 CFR part 2105 to read as follows: jbell on DSK3GLQ082PROD with RULES PART 2105—REQUIREMENTS FOR COMPLIANCE WITH THE FREEDOM OF INFORMATION ACT Sec. Subpart A—Introduction 2105.1 What should you know up front? 2105.2 What kinds of records are not covered by the regulations in this part? VerDate Sep<11>2014 16:06 Jun 13, 2019 Jkt 247001 Subpart B—How To Make a Request 2105.3 Where should you send a FOIA request? 2105.4 How should you describe the records you seek? 2105.5 How will fee information affect the processing of your request? 2105.6 What information should you include about your fee category? 2105.7 Can you ask for records to be disclosed in a particular form or format? 2105.8 What if your request seeks records about another person? 2105.9 May you ask for the processing of your request to be expedited? 2105.10 What contact information should your request include? Subpart C—Processing Requests 2105.11 What should you know about how the Agency processes requests? 2105.12 How do consultations and referrals work? Subpart D—Timing of Responses to Requests 2105.13 In what order are responses usually made? 2105.14 What is multitrack processing and how does it affect your request? 2105.15 What is the basic time limit for responding to a request? 2105.16 When can the Agency suspend the basic time limit? 2105.17 When may the Agency extend the basic time limit? 2105.18 When will expedited processing be provided and how will it affect your request? Subpart E—Responses to Requests 2105.19 How will the Agency respond to requests? 2105.20 How will the Agency grant requests? 2105.21 When will the Agency deny a request or procedural benefits? 2105.22 How will the Agency deny requests? 2105.23 What if the requested records contain both exempt and nonexempt material? Subpart F—Handling Confidential Information 2105.24 May submitters of possibly confidential information designate information as confidential when making submissions? 2105.25 When will the Agency notify a submitter of a request for their possibly confidential information? 2105.26 What information will the Agency include when it notifies a submitter of a request for their possibly confidential information? 2105.27 When will the Agency not notify a submitter of a request for their possibly confidential information? 2105.28 How and when may a submitter object to the disclosure of confidential information? 2105.29 What must a submitter include in a detailed Exemption 4 objection statement? 2105.30 How will the Agency consider the submitter’s objections? PO 00000 Frm 00020 Fmt 4700 Sfmt 4700 2105.31 What if the Agency determines it will disclose information over the submitter’s objections? 2105.32 Will a submitter be notified of a FOIA lawsuit? 2105.33 Will you receive notification of activities involving the submitter? 2105.34 Can an Agency release information protected by Exemption 4? Subpart G—Fees 2105.35 What general principles govern fees? 2105.36 What are the requester fee categories? 2105.37 How does your requester category affect the fees you are charged? 2105.38 How will fee amounts be determined? 2105.39 What search fees will you have to pay? 2105.40 What duplication fees will you have to pay? 2105.41 What review fees will you have to pay? 2105.42 What fees for other services will you have to pay? 2105.43 When will the Agency waive fees? 2105.44 When may you ask the Agency for a fee waiver? 2105.45 How will the Agency notify you if it denies your fee waiver request? 2105.46 How will the Agency evaluate your fee waiver request? 2105.47 When will you be notified of anticipated fees? 2105.48 When will the Agency require advance payment? 2105.49 What if the Agency needs clarification about fee issues? 2105.50 How will you be billed? 2105.51 How will the Agency collect fees owed? 2105.52 When will the Agency combine or aggregate requests? 2105.53 What if other statutes require the Agency to charge fees? Subpart H—Administrative Appeals 2105.54 When may you file an appeal? 2105.55 How long do you have to file an appeal? 2105.56 How do you file an appeal? 2105.57 Who makes decisions on appeals? 2105.58 How are decisions on appeals issued? 2105.59 When can you expect a decision on your appeal? 2105.60 Can you receive expedited processing of appeals? 2105.61 Must you submit an appeal before seeking judicial review? Subpart I—General Information 2105.62 Where are records made available? 2105.63 What are public liaisons? 2105.64 When will the Agency make records available without a FOIA request? 2105.65 How will FOIA materials be preserved? 2105.66 How will an Agency handle a request for federally-funded research data? 2105.67 What definitions apply to this part? Appendix A to Part 2105—Fee Schedule E:\FR\FM\14JNR1.SGM 14JNR1 Federal Register / Vol. 84, No. 115 / Friday, June 14, 2019 / Rules and Regulations Authority: 5 U.S.C. 552, as amended by Public Law 110–175, 121 Stat. 2524 and Pub. L. 114–185, 130 Stat. 538. Subpart A—Introduction § 2105.1 What should you know up front? (a) This part contains the rules that the Agency follows in processing records under the Freedom of Information Act (FOIA), 5 U.S.C. 552. (b) Definitions of terms used in this part are found at § 2105.67. (c) This part should be read in conjunction with the text of the FOIA and the OMB Fee Guidelines. (d) This part does not entitle any person to any service or to the disclosure of any record that is not required under the FOIA. (e) You are encouraged to review the Agency’s FOIA libraries before filing a FOIA request. The material you seek may be immediately available electronically at no cost. § 2105.2 What kinds of records are not covered by the regulations in this part? In the event that the Agency identifies records that may be subject to exclusion from the requirements of the FOIA pursuant to 5 U.S.C. 552(c), the agency must confer with legal counsel and the Department of Justice, Office of Information Policy, to obtain approval to apply the exclusion. Subpart B—How To Make a Request § 2105.3 Where should you send a FOIA request? (a) To make a request for Agency records, you must contact the Agency directly. (b) Address requests to the FOIA Officer found in the Agency contacts at https://www.cfa.gov/foia. jbell on DSK3GLQ082PROD with RULES § 2105.4 How should you describe the records you seek? (a) You must reasonably describe the records sought. A reasonable description contains sufficient detail to enable Agency personnel familiar with the subject matter of the request to locate the records with a reasonable amount of effort. (b) You should include as much detail as possible about the specific records or types of records that you are seeking. This will assist the Agency in identifying the requested records (for example, time frames involved or specific personnel who may have the requested records). For example, whenever possible, identify: (1) The date, title or name, author, recipient, and subject of any particular records you seek; (2) The office that created the records you seek; VerDate Sep<11>2014 16:06 Jun 13, 2019 Jkt 247001 (3) The timeframe for which you are seeking records; and (4) Any other information that will assist the Agency in locating the records. (c) The Agency’s FOIA Officer or Public Liaison can assist you in formulating or reformulating a request in an effort to better identify the records you seek. (d) If the Agency determines that your request does not reasonably describe the records sought, the Agency will inform you what additional information you need to provide in order to reasonably describe the records that you seek so the requested records can be located with a reasonable amount of effort. The Agency will also notify you that it will not be able to comply with your request unless the additional information it has requested is received from you in writing within 20 workdays after the Agency has requested it and that you may appeal its determination. If you receive this type of notification, you may wish to discuss it with the Agency’s designated FOIA contact or the FOIA Public Liaison (see § 2105.63). If the Agency does not receive your written response containing the additional information within 20 workdays after the Agency has requested it, the Agency will presume that you are no longer interested in the records and will close the file on the request. § 2105.5 How will fee information affect the processing of your request? (a) Your request should state that you will pay all fees associated with processing the request, that you will pay fees up to a specified amount, and/or that you are seeking a fee waiver. (b) If the Agency anticipates that the fees for processing the request will exceed the amount you have agreed to pay, or if you did not agree in writing to pay processing fees or request a fee waiver and the Agency anticipates the processing costs will exceed $50 (see § 2105.35(g)) or will exceed your entitlements (see § 2105.37), the Agency will notify you: (1) Of the estimated processing fees; (2) Of its need for either an advance payment (see § 2105.48) or your written assurance that you will pay the anticipated fees (or fees up to a specified amount); and (3) That it will not be able to fully comply with your request unless you provide a fee waiver request and/or the requested written assurance or advance payment. (c) If the Agency does not receive a written response from you within 20 workdays after requesting the PO 00000 Frm 00021 Fmt 4700 Sfmt 4700 27723 information in paragraph (b) of this section, it will presume that you are no longer interested in the records and will close the file on the request. (d) If you are seeking a fee waiver, your request must include a justification that addresses and meets the criteria in §§ 2105.43 and 2105.46. Failure to provide sufficient justification will result in a denial of the fee waiver request. If you are seeking a fee waiver, you may also indicate the amount you are willing to pay if the fee waiver is denied. This allows the Agency to process the request for records while it considers your fee waiver request. (e) If you are required to pay a fee and it is later determined on appeal that you were entitled to a full or partial fee waiver, you will receive an appropriate refund. § 2105.6 What information should you include about your fee category? (a) A request should indicate your fee category (that is, whether you are a commercial-use requester, news media, educational or noncommercial scientific institution, or other requester as described in §§ 2105.36 and 2105.37). (b) If you submit a FOIA request on behalf of another person or organization (for example, if you are an attorney submitting a request on behalf of a client), the Agency will determine the fee category by considering the underlying requester’s identity and intended use of the information. (c) If your fee category is unclear, the Agency may ask you for additional information (see § 2105.49). § 2105.7 Can you ask for records to be disclosed in a particular form or format? (a) Generally, you may choose the form or format of disclosure for records requested. The Agency must provide the records in the requested form or format if the Agency can readily reproduce the record in that form or format. (b) The Agency may charge you the direct costs involved in converting records to the requested format if the Agency does not normally maintain the records in that format (see § 2105.42). § 2105.8 What if your request seeks records about another person? (a) When a request seeks records about another person, you may receive greater access by submitting proof that the person either: (1) Consents to the release of the records to you (for example, a notarized authorization signed by that person); or (2) Is deceased (for example, a copy of a death certificate or an obituary). (b) The Agency can require you to supply additional information if necessary to verify that a particular E:\FR\FM\14JNR1.SGM 14JNR1 27724 Federal Register / Vol. 84, No. 115 / Friday, June 14, 2019 / Rules and Regulations person has consented to disclosure or is deceased. § 2105.9 May you ask for the processing of your request to be expedited? You may ask for the processing of your request to be expedited. If you are seeking expedited processing, your request must include a justification that addresses and meets the criteria in § 2105.18 and includes the certification required at § 2105.18(b)(2). § 2105.10 What contact information should your request include? A request should include your name and a way (such as a mailing or email address) for the Agency to send responsive records to you and/or to request additional information or clarification of your request. You may also wish to include a daytime telephone number (or the name and telephone number of an appropriate contact). Subpart C—Processing Requests § 2105.11 What should you know about how the Agency processes requests? (a) Except as described in § 2105.12, the Agency is responsible for responding to the request and for making a reasonable effort to search for responsive records. (b) In determining which records are responsive to a request, the Agency will include only records in its possession and control on the date that it begins its search. (c) The Agency will make reasonable efforts to search for the requested records. As part of its reasonable efforts, the Agency will search paper and/or electronic records (for example, emails), as appropriate. The Agency will not search for records in an electronic form or format if these efforts would significantly interfere with the operation of the Agency’s automated information system. (d) If the Agency receives a request for records in its possession that it did not create or that another Federal agency is substantially concerned with, it may undertake consultations and/or referrals as described in § 2105.12. jbell on DSK3GLQ082PROD with RULES § 2105.12 How do consultations and referrals work? (a) Consultations and referrals generally occur outside the Agency. (1) Paragraphs (b) through (f) of this section address consultations and referrals that occur outside the Agency when the Agency has responsive records. (2) Paragraph (g) of this section addresses what happens when the Agency has no responsive records but VerDate Sep<11>2014 16:06 Jun 13, 2019 Jkt 247001 believes responsive records may be in the possession of a Federal agency outside the Agency. (b) If, while responding to a request, the Agency locates records that originated with another Federal agency, it usually will refer the request and any responsive records to that other agency for a release determination and direct response. (c) If the Agency refers records to another agency, it will document the referral and maintain a copy of the records that it refers and notify you of the referral in writing. When the Agency notifies you of the referral, it will tell you whether the referral was for part or all of your request and provide the name and contact information for the other agency. You may treat such a response as a denial of records and file an appeal, in accordance with the procedures in § 2105.56. (d) The standard referral procedure is not appropriate where disclosure of the identity of the Agency to which the referral would be made could harm an interest protected by an applicable exemption, such as the exemptions that protect personal privacy or national security interests. In such instances, in order to avoid harm to an interest protected by an applicable exemption, the Agency that received the request will coordinate with the originating agency and seek its views on the disclosability of the record. The release determination for the record that is the subject of the coordination will then be conveyed to the requester by the Agency that originally received the request. (e) If the Agency locates records that originated with another Federal agency while responding to a request, the Agency will make the release determination itself (after consulting with the originating agency) when: (1) The record is of primary interest to the Agency (for example, a record may be of primary interest to the Agency if it was developed or prepared according to the Agency’s regulations or directives, or in response to an Agency request); (2) The Agency is in a better position than the originating agency to assess whether the record is exempt from disclosure; (3) The originating agency is not subject to the FOIA; or (4) It is more efficient or practical depending on the circumstances. (f) On receipt of any request involving classified information, the Agency will determine whether the information is currently and properly classified in accordance with applicable classification rules. Whenever a request involves a record containing PO 00000 Frm 00022 Fmt 4700 Sfmt 4700 information that has been classified or may be appropriate for classification by another agency under any applicable Executive order concerning the classification of records, the receiving agency will refer the responsibility for responding to the request regarding that information to the agency that classified the information, or that should consider the information for classification. Whenever the Agency’s record contains information that has been derivatively classified (for example, when it contains information classified by another agency), the Agency will refer the responsibility for responding to that portion of the request to the agency that classified the underlying information. (g) If the Agency receives a request for records not in its possession, but that the Agency believes may be in the possession of a Federal agency outside the Agency, the Agency will return the request to you, may advise you to submit it directly to the other agency, will notify you that the Agency cannot comply with the request, and will close the request. If you believe this response was in error, you may file an appeal in accordance with the procedures in § 2105.56. Subpart D—Timing of Responses to Requests § 2105.13 In what order are responses usually made? The Agency ordinarily will respond to requests according to their order of receipt within their processing track. § 2105.14 What is multitrack processing and how does it affect your request? (a) Processing tracks are used to distinguish simple requests from more complex ones on the basis of the estimated number of workdays needed to process the request. (b) In determining the number of workdays needed to process the request, the Agency considers factors such as the number of pages involved in processing the request or the need for consultations. (c) The basic processing tracks are designated as follows: (1) Simple: Requests in this track will take between one to five workdays to process; (2) Normal: Requests in this track will take between six to twenty workdays to process; (3) Complex: Requests in this track will take between twenty-one workdays and sixty workdays to process; or (4) Voluminous: Requests in this track involve very complex processing challenges, which may include a large number of potentially responsive E:\FR\FM\14JNR1.SGM 14JNR1 Federal Register / Vol. 84, No. 115 / Friday, June 14, 2019 / Rules and Regulations records, and will take over sixty workdays to process. (d) The Agency also has a specific processing track for requests that are granted expedited processing under the standards in § 2105.18. These requests will be processed as soon as practicable. (e) The Agency must advise you of the track into which your request falls and, when appropriate, will offer you an opportunity to narrow your request so that it can be placed in a different processing track. If you request placement in a particular processing track but the Agency places you in a different processing track, the Agency will provide you with an explanation of why you were not placed in the processing track you requested. (f) The use of multitrack processing does not alter the statutory deadline for an Agency to determine whether to comply with your FOIA request (see § 2105.15). (g) You may inquire about the status of your request, including its estimated processing completion date, by contacting the FOIA Public Liaison, whose contact information may be found at https://www.cfa.gov/foia. § 2105.15 What is the basic time limit for responding to a request? (a) Ordinarily, the Agency has 20 workdays (including the date of receipt) to determine whether to comply with a request, but unusual circumstances may allow the Agency to take longer than 20 workdays (see § 2105.17). (b) A consultation or referral under § 2105.12 does not restart the statutory time limit for responding to a request. § 2105.16 When can the Agency suspend the basic time limit? (a) The basic time limit in § 2105.15 may be temporarily suspended for the time it takes you to respond to one written communication from the Agency reasonably asking for clarifying information. (b) The basic time limit in § 2105.15 may also repeatedly be temporarily suspended for the time it takes you to respond to written communications from the Agency that are necessary to clarify issues regarding fee assessment (see § 2105.49). jbell on DSK3GLQ082PROD with RULES § 2105.17 When may the Agency extend the basic time limit? (a) The Agency may extend the basic time limit, if unusual circumstances exist, by notifying you in writing of: (1) The unusual circumstances involved; and (2) The date by which it expects to complete processing the request. VerDate Sep<11>2014 16:06 Jun 13, 2019 Jkt 247001 (b) If the processing time will extend beyond a total of 30 workdays, the Agency will: (1) Give you an opportunity to limit the scope of the request or agree to an alternative time period for processing; and (2) Make available its FOIA Public Liaison (see § 2105.63) to assist in resolving any disputes between you and the Agency, and notify you of your right to seek dispute resolution from the Office of Government Information Services (OGIS). (c) If the Agency extends the time limit under this section and you do not receive a response in accordance with § 2105.15(a) in that time period, you may consider the request denied and file an appeal in accordance with the procedures in § 2105.56. (d) Your refusal to reasonably modify the scope of a request or arrange an alternative time frame for processing a request after being given the opportunity to do so may be considered for litigation purposes as a factor when determining whether exceptional circumstances exist. § 2105.18 When will expedited processing be provided and how will it affect your request? (a) The Agency will provide expedited processing upon request if you demonstrate to the satisfaction of the Agency that there is a compelling need for the records. The following circumstances demonstrate a compelling need: (1) Where failure to expedite the request could reasonably be expected to pose an imminent threat to the life or physical safety of an individual; or (2) Where there is an urgency to inform the public about an actual or alleged Federal Government activity and the request is made by a person primarily engaged in disseminating information. (i) In most situations, a person primarily engaged in disseminating information will be a representative of the news media. (ii) If you are not a full time member of the news media, to qualify for expedited processing here, you must establish that your main professional activity or occupation is information dissemination, although it need not be your sole occupation. (iii) The requested information must be the type of information which has particular value that will be lost if not disseminated quickly; this ordinarily refers to a breaking news story of general public interest. (iv) Information of historical interest only or information sought for litigation PO 00000 Frm 00023 Fmt 4700 Sfmt 4700 27725 or commercial activities would not qualify, nor would a news media deadline unrelated to breaking news. (b) If you seek expedited processing, you must submit a statement that: (1) Explains in detail how your request meets one or both of the criteria in paragraph (a) of this section; and (2) Certifies that your explanation is true and correct to the best of your knowledge and belief. (c) You may ask for expedited processing of your request by writing to the appropriate FOIA contact in the Agency that maintains the records requested any time before the Agency issues its final response to your request. When making a request for expedited processing of an administrative appeal, submit the request to the appropriate deciding official for FOIA appeals. (d) The Agency must notify you of its decision to grant or deny expedited processing within 10 calendar days of receiving an expedited processing request. (e) If expedited processing is granted, the request will be given priority, placed in the processing track for expedited requests, and be processed as soon as practicable. (f) If expedited processing is denied, the Agency will: (1) Inform you of the basis for the denial, including an explanation of why the expedited processing request does not meet the Agency’s expedited processing criteria under this section; and (2) Notify you of the right to appeal the decision on expedited processing in accordance with the procedures in subpart H of this part. (g) If you appeal the Agency’s expedited processing decision, that portion of your appeal (if it is properly formatted under § 2105.56) will be processed before appeals that do not challenge expedited processing decisions. (h) If the Agency has not responded to the request for expedited processing within 10 calendar days, you may file an appeal (for nonresponse in accordance with § 2105.54(a)(8)). Subpart E—Responses to Requests § 2105.19 How will the Agency respond to requests? (a) When the Agency informs you of its decision to comply with a request by granting, partially granting, or denying the request, it will do so in writing and in accordance with the deadlines in subpart D of this part. The Agency’s written response will include a statement about the services offered by its FOIA Public Liaison. The Agency’s E:\FR\FM\14JNR1.SGM 14JNR1 27726 Federal Register / Vol. 84, No. 115 / Friday, June 14, 2019 / Rules and Regulations written response will also include a statement about the services offered by the Office of Government Information Services (OGIS). (b) If the Agency determines that your request will take longer than 10 workdays to process, the Agency immediately will send you a written acknowledgment that includes the request’s individualized tracking number and processing track (see § 2105.14(e)). The acknowledgement may also include a brief description of the subject of your request. § 2105.20 How will the Agency grant requests? (a) Once the Agency makes a determination to grant a request in full or in part, it must notify you in writing. (b) The notification will inform you of the availability of its FOIA Public Liaison to offer assistance, and of any fees charged under subpart G of this part. (c) The Agency will release records (or portions of records) to you promptly upon payment of any applicable fees (or before then, at its discretion). (d) If the records (or portions of records) are not included with the Agency’s notification, the Agency will advise you how, when, and where the records will be released or made available. § 2105.21 When will the Agency deny a request or procedural benefits? jbell on DSK3GLQ082PROD with RULES (a) The Agency denies a request when it makes a decision that: (1) A requested record is exempt, in full or in part; (2) The request does not reasonably describe the records sought; (3) A requested record does not exist, cannot be located, or is not in the Agency’s possession and/or control; or (4) A requested record is not readily reproducible in the form or format you seek. (b) The Agency denies a procedural benefit only, and not access to the underlying records, when it makes a decision that: (1) A fee waiver, or another fee-related issue, will not be granted; or (2) Expedited processing will not be provided. (c) The Agency must consult with legal counsel before it denies a fee waiver request or withholds all or part of a requested record. § 2105.22 How will the Agency deny requests? (a) The Agency must notify you in writing of any denial of your request. (b) The denial notification must include: VerDate Sep<11>2014 16:06 Jun 13, 2019 Jkt 247001 (1) The name and title or position of the person responsible for the denial, along with an office phone number or email address; (2) A statement of the reasons for the denial; (3) A reference to any FOIA exemption applied by the Agency to withhold records in full or in part, along with a statement that the Agency reasonably foresees that disclosure would harm an interest protected by the applied exemption(s) or disclosure is prohibited by law; (4) An estimate of the volume of any records withheld in full or in part (for example, by providing the number of pages or some other reasonable form of estimation), unless including an estimate would harm an interest protected by an exemption used to withhold the records and the Agency explains this harm to you; (5) The name and title of legal counsel consulted (if the Agency is denying a fee waiver request or withholding all or part of a requested record); (6) Advisement of the right to seek dispute resolution services from the Agency’s FOIA Public Liaison and the Office of Government Information Services (OIGS); and (7) A statement that the denial may be appealed under subpart H of this part and a description of the procedures in subpart H of this part. § 2105.23 What if the requested records contain both exempt and nonexempt material? If responsive records contain both exempt and nonexempt material, the Agency will consult with legal counsel, as discussed in § 2105.21(c). After consultation, the Agency will partially grant and partially deny the request by: (a) Segregating and releasing the nonexempt information, unless the nonexempt material is so intertwined with the exempt material that disclosure of it would leave only meaningless words and phrases; (b) Indicating on the released portion of the record the amount of information deleted and the FOIA exemption under which the deletion was made, unless doing so would harm an interest protected by the FOIA exemption used to withhold the information; and (c) If technically feasible, indicating the amount of information deleted and the FOIA exemption under which the deletion was made at the place in the record where the deletion was made. PO 00000 Frm 00024 Fmt 4700 Sfmt 4700 Subpart F—Handling Confidential Information § 2105.24 May submitters of possibly confidential information designate information as confidential when making submissions? (a) The Agency encourages, but does not require, submitters to designate confidential information in good faith (in other words, to identify specific information as information the submitter considers protected from disclosure under Exemption 4 of the FOIA, found at 5 U.S.C. 552(b)(4)), at the time of submission or reasonably soon thereafter. (b) The designations discussed in paragraph (a) of this section assist the Agency in identifying what information obtained from the submitter is possibly confidential and triggers the requirement for Agency-provided notifications under § 2105.25(a)(1). § 2105.25 When will the Agency notify a submitter of a request for their possibly confidential information? (a) Except as outlined in § 2105.27, an Agency must promptly notify a submitter in writing when it receives a FOIA request if: (1) The requested information has been designated by the submitter as confidential information under § 2105.24(a); or (2) The requested information has not been designated as confidential information by the submitter under § 2105.24(a), but the Agency identifies it as possibly confidential information. (b) If a voluminous number of submitters are involved, the Agency may publish a notice in a manner reasonably calculated to reach the attention of the submitters (for example, in newspapers or newsletters, the Agency’s website, or the Federal Register) instead of providing a written notice to each submitter. § 2105.26 What information will the Agency include when it notifies a submitter of a request for their possibly confidential information? A notice to a submitter must include: (a) Either a copy of the request, the exact language of the request, or (for notices published under § 2 105.25(b)) a general description of the request; (b) Either a description of the possibly confidential information located in response to the request or a copy of the responsive records, or portions of records, containing the information; (c) A description of the procedures for objecting to the release of the possibly confidential information under §§ 2105.28 and 2105.29; E:\FR\FM\14JNR1.SGM 14JNR1 Federal Register / Vol. 84, No. 115 / Friday, June 14, 2019 / Rules and Regulations (d) A time limit for responding to the Agency—no less than 10 workdays from receipt or publication of the notice (as set forth in § 2105.25(b))—to object to the release and to explain the basis for the objection; (e) Notice that information contained in the submitter’s objections may itself be subject to disclosure under the FOIA; (f) Notice that the Agency, not the submitter, is responsible for deciding whether the information will be released or withheld; (g) A request for the submitter’s views on whether they still consider the information to be confidential if the submitter designated the material as confidential commercial or financial information 10 or more years before the request; and (h) Notice that failing to respond within the time frame specified under paragraph (d) of this section will create a presumption that the submitter has no objection to the disclosure of the information in question. § 2105.27 When will the Agency not notify a submitter of a request for their possibly confidential information? The notice requirements of § 2105.26 will not apply if: (a) The information has been lawfully published or officially made available to the public; or (b) Disclosure of the information is required by a statute other than the FOIA or by a regulation (other than this part) issued in accordance with the requirements of Executive Order 12600. jbell on DSK3GLQ082PROD with RULES § 2105.28 How and when may a submitter object to the disclosure of confidential information? (a) If a submitter has any objections to the disclosure of confidential information, the submitter should provide a detailed written statement to the Agency that specifies all grounds for withholding the particular information under any FOIA exemption (see § 2105.29 for further discussion of Exemption 4 objection statements). (b) A submitter who does not respond within the time period specified under § 2105.26(d) will be considered to have no objection to disclosure of the information. Responses received by the Agency after this time period will not be considered by the Agency unless the appropriate Agency FOIA contact determines, in his or her sole discretion, that good cause exists to accept the late response. § 2105.29 What must a submitter include in a detailed Exemption 4 objection statement? If a submitter has any objections to disclosure, it should provide the Agency VerDate Sep<11>2014 16:06 Jun 13, 2019 Jkt 247001 27727 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. release by Exemption 4 of the FOIA, the Agency has no discretion to release the information. Release of information protected from release by Exemption 4 is prohibited by the Trade Secrets Act, a criminal provision found at 18 U.S.C. 1905. § 2105.30 How will the Agency consider the submitter’s objections? § 2105.35 fees? (a) The Agency must carefully consider a submitter’s objections and specific grounds for nondisclosure in deciding whether to disclose the requested information. (b) The Agency, not the submitter, is responsible for deciding whether the information will be released or withheld. (a) The Agency will charge for processing requests under the FOIA in accordance with this subpart and with the OMB Fee Guidelines. (b) The Agency may contact you for additional information to resolve fee issues. (c) The Agency ordinarily will collect all applicable fees before sending copies of records to you. (d) You may usually pay fees by check, certified check, or money order made payable to the ‘‘Department of Treasury.’’ (e) The Agency should ensure that it conducts searches, review, and duplication in the most efficient and the least expensive manner so as to minimize costs for both you and the Agency. (f) If the Agency does not comply with any of the FOIA’s statutory time limits: (1) Except as provided in paragraph (f)(2) of this section, the Agency cannot assess any search fees (or, if you are in the fee category of a representative of the news media or an educational and noncommercial scientific institution, duplication fees). (2)(i) If the Agency has determined that unusual circumstances apply (as the term is defined in § 2105.67) and the Agency provided you a timely written notice to extend the basic time limit in accordance with § 2105.17, the noncompliance is excused for an additional 10 workdays. (ii) If the Agency has determined that unusual circumstances apply and more than 5,000 pages are necessary to respond to the request, the noncompliance is excused if the Agency has provided you a timely written notice in accordance with § 2105.17 and has discussed with you via written mail, email, or telephone (or made not less than 3 good-faith attempts to do so) how you could effectively limit the scope of the request. (iii) If a court has determined that exceptional circumstances exist (as that term is defined in § 2105.67), the noncompliance is excused for the length of time provided by the court order. (g) If the fee for processing your request is less than $50, you will not be charged unless multiple requests are § 2105.31 What if the Agency determines it will disclose information over the submitter’s objections? If the Agency decides to disclose information over the objection of a submitter, the Agency must notify the submitter by certified mail or other traceable mail, return receipt requested. The notification must be sent to the submitter’s last known address and must include: (a) The specific reasons why the Agency determined that the submitter’s disclosure objections do not support withholding the information; (b) Copies of the records or information the Agency intends to release; and (c) Notice that the Agency intends to release the records or information no less than 10 workdays after receipt of the notice by the submitter. § 2105.32 Will a submitter be notified of a FOIA lawsuit? If you file a lawsuit seeking to compel the disclosure of confidential information, the Agency must promptly notify the submitter. § 2105.33 Will you receive notification of activities involving the submitter? If any of the following occur, the Agency will notify you: (a) The Agency provides the submitter with notice and an opportunity to object to disclosure; (b) The Agency notifies the submitter of its intent to disclose the requested information; or (c) A submitter files a lawsuit to prevent the disclosure of the information. § 2105.34 Can an Agency release information protected by Exemption 4? If an Agency determines that the requested information is protected from PO 00000 Frm 00025 Fmt 4700 Sfmt 4700 Subpart G—Fees E:\FR\FM\14JNR1.SGM What general principles govern 14JNR1 27728 Federal Register / Vol. 84, No. 115 / Friday, June 14, 2019 / Rules and Regulations aggregated under § 2105.52 to an amount that is $50 or more. (h) If you fail to pay any FOIA-related fee within 30 calendar days of the date of billing, the processing of any new or ongoing requests and/or appeals from you shall ordinarily be suspended. (i) If you would like to reformulate your request so it will meet your needs at a lower cost, you may wish to seek assistance from the Agency’s designated FOIA contact or its FOIA Public Liaison (see § 2105.63). § 2105.36 What are the requester fee categories? (a) There are three categories of requesters for the purposes of determining fees: (1) Commercial-use; (2) Educational and noncommercial scientific institutions and representatives of news media; and (3) All others. (b) If you do not submit sufficient information in your FOIA request for the Agency to determine your proper fee category, the Agency may ask you to provide additional information (see § 2105.49). If you request placement in a particular fee category but the Agency places you in a different fee category, the Agency will provide you with an explanation of why you were not placed in the fee category you requested (for example, if you were placed in the commercial use requester category rather than the category you requested, the Agency will describe how the records would further your commercial, trade, or profit interests). (c) See § 2105.67 for the definitions of each of these fee categories. § 2105.37 How does your requester category affect the fees you are charged? You will be charged as shown in the following table: TABLE 1 TO § 2105.37 Requester category Search fees Review fees Duplication fees Commercial use requester ............. Educational and noncommercial scientific institutions and representative of news media requester. All other requesters ....................... Yes ................................................ No ................................................. Yes ................................................ No ................................................. Yes. Yes (first 100 pages, or equivalent volume, free). Yes (first two hours free) .............. No ................................................. Yes (first 100 pages, or equivalent volume, free). § 2105.38 How will fee amounts be determined? (a) The Agency will charge the types of fees discussed in this subpart unless a waiver of fees is required under § 2105.37 or has been granted under § 2105.43. (b) Because the types of fees discussed in this subpart already account for the overhead costs associated with a given fee type, the Agency should not add any additional costs to those charges. jbell on DSK3GLQ082PROD with RULES § 2105.39 to pay? What search fees will you have (a) The Agency will charge search fees for all requests, subject to the restrictions of §§ 2105.35(f), 2105.37, and 2105.38(a). The Agency may charge you for time spent searching even if it does not locate any responsive records or if it determines that the records are entirely exempt from disclosure. (b) For each quarter hour spent by personnel searching for requested records, including electronic searches that do not require new programming, the fees will be the average hourly General Schedule (GS) base salary, plus the District of Columbia locality payment, plus 16 percent for benefits, of employees in the following three categories, as applicable: (1) Clerical—Based on GS–6, Step 5, pay (all employees at GS–7 and below are classified as clerical for this purpose); (2) Professional—Based on GS–11, Step 7, pay (all employees at GS–8 VerDate Sep<11>2014 16:06 Jun 13, 2019 Jkt 247001 through GS–12 are classified as professional for this purpose); and (3) Managerial—Based on GS–14, Step 2, pay (all employees at GS–13 and above are classified as managerial for this purpose). (c) You can review the current fee schedule for the categories discussed in paragraph (b) of this section at https:// www.cfa.gov/foia. (d) Some requests may require retrieval of records stored at a Federal records center operated by the National Archives and Records Administration. For these requests, the Agency will charge additional costs in accordance with the Transactional Billing Rate Schedule established by the National Archives and Records Administration. § 2105.40 What duplication fees will you have to pay? (a) The Agency will charge duplication fees, subject to the restrictions of §§ 2105.35(f), 2105.37, and 2105.38(a). (b) If photocopies or scans are supplied, the Agency will provide one copy per request at the cost determined by the table in appendix A to this part. (c) For other forms of duplication, the Agency will charge the actual costs of producing the copy, including the time spent by personnel duplicating the requested records. For each quarter hour spent by personnel duplicating the requested records, the fees will be the same as those charged for a search under § 2105.39(b). PO 00000 Frm 00026 Fmt 4700 Sfmt 4700 (d) If the Agency must scan paper records to accommodate your preference to receive records in an electronic format or print electronic records to accommodate your preference to receive records in a paper format, you will pay both the per page amount noted in appendix A to this part and the time spent by personnel scanning or printing the requested records. For each quarter hour spent by personnel scanning or printing the requested records, the fees will be the same as those charged for a search under § 2105.39(b). § 2105.41 to pay? What review fees will you have (a) The Agency will charge review fees if you make a commercial-use request, subject to the restrictions of §§ 2105.35(f), 2105.37, and 2105.38(a). (b) The Agency will assess review fees in connection with the initial review of the record (the review conducted by the Agency to determine whether an exemption applies to a particular record or portion of a record). (c) The Agency will not charge for reviews at the administrative appeal stage of exemptions applied at the initial review stage. However, if the appellate authority determines that an exemption no longer applies, any costs associated with the Agency’s re-review of the records to consider the use of other exemptions may be assessed as review fees. E:\FR\FM\14JNR1.SGM 14JNR1 Federal Register / Vol. 84, No. 115 / Friday, June 14, 2019 / Rules and Regulations (d) The Agency will charge review fees at the same rates as those charged for a search under § 2105.39(b). (e) The Agency can charge review fees even if the record(s) reviewed ultimately is not disclosed. § 2105.42 What fees for other services will you have to pay? (a) Although not required to provide special services, if the Agency chooses to do so as a matter of administrative discretion, it will charge you the direct costs of providing the service. (b) Examples of these services include providing multiple copies of the same record, converting records that are not already maintained in a requested format to the requested format, obtaining research data under § 2105.66, sending records by means other than first class mail, and conducting a search that requires the creation of a new computer search program to locate the requested records. (c) The Agency will notify you of these fees before they accrue and will obtain your written assurance of payment or an advance payment before proceeding (see §§ 2105.47 and 2105.48). jbell on DSK3GLQ082PROD with RULES § 2105.43 fees? When will the Agency waive (a) The Agency will release records responsive to a request without charge (in other words, it will give you a full fee waiver) or at a reduced charge (in other words, it will give you a partial fee waiver, as discussed further in paragraph (b) of this section) if the Agency determines, based on all available information, that you have demonstrated (by addressing and meeting each of the criteria listed in § 2105.46) that disclosing the information is: (1) In the public interest because it is likely to contribute significantly to public understanding of Government operations or activities, and (2) Not primarily in your commercial interest. (b) A partial fee waiver may be appropriate if some but not all of the requested records are likely to contribute significantly to public understanding of the operations and activities of the Government. (c) When deciding whether to waive or reduce fees, the Agency will rely on the fee waiver justification submitted in your request letter. If the letter does not include sufficient justification, the Agency will deny the fee waiver request. The Agency may, at its discretion, request additional information from you (see § 2105.49). (d) The burden is on you to justify entitlement to a fee waiver. Requests for VerDate Sep<11>2014 16:06 Jun 13, 2019 Jkt 247001 fee waivers are decided on a case-bycase basis under the criteria discussed in paragraph (a) of this section and § 2105.46. If you have received a fee waiver in the past, that does not mean you are automatically entitled to a fee waiver for every request submitted. (e) The Agency must not make value judgments about whether the information at issue is ‘‘important’’ enough to be made public; it is not the Agency’s role to attempt to determine the level of public interest in requested information. § 2105.44 When may you ask the Agency for a fee waiver? (a) You should request a fee waiver when your request is first submitted to the Agency (see § 2105.5). (b) You may submit a fee waiver request at a later time if the Agency has not yet completed processing your request. § 2105.45 How will the Agency notify you if it denies your fee waiver request? If the Agency denies your request for a fee waiver, it will notify you, in writing, of the following: (a) The basis for the denial, including a full explanation of why the fee waiver request does not meet the Agency’s fee waiver criteria in § 2105.46; (b) The name and title or position of each person responsible for the denial; (c) The name and title of legal counsel consulted; (d) Advisement of the right to seek dispute resolution services from the Agency’s FOIA Public Liaison and the Office of Government Information Services (OIGS); (e) Your right to appeal the denial under subpart H of this part and a description of the requirements set forth therein, within 30 workdays from the date of the fee waiver denial letter; and (f) Your anticipated fees, in accordance with § 2105.47. § 2105.46 How will the Agency evaluate your fee waiver request? (a) In deciding whether your fee waiver request meets the requirements of § 2105.43(a)(1), the Agency will consider the criteria listed in paragraphs (a)(1) through (4) of this section. (1) How the records concern the operations or activities of the Federal Government. (2) How disclosure is likely to contribute to public understanding of those operations or activities, including: (i) How the contents of the records are meaningfully informative; (ii) The logical connection between the content of the records and the operations or activities; PO 00000 Frm 00027 Fmt 4700 Sfmt 4700 27729 (iii) How disclosure will contribute to the understanding of a reasonably broad audience of persons interested in the subject, as opposed to your individual understanding; (iv) Your identity, vocation, qualifications, and expertise regarding the requested information and information that explains how you plan to disclose the information in a manner that will be informative to the understanding of a reasonably broad audience of persons interested in the subject, as opposed to your individual understanding; and (v) Your ability and intent to disseminate the information to a reasonably broad audience of persons interested in the subject (for example, how and to whom do you intend to disseminate the information). If we have categorized you as a representative of the news media under § 2105.36, we will presume you have this ability and intent. (3) How disclosure is likely to significantly contribute to the understanding of a reasonably broad audience of persons interested in the subject, as opposed to your individual understanding, including: (i) Whether the information being requested is new; (ii) Whether the information would confirm or clarify data that has been released previously; (iii) How disclosure will increase the level of public understanding of the operations or activities of the Agency that existed prior to disclosure; and (iv) Whether the information is already publicly available. If the Government previously has published the information you are seeking or it is routinely available to the public in a library, reading room, through the internet, or as part of the administrative record for a particular issue, it is less likely that there will be a significant contribution from release. (4) How the public’s understanding of the subject in question will be enhanced to a significant extent by the disclosure. (b) In deciding whether the fee waiver meets the requirements in § 2105.43(a)(2), the Agency will consider any commercial interest of yours that would be furthered by the requested disclosure. (1) You are encouraged to provide explanatory information regarding this consideration. (2) The Agency will not find that disclosing the requested information will be primarily in your commercial interest where the public interest is greater than any identified commercial interest in disclosure. E:\FR\FM\14JNR1.SGM 14JNR1 27730 Federal Register / Vol. 84, No. 115 / Friday, June 14, 2019 / Rules and Regulations (3) If you do have a commercial interest that would be furthered by disclosure, explain how the public interest in disclosure would be greater than any commercial interest you or your organization may have in the documents. (i) Your identity, vocation, and intended use of the requested records are all factors to be considered in determining whether disclosure would be primarily in your commercial interest. (ii) If you are a representative of a news media organization seeking information as part of the news gathering process, we will presume that the public interest outweighs your commercial interest. (iii) If you represent a business/ corporation/association or you are an attorney representing such an organization, we will presume that your commercial interest outweighs the public interest unless you demonstrate otherwise. jbell on DSK3GLQ082PROD with RULES § 2105.47 When will you be notified of anticipated fees? (a) The Agency will notify you under this section unless: (1) The anticipated fee is less than $50 (see § 2105.35(g)); (2) You have been granted a full fee waiver; or (3) You have previously agreed to pay all the fees associated with the request. (b) If none of the exceptions in paragraph (a) of this section apply, the Agency will: (1) Promptly notify you of the estimated costs for search, review, and/ or duplication; (2) Ask you to provide written assurance within 20 workdays that you will pay all fees or fees up to a designated amount; (3) Notify you that it will not be able to comply with your FOIA request unless you provide the written assurance requested; and (4) Give you an opportunity to reduce the fee by modifying the request. (c) If the Agency does not receive your written response containing the additional information that resolves any fee issues, in accordance with paragraphs (b)(2) and/or (4) of this section, within 20 workdays after the Agency has requested it, the Agency will presume that you are no longer interested in the records and will close the file on the request. (d) After the Agency begins processing a request, if it finds that the actual cost will exceed the amount you previously agreed to pay, the Agency will: (1) Stop processing the request; VerDate Sep<11>2014 16:06 Jun 13, 2019 Jkt 247001 (2) Promptly notify you of the higher amount and ask you to provide written assurance of payment; and (3) Notify you that it will not be able to fully comply with your FOIA request unless you provide the written assurance requested; and (4) Give you an opportunity to reduce the fee by modifying the request. (e) If you wish to modify your request in an effort to reduce fees, the Agency’s FOIA Officer or Public Liaison can assist you. § 2105.48 When will the Agency require advance payment? (a) The Agency may require advance payment before starting further work when it finds the estimated fee is over $250. (1) When the Agency determines or estimates that a total fee to be charged under this section will exceed $250.00, it may require that you make an advance payment up to the amount of the entire anticipated fee before beginning to process the request. The Agency may elect to process the request prior to collecting fees when it receives a satisfactory assurance of full payment from a requester with a history of prompt payment. (2) If you have previously failed to pay a properly charged FOIA fee within 30 calendar days of the billing date, the Agency may require that you pay the full amount due, plus any applicable interest on that prior request. The Agency may require that you make an advance payment of the full amount of any anticipated fee before it begins to process a new request or continues to process a pending request or any pending appeal. (b) If the Agency believes that you did not pay a previous FOIA fee within 30 calendar days of the date of billing, the Agency will require you to either: (1) Demonstrate you paid prior fee within 30 calendar days of the date of billing; or (2) Pay any unpaid amount of the previous fee, plus any applicable interest penalties (see § 2105.51), and pay in advance the estimated fee for the new request. (c) When the Agency notifies you that an advance payment is due under paragraph (a) of this section, it will give you an opportunity to reduce the fee by modifying the request. (d) Your payment of the funds you owe the Agency for work it has already completed before records are sent to you is not an advance payment under paragraph (a) of this section. (e) If the Agency requires advance payment, it will start further work only after receiving the advance payment. It PO 00000 Frm 00028 Fmt 4700 Sfmt 4700 will also notify you that it will not be able to comply with your FOIA request unless you provide the advance payment. Unless you pay the advance payment within 20 workdays after the date of the Agency’s fee letter, the Agency will presume that you are no longer interested and will close the file on the request. § 2105.49 What if the Agency needs clarification about fee issues? If your FOIA request does not contain sufficient information for the Agency to determine your proper fee category or leaves another fee issue unclear, the Agency may ask you to provide additional clarification. If it does so, the Agency will notify you that it will not be able to comply with your FOIA request unless you provide the clarification requested. § 2105.50 How will you be billed? If you are required to pay a fee associated with a FOIA request, the Agency will send a bill for collection. § 2105.51 owed? How will the Agency collect fees (a) The Agency may charge interest on any unpaid bill starting on the 31st day following the billing date. (b) The Agency will assess interest charges at the rate provided in 31 U.S.C. 3717 and interest will accrue from the billing date until the Agency receives payment. (c) The Agency will follow the provisions of the Debt Collection Act of 1982 (Pub. L. 97–365, 96 Stat. 1749), as amended, and its administrative procedures, including the use of consumer reporting agencies, collection agencies, and offset to collect overdue amounts and interest. (d) This section does not apply if you are a state, local, or tribal government. § 2105.52 When will the Agency combine or aggregate requests? (a) The Agency may aggregate requests and charge accordingly when it reasonably believes that you, or a group of requesters acting in concert with you, are attempting to avoid fees by dividing a single request into a series of requests on a single subject or related subjects. (1) The Agency may presume that multiple requests of this type made within a 30-day period have been made to avoid fees. (2) The Agency may aggregate requests separated by a longer period only where there is a reasonable basis for determining that aggregation is warranted in view of all the circumstances involved. E:\FR\FM\14JNR1.SGM 14JNR1 Federal Register / Vol. 84, No. 115 / Friday, June 14, 2019 / Rules and Regulations (b) The Agency will not aggregate multiple requests involving unrelated matters. § 2105.53 What if other statutes require the Agency to charge fees? (a) The fee schedule in appendix A to this part does not apply to fees charged under any statute that specifically requires the Agency to set and collect fees for particular types of records. (b) If records otherwise responsive to a request are subject to a statutorilybased fee schedule, the Agency will inform you whom to contact to obtain the records. Subpart H—Administrative Appeals § 2105.54 When may you file an appeal? jbell on DSK3GLQ082PROD with RULES (a) You may file an appeal when: (1) The Agency withholds records, or parts of records; (2) The Agency informs you that your request has not adequately described the records sought; (3) The Agency informs you that it does not possess or cannot locate responsive records and you have reason to believe this is incorrect or that the search was inadequate; (4) The Agency did not address all aspects of the request for records; (5) You believe there is a procedural deficiency (for example, fees are improperly calculated or you have been placed in the wrong fee category); (6) The Agency denied your request for a fee waiver; (7) The Agency did not make a decision within the time limits in § 2105.15 or, if applicable, § 2105.16; or (8) The Agency denied, or was late in responding to, a request for expedited processing filed under the procedures in § 2105.18. (b) An appeal under paragraph (a)(8) of this section relates only to the request for expedited processing and does not constitute an appeal of the underlying request for records. Special procedures apply to requests for expedited processing of an appeal (see § 2105.60). (c) Before filing an appeal, you may wish to communicate with the contact person listed in the FOIA response, the Agency’s FOIA Officer, and/or the FOIA Public Liaison to see if the issue can be resolved informally. However, appeals must be received by the FOIA Appeals Officer within the time limits in § 2105.55 or they will not be processed. § 2105.55 appeal? How long do you have to file an (a) Appeals covered by § 2105.54(a)(1) through (5) must be received by the FOIA Appeals Officer no later than 90 days from the date of the final response. VerDate Sep<11>2014 16:06 Jun 13, 2019 Jkt 247001 (b) Appeals covered by § 2105.54(a)(6) must be received by the FOIA Appeals Officer no later than 90 days from the date of the letter denying the fee waiver. (c) Appeals covered by § 2105.54(a)(7) may be filed any time after the time limit for responding to the request has passed. (d) Appeals covered by § 2105.54(a)(8) should be filed as soon as possible. (e) Appeals arriving or delivered after 5 p.m. Eastern Time, Monday through Friday, will be deemed received on the next workday. § 2105.56 How do you file an appeal? (a) You must submit the appeal in writing by mail, fax or email to the FOIA Appeals Officer (using the address available at https://www.cfa.gov/foia/). Your failure to send an appeal directly to the FOIA Appeals Officer may delay processing. (b) The appeal must include: (1) Copies of all correspondence between you and the Agency concerning the FOIA request, including the request and the Agency’s response (if there is one); and (2) An explanation of why you believe the Agency’s response was in error. (c) The appeal should include your name, mailing address, daytime telephone number (or the name and telephone number of an appropriate contact), email address, and fax number (if available) in case the Agency needs additional information or clarification. (d) An appeal concerning a denial of expedited processing or a fee waiver denial should also demonstrate fully how the criteria in § 2105.18 or §§ 2105.43 and 2105.46 are met. (e) All communications concerning an appeal should be clearly marked with the words: ‘‘FREEDOM OF INFORMATION APPEAL.’’ (f) The Agency will reject an appeal that does not attach all correspondence required by paragraph (b)(1) of this section, unless the FOIA Appeals Officer determines, in his or her sole discretion, that good cause exists to accept the defective appeal. The time limits for responding to an appeal will not begin to run until the correspondence is received. § 2105.57 appeals? Who makes decisions on (a) The FOIA Appeals Officer is the deciding official for FOIA appeals. (b) When necessary, the appropriate deciding official for FOIA appeals will consult other appropriate offices, including legal counsel, for denials of records and fee waivers. (c) The deciding official for FOIA appeals normally will not make a PO 00000 Frm 00029 Fmt 4700 Sfmt 4700 27731 decision on an appeal if the request becomes a matter of FOIA litigation. § 2105.58 issued? How are decisions on appeals (a) A decision on an appeal must be made in writing. (b) A decision that upholds the Agency’s determination in whole or in part must contain a statement that identifies the reasons for the affirmance, including any FOIA exemptions applied. The decision must provide you with notification of the statutory right to file a lawsuit and will inform you of the dispute resolution services offered by the Office of Government Information Services (OGIS) of the National Archives and Records Administration as a non-exclusive alternative to litigation. If the Agency’s decision is remanded or modified on appeal, the Agency will notify you of that determination in writing. The Agency will then further process the request in accordance with that appeal determination and will respond directly to you. (c) Dispute resolution is a voluntary process. If the Agency agrees to participate in the dispute resolution services provided by OGIS, it will actively engage as a partner to the process in an attempt to resolve the dispute. § 2105.59 When can you expect a decision on your appeal? (a) The basic time limit for responding to an appeal is 20 workdays after receipt of an appeal meeting the requirements of § 2105.56. (b) If the Agency is unable to reach a decision on your appeal within the given time limit for response, the appropriate deciding official for FOIA appeals will notify you of your statutory right to seek review in a United States District Court. § 2105.60 Can you receive expedited processing of appeals? (a) To receive expedited processing of an appeal, you must demonstrate to the Agency’s satisfaction that the appeal meets one of the criteria under § 2105.18 and include a statement that the need for expedited processing is true and correct to the best of your knowledge and belief. (b) The appropriate deciding official for FOIA appeals will advise you whether the Agency will grant expedited processing within 10 calendar days of receiving the appeal. (c) If the appropriate deciding official for FOIA appeals decides to grant expedited processing, he or she will give the appeal priority over other pending appeals and process it as soon as practicable. E:\FR\FM\14JNR1.SGM 14JNR1 27732 Federal Register / Vol. 84, No. 115 / Friday, June 14, 2019 / Rules and Regulations § 2105.61 Must you submit an appeal before seeking judicial review? Subpart I—General Information disposed of or destroyed while the request or a related appeal or lawsuit is pending. This is true even if they would otherwise be authorized for disposition or destruction under the General Records Schedule 4.2 of NARA or another NARA-approved records schedule. § 2105.62 Where are records made available? § 2105.66 How will an Agency handle a request for federally-funded research data? Before seeking review by a court of the Agency’s adverse determination, you generally must first submit a timely administrative appeal. Records that are required by the FOIA to be made proactively available for public inspection and copying are accessible on the Agency’s website. They may also be available at the Agency’s office location. § 2105.63 What are public liaisons? (a) The Agency has a FOIA Officer or Public Liaison who can assist requesters who have concerns about the service they received when seeking records or who are seeking assistance under § 2105.3 or § 2105.35(i). (b) FOIA Public Liaisons report to the Agency’s Chief FOIA Officer and you can raise concerns to them about the service you have received. (c) FOIA Public Liaisons are responsible for assisting in reducing delays, increasing transparency and understanding of the status of requests, and assisting in resolving disputes. (d) A list of the Agency’s FOIA Public Liaisons is available at https:// www.cfa.gov/foia. § 2105.64 When will the Agency make records available without a FOIA request? (a) Each Agency must: (1) Determine which of its records must be made publicly available under the FOIA (for example, certain frequently requested records); (2) Identify additional records of interest to the public that are appropriate for public disclosure; and (3) Post those records in FOIA libraries. (b) Because of these proactive disclosures, you are encouraged to review the Agency’s FOIA libraries before filing a FOIA request. The material you seek may be immediately available electronically at no cost. jbell on DSK3GLQ082PROD with RULES § 2105.65 How will FOIA materials be preserved? (a) Each Agency must preserve all correspondence pertaining to the requests that it receives under subpart B of this part, as well as copies of all requested records, until disposition or destruction is authorized by the General Records Schedule 4.2 of the National Archives and Records Administration (NARA) or another NARA-approved records schedule. (b) Materials that are identified as responsive to a FOIA request will not be VerDate Sep<11>2014 16:06 Jun 13, 2019 Jkt 247001 (a) If you request research data that were used by the Federal Government in developing certain kinds of agency actions, and the research data relate to published research findings produced under an award, in accordance with OMB Circular A–110: (1) If the Agency was the awarding agency, it will request the research data from the recipient; (2) The recipient must provide the research data within a reasonable time; and (3) The Agency will review the research data to see if it can be released under the FOIA. (b) If the Agency obtains the research data solely in response to your FOIA request, the Agency may charge you a reasonable fee equaling the full incremental cost of obtaining the research data. (1) This fee should reflect costs incurred by the Agency, the recipient, and applicable subrecipients. (2) This fee is in addition to any fees the Agency may assess under the FOIA. (c) The Agency will forward a copy of the request to the recipient, who is responsible for searching for and reviewing the requested information in accordance with these FOIA regulations. The recipient will forward a copy of any responsive records that are located, along with any recommendations concerning the releasability of the data, and the total cost incurred in searching for, reviewing, and providing the data. (d) The Agency will review and consider the recommendations of the recipient regarding the releasability of the requested research data. However, the Agency, not the recipient, is responsible for deciding whether the research data will be released or withheld. § 2105.67 part? What definitions apply to this For the purposes of this part, the following definitions apply: Agency means the Commission of Fine Arts. Commercial interest means a commercial, trade, or profit interest as these terms are commonly understood. Your status as profitmaking or nonprofitmaking is not the deciding factor PO 00000 Frm 00030 Fmt 4700 Sfmt 4700 in determining whether you have a commercial interest. Commercial use means a use that furthers your commercial, trade or profit interests or that of the person on whose behalf the request is made. Confidential information means trade secrets or commercial or financial information (that is privileged or confidential and obtained by the Agency from a person) that may be protected from disclosure under Exemption 4 of the FOIA. Direct costs means those resources that the Agency expends in searching for and duplicating (and, in the case of commercial-use requests, reviewing) records to respond to a FOIA request. For example, direct costs include the salary of the employee performing the work (the basic rate of pay for the employee plus 16 percent of that rate to cover benefits) and the cost of operating duplicating machinery, such as photocopiers and scanners. Direct costs do not include overhead expenses such as the costs of space and of heating or lighting a facility. Duplication means reproducing a copy of a record or of the information contained in it necessary to respond to a FOIA request. Copies can take the form of paper, audiovisual materials, or electronic records, among others. Educational institution means any school that operates a program of scholarly research. In order to fall within this category, you must show that the request is authorized by and made under the auspices of, a qualifying institution and that the records are not sought for a commercial use, but rather are sought to further scholarly research. Exceptional circumstances means a delay that does not result from a predictable workload of requests (unless the Agency demonstrates reasonable progress in reducing its backlog of pending requests). Exempt means the record in question, or a portion thereof, is not subject to disclosure due to one or more of the FOIA’s nine statutory exemptions, found at 5 U.S.C. 552(b)(1)–(9). Exemption means one or more of the FOIA’s nine statutory exemptions, found at 5 U.S.C. 552(b)(1)–(9). Expedited processing means giving a FOIA request priority and processing it ahead of other requests pending in the Agency because you have shown a compelling need for the records. Fee category means one of the three categories, discussed in §§ 2105.36 and 2105.37, that agencies place you in for the purpose of determining whether you will be charged fees for search, review, and duplication. E:\FR\FM\14JNR1.SGM 14JNR1 jbell on DSK3GLQ082PROD with RULES Federal Register / Vol. 84, No. 115 / Friday, June 14, 2019 / Rules and Regulations FOIA means the Freedom of Information Act, 5 U.S.C. 552, as amended. FOIA libraries means a physical or electronic compilation of records required to be made available to the public for inspection and copying under 5 U.S.C. 552(a)(2). It also includes a physical or electronic compilation of records that the Agency, at its discretion, makes available to the public for inspection and copying. Frequently requested records means records that have been released to any person in response to a FOIA request and that have been requested, or that the Agency anticipates will be requested, at least two more times under the FOIA. Multitrack processing means placing simple requests, requiring relatively minimal review, in one processing track and more voluminous and complex requests in one or more other tracks. Requests in each track are ordinarily processed on a first-in/first-out basis. Noncommercial scientific institution means an institution that is not operated for commerce, trade or profit, and that is operated solely for the purpose of conducting scientific research the results of which are not intended to promote any particular product or industry. To be in this category, you must show that the request is authorized by and is made under the auspices of a qualifying institution and that the records are not sought for a commercial use but are sought to further scientific research. OMB Fee Guidelines means the Uniform Freedom of Information Fee Schedule and Guidelines published by the Office of Management and Budget on March 27, 1987. Published means, for the purposes of § 2105.66 only, when: (1) Research findings are published in a peer-reviewed scientific or technical journal; or (2) A Federal agency publicly and officially cites the research findings in support of an agency action that has the force and effect of law. Recipient means, for the purposes of § 2105.66 only, an organization receiving financial assistance directly from Federal awarding agencies to carry out a project or program. The term includes public and private institutions of higher education, public and private hospitals, and other quasi-public and private non-profit organizations. The term may include commercial organizations, foreign or international organizations (such as agencies of the United Nations) which are recipients, subrecipients, or contractors or VerDate Sep<11>2014 16:06 Jun 13, 2019 Jkt 247001 subcontractors of recipients or subrecipients at the discretion of the Federal awarding agency. The term does not include Government-owned contractor-operated facilities or research centers providing continued support for mission-oriented, large-scale programs that are Government-owned or controlled, or are designated as federally-funded research and development centers. Record means an agency record that is either created or obtained by an agency and is under agency possession and control at the time of the FOIA request, or is maintained by an entity under Government contract for the purposes of records management. Representative of the news media means any person or entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience. The term news as used in this definition means information that is about current events or that would be of current interest to the public. Examples of news media entities are newspapers, television, websites, or radio stations broadcasting to the public at large, and publishers of periodicals (but only if such entities qualify as disseminators of news) who make their products available for purchase by or subscription by or free distribution to the general public. These examples are not all inclusive. As methods of news delivery evolve, alternative representatives of news media may come into being. A freelance journalist will qualify as a news-media entity if he or she can demonstrate a solid basis for expecting publication through that entity, whether or not the journalist is actually employed by that entity (for example, a publication contract would present a solid basis for such an expectation). Research data means, for the purposes of § 2105.66 only, the recorded factual material commonly accepted in the historic and/or architectural communities as necessary to validate research findings, but not any of the following: Preliminary analyses, drafts of scientific papers, plans for future research, peer reviews, or communications with colleagues. The term recorded as used in this definition excludes physical objects (e.g., laboratory samples). Research data also do not include: (1) Trade secrets, commercial information, materials necessary to be held confidential by a researcher until they are published, or similar PO 00000 Frm 00031 Fmt 4700 Sfmt 4700 27733 information which is protected under law; and (2) Personnel and medical information and similar information the disclosure of which would constitute a clearly unwarranted invasion of personal privacy, such as information that could be used to identify a particular person in a research study. Review means the examination of a record located in response to a request to determine whether any portion of it is exempt from disclosure. Review time includes processing any record for disclosure, such as doing all that is necessary to prepare the record for disclosure, including the process of redacting the record and marking the appropriate exemptions. Review time also includes time spent both obtaining and considering any formal objection to disclosure made by a confidential information submitter under subpart G of this part, but it excludes time spent resolving general legal or policy issues regarding the application of FOIA exemptions. Search means the process of looking for and retrieving records responsive to a request. Search time includes page-bypage or line-by-line identification of information within records; and the reasonable efforts expended to locate and retrieve electronic records. Submitter means any person or entity outside the Federal Government from whom the Agency obtains confidential information, directly or indirectly. The term includes, but is not limited to individuals, corporations, and state, local, tribal, and foreign governments. Unusual circumstances means the need to search for and collect requested records from field facilities or other establishments that are separate from the office processing the request; the need to search for, collect, and examine a voluminous amount of separate and distinct records which are demanded in a single request; or the need for consultation, which shall be conducted with all practicable speed, with another agency, or among two or more components of the Agency, having a substantial interest in the determination of the request. Workday means a regular Federal workday. It excludes Saturdays, Sundays, or Federal legal public holidays. Items arriving or delivered after 5 p.m. Eastern Time will be deemed received on the next workday. You means a person requesting records, or filing an appeal, under the FOIA. E:\FR\FM\14JNR1.SGM 14JNR1 27734 Federal Register / Vol. 84, No. 115 / Friday, June 14, 2019 / Rules and Regulations Appendix A to Part 2105—Fee Schedule Types of records Fee (1) Physical records: Pages no larger than 8.5 x 14 inches, when reproduced by standard office copying machines or scanned into an electronic format. Color copies of pages no larger than 8.5 x 11 inches ............................................................................... Pages larger than 8.5 x 14 inches ............................................................................................................. Color copies of pages no larger than 11 x 17 inches ................................................................................ Photographs and records requiring special handling (for example, because of age, size, or format) ...... (2) Electronic records: Charges for services related to processing requests for electronic records .............................................. (3) Certification: Each certificate of verification attached to authenticate copies of records ................................................ (4) Postage: Charges that exceed the cost of first class postage, such as express mail or overnight delivery ............ (5) Other Services: Cost of special services or materials, other than those provided for by this fee schedule, when requester is notified of such costs in advance and agrees to pay them. Dated: May 31, 2019. Thomas Luebke, Secretary. effective after the Commission publishes a document in the Federal Register announcing such approval and the relevant effective date. The Federal Communications Commission will publish a separate document in the Federal Register announcing the effective date of these amendments. [FR Doc. 2019–11775 Filed 6–13–19; 8:45 am] BILLING CODE P FEDERAL COMMUNICATIONS COMMISSION FOR FURTHER INFORMATION CONTACT: 47 CFR Part 74 [MB Docket No. 18–119, FCC 19–40] FM Translator Interference Federal Communications Commission. ACTION: Final rule. AGENCY: In this document the Federal Communications Commission adopts rules to strengthen and streamline the rules relating to FM translator interference with other broadcast stations by allowing FM translators to resolve interference issues by changing channels to any available same-band frequency using a minor modification application; standardizing the information that must be compiled and submitted by any station claiming interference, including establishing a required minimum number of listener complaints; establishing interference complaint resolution procedures; and establishing an outer contour limit for the affected station within which interference complaints will be considered actionable. DATES: Effective July 15, 2019, except for the amendments to §§ 74.1203(a)(3) and 74.1204(f), which contain new or modified information collection requirements that require approval by the Office of Management and Budget (OMB) under the Paperwork Reduction Act (PRA), and which will become jbell on DSK3GLQ082PROD with RULES SUMMARY: VerDate Sep<11>2014 16:06 Jun 13, 2019 Jkt 247001 Christine Goepp, Attorney Advisor, Media Bureau, Audio Division, (202) 418–7834; James Bradshaw, Senior Deputy Chief, Media Bureau, Audio Division, (202) 418–2739; Lisa Scanlan, Deputy Division Chief, Media Bureau, Audio Division, (202) 418–2704. Direct press inquiries to Janice Wise at (202) 418–8165. For additional information concerning the PRA information collection requirements contained in this document, contact Cathy Williams, Federal Communications Commission, at (202) 418–2918, or via email Cathy.Williams@fcc.gov. This is a summary of the Commission’s Report and Order (R&O), MB Docket No. 18– 119; FCC 19–40, adopted on May 9, 2019 and released May 9, 2019. The full text of this document is available electronically via the FCC’s Electronic Document Management System (EDOCS) website at http:// fjallfoss.fcc.gov/edocs_public/ or via the FCC’s Electronic Comment Filing System (ECFS) website at http:// www.fcc.gov/ecfs. (Documents will be available electronically in ASCII, Microsoft Word, and/or Adobe Acrobat.) This document is also available for public inspection and copying during regular business hours in the FCC Reference Information Center, which is located in Room CY–A257 at FCC Headquarters, 445 12th Street SW, Washington, DC 20554. The Reference SUPPLEMENTARY INFORMATION: PO 00000 Frm 00032 Fmt 4700 Sfmt 4700 $.15 per page ($.30 for doublesided copying). $.90 per page. Direct cost to CFA. $1.50 per page. Direct cost to CFA. Direct cost to CFA. $.25. Postage or delivery charge. Direct cost to CFA. Information Center is open to the public Monday through Thursday from 8 a.m. to 4:30 p.m. and Friday from 8 a.m. to 11:30 a.m. Alternative formats are available for people with disabilities (Braille, large print, electronic files, audio format), by sending an email to fcc504@fcc.gov or calling the Commission’s Consumer and Governmental Affairs Bureau at (202) 418–0530 (voice), (202) 418–0432 (TTY). Paperwork Reduction Act of 1995 This document contains new or modified information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104–13, see 44 U.S.C. 3507. The Commission, as part of its continuing effort to reduce paperwork burdens, will invite the general public and the Office of Management and Budget (OMB) to comment on the information collection requirements contained in this document in a separate Federal Register Notice, as required by the PRA. These new or modified information collection will become effective after the Commission publishes a notice in the Federal Register announcing such approval and the relevant effective date. In addition, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107–198, see 44 U.S.C. 3506(c)(4), the Commission previously sought specific comment on how the Commission might further reduce the information collection burden for small business concerns with fewer than 25 employees. Congressional Review Act The Commission will send a copy of this R&O to Congress and the Government Accountability Office E:\FR\FM\14JNR1.SGM 14JNR1

Agencies

[Federal Register Volume 84, Number 115 (Friday, June 14, 2019)]
[Rules and Regulations]
[Pages 27721-27734]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-11775]


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COMMISSION OF FINE ARTS

45 CFR Part 2105


Freedom of Information Act Regulations

AGENCY: Commission of Fine Arts.

ACTION: Final rule.

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SUMMARY: This rule replaces the Commission of Fine Arts (CFA) Freedom 
of Information Act (FOIA) regulations, last updated in 1986, with 
regulations that incorporate FOIA-related mandates since the last 
update, including the FOIA Improvement Act of 2016.

DATES: This rule is effective June 14, 2019.

ADDRESSES: Please address comments concerning this rule to 
[email protected].

FOR FURTHER INFORMATION CONTACT: Thomas Luebke, Secretary, (202) 504-
2200.

SUPPLEMENTARY INFORMATION: As established by Congress in 1910, the 
Commission of Fine Arts (CFA) is a small independent advisory body made 
up of seven presidentially appointed ``well qualified judges of the 
arts'' whose primary role is architectural review of designs for 
buildings, parks, monuments and memorials erected by the Federal or 
District of Columbia governments in Washington, DC. In addition to 
architectural review, the Commission considers and advises on the 
designs for coins, medals, and U.S. memorials on foreign soil. The 
Commission also advises the District of

[[Page 27722]]

Columbia government on private building projects within the Georgetown 
Historic District, the Rock Creek Park perimeter, and the Monumental 
Core area. The Commission advises Congress, the President, Federal 
agencies, and the District of Columbia government on the general 
subjects of design, historic preservation, and on orderly planning on 
matters within its jurisdiction.
    The Commission of Fine Arts routinely and promptly responds to 
requests from concerned citizens and interested parties to review a 
wide variety of agency documents. To this end, the staff regularly 
posts agendas for upcoming meetings and draft documents relevant to 
those meetings to the agency website (https://www.cfa.gov/). Agendas, 
meeting minutes, recommendation letters, and actions taken under the 
Shipstead-Luce and Old Georgetown Acts are posted on the website in a 
timely manner. In that same spirit of openness and transparency, the 
CFA strives to organize and fulfill Freedom of Information Act (FOIA) 
requests efficiently and expediently, within the perimeters of current 
legislation. The CFA published revised regulations to replace those 
published in 1986 and invited public commentary. Commentary was 
received, reviewed and incorporated into this final rule.
    The Commission adopts the interim rule published in Federal 
Register on April 16, 2019, at 84 FR 15512, as final with changes. The 
changes were incorporated from the comments received on the interim 
rule and for the convenience of the reader, the Commission is setting 
out the part revised in its entirety. Comments received include 
identification of unnecessary repetition, clarification on fee 
categories specified in FOIA legislation, suggestions to highlight the 
availability of a FOIA Public Liaison and other minor copy and wording 
suggestions.

List of Subjects 45 CFR Part 2105

    Administrative practice and procedure, Freedom of information.

    For reasons stated in the preamble, the Commission of Fine Arts 
revises 45 CFR part 2105 to read as follows:

PART 2105--REQUIREMENTS FOR COMPLIANCE WITH THE FREEDOM OF 
INFORMATION ACT

Sec.
Subpart A--Introduction
2105.1 What should you know up front?
2105.2 What kinds of records are not covered by the regulations in 
this part?
Subpart B--How To Make a Request
2105.3 Where should you send a FOIA request?
2105.4 How should you describe the records you seek?
2105.5 How will fee information affect the processing of your 
request?
2105.6 What information should you include about your fee category?
2105.7 Can you ask for records to be disclosed in a particular form 
or format?
2105.8 What if your request seeks records about another person?
2105.9 May you ask for the processing of your request to be 
expedited?
2105.10 What contact information should your request include?
Subpart C--Processing Requests
2105.11 What should you know about how the Agency processes 
requests?
2105.12 How do consultations and referrals work?
Subpart D--Timing of Responses to Requests
2105.13 In what order are responses usually made?
2105.14 What is multitrack processing and how does it affect your 
request?
2105.15 What is the basic time limit for responding to a request?
2105.16 When can the Agency suspend the basic time limit?
2105.17 When may the Agency extend the basic time limit?
2105.18 When will expedited processing be provided and how will it 
affect your request?
Subpart E--Responses to Requests
2105.19 How will the Agency respond to requests?
2105.20 How will the Agency grant requests?
2105.21 When will the Agency deny a request or procedural benefits?
2105.22 How will the Agency deny requests?
2105.23 What if the requested records contain both exempt and 
nonexempt material?
Subpart F--Handling Confidential Information
2105.24 May submitters of possibly confidential information 
designate information as confidential when making submissions?
2105.25 When will the Agency notify a submitter of a request for 
their possibly confidential information?
2105.26 What information will the Agency include when it notifies a 
submitter of a request for their possibly confidential information?
2105.27 When will the Agency not notify a submitter of a request for 
their possibly confidential information?
2105.28 How and when may a submitter object to the disclosure of 
confidential information?
2105.29 What must a submitter include in a detailed Exemption 4 
objection statement?
2105.30 How will the Agency consider the submitter's objections?
2105.31 What if the Agency determines it will disclose information 
over the submitter's objections?
2105.32 Will a submitter be notified of a FOIA lawsuit?
2105.33 Will you receive notification of activities involving the 
submitter?
2105.34 Can an Agency release information protected by Exemption 4?
Subpart G--Fees
2105.35 What general principles govern fees?
2105.36 What are the requester fee categories?
2105.37 How does your requester category affect the fees you are 
charged?
2105.38 How will fee amounts be determined?
2105.39 What search fees will you have to pay?
2105.40 What duplication fees will you have to pay?
2105.41 What review fees will you have to pay?
2105.42 What fees for other services will you have to pay?
2105.43 When will the Agency waive fees?
2105.44 When may you ask the Agency for a fee waiver?
2105.45 How will the Agency notify you if it denies your fee waiver 
request?
2105.46 How will the Agency evaluate your fee waiver request?
2105.47 When will you be notified of anticipated fees?
2105.48 When will the Agency require advance payment?
2105.49 What if the Agency needs clarification about fee issues?
2105.50 How will you be billed?
2105.51 How will the Agency collect fees owed?
2105.52 When will the Agency combine or aggregate requests?
2105.53 What if other statutes require the Agency to charge fees?
Subpart H--Administrative Appeals
2105.54 When may you file an appeal?
2105.55 How long do you have to file an appeal?
2105.56 How do you file an appeal?
2105.57 Who makes decisions on appeals?
2105.58 How are decisions on appeals issued?
2105.59 When can you expect a decision on your appeal?
2105.60 Can you receive expedited processing of appeals?
2105.61 Must you submit an appeal before seeking judicial review?
Subpart I--General Information
2105.62 Where are records made available?
2105.63 What are public liaisons?
2105.64 When will the Agency make records available without a FOIA 
request?
2105.65 How will FOIA materials be preserved?
2105.66 How will an Agency handle a request for federally-funded 
research data?
2105.67 What definitions apply to this part?
Appendix A to Part 2105--Fee Schedule


[[Page 27723]]


    Authority: 5 U.S.C. 552, as amended by Public Law 110-175, 121 
Stat. 2524 and Pub. L. 114-185, 130 Stat. 538.

Subpart A--Introduction


Sec.  2105.1   What should you know up front?

    (a) This part contains the rules that the Agency follows in 
processing records under the Freedom of Information Act (FOIA), 5 
U.S.C. 552.
    (b) Definitions of terms used in this part are found at Sec.  
2105.67.
    (c) This part should be read in conjunction with the text of the 
FOIA and the OMB Fee Guidelines.
    (d) This part does not entitle any person to any service or to the 
disclosure of any record that is not required under the FOIA.
    (e) You are encouraged to review the Agency's FOIA libraries before 
filing a FOIA request. The material you seek may be immediately 
available electronically at no cost.


Sec.  2105.2   What kinds of records are not covered by the regulations 
in this part?

    In the event that the Agency identifies records that may be subject 
to exclusion from the requirements of the FOIA pursuant to 5 U.S.C. 
552(c), the agency must confer with legal counsel and the Department of 
Justice, Office of Information Policy, to obtain approval to apply the 
exclusion.

Subpart B--How To Make a Request


Sec.  2105.3   Where should you send a FOIA request?

    (a) To make a request for Agency records, you must contact the 
Agency directly.
    (b) Address requests to the FOIA Officer found in the Agency 
contacts at https://www.cfa.gov/foia.


Sec.  2105.4   How should you describe the records you seek?

    (a) You must reasonably describe the records sought. A reasonable 
description contains sufficient detail to enable Agency personnel 
familiar with the subject matter of the request to locate the records 
with a reasonable amount of effort.
    (b) You should include as much detail as possible about the 
specific records or types of records that you are seeking. This will 
assist the Agency in identifying the requested records (for example, 
time frames involved or specific personnel who may have the requested 
records). For example, whenever possible, identify:
    (1) The date, title or name, author, recipient, and subject of any 
particular records you seek;
    (2) The office that created the records you seek;
    (3) The timeframe for which you are seeking records; and
    (4) Any other information that will assist the Agency in locating 
the records.
    (c) The Agency's FOIA Officer or Public Liaison can assist you in 
formulating or reformulating a request in an effort to better identify 
the records you seek.
    (d) If the Agency determines that your request does not reasonably 
describe the records sought, the Agency will inform you what additional 
information you need to provide in order to reasonably describe the 
records that you seek so the requested records can be located with a 
reasonable amount of effort. The Agency will also notify you that it 
will not be able to comply with your request unless the additional 
information it has requested is received from you in writing within 20 
workdays after the Agency has requested it and that you may appeal its 
determination. If you receive this type of notification, you may wish 
to discuss it with the Agency's designated FOIA contact or the FOIA 
Public Liaison (see Sec.  2105.63). If the Agency does not receive your 
written response containing the additional information within 20 
workdays after the Agency has requested it, the Agency will presume 
that you are no longer interested in the records and will close the 
file on the request.


Sec.  2105.5   How will fee information affect the processing of your 
request?

    (a) Your request should state that you will pay all fees associated 
with processing the request, that you will pay fees up to a specified 
amount, and/or that you are seeking a fee waiver.
    (b) If the Agency anticipates that the fees for processing the 
request will exceed the amount you have agreed to pay, or if you did 
not agree in writing to pay processing fees or request a fee waiver and 
the Agency anticipates the processing costs will exceed $50 (see Sec.  
2105.35(g)) or will exceed your entitlements (see Sec.  2105.37), the 
Agency will notify you:
    (1) Of the estimated processing fees;
    (2) Of its need for either an advance payment (see Sec.  2105.48) 
or your written assurance that you will pay the anticipated fees (or 
fees up to a specified amount); and
    (3) That it will not be able to fully comply with your request 
unless you provide a fee waiver request and/or the requested written 
assurance or advance payment.
    (c) If the Agency does not receive a written response from you 
within 20 workdays after requesting the information in paragraph (b) of 
this section, it will presume that you are no longer interested in the 
records and will close the file on the request.
    (d) If you are seeking a fee waiver, your request must include a 
justification that addresses and meets the criteria in Sec. Sec.  
2105.43 and 2105.46. Failure to provide sufficient justification will 
result in a denial of the fee waiver request. If you are seeking a fee 
waiver, you may also indicate the amount you are willing to pay if the 
fee waiver is denied. This allows the Agency to process the request for 
records while it considers your fee waiver request.
    (e) If you are required to pay a fee and it is later determined on 
appeal that you were entitled to a full or partial fee waiver, you will 
receive an appropriate refund.


Sec.  2105.6   What information should you include about your fee 
category?

    (a) A request should indicate your fee category (that is, whether 
you are a commercial-use requester, news media, educational or 
noncommercial scientific institution, or other requester as described 
in Sec. Sec.  2105.36 and 2105.37).
    (b) If you submit a FOIA request on behalf of another person or 
organization (for example, if you are an attorney submitting a request 
on behalf of a client), the Agency will determine the fee category by 
considering the underlying requester's identity and intended use of the 
information.
    (c) If your fee category is unclear, the Agency may ask you for 
additional information (see Sec.  2105.49).


Sec.  2105.7   Can you ask for records to be disclosed in a particular 
form or format?

    (a) Generally, you may choose the form or format of disclosure for 
records requested. The Agency must provide the records in the requested 
form or format if the Agency can readily reproduce the record in that 
form or format.
    (b) The Agency may charge you the direct costs involved in 
converting records to the requested format if the Agency does not 
normally maintain the records in that format (see Sec.  2105.42).


Sec.  2105.8   What if your request seeks records about another person?

    (a) When a request seeks records about another person, you may 
receive greater access by submitting proof that the person either:
    (1) Consents to the release of the records to you (for example, a 
notarized authorization signed by that person); or
    (2) Is deceased (for example, a copy of a death certificate or an 
obituary).
    (b) The Agency can require you to supply additional information if 
necessary to verify that a particular

[[Page 27724]]

person has consented to disclosure or is deceased.


Sec.  2105.9   May you ask for the processing of your request to be 
expedited?

    You may ask for the processing of your request to be expedited. If 
you are seeking expedited processing, your request must include a 
justification that addresses and meets the criteria in Sec.  2105.18 
and includes the certification required at Sec.  2105.18(b)(2).


Sec.  2105.10   What contact information should your request include?

    A request should include your name and a way (such as a mailing or 
email address) for the Agency to send responsive records to you and/or 
to request additional information or clarification of your request. You 
may also wish to include a daytime telephone number (or the name and 
telephone number of an appropriate contact).

Subpart C--Processing Requests


Sec.  2105.11   What should you know about how the Agency processes 
requests?

    (a) Except as described in Sec.  2105.12, the Agency is responsible 
for responding to the request and for making a reasonable effort to 
search for responsive records.
    (b) In determining which records are responsive to a request, the 
Agency will include only records in its possession and control on the 
date that it begins its search.
    (c) The Agency will make reasonable efforts to search for the 
requested records. As part of its reasonable efforts, the Agency will 
search paper and/or electronic records (for example, emails), as 
appropriate. The Agency will not search for records in an electronic 
form or format if these efforts would significantly interfere with the 
operation of the Agency's automated information system.
    (d) If the Agency receives a request for records in its possession 
that it did not create or that another Federal agency is substantially 
concerned with, it may undertake consultations and/or referrals as 
described in Sec.  2105.12.


Sec.  2105.12   How do consultations and referrals work?

    (a) Consultations and referrals generally occur outside the Agency.
    (1) Paragraphs (b) through (f) of this section address 
consultations and referrals that occur outside the Agency when the 
Agency has responsive records.
    (2) Paragraph (g) of this section addresses what happens when the 
Agency has no responsive records but believes responsive records may be 
in the possession of a Federal agency outside the Agency.
    (b) If, while responding to a request, the Agency locates records 
that originated with another Federal agency, it usually will refer the 
request and any responsive records to that other agency for a release 
determination and direct response.
    (c) If the Agency refers records to another agency, it will 
document the referral and maintain a copy of the records that it refers 
and notify you of the referral in writing. When the Agency notifies you 
of the referral, it will tell you whether the referral was for part or 
all of your request and provide the name and contact information for 
the other agency. You may treat such a response as a denial of records 
and file an appeal, in accordance with the procedures in Sec.  2105.56.
    (d) The standard referral procedure is not appropriate where 
disclosure of the identity of the Agency to which the referral would be 
made could harm an interest protected by an applicable exemption, such 
as the exemptions that protect personal privacy or national security 
interests. In such instances, in order to avoid harm to an interest 
protected by an applicable exemption, the Agency that received the 
request will coordinate with the originating agency and seek its views 
on the disclosability of the record. The release determination for the 
record that is the subject of the coordination will then be conveyed to 
the requester by the Agency that originally received the request.
    (e) If the Agency locates records that originated with another 
Federal agency while responding to a request, the Agency will make the 
release determination itself (after consulting with the originating 
agency) when:
    (1) The record is of primary interest to the Agency (for example, a 
record may be of primary interest to the Agency if it was developed or 
prepared according to the Agency's regulations or directives, or in 
response to an Agency request);
    (2) The Agency is in a better position than the originating agency 
to assess whether the record is exempt from disclosure;
    (3) The originating agency is not subject to the FOIA; or
    (4) It is more efficient or practical depending on the 
circumstances.
    (f) On receipt of any request involving classified information, the 
Agency will determine whether the information is currently and properly 
classified in accordance with applicable classification rules. Whenever 
a request involves a record containing information that has been 
classified or may be appropriate for classification by another agency 
under any applicable Executive order concerning the classification of 
records, the receiving agency will refer the responsibility for 
responding to the request regarding that information to the agency that 
classified the information, or that should consider the information for 
classification. Whenever the Agency's record contains information that 
has been derivatively classified (for example, when it contains 
information classified by another agency), the Agency will refer the 
responsibility for responding to that portion of the request to the 
agency that classified the underlying information.
    (g) If the Agency receives a request for records not in its 
possession, but that the Agency believes may be in the possession of a 
Federal agency outside the Agency, the Agency will return the request 
to you, may advise you to submit it directly to the other agency, will 
notify you that the Agency cannot comply with the request, and will 
close the request. If you believe this response was in error, you may 
file an appeal in accordance with the procedures in Sec.  2105.56.

Subpart D--Timing of Responses to Requests


Sec.  2105.13   In what order are responses usually made?

    The Agency ordinarily will respond to requests according to their 
order of receipt within their processing track.


Sec.  2105.14   What is multitrack processing and how does it affect 
your request?

    (a) Processing tracks are used to distinguish simple requests from 
more complex ones on the basis of the estimated number of workdays 
needed to process the request.
    (b) In determining the number of workdays needed to process the 
request, the Agency considers factors such as the number of pages 
involved in processing the request or the need for consultations.
    (c) The basic processing tracks are designated as follows:
    (1) Simple: Requests in this track will take between one to five 
workdays to process;
    (2) Normal: Requests in this track will take between six to twenty 
workdays to process;
    (3) Complex: Requests in this track will take between twenty-one 
workdays and sixty workdays to process; or
    (4) Voluminous: Requests in this track involve very complex 
processing challenges, which may include a large number of potentially 
responsive

[[Page 27725]]

records, and will take over sixty workdays to process.
    (d) The Agency also has a specific processing track for requests 
that are granted expedited processing under the standards in Sec.  
2105.18. These requests will be processed as soon as practicable.
    (e) The Agency must advise you of the track into which your request 
falls and, when appropriate, will offer you an opportunity to narrow 
your request so that it can be placed in a different processing track. 
If you request placement in a particular processing track but the 
Agency places you in a different processing track, the Agency will 
provide you with an explanation of why you were not placed in the 
processing track you requested.
    (f) The use of multitrack processing does not alter the statutory 
deadline for an Agency to determine whether to comply with your FOIA 
request (see Sec.  2105.15).
    (g) You may inquire about the status of your request, including its 
estimated processing completion date, by contacting the FOIA Public 
Liaison, whose contact information may be found at https://www.cfa.gov/foia.


Sec.  2105.15   What is the basic time limit for responding to a 
request?

    (a) Ordinarily, the Agency has 20 workdays (including the date of 
receipt) to determine whether to comply with a request, but unusual 
circumstances may allow the Agency to take longer than 20 workdays (see 
Sec.  2105.17).
    (b) A consultation or referral under Sec.  2105.12 does not restart 
the statutory time limit for responding to a request.


Sec.  2105.16   When can the Agency suspend the basic time limit?

    (a) The basic time limit in Sec.  2105.15 may be temporarily 
suspended for the time it takes you to respond to one written 
communication from the Agency reasonably asking for clarifying 
information.
    (b) The basic time limit in Sec.  2105.15 may also repeatedly be 
temporarily suspended for the time it takes you to respond to written 
communications from the Agency that are necessary to clarify issues 
regarding fee assessment (see Sec.  2105.49).


Sec.  2105.17   When may the Agency extend the basic time limit?

    (a) The Agency may extend the basic time limit, if unusual 
circumstances exist, by notifying you in writing of:
    (1) The unusual circumstances involved; and
    (2) The date by which it expects to complete processing the 
request.
    (b) If the processing time will extend beyond a total of 30 
workdays, the Agency will:
    (1) Give you an opportunity to limit the scope of the request or 
agree to an alternative time period for processing; and
    (2) Make available its FOIA Public Liaison (see Sec.  2105.63) to 
assist in resolving any disputes between you and the Agency, and notify 
you of your right to seek dispute resolution from the Office of 
Government Information Services (OGIS).
    (c) If the Agency extends the time limit under this section and you 
do not receive a response in accordance with Sec.  2105.15(a) in that 
time period, you may consider the request denied and file an appeal in 
accordance with the procedures in Sec.  2105.56.
    (d) Your refusal to reasonably modify the scope of a request or 
arrange an alternative time frame for processing a request after being 
given the opportunity to do so may be considered for litigation 
purposes as a factor when determining whether exceptional circumstances 
exist.


Sec.  2105.18   When will expedited processing be provided and how will 
it affect your request?

    (a) The Agency will provide expedited processing upon request if 
you demonstrate to the satisfaction of the Agency that there is a 
compelling need for the records. The following circumstances 
demonstrate a compelling need:
    (1) Where failure to expedite the request could reasonably be 
expected to pose an imminent threat to the life or physical safety of 
an individual; or
    (2) Where there is an urgency to inform the public about an actual 
or alleged Federal Government activity and the request is made by a 
person primarily engaged in disseminating information.
    (i) In most situations, a person primarily engaged in disseminating 
information will be a representative of the news media.
    (ii) If you are not a full time member of the news media, to 
qualify for expedited processing here, you must establish that your 
main professional activity or occupation is information dissemination, 
although it need not be your sole occupation.
    (iii) The requested information must be the type of information 
which has particular value that will be lost if not disseminated 
quickly; this ordinarily refers to a breaking news story of general 
public interest.
    (iv) Information of historical interest only or information sought 
for litigation or commercial activities would not qualify, nor would a 
news media deadline unrelated to breaking news.
    (b) If you seek expedited processing, you must submit a statement 
that:
    (1) Explains in detail how your request meets one or both of the 
criteria in paragraph (a) of this section; and
    (2) Certifies that your explanation is true and correct to the best 
of your knowledge and belief.
    (c) You may ask for expedited processing of your request by writing 
to the appropriate FOIA contact in the Agency that maintains the 
records requested any time before the Agency issues its final response 
to your request. When making a request for expedited processing of an 
administrative appeal, submit the request to the appropriate deciding 
official for FOIA appeals.
    (d) The Agency must notify you of its decision to grant or deny 
expedited processing within 10 calendar days of receiving an expedited 
processing request.
    (e) If expedited processing is granted, the request will be given 
priority, placed in the processing track for expedited requests, and be 
processed as soon as practicable.
    (f) If expedited processing is denied, the Agency will:
    (1) Inform you of the basis for the denial, including an 
explanation of why the expedited processing request does not meet the 
Agency's expedited processing criteria under this section; and
    (2) Notify you of the right to appeal the decision on expedited 
processing in accordance with the procedures in subpart H of this part.
    (g) If you appeal the Agency's expedited processing decision, that 
portion of your appeal (if it is properly formatted under Sec.  
2105.56) will be processed before appeals that do not challenge 
expedited processing decisions.
    (h) If the Agency has not responded to the request for expedited 
processing within 10 calendar days, you may file an appeal (for 
nonresponse in accordance with Sec.  2105.54(a)(8)).

Subpart E--Responses to Requests


Sec.  2105.19   How will the Agency respond to requests?

    (a) When the Agency informs you of its decision to comply with a 
request by granting, partially granting, or denying the request, it 
will do so in writing and in accordance with the deadlines in subpart D 
of this part. The Agency's written response will include a statement 
about the services offered by its FOIA Public Liaison. The Agency's

[[Page 27726]]

written response will also include a statement about the services 
offered by the Office of Government Information Services (OGIS).
    (b) If the Agency determines that your request will take longer 
than 10 workdays to process, the Agency immediately will send you a 
written acknowledgment that includes the request's individualized 
tracking number and processing track (see Sec.  2105.14(e)). The 
acknowledgement may also include a brief description of the subject of 
your request.


Sec.  2105.20   How will the Agency grant requests?

    (a) Once the Agency makes a determination to grant a request in 
full or in part, it must notify you in writing.
    (b) The notification will inform you of the availability of its 
FOIA Public Liaison to offer assistance, and of any fees charged under 
subpart G of this part.
    (c) The Agency will release records (or portions of records) to you 
promptly upon payment of any applicable fees (or before then, at its 
discretion).
    (d) If the records (or portions of records) are not included with 
the Agency's notification, the Agency will advise you how, when, and 
where the records will be released or made available.


Sec.  2105.21   When will the Agency deny a request or procedural 
benefits?

    (a) The Agency denies a request when it makes a decision that:
    (1) A requested record is exempt, in full or in part;
    (2) The request does not reasonably describe the records sought;
    (3) A requested record does not exist, cannot be located, or is not 
in the Agency's possession and/or control; or
    (4) A requested record is not readily reproducible in the form or 
format you seek.
    (b) The Agency denies a procedural benefit only, and not access to 
the underlying records, when it makes a decision that:
    (1) A fee waiver, or another fee-related issue, will not be 
granted; or
    (2) Expedited processing will not be provided.
    (c) The Agency must consult with legal counsel before it denies a 
fee waiver request or withholds all or part of a requested record.


Sec.  2105.22   How will the Agency deny requests?

    (a) The Agency must notify you in writing of any denial of your 
request.
    (b) The denial notification must include:
    (1) The name and title or position of the person responsible for 
the denial, along with an office phone number or email address;
    (2) A statement of the reasons for the denial;
    (3) A reference to any FOIA exemption applied by the Agency to 
withhold records in full or in part, along with a statement that the 
Agency reasonably foresees that disclosure would harm an interest 
protected by the applied exemption(s) or disclosure is prohibited by 
law;
    (4) An estimate of the volume of any records withheld in full or in 
part (for example, by providing the number of pages or some other 
reasonable form of estimation), unless including an estimate would harm 
an interest protected by an exemption used to withhold the records and 
the Agency explains this harm to you;
    (5) The name and title of legal counsel consulted (if the Agency is 
denying a fee waiver request or withholding all or part of a requested 
record);
    (6) Advisement of the right to seek dispute resolution services 
from the Agency's FOIA Public Liaison and the Office of Government 
Information Services (OIGS); and
    (7) A statement that the denial may be appealed under subpart H of 
this part and a description of the procedures in subpart H of this 
part.


Sec.  2105.23   What if the requested records contain both exempt and 
nonexempt material?

    If responsive records contain both exempt and nonexempt material, 
the Agency will consult with legal counsel, as discussed in Sec.  
2105.21(c). After consultation, the Agency will partially grant and 
partially deny the request by:
    (a) Segregating and releasing the nonexempt information, unless the 
nonexempt material is so intertwined with the exempt material that 
disclosure of it would leave only meaningless words and phrases;
    (b) Indicating on the released portion of the record the amount of 
information deleted and the FOIA exemption under which the deletion was 
made, unless doing so would harm an interest protected by the FOIA 
exemption used to withhold the information; and
    (c) If technically feasible, indicating the amount of information 
deleted and the FOIA exemption under which the deletion was made at the 
place in the record where the deletion was made.

Subpart F--Handling Confidential Information


Sec.  2105.24  May submitters of possibly confidential information 
designate information as confidential when making submissions?

    (a) The Agency encourages, but does not require, submitters to 
designate confidential information in good faith (in other words, to 
identify specific information as information the submitter considers 
protected from disclosure under Exemption 4 of the FOIA, found at 5 
U.S.C. 552(b)(4)), at the time of submission or reasonably soon 
thereafter.
    (b) The designations discussed in paragraph (a) of this section 
assist the Agency in identifying what information obtained from the 
submitter is possibly confidential and triggers the requirement for 
Agency-provided notifications under Sec.  2105.25(a)(1).


Sec.  2105.25   When will the Agency notify a submitter of a request 
for their possibly confidential information?

    (a) Except as outlined in Sec.  2105.27, an Agency must promptly 
notify a submitter in writing when it receives a FOIA request if:
    (1) The requested information has been designated by the submitter 
as confidential information under Sec.  2105.24(a); or
    (2) The requested information has not been designated as 
confidential information by the submitter under Sec.  2105.24(a), but 
the Agency identifies it as possibly confidential information.
    (b) If a voluminous number of submitters are involved, the Agency 
may publish a notice in a manner reasonably calculated to reach the 
attention of the submitters (for example, in newspapers or newsletters, 
the Agency's website, or the Federal Register) instead of providing a 
written notice to each submitter.


Sec.  2105.26  What information will the Agency include when it 
notifies a submitter of a request for their possibly confidential 
information?

    A notice to a submitter must include:
    (a) Either a copy of the request, the exact language of the 
request, or (for notices published under Sec.  2 105.25(b)) a general 
description of the request;
    (b) Either a description of the possibly confidential information 
located in response to the request or a copy of the responsive records, 
or portions of records, containing the information;
    (c) A description of the procedures for objecting to the release of 
the possibly confidential information under Sec. Sec.  2105.28 and 
2105.29;

[[Page 27727]]

    (d) A time limit for responding to the Agency--no less than 10 
workdays from receipt or publication of the notice (as set forth in 
Sec.  2105.25(b))--to object to the release and to explain the basis 
for the objection;
    (e) Notice that information contained in the submitter's objections 
may itself be subject to disclosure under the FOIA;
    (f) Notice that the Agency, not the submitter, is responsible for 
deciding whether the information will be released or withheld;
    (g) A request for the submitter's views on whether they still 
consider the information to be confidential if the submitter designated 
the material as confidential commercial or financial information 10 or 
more years before the request; and
    (h) Notice that failing to respond within the time frame specified 
under paragraph (d) of this section will create a presumption that the 
submitter has no objection to the disclosure of the information in 
question.


Sec.  2105.27   When will the Agency not notify a submitter of a 
request for their possibly confidential information?

    The notice requirements of Sec.  2105.26 will not apply if:
    (a) The information has been lawfully published or officially made 
available to the public; or
    (b) Disclosure of the information is required by a statute other 
than the FOIA or by a regulation (other than this part) issued in 
accordance with the requirements of Executive Order 12600.


Sec.  2105.28   How and when may a submitter object to the disclosure 
of confidential information?

    (a) If a submitter has any objections to the disclosure of 
confidential information, the submitter should provide a detailed 
written statement to the Agency that specifies all grounds for 
withholding the particular information under any FOIA exemption (see 
Sec.  2105.29 for further discussion of Exemption 4 objection 
statements).
    (b) A submitter who does not respond within the time period 
specified under Sec.  2105.26(d) will be considered to have no 
objection to disclosure of the information. Responses received by the 
Agency after this time period will not be considered by the Agency 
unless the appropriate Agency FOIA contact determines, in his or her 
sole discretion, that good cause exists to accept the late response.


Sec.  2105.29   What must a submitter include in a detailed Exemption 4 
objection statement?

    If a submitter has any objections to disclosure, it should provide 
the Agency 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.


Sec.  2105.30   How will the Agency consider the submitter's 
objections?

    (a) The Agency must carefully consider a submitter's objections and 
specific grounds for nondisclosure in deciding whether to disclose the 
requested information.
    (b) The Agency, not the submitter, is responsible for deciding 
whether the information will be released or withheld.


Sec.  2105.31   What if the Agency determines it will disclose 
information over the submitter's objections?

    If the Agency decides to disclose information over the objection of 
a submitter, the Agency must notify the submitter by certified mail or 
other traceable mail, return receipt requested. The notification must 
be sent to the submitter's last known address and must include:
    (a) The specific reasons why the Agency determined that the 
submitter's disclosure objections do not support withholding the 
information;
    (b) Copies of the records or information the Agency intends to 
release; and
    (c) Notice that the Agency intends to release the records or 
information no less than 10 workdays after receipt of the notice by the 
submitter.


Sec.  2105.32   Will a submitter be notified of a FOIA lawsuit?

    If you file a lawsuit seeking to compel the disclosure of 
confidential information, the Agency must promptly notify the 
submitter.


Sec.  2105.33   Will you receive notification of activities involving 
the submitter?

    If any of the following occur, the Agency will notify you:
    (a) The Agency provides the submitter with notice and an 
opportunity to object to disclosure;
    (b) The Agency notifies the submitter of its intent to disclose the 
requested information; or
    (c) A submitter files a lawsuit to prevent the disclosure of the 
information.


Sec.  2105.34   Can an Agency release information protected by 
Exemption 4?

    If an Agency determines that the requested information is protected 
from release by Exemption 4 of the FOIA, the Agency has no discretion 
to release the information. Release of information protected from 
release by Exemption 4 is prohibited by the Trade Secrets Act, a 
criminal provision found at 18 U.S.C. 1905.

Subpart G--Fees


Sec.  2105.35   What general principles govern fees?

    (a) The Agency will charge for processing requests under the FOIA 
in accordance with this subpart and with the OMB Fee Guidelines.
    (b) The Agency may contact you for additional information to 
resolve fee issues.
    (c) The Agency ordinarily will collect all applicable fees before 
sending copies of records to you.
    (d) You may usually pay fees by check, certified check, or money 
order made payable to the ``Department of Treasury.''
    (e) The Agency should ensure that it conducts searches, review, and 
duplication in the most efficient and the least expensive manner so as 
to minimize costs for both you and the Agency.
    (f) If the Agency does not comply with any of the FOIA's statutory 
time limits:
    (1) Except as provided in paragraph (f)(2) of this section, the 
Agency cannot assess any search fees (or, if you are in the fee 
category of a representative of the news media or an educational and 
noncommercial scientific institution, duplication fees).
    (2)(i) If the Agency has determined that unusual circumstances 
apply (as the term is defined in Sec.  2105.67) and the Agency provided 
you a timely written notice to extend the basic time limit in 
accordance with Sec.  2105.17, the noncompliance is excused for an 
additional 10 workdays.
    (ii) If the Agency has determined that unusual circumstances apply 
and more than 5,000 pages are necessary to respond to the request, the 
noncompliance is excused if the Agency has provided you a timely 
written notice in accordance with Sec.  2105.17 and has discussed with 
you via written mail, email, or telephone (or made not less than 3 
good-faith attempts to do so) how you could effectively limit the scope 
of the request.
    (iii) If a court has determined that exceptional circumstances 
exist (as that term is defined in Sec.  2105.67), the noncompliance is 
excused for the length of time provided by the court order.
    (g) If the fee for processing your request is less than $50, you 
will not be charged unless multiple requests are

[[Page 27728]]

aggregated under Sec.  2105.52 to an amount that is $50 or more.
    (h) If you fail to pay any FOIA-related fee within 30 calendar days 
of the date of billing, the processing of any new or ongoing requests 
and/or appeals from you shall ordinarily be suspended.
    (i) If you would like to reformulate your request so it will meet 
your needs at a lower cost, you may wish to seek assistance from the 
Agency's designated FOIA contact or its FOIA Public Liaison (see Sec.  
2105.63).


Sec.  2105.36   What are the requester fee categories?

    (a) There are three categories of requesters for the purposes of 
determining fees:
    (1) Commercial-use;
    (2) Educational and noncommercial scientific institutions and 
representatives of news media; and
    (3) All others.
    (b) If you do not submit sufficient information in your FOIA 
request for the Agency to determine your proper fee category, the 
Agency may ask you to provide additional information (see Sec.  
2105.49). If you request placement in a particular fee category but the 
Agency places you in a different fee category, the Agency will provide 
you with an explanation of why you were not placed in the fee category 
you requested (for example, if you were placed in the commercial use 
requester category rather than the category you requested, the Agency 
will describe how the records would further your commercial, trade, or 
profit interests).
    (c) See Sec.  2105.67 for the definitions of each of these fee 
categories.


Sec.  2105.37   How does your requester category affect the fees you 
are charged?

    You will be charged as shown in the following table:

                                            Table 1 to Sec.   2105.37
----------------------------------------------------------------------------------------------------------------
          Requester category                 Search fees              Review fees            Duplication fees
----------------------------------------------------------------------------------------------------------------
Commercial use requester.............  Yes....................  Yes....................  Yes.
Educational and noncommercial          No.....................  No.....................  Yes (first 100 pages,
 scientific institutions and                                                              or equivalent volume,
 representative of news media                                                             free).
 requester.
All other requesters.................  Yes (first two hours     No.....................  Yes (first 100 pages,
                                        free).                                            or equivalent volume,
                                                                                          free).
----------------------------------------------------------------------------------------------------------------

Sec.  2105.38   How will fee amounts be determined?

    (a) The Agency will charge the types of fees discussed in this 
subpart unless a waiver of fees is required under Sec.  2105.37 or has 
been granted under Sec.  2105.43.
    (b) Because the types of fees discussed in this subpart already 
account for the overhead costs associated with a given fee type, the 
Agency should not add any additional costs to those charges.


Sec.  2105.39   What search fees will you have to pay?

    (a) The Agency will charge search fees for all requests, subject to 
the restrictions of Sec. Sec.  2105.35(f), 2105.37, and 2105.38(a). The 
Agency may charge you for time spent searching even if it does not 
locate any responsive records or if it determines that the records are 
entirely exempt from disclosure.
    (b) For each quarter hour spent by personnel searching for 
requested records, including electronic searches that do not require 
new programming, the fees will be the average hourly General Schedule 
(GS) base salary, plus the District of Columbia locality payment, plus 
16 percent for benefits, of employees in the following three 
categories, as applicable:
    (1) Clerical--Based on GS-6, Step 5, pay (all employees at GS-7 and 
below are classified as clerical for this purpose);
    (2) Professional--Based on GS-11, Step 7, pay (all employees at GS-
8 through GS-12 are classified as professional for this purpose); and
    (3) Managerial--Based on GS-14, Step 2, pay (all employees at GS-13 
and above are classified as managerial for this purpose).
    (c) You can review the current fee schedule for the categories 
discussed in paragraph (b) of this section at https://www.cfa.gov/foia.
    (d) Some requests may require retrieval of records stored at a 
Federal records center operated by the National Archives and Records 
Administration. For these requests, the Agency will charge additional 
costs in accordance with the Transactional Billing Rate Schedule 
established by the National Archives and Records Administration.


Sec.  2105.40   What duplication fees will you have to pay?

    (a) The Agency will charge duplication fees, subject to the 
restrictions of Sec. Sec.  2105.35(f), 2105.37, and 2105.38(a).
    (b) If photocopies or scans are supplied, the Agency will provide 
one copy per request at the cost determined by the table in appendix A 
to this part.
    (c) For other forms of duplication, the Agency will charge the 
actual costs of producing the copy, including the time spent by 
personnel duplicating the requested records. For each quarter hour 
spent by personnel duplicating the requested records, the fees will be 
the same as those charged for a search under Sec.  2105.39(b).
    (d) If the Agency must scan paper records to accommodate your 
preference to receive records in an electronic format or print 
electronic records to accommodate your preference to receive records in 
a paper format, you will pay both the per page amount noted in appendix 
A to this part and the time spent by personnel scanning or printing the 
requested records. For each quarter hour spent by personnel scanning or 
printing the requested records, the fees will be the same as those 
charged for a search under Sec.  2105.39(b).


Sec.  2105.41   What review fees will you have to pay?

    (a) The Agency will charge review fees if you make a commercial-use 
request, subject to the restrictions of Sec. Sec.  2105.35(f), 2105.37, 
and 2105.38(a).
    (b) The Agency will assess review fees in connection with the 
initial review of the record (the review conducted by the Agency to 
determine whether an exemption applies to a particular record or 
portion of a record).
    (c) The Agency will not charge for reviews at the administrative 
appeal stage of exemptions applied at the initial review stage. 
However, if the appellate authority determines that an exemption no 
longer applies, any costs associated with the Agency's re-review of the 
records to consider the use of other exemptions may be assessed as 
review fees.

[[Page 27729]]

    (d) The Agency will charge review fees at the same rates as those 
charged for a search under Sec.  2105.39(b).
    (e) The Agency can charge review fees even if the record(s) 
reviewed ultimately is not disclosed.


Sec.  2105.42   What fees for other services will you have to pay?

    (a) Although not required to provide special services, if the 
Agency chooses to do so as a matter of administrative discretion, it 
will charge you the direct costs of providing the service.
    (b) Examples of these services include providing multiple copies of 
the same record, converting records that are not already maintained in 
a requested format to the requested format, obtaining research data 
under Sec.  2105.66, sending records by means other than first class 
mail, and conducting a search that requires the creation of a new 
computer search program to locate the requested records.
    (c) The Agency will notify you of these fees before they accrue and 
will obtain your written assurance of payment or an advance payment 
before proceeding (see Sec. Sec.  2105.47 and 2105.48).


Sec.  2105.43   When will the Agency waive fees?

    (a) The Agency will release records responsive to a request without 
charge (in other words, it will give you a full fee waiver) or at a 
reduced charge (in other words, it will give you a partial fee waiver, 
as discussed further in paragraph (b) of this section) if the Agency 
determines, based on all available information, that you have 
demonstrated (by addressing and meeting each of the criteria listed in 
Sec.  2105.46) that disclosing the information is:
    (1) In the public interest because it is likely to contribute 
significantly to public understanding of Government operations or 
activities, and
    (2) Not primarily in your commercial interest.
    (b) A partial fee waiver may be appropriate if some but not all of 
the requested records are likely to contribute significantly to public 
understanding of the operations and activities of the Government.
    (c) When deciding whether to waive or reduce fees, the Agency will 
rely on the fee waiver justification submitted in your request letter. 
If the letter does not include sufficient justification, the Agency 
will deny the fee waiver request. The Agency may, at its discretion, 
request additional information from you (see Sec.  2105.49).
    (d) The burden is on you to justify entitlement to a fee waiver. 
Requests for fee waivers are decided on a case-by-case basis under the 
criteria discussed in paragraph (a) of this section and Sec.  2105.46. 
If you have received a fee waiver in the past, that does not mean you 
are automatically entitled to a fee waiver for every request submitted.
    (e) The Agency must not make value judgments about whether the 
information at issue is ``important'' enough to be made public; it is 
not the Agency's role to attempt to determine the level of public 
interest in requested information.


Sec.  2105.44   When may you ask the Agency for a fee waiver?

    (a) You should request a fee waiver when your request is first 
submitted to the Agency (see Sec.  2105.5).
    (b) You may submit a fee waiver request at a later time if the 
Agency has not yet completed processing your request.


Sec.  2105.45   How will the Agency notify you if it denies your fee 
waiver request?

    If the Agency denies your request for a fee waiver, it will notify 
you, in writing, of the following:
    (a) The basis for the denial, including a full explanation of why 
the fee waiver request does not meet the Agency's fee waiver criteria 
in Sec.  2105.46;
    (b) The name and title or position of each person responsible for 
the denial;
    (c) The name and title of legal counsel consulted;
    (d) Advisement of the right to seek dispute resolution services 
from the Agency's FOIA Public Liaison and the Office of Government 
Information Services (OIGS);
    (e) Your right to appeal the denial under subpart H of this part 
and a description of the requirements set forth therein, within 30 
workdays from the date of the fee waiver denial letter; and
    (f) Your anticipated fees, in accordance with Sec.  2105.47.


Sec.  2105.46   How will the Agency evaluate your fee waiver request?

    (a) In deciding whether your fee waiver request meets the 
requirements of Sec.  2105.43(a)(1), the Agency will consider the 
criteria listed in paragraphs (a)(1) through (4) of this section.
    (1) How the records concern the operations or activities of the 
Federal Government.
    (2) How disclosure is likely to contribute to public understanding 
of those operations or activities, including:
    (i) How the contents of the records are meaningfully informative;
    (ii) The logical connection between the content of the records and 
the operations or activities;
    (iii) How disclosure will contribute to the understanding of a 
reasonably broad audience of persons interested in the subject, as 
opposed to your individual understanding;
    (iv) Your identity, vocation, qualifications, and expertise 
regarding the requested information and information that explains how 
you plan to disclose the information in a manner that will be 
informative to the understanding of a reasonably broad audience of 
persons interested in the subject, as opposed to your individual 
understanding; and
    (v) Your ability and intent to disseminate the information to a 
reasonably broad audience of persons interested in the subject (for 
example, how and to whom do you intend to disseminate the information). 
If we have categorized you as a representative of the news media under 
Sec.  2105.36, we will presume you have this ability and intent.
    (3) How disclosure is likely to significantly contribute to the 
understanding of a reasonably broad audience of persons interested in 
the subject, as opposed to your individual understanding, including:
    (i) Whether the information being requested is new;
    (ii) Whether the information would confirm or clarify data that has 
been released previously;
    (iii) How disclosure will increase the level of public 
understanding of the operations or activities of the Agency that 
existed prior to disclosure; and
    (iv) Whether the information is already publicly available. If the 
Government previously has published the information you are seeking or 
it is routinely available to the public in a library, reading room, 
through the internet, or as part of the administrative record for a 
particular issue, it is less likely that there will be a significant 
contribution from release.
    (4) How the public's understanding of the subject in question will 
be enhanced to a significant extent by the disclosure.
    (b) In deciding whether the fee waiver meets the requirements in 
Sec.  2105.43(a)(2), the Agency will consider any commercial interest 
of yours that would be furthered by the requested disclosure.
    (1) You are encouraged to provide explanatory information regarding 
this consideration.
    (2) The Agency will not find that disclosing the requested 
information will be primarily in your commercial interest where the 
public interest is greater than any identified commercial interest in 
disclosure.

[[Page 27730]]

    (3) If you do have a commercial interest that would be furthered by 
disclosure, explain how the public interest in disclosure would be 
greater than any commercial interest you or your organization may have 
in the documents.
    (i) Your identity, vocation, and intended use of the requested 
records are all factors to be considered in determining whether 
disclosure would be primarily in your commercial interest.
    (ii) If you are a representative of a news media organization 
seeking information as part of the news gathering process, we will 
presume that the public interest outweighs your commercial interest.
    (iii) If you represent a business/corporation/association or you 
are an attorney representing such an organization, we will presume that 
your commercial interest outweighs the public interest unless you 
demonstrate otherwise.


Sec.  2105.47   When will you be notified of anticipated fees?

    (a) The Agency will notify you under this section unless:
    (1) The anticipated fee is less than $50 (see Sec.  2105.35(g));
    (2) You have been granted a full fee waiver; or
    (3) You have previously agreed to pay all the fees associated with 
the request.
    (b) If none of the exceptions in paragraph (a) of this section 
apply, the Agency will:
    (1) Promptly notify you of the estimated costs for search, review, 
and/or duplication;
    (2) Ask you to provide written assurance within 20 workdays that 
you will pay all fees or fees up to a designated amount;
    (3) Notify you that it will not be able to comply with your FOIA 
request unless you provide the written assurance requested; and
    (4) Give you an opportunity to reduce the fee by modifying the 
request.
    (c) If the Agency does not receive your written response containing 
the additional information that resolves any fee issues, in accordance 
with paragraphs (b)(2) and/or (4) of this section, within 20 workdays 
after the Agency has requested it, the Agency will presume that you are 
no longer interested in the records and will close the file on the 
request.
    (d) After the Agency begins processing a request, if it finds that 
the actual cost will exceed the amount you previously agreed to pay, 
the Agency will:
    (1) Stop processing the request;
    (2) Promptly notify you of the higher amount and ask you to provide 
written assurance of payment; and
    (3) Notify you that it will not be able to fully comply with your 
FOIA request unless you provide the written assurance requested; and
    (4) Give you an opportunity to reduce the fee by modifying the 
request.
    (e) If you wish to modify your request in an effort to reduce fees, 
the Agency's FOIA Officer or Public Liaison can assist you.


Sec.  2105.48   When will the Agency require advance payment?

    (a) The Agency may require advance payment before starting further 
work when it finds the estimated fee is over $250.
    (1) When the Agency determines or estimates that a total fee to be 
charged under this section will exceed $250.00, it may require that you 
make an advance payment up to the amount of the entire anticipated fee 
before beginning to process the request. The Agency may elect to 
process the request prior to collecting fees when it receives a 
satisfactory assurance of full payment from a requester with a history 
of prompt payment.
    (2) If you have previously failed to pay a properly charged FOIA 
fee within 30 calendar days of the billing date, the Agency may require 
that you pay the full amount due, plus any applicable interest on that 
prior request. The Agency may require that you make an advance payment 
of the full amount of any anticipated fee before it begins to process a 
new request or continues to process a pending request or any pending 
appeal.
    (b) If the Agency believes that you did not pay a previous FOIA fee 
within 30 calendar days of the date of billing, the Agency will require 
you to either:
    (1) Demonstrate you paid prior fee within 30 calendar days of the 
date of billing; or
    (2) Pay any unpaid amount of the previous fee, plus any applicable 
interest penalties (see Sec.  2105.51), and pay in advance the 
estimated fee for the new request.
    (c) When the Agency notifies you that an advance payment is due 
under paragraph (a) of this section, it will give you an opportunity to 
reduce the fee by modifying the request.
    (d) Your payment of the funds you owe the Agency for work it has 
already completed before records are sent to you is not an advance 
payment under paragraph (a) of this section.
    (e) If the Agency requires advance payment, it will start further 
work only after receiving the advance payment. It will also notify you 
that it will not be able to comply with your FOIA request unless you 
provide the advance payment. Unless you pay the advance payment within 
20 workdays after the date of the Agency's fee letter, the Agency will 
presume that you are no longer interested and will close the file on 
the request.


Sec.  2105.49   What if the Agency needs clarification about fee 
issues?

    If your FOIA request does not contain sufficient information for 
the Agency to determine your proper fee category or leaves another fee 
issue unclear, the Agency may ask you to provide additional 
clarification. If it does so, the Agency will notify you that it will 
not be able to comply with your FOIA request unless you provide the 
clarification requested.


Sec.  2105.50   How will you be billed?

    If you are required to pay a fee associated with a FOIA request, 
the Agency will send a bill for collection.


Sec.  2105.51   How will the Agency collect fees owed?

    (a) The Agency may charge interest on any unpaid bill starting on 
the 31st day following the billing date.
    (b) The Agency will assess interest charges at the rate provided in 
31 U.S.C. 3717 and interest will accrue from the billing date until the 
Agency receives payment.
    (c) The Agency will follow the provisions of the Debt Collection 
Act of 1982 (Pub. L. 97-365, 96 Stat. 1749), as amended, and its 
administrative procedures, including the use of consumer reporting 
agencies, collection agencies, and offset to collect overdue amounts 
and interest.
    (d) This section does not apply if you are a state, local, or 
tribal government.


Sec.  2105.52   When will the Agency combine or aggregate requests?

    (a) The Agency may aggregate requests and charge accordingly when 
it reasonably believes that you, or a group of requesters acting in 
concert with you, are attempting to avoid fees by dividing a single 
request into a series of requests on a single subject or related 
subjects.
    (1) The Agency may presume that multiple requests of this type made 
within a 30-day period have been made to avoid fees.
    (2) The Agency may aggregate requests separated by a longer period 
only where there is a reasonable basis for determining that aggregation 
is warranted in view of all the circumstances involved.

[[Page 27731]]

    (b) The Agency will not aggregate multiple requests involving 
unrelated matters.


Sec.  2105.53   What if other statutes require the Agency to charge 
fees?

    (a) The fee schedule in appendix A to this part does not apply to 
fees charged under any statute that specifically requires the Agency to 
set and collect fees for particular types of records.
    (b) If records otherwise responsive to a request are subject to a 
statutorily-based fee schedule, the Agency will inform you whom to 
contact to obtain the records.

Subpart H--Administrative Appeals


Sec.  2105.54   When may you file an appeal?

    (a) You may file an appeal when:
    (1) The Agency withholds records, or parts of records;
    (2) The Agency informs you that your request has not adequately 
described the records sought;
    (3) The Agency informs you that it does not possess or cannot 
locate responsive records and you have reason to believe this is 
incorrect or that the search was inadequate;
    (4) The Agency did not address all aspects of the request for 
records;
    (5) You believe there is a procedural deficiency (for example, fees 
are improperly calculated or you have been placed in the wrong fee 
category);
    (6) The Agency denied your request for a fee waiver;
    (7) The Agency did not make a decision within the time limits in 
Sec.  2105.15 or, if applicable, Sec.  2105.16; or
    (8) The Agency denied, or was late in responding to, a request for 
expedited processing filed under the procedures in Sec.  2105.18.
    (b) An appeal under paragraph (a)(8) of this section relates only 
to the request for expedited processing and does not constitute an 
appeal of the underlying request for records. Special procedures apply 
to requests for expedited processing of an appeal (see Sec.  2105.60).
    (c) Before filing an appeal, you may wish to communicate with the 
contact person listed in the FOIA response, the Agency's FOIA Officer, 
and/or the FOIA Public Liaison to see if the issue can be resolved 
informally. However, appeals must be received by the FOIA Appeals 
Officer within the time limits in Sec.  2105.55 or they will not be 
processed.


Sec.  2105.55   How long do you have to file an appeal?

    (a) Appeals covered by Sec.  2105.54(a)(1) through (5) must be 
received by the FOIA Appeals Officer no later than 90 days from the 
date of the final response.
    (b) Appeals covered by Sec.  2105.54(a)(6) must be received by the 
FOIA Appeals Officer no later than 90 days from the date of the letter 
denying the fee waiver.
    (c) Appeals covered by Sec.  2105.54(a)(7) may be filed any time 
after the time limit for responding to the request has passed.
    (d) Appeals covered by Sec.  2105.54(a)(8) should be filed as soon 
as possible.
    (e) Appeals arriving or delivered after 5 p.m. Eastern Time, Monday 
through Friday, will be deemed received on the next workday.


Sec.  2105.56   How do you file an appeal?

    (a) You must submit the appeal in writing by mail, fax or email to 
the FOIA Appeals Officer (using the address available at https://www.cfa.gov/foia/). Your failure to send an appeal directly to the FOIA 
Appeals Officer may delay processing.
    (b) The appeal must include:
    (1) Copies of all correspondence between you and the Agency 
concerning the FOIA request, including the request and the Agency's 
response (if there is one); and
    (2) An explanation of why you believe the Agency's response was in 
error.
    (c) The appeal should include your name, mailing address, daytime 
telephone number (or the name and telephone number of an appropriate 
contact), email address, and fax number (if available) in case the 
Agency needs additional information or clarification.
    (d) An appeal concerning a denial of expedited processing or a fee 
waiver denial should also demonstrate fully how the criteria in Sec.  
2105.18 or Sec. Sec.  2105.43 and 2105.46 are met.
    (e) All communications concerning an appeal should be clearly 
marked with the words: ``FREEDOM OF INFORMATION APPEAL.''
    (f) The Agency will reject an appeal that does not attach all 
correspondence required by paragraph (b)(1) of this section, unless the 
FOIA Appeals Officer determines, in his or her sole discretion, that 
good cause exists to accept the defective appeal. The time limits for 
responding to an appeal will not begin to run until the correspondence 
is received.


Sec.  2105.57   Who makes decisions on appeals?

    (a) The FOIA Appeals Officer is the deciding official for FOIA 
appeals.
    (b) When necessary, the appropriate deciding official for FOIA 
appeals will consult other appropriate offices, including legal 
counsel, for denials of records and fee waivers.
    (c) The deciding official for FOIA appeals normally will not make a 
decision on an appeal if the request becomes a matter of FOIA 
litigation.


Sec.  2105.58   How are decisions on appeals issued?

    (a) A decision on an appeal must be made in writing.
    (b) A decision that upholds the Agency's determination in whole or 
in part must contain a statement that identifies the reasons for the 
affirmance, including any FOIA exemptions applied. The decision must 
provide you with notification of the statutory right to file a lawsuit 
and will inform you of the dispute resolution services offered by the 
Office of Government Information Services (OGIS) of the National 
Archives and Records Administration as a non-exclusive alternative to 
litigation. If the Agency's decision is remanded or modified on appeal, 
the Agency will notify you of that determination in writing. The Agency 
will then further process the request in accordance with that appeal 
determination and will respond directly to you.
    (c) Dispute resolution is a voluntary process. If the Agency agrees 
to participate in the dispute resolution services provided by OGIS, it 
will actively engage as a partner to the process in an attempt to 
resolve the dispute.


Sec.  2105.59   When can you expect a decision on your appeal?

    (a) The basic time limit for responding to an appeal is 20 workdays 
after receipt of an appeal meeting the requirements of Sec.  2105.56.
    (b) If the Agency is unable to reach a decision on your appeal 
within the given time limit for response, the appropriate deciding 
official for FOIA appeals will notify you of your statutory right to 
seek review in a United States District Court.


Sec.  2105.60   Can you receive expedited processing of appeals?

    (a) To receive expedited processing of an appeal, you must 
demonstrate to the Agency's satisfaction that the appeal meets one of 
the criteria under Sec.  2105.18 and include a statement that the need 
for expedited processing is true and correct to the best of your 
knowledge and belief.
    (b) The appropriate deciding official for FOIA appeals will advise 
you whether the Agency will grant expedited processing within 10 
calendar days of receiving the appeal.
    (c) If the appropriate deciding official for FOIA appeals decides 
to grant expedited processing, he or she will give the appeal priority 
over other pending appeals and process it as soon as practicable.

[[Page 27732]]

Sec.  2105.61   Must you submit an appeal before seeking judicial 
review?

    Before seeking review by a court of the Agency's adverse 
determination, you generally must first submit a timely administrative 
appeal.

Subpart I--General Information


Sec.  2105.62   Where are records made available?

    Records that are required by the FOIA to be made proactively 
available for public inspection and copying are accessible on the 
Agency's website. They may also be available at the Agency's office 
location.


Sec.  2105.63   What are public liaisons?

    (a) The Agency has a FOIA Officer or Public Liaison who can assist 
requesters who have concerns about the service they received when 
seeking records or who are seeking assistance under Sec.  2105.3 or 
Sec.  2105.35(i).
    (b) FOIA Public Liaisons report to the Agency's Chief FOIA Officer 
and you can raise concerns to them about the service you have received.
    (c) FOIA Public Liaisons are responsible for assisting in reducing 
delays, increasing transparency and understanding of the status of 
requests, and assisting in resolving disputes.
    (d) A list of the Agency's FOIA Public Liaisons is available at 
https://www.cfa.gov/foia.


Sec.  2105.64   When will the Agency make records available without a 
FOIA request?

    (a) Each Agency must:
    (1) Determine which of its records must be made publicly available 
under the FOIA (for example, certain frequently requested records);
    (2) Identify additional records of interest to the public that are 
appropriate for public disclosure; and
    (3) Post those records in FOIA libraries.
    (b) Because of these proactive disclosures, you are encouraged to 
review the Agency's FOIA libraries before filing a FOIA request. The 
material you seek may be immediately available electronically at no 
cost.


Sec.  2105.65   How will FOIA materials be preserved?

    (a) Each Agency must preserve all correspondence pertaining to the 
requests that it receives under subpart B of this part, as well as 
copies of all requested records, until disposition or destruction is 
authorized by the General Records Schedule 4.2 of the National Archives 
and Records Administration (NARA) or another NARA-approved records 
schedule.
    (b) Materials that are identified as responsive to a FOIA request 
will not be disposed of or destroyed while the request or a related 
appeal or lawsuit is pending. This is true even if they would otherwise 
be authorized for disposition or destruction under the General Records 
Schedule 4.2 of NARA or another NARA-approved records schedule.


Sec.  2105.66   How will an Agency handle a request for federally-
funded research data?

    (a) If you request research data that were used by the Federal 
Government in developing certain kinds of agency actions, and the 
research data relate to published research findings produced under an 
award, in accordance with OMB Circular A-110:
    (1) If the Agency was the awarding agency, it will request the 
research data from the recipient;
    (2) The recipient must provide the research data within a 
reasonable time; and
    (3) The Agency will review the research data to see if it can be 
released under the FOIA.
    (b) If the Agency obtains the research data solely in response to 
your FOIA request, the Agency may charge you a reasonable fee equaling 
the full incremental cost of obtaining the research data.
    (1) This fee should reflect costs incurred by the Agency, the 
recipient, and applicable subrecipients.
    (2) This fee is in addition to any fees the Agency may assess under 
the FOIA.
    (c) The Agency will forward a copy of the request to the recipient, 
who is responsible for searching for and reviewing the requested 
information in accordance with these FOIA regulations. The recipient 
will forward a copy of any responsive records that are located, along 
with any recommendations concerning the releasability of the data, and 
the total cost incurred in searching for, reviewing, and providing the 
data.
    (d) The Agency will review and consider the recommendations of the 
recipient regarding the releasability of the requested research data. 
However, the Agency, not the recipient, is responsible for deciding 
whether the research data will be released or withheld.


Sec.  2105.67   What definitions apply to this part?

    For the purposes of this part, the following definitions apply:
    Agency means the Commission of Fine Arts.
    Commercial interest means a commercial, trade, or profit interest 
as these terms are commonly understood. Your status as profitmaking or 
non-profitmaking is not the deciding factor in determining whether you 
have a commercial interest.
    Commercial use means a use that furthers your commercial, trade or 
profit interests or that of the person on whose behalf the request is 
made.
    Confidential information means trade secrets or commercial or 
financial information (that is privileged or confidential and obtained 
by the Agency from a person) that may be protected from disclosure 
under Exemption 4 of the FOIA.
    Direct costs means those resources that the Agency expends in 
searching for and duplicating (and, in the case of commercial-use 
requests, reviewing) records to respond to a FOIA request. For example, 
direct costs include the salary of the employee performing the work 
(the basic rate of pay for the employee plus 16 percent of that rate to 
cover benefits) and the cost of operating duplicating machinery, such 
as photocopiers and scanners. Direct costs do not include overhead 
expenses such as the costs of space and of heating or lighting a 
facility.
    Duplication means reproducing a copy of a record or of the 
information contained in it necessary to respond to a FOIA request. 
Copies can take the form of paper, audiovisual materials, or electronic 
records, among others.
    Educational institution means any school that operates a program of 
scholarly research. In order to fall within this category, you must 
show that the request is authorized by and made under the auspices of, 
a qualifying institution and that the records are not sought for a 
commercial use, but rather are sought to further scholarly research.
    Exceptional circumstances means a delay that does not result from a 
predictable workload of requests (unless the Agency demonstrates 
reasonable progress in reducing its backlog of pending requests).
    Exempt means the record in question, or a portion thereof, is not 
subject to disclosure due to one or more of the FOIA's nine statutory 
exemptions, found at 5 U.S.C. 552(b)(1)-(9).
    Exemption means one or more of the FOIA's nine statutory 
exemptions, found at 5 U.S.C. 552(b)(1)-(9).
    Expedited processing means giving a FOIA request priority and 
processing it ahead of other requests pending in the Agency because you 
have shown a compelling need for the records.
    Fee category means one of the three categories, discussed in 
Sec. Sec.  2105.36 and 2105.37, that agencies place you in for the 
purpose of determining whether you will be charged fees for search, 
review, and duplication.

[[Page 27733]]

    FOIA means the Freedom of Information Act, 5 U.S.C. 552, as 
amended.
    FOIA libraries means a physical or electronic compilation of 
records required to be made available to the public for inspection and 
copying under 5 U.S.C. 552(a)(2). It also includes a physical or 
electronic compilation of records that the Agency, at its discretion, 
makes available to the public for inspection and copying.
    Frequently requested records means records that have been released 
to any person in response to a FOIA request and that have been 
requested, or that the Agency anticipates will be requested, at least 
two more times under the FOIA.
    Multitrack processing means placing simple requests, requiring 
relatively minimal review, in one processing track and more voluminous 
and complex requests in one or more other tracks. Requests in each 
track are ordinarily processed on a first-in/first-out basis.
    Noncommercial scientific institution means an institution that is 
not operated for commerce, trade or profit, and that is operated solely 
for the purpose of conducting scientific research the results of which 
are not intended to promote any particular product or industry. To be 
in this category, you must show that the request is authorized by and 
is made under the auspices of a qualifying institution and that the 
records are not sought for a commercial use but are sought to further 
scientific research.
    OMB Fee Guidelines means the Uniform Freedom of Information Fee 
Schedule and Guidelines published by the Office of Management and 
Budget on March 27, 1987.
    Published means, for the purposes of Sec.  2105.66 only, when:
    (1) Research findings are published in a peer-reviewed scientific 
or technical journal; or
    (2) A Federal agency publicly and officially cites the research 
findings in support of an agency action that has the force and effect 
of law.
    Recipient means, for the purposes of Sec.  2105.66 only, an 
organization receiving financial assistance directly from Federal 
awarding agencies to carry out a project or program. The term includes 
public and private institutions of higher education, public and private 
hospitals, and other quasi-public and private non-profit organizations. 
The term may include commercial organizations, foreign or international 
organizations (such as agencies of the United Nations) which are 
recipients, subrecipients, or contractors or subcontractors of 
recipients or subrecipients at the discretion of the Federal awarding 
agency. The term does not include Government-owned contractor-operated 
facilities or research centers providing continued support for mission-
oriented, large-scale programs that are Government-owned or controlled, 
or are designated as federally-funded research and development centers.
    Record means an agency record that is either created or obtained by 
an agency and is under agency possession and control at the time of the 
FOIA request, or is maintained by an entity under Government contract 
for the purposes of records management.
    Representative of the news media means any person or entity that 
gathers information of potential interest to a segment of the public, 
uses its editorial skills to turn the raw materials into a distinct 
work, and distributes that work to an audience. The term news as used 
in this definition means information that is about current events or 
that would be of current interest to the public. Examples of news media 
entities are newspapers, television, websites, or radio stations 
broadcasting to the public at large, and publishers of periodicals (but 
only if such entities qualify as disseminators of news) who make their 
products available for purchase by or subscription by or free 
distribution to the general public. These examples are not all 
inclusive. As methods of news delivery evolve, alternative 
representatives of news media may come into being. A freelance 
journalist will qualify as a news-media entity if he or she can 
demonstrate a solid basis for expecting publication through that 
entity, whether or not the journalist is actually employed by that 
entity (for example, a publication contract would present a solid basis 
for such an expectation).
    Research data means, for the purposes of Sec.  2105.66 only, the 
recorded factual material commonly accepted in the historic and/or 
architectural communities as necessary to validate research findings, 
but not any of the following: Preliminary analyses, drafts of 
scientific papers, plans for future research, peer reviews, or 
communications with colleagues. The term recorded as used in this 
definition excludes physical objects (e.g., laboratory samples). 
Research data also do not include:
    (1) Trade secrets, commercial information, materials necessary to 
be held confidential by a researcher until they are published, or 
similar information which is protected under law; and
    (2) Personnel and medical information and similar information the 
disclosure of which would constitute a clearly unwarranted invasion of 
personal privacy, such as information that could be used to identify a 
particular person in a research study.
    Review means the examination of a record located in response to a 
request to determine whether any portion of it is exempt from 
disclosure. Review time includes processing any record for disclosure, 
such as doing all that is necessary to prepare the record for 
disclosure, including the process of redacting the record and marking 
the appropriate exemptions. Review time also includes time spent both 
obtaining and considering any formal objection to disclosure made by a 
confidential information submitter under subpart G of this part, but it 
excludes time spent resolving general legal or policy issues regarding 
the application of FOIA exemptions.
    Search means the process of looking for and retrieving records 
responsive to a request. Search time includes page-by-page or line-by-
line identification of information within records; and the reasonable 
efforts expended to locate and retrieve electronic records.
    Submitter means any person or entity outside the Federal Government 
from whom the Agency obtains confidential information, directly or 
indirectly. The term includes, but is not limited to individuals, 
corporations, and state, local, tribal, and foreign governments.
    Unusual circumstances means the need to search for and collect 
requested records from field facilities or other establishments that 
are separate from the office processing the request; the need to search 
for, collect, and examine a voluminous amount of separate and distinct 
records which are demanded in a single request; or the need for 
consultation, which shall be conducted with all practicable speed, with 
another agency, or among two or more components of the Agency, having a 
substantial interest in the determination of the request.
    Workday means a regular Federal workday. It excludes Saturdays, 
Sundays, or Federal legal public holidays. Items arriving or delivered 
after 5 p.m. Eastern Time will be deemed received on the next workday.
    You means a person requesting records, or filing an appeal, under 
the FOIA.

[[Page 27734]]

Appendix A to Part 2105--Fee Schedule

------------------------------------------------------------------------
              Types of records                           Fee
------------------------------------------------------------------------
(1) Physical records:
    Pages no larger than 8.5 x 14 inches,    $.15 per page ($.30 for
     when reproduced by standard office       double-sided copying).
     copying machines or scanned into an
     electronic format.
    Color copies of pages no larger than     $.90 per page.
     8.5 x 11 inches.
    Pages larger than 8.5 x 14 inches......  Direct cost to CFA.
    Color copies of pages no larger than 11  $1.50 per page.
     x 17 inches.
    Photographs and records requiring        Direct cost to CFA.
     special handling (for example, because
     of age, size, or format).
(2) Electronic records:
    Charges for services related to          Direct cost to CFA.
     processing requests for electronic
     records.
(3) Certification:
    Each certificate of verification         $.25.
     attached to authenticate copies of
     records.
(4) Postage:
    Charges that exceed the cost of first    Postage or delivery charge.
     class postage, such as express mail or
     overnight delivery.
(5) Other Services:
    Cost of special services or materials,   Direct cost to CFA.
     other than those provided for by this
     fee schedule, when requester is
     notified of such costs in advance and
     agrees to pay them.
------------------------------------------------------------------------


    Dated: May 31, 2019.
Thomas Luebke,
Secretary.
[FR Doc. 2019-11775 Filed 6-13-19; 8:45 am]
 BILLING CODE P