Procedures for Disclosure of Records Under the Freedom of Information Act (FOIA), 54773-54779 [2019-21710]

Agencies

• National Aeronautics and Space Administration

[Federal Register Volume 84, Number 198 (Friday, October 11, 2019)]
[Rules and Regulations]
[Pages 54773-54779]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-21710]


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NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

14 CFR Part 1206

[Document Number NASA-19-150; Docket Number NASA-2019-0005]
RIN 2700-AE47


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

AGENCY: National Aeronautics and Space Administration.

ACTION: Final rule.

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SUMMARY: The National Aeronautics and Space Administration (NASA) is 
finalizing its Freedom of Information Act (FOIA) regulations, in 
accordance with the FOIA Improvement Act of 2016.

DATES: Effective October 11, 2019.

FOR FURTHER INFORMATION CONTACT: Nikki Gramian, (202) 358-0625, 
[email protected].

SUPPLEMENTARY INFORMATION: 

I. Background

    NASA published a proposed rule for its FOIA regulations in the 
Federal Register at 84 FR 14628, April 11, 2019, to implement the 
following requirements of the 2016 FOIA Improvement Act of 2016 (Act) 
that will be beneficial to requesters:
     Notify requesters for engaging in dispute resolution 
through the FOIA Public Liaison and the Office of Government 
Information Services.
     Make records that have been both released previously and 
requested three or more times available to the public in electronic 
format.
     Establish a minimum of ninety days for requesters to 
appeal an adverse determination.
     Provide, or direct requesters to, dispute resolution 
services at various times throughout the FOIA process.

II. Expected Impact of the Final Rule

    NASA actively works to make certain its FOIA system operates as 
efficiently as possible. NASA's website provides explicit instructions 
for those who wish to submit a FOIA request and has an electronic 
library listing categories of documents or information specifically 
identified for inclusion under FOIA as well as documents or links to 
information for which NASA has received multiple FOIA requests.
    NASA's FOIA requesters are a diverse community, including lawyers, 
industry professionals, reporters, and members of the public. Costs for 
these requesters can include the time required to research NASA's 
current FOIA rule and the time and preparation required to submit a 
request/appeal.
    The Agency receives about 900 FOIA requests per year. Half of these 
requests are from commercial entities seeking information about NASA 
contracts awarded to winning contractors for services or technology 
used in a center mission related activity. Other requests are from 
members of the general public for items such as an image or video, a 
NASA study or mission activity, or records about an individual 
associated with NASA.
    NASA believes these amendments will primarily impact the 450 
requesters who are members of the general public. In addition to making 
it easier to research and review NASA's FOIA rule before submitting a 
request, the ``housekeeping measures'' should facilitate FOIA requests 
and production. Although NASA is unable to quantify these savings, the 
Agency does believe it is deregulatory in nature in that it provides 
relief to requesters.

III. Discussion and Analysis

    NASA received two substantive comments from Cause of Action (CoA) 
and Reporters Committee for Freedom of the Press (RCFP). NASA also 
received a few non-substantive comments from members of the public. The 
following is a discussion of the substantive Comments from CoA and 
RCFP:
    Comment 1: Commenter CoA suggested that NASA remove any reference 
to the outdated OMB fee guidelines from Sec.  1206.504, because the OMB 
Guidelines conflict with current law and also contain an outdated 
definition of a ``representative of the news media.''
    Response: As a general matter, NASA notes conformity with the OMB 
Guidelines is required by the FOIA. See 5 U.S.C. 552(a)(4)(A)(i). 
However, as the commenter explained in his next comment, NASA has 
adopted the current statutory definition of a ``representative of the 
news media'' and has eliminated the outdated ``organized and operated'' 
standard referenced in OMB Guidelines from the regulation. For this 
reason, NASA declines to delete the reference to OMB because the 
regulation conforms to the statutory requirement.
    Comment 2: Commenters CoA and RCFP both commented on the proposed 
rule's definition of ``representative of the news media.'' Both 
commenters suggested that paragraphs (c)(3)(i)(A) through (C) in Sec.  
1206.507 and the final sentence in Sec.  1206.507(c)(3)(ii) be rejected 
and eliminated from the final rule.

[[Page 54774]]

    Response: NASA accepts these comments and has revised Sec.  
1206.507 to remove paragraphs (c)(3)(i)(A) through (C) and Sec.  
1206.507(c)(3)(ii) to remove the last sentence.
    Comment 3: Both the CoA and RCFP commenters also took issue with 
NASA's proposal to grant news media status ``on a case-by-case basis 
based upon . . . intended use. CoA commenter explained that this review 
should be limited to those rare cases when NASA either is determining 
the eligibility of a nascent news media requester or clarifying whether 
a request has been filed for a commercial use.'' (84 FR at 14633, Sec.  
1206.507(c)(3)(i)(A)-(C).
    Response: NASA accepts these comments and has removed the last 
sentence in Sec.  1206.507(c)(3)(ii).
    Comment 4: The commenter CoA made an additional fee category 
suggestion by stating that NASA should add additional details from a 
court decision with respect to the requirement that a news media 
requester use ``editorial skills'' to turn ``raw materials'' into a 
``distinct work,'' by accepting ``a simple press release commenting on 
records would satisfy this criterion.''
    Response: NASA declines to add additional language to Sec.  
1206.507(c)(3)(ii) because this section tracks the language of the 
statute and Department of Justice FOIA regulation template.
    Comment 5: The commenter CoA also suggested to better clarify the 
definition of ``representative of the news media'' to capture 
``alternative media'' in Sec.  1206.507(c)(3)(ii).
    Response: Although NASA has done that in its example of news media 
and has included news organizations that disseminate solely on the 
internet, NASA accepts these comments and has added language in Sec.  
1206.507(c)(3)(ii) to clarify the definition of ``representatives of 
the news media'' and to capture ``alternative media.''
    Comment 6: The commenter CoA also made a statement in reference to 
Sec.  1206.307(a)(2)--``Records Under Agency Control.'' The commenter 
explained that in describing the contents of an adverse determination 
letter--that is, the denial of a request--NASA proposes that it will 
``advise the requester in writing,'' when applicable, if ``[r]ecords do 
not exist, cannot be located, or are not in the Agency's 
possession[.]'' The word ``possession'' misstates the law and should be 
replaced with the word ``control.''
    Response: NASA accepts this comment and has replaced the word 
``possession'' with the word ``control'' in Sec.  1206.307(a)(2).
    Comment 7: Lastly, both CoA and RCFP commented to add the 
``foreseeable harm'' standard to NASA's FOIA regulations. Commenter CoA 
suggested additions to Sec.  1206.307--Denying a request. The CoA 
commenter suggested to add a sentence to Sec.  1206.307(b)(2).
    Response: NASA accepts this comment and has added ``foreseeable 
harm'' language at the beginning of Sec.  1206.307 right below the 
section's title.

IV. Regulatory Procedures

Executive Order 12866--Regulatory Planning and Review and Executive 
Order 13563--Improving Regulation and Regulatory Review

    Executive Orders 12866 and 13563 direct agencies to assess all 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). Executive 
Order 13563 emphasizes the importance of quantifying both costs and 
benefits, reducing costs, harmonizing rules, and promoting flexibility. 
This rule is not a significant regulatory action under E.O. 12866.

Executive Order 13771--Reducing Regulations and Controlling Regulatory 
Costs

    This rule is expected to be an E.O. 13771 deregulatory action. 
Details can be found in Section II--Expected Impact of the Rule.

Regulatory Flexibility Act

    It has been certified that this rule is not subject to the 
Regulatory Flexibility Act (5 U.S.C. 601) because it would not, if 
promulgated, have a significant economic impact on a substantial number 
of small entities.

Paperwork Reduction Act

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

Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by State, local, and 
Tribal governments, in the aggregate, or by the private sector, of 
$100,000,000 or more in any one year, and it will not significantly or 
uniquely affect small governments.

List of Subjects in 14 CFR Part 1206

    Administrative practice and procedure, Freedom of Information Act, 
Privacy Act.

    For reasons set forth in the preamble, NASA amends 14 CFR part 1206 
as follows:

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

0
1. The authority citation for part 1206 continues to read as follows:

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

Subpart A--Basic Policy

0
2. Amend Sec.  1206.100 by revising the section heading to read as 
follows:


Sec.  1206.100   Scope.

* * * * *

0
3. Amend Sec.  1206.101 by adding paragraph (c) to read as follows:


Sec.  1206.101  General policy.

* * * * *
    (c) The disclosure of exempt records, without authorization by the 
appropriate NASA official, is not an official release of information; 
accordingly, it is not a FOIA release. Such a release does not waive 
the authority of NASA to assert FOIA exemptions to withhold the same 
records in response to a FOIA request. In addition, while the authority 
may exist to disclose records to individuals in their official 
capacity, the provisions of this part apply if the same individual 
seeks the records in a private or personal capacity.

Subpart B--Types of Records To Be Made Available


Sec.  1206.200  [Amended]

0
4. Amend Sec.  1206.200 by:
0
a. Removing ``and copying'' and adding in its place ``in an electronic 
format'' in paragraph (b)(1) introductory text.
0
b. Removing ``Subpart C herein'' and ``which'' and adding in their 
place ``subpart C of this part'' and ``that'', respectively, and adding 
``or documents that have been requested 3 or more times'' after 
``documents'' in paragraph (b)(1)(iv).
0
c. Removing ``1997'' and adding in its place ``1996'' and removing 
``paragraph (b)(l)(i) through (b)(l)(iv)'' and adding in its place 
``paragraphs (b)(1)(i) through (iv)'' in paragraph (b)(2)(i).
0
d. Removing ``1997'' and adding in its place ``1996'' and removing 
``paragraphs

[[Page 54775]]

(b)(1)(iv)'' and adding in its place ``paragraph (b)(1)(iv) of this 
section'' in paragraph (c)(2).


Sec.  1206.201  [Amended]

0
5. Amend Sec.  1206.201 by adding ``in an electronic format'' after the 
word ``copying'' in the first sentence.

Subpart C--Procedures

0
6. Amend Sec.  1206.300 by revising paragraphs (a), (b), (d), and 
(e)(1) to read as follows:


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

    (a) A requester submitting a request for records must include his/
her name, and an email or mailing address in order for the Agency to be 
able to send responsive records and/or to be able to contact the 
requester to obtain additional information or clarification of the 
request sought (see Sec.  1206.301). The request must also address fees 
or provide justification for a fee waiver (see Sec.  1206.302) as well 
as address the fee category in accordance with Sec.  1206.507. The 
request should also include a telephone number in case the FOIA office 
needs to contact the requester regarding the request; however, this 
information is optional when submitting a request if an email or 
mailing address is provided. A requester may also submit a request 
online via the NASA FOIA website, https://www.nasa.gov/FOIA/Contacts.html. Do not include a social security number on any 
correspondence with the FOIA office. If the FOIA unit determines 
processing fees will exceed the fee category entitlement, the unit will 
require a personal mailing address for billing purposes or for 
commercial use requesters, a business mailing address.
    (b) NASA does not have a central location for submitting FOIA 
requests and it does not maintain a central index or database of 
records in its possession. Instead, Agency records are decentralized 
and maintained by various Centers and offices throughout the country. 
All NASA Centers have the capability to receive requests 
electronically, either through email or a Web portal. To make a request 
for any of the NASA Center records, a requester should write directly 
to the FOIA office of the Center that maintains the records being 
sought. A request will receive the quickest possible response if it is 
addressed to the FOIA office of the Center that maintains the records 
requested. If a requester does not know which Center(s) may have the 
requested records, he/she may send his/her request(s) to the NASA's 
Headquarters (HQ) FOIA Public Liaison, 300 E Street SW, Room 5L19, 
Washington, DC 20546, Fax number: (202) 358-4332, email address: [email protected], and the HQ FOIA unit will forward the request to the 
Center(s) that it determines to be most likely to maintain the records 
that are sought.
* * * * *
    (d) A member of the public may submit a FOIA request for an Agency 
record by mail, facsimile (FAX), electronic mail (email), or by 
submitting a written request in person to the FOIA office having 
responsibility over the record requested or to the NASA Headquarters 
(HQ) FOIA Office. A requester may also submit a request online via the 
NASA FOIA website.
    (e) * * *
    (1) For locations, mailing/email addresses of NASA FOIA Centers, 
visit our website at https://www.nasa.gov/FOIA/Contacts.html.
* * * * *

0
7. Amend Sec.  1206.301 by revising paragraphs (c) and (d) to read as 
follows:


Sec.  1206.301  Describing records sought.

* * * * *
    (c) If NASA, after receiving a request, determines that the request 
does not reasonably describe the records sought, it shall inform the 
requester what additional information is needed or why the request is 
otherwise insufficient. Requesters who are attempting to reformulate or 
modify such a request may discuss their request with the NASA's 
designated FOIA contact or the Principal Agency FOIA Officer, each of 
whom is available to assist the requester in reasonably describing the 
records sought. If a request does not reasonably describe the records 
sought, the Agency's response to the request may be delayed or NASA may 
at its discretion close the request administratively.
    (d) Requests for clarification or more information will be made in 
writing (either via U.S. mail or electronic mail whenever possible). 
Requesters may respond by U.S. mail or by electronic mail regardless of 
the method used by NASA to transmit the request for additional 
information. In order to be considered timely, responses to requests 
for additional information must be postmarked or received by electronic 
mail within twenty (20) working days of the postmark date or date of 
the electronic mail request for additional information or received by 
electronic mail by 11:59:59 p.m. ET on the 20th working day. If the 
requester does not respond to a request for additional information 
within the 20 working days, the request may be administratively closed 
at NASA's discretion. This administrative closure does not prejudice 
the requester's ability to submit a new request for further 
consideration with additional information.
* * * * *

0
8. Amend Sec.  1206.302 by revising paragraph (c) to read as follows:


Sec.  1206.302  Fee agreements.

* * * * *
    (c) If the FOIA office does not receive a written response within 
20 working days after requesting the information, it will presume the 
requester is no longer interested in the records requested and will 
administratively close the request without further notification.
* * * * *

0
9. Amend Sec.  1206.305 by revising paragraph (a) to read as follows:


Sec.  1206.305  Responding to requests.

    (a) Except in the instances described in paragraphs (e) and (f) of 
this section, the FOIA office that first receives a request for a 
record and maintains that record is the FOIA office responsible for 
responding to the request. The office shall acknowledge the request and 
assign it an individualized tracking number if it will take longer than 
ten (10) working days to process. The NASA office responding to the 
request shall include in the acknowledgment a brief description of the 
records sought to allow requesters to more easily keep track of their 
requests.
* * * * *

0
10. Amend Sec.  1206.306 by revising paragraph (a) to read as follows:


Sec.  1206.306  Granting a request.

    (a) Ordinarily, NASA shall have twenty (20) working days from when 
a request is received to determine whether to grant or deny the request 
unless there are unusual or exceptional circumstances. The FOIA office 
will not begin processing a request until all issues regarding scope 
and fees have been resolved. NASA will notify the requester of the 
availability of the FOIA Public Liaison to offer assistance in 
resolving these issues.
* * * * *

0
11. Amend Sec.  1206.307 by adding introductory text, revising 
paragraph (a)(2), adding the word ``and'' at the end of paragraph 
(b)(3), and revising paragraph (b)(4) to read as follows:


Sec.  1206.307  Denying a request.

    NASA shall withhold records only when it reasonably foresees that 
disclosure would harm an interest

[[Page 54776]]

protected by an exemption or disclosure is prohibited by law.
    (a) * * *
    (2) Records do not exist, cannot be located, are not in the 
Agency's control, or the request does not reasonably describe the 
records sought; or
    (b) * * *
    (4) A statement that the denial may be appealed under subpart G of 
this part and a description of the requirements set forth therein. NASA 
shall also inform the requester of the availability of its FOIA Public 
Liaison to offer assistance and include a statement notifying the 
requester of the dispute resolution services offered by the Office of 
Government Information Services (OGIS). Should the requester elect to 
mediate any dispute related to the FOIA request with OGIS, NASA will 
participate in the mediation process in good faith.
* * * * *

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

0
12. Amend Sec.  1206.401 by revising paragraph (e) to read as follows:


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

* * * * *
    (e) Any notification of an initial determination that does not 
comply fully with the request for an Agency record, including those 
searches that produce no responsive documents, shall include a 
statement of the reasons for the adverse determination, include the 
name and title of the person making the initial determination, and 
notify the requester of the right to appeal to the Administrator or the 
Inspector General, as appropriate, pursuant to subpart G of this part, 
and the right to seek dispute resolution services from the NASA FOIA 
Public Liaison or Office of Government Information Services.

0
13. Amend Sec.  1206.403 by revising paragraph (c) to read as follows:


Sec.  1206.403  Time extensions.

* * * * *
    (c) If initial processing time will exceed or is expected to exceed 
30 working days, the FOIA office will notify the requester of the delay 
in processing and:
    (1) Provide the opportunity to limit the scope of the request so 
that it may be processed within that time limit or an opportunity to 
arrange with the Agency an alternative time frame for processing the 
request or a modified request;
    (2) Provide contact information for the NASA FOIA Public Liaison;
    (3) Offer the right of the requester to seek dispute resolution 
services from the OGIS;
    (4) Provide information regarding the intended determination; and
    (5) Shall make available its designated FOIA contact and its FOIA 
Public Liaison for the purpose of this paragraph (c).
* * * * *

Subpart E--Fees Associated With Processing Requests

0
14. Amend Sec.  1206.502 by revising paragraphs (d) and (f) to read as 
follows:


Sec.  1206.502   Duplication.

* * * * *
    (d) For copies of records produced on tapes, disks, or other 
electronic media, FOIA offices will charge the direct costs of 
producing the copy in the form or format requested, including the time 
spent by personnel duplicating the requested records. For each quarter 
hour spent by personnel duplicating the requested records, the fees 
will be the same as those charged for a search under this subpart.
* * * * *
    (f) For other forms of duplication, FOIA offices will charge the 
direct costs as well as any associated personnel costs. For standard-
sized copies of documents such as letters, memoranda, statements, 
reports, contracts, etc., $0.15 per copy of each page; charges for 
double-sided copies will be $0.30. For copies of oversized documents, 
such as maps, charts, etc., fees will be assessed as direct costs. 
Charges for copies (and scanning) include the time spent in duplicating 
the documents. For copies of computer disks, still photographs, 
blueprints, videotapes, engineering drawings, hard copies of aperture 
cards, etc., the fee charged will reflect the direct cost to NASA of 
reproducing, copying, or scanning the record. In circumstances where a 
request for a videotape or other outdated media is requested, and NASA 
does not have the capability to readily reproduce the record in the 
form or format requested and which requires the Agency to enlist the 
services of a private contractor to fulfill the request, the direct 
costs of any services by the private contractor will be charged to the 
requester. Specific charges will be provided upon request.
* * * * *

0
15. Revise Sec.  1206.503 to read as follows:


Sec.  1206.503  Restrictions on charging fees.

    (a) No search fees will be charged for requests by educational 
institutions, noncommercial scientific institutions, or representatives 
of the news media, unless the records are sought for a commercial use.
    (b) If NASA fails to comply with the FOIA's time limits in which to 
respond to a request, it may not charge search fees, or, in the 
instances of requests from requesters described in paragraph (a) of 
this section, may not charge duplication fees, except as described in 
paragraphs (b)(1) through (3) of this section.
    (1) If a NASA component has determined that unusual circumstances 
as defined by the FOIA apply, and the component provided timely written 
notice to the requester in accordance with the FOIA, a failure to 
comply with the time limit shall be excused for an additional 10 days.
    (2) If NASA has determined that unusual circumstances, as defined 
by the FOIA, apply and more than 5,000 pages are necessary to respond 
to the request, the Agency may charge search fees, or, in the case of 
requesters described in paragraph (a) of this section, may charge 
duplication fees, if the following steps are taken. The Agency must 
have provided timely written notice of unusual circumstances to the 
requester in accordance with the FOIA and the component must have 
discussed with the requester via written mail, email, or telephone (or 
made not less than three good-faith attempts to do so) how the 
requester could effectively limit the scope of the request in 
accordance with 5 U.S.C. 552(a)(6)(B)(ii). If the exception in this 
paragraph (b)(2) is satisfied, the Agency may charge all applicable 
fees incurred in the processing of the request.
    (3) If a court has determined that exceptional circumstances exist, 
as defined by the FOIA, a failure to comply with the time limits shall 
be excused for the length of time provided by the court order.
    (c) No search or review fees will be charged for a quarter-hour 
period unless more than half of that period is required for search or 
review.
    (d) Except for requesters seeking records for a commercial use, 
NASA will provide without charge:
    (1) The first 100 pages of duplication (or the cost equivalent for 
other media); and
    (2) The first two hours of search.
    (e) When, after first deducting the 100 free pages (or its cost 
equivalent) and the first two hours of search, a total fee calculated 
under Sec.  1206.504 is less than $50.00 for any request, no fee will 
be charged.

0
16. Amend Sec.  1206.504 by revising paragraphs (a) through (c) to read 
as follows:

[[Page 54777]]

Sec.  1206.504  Charging fees.

    (a) NASA shall charge for processing requests under the FOIA in 
accordance with the provisions of this section and the OMB Guidelines. 
NASA will ordinarily use the most efficient and least expensive method 
for processing requested records. In order to resolve any fee issues 
that arise under this section, NASA may contact a requester for 
additional information. A component ordinarily will collect all 
applicable fees before sending copies of records to a requester. The 
submission of a FOIA request shall be considered a firm commitment by 
the requester to pay all applicable fees charged under this section, up 
to $50.00, unless the requester seeks a waiver of fees. Requesters must 
pay fees by check or money order made payable to the Treasury of the 
United States. When a FOIA office determines or estimates the fees to 
be assessed in accordance with this section will amount to or exceed 
$50.00, the FOIA office shall notify the requester unless the requester 
has indicated a willingness to pay fees as high as those anticipated. 
If a portion of the fees can be readily estimated, the FOIA office 
shall advise the requester accordingly.
    (b) In cases in which a requester has been notified that actual or 
estimated fees are in excess of $50.00, the request shall be placed on 
hold and further work will not be completed until the requester commits 
in writing to pay the actual or estimated fees. Such a commitment must 
be made by the requester in writing, must indicate a given dollar 
amount or a willingness to pay all processing fees, and must be 
received by the FOIA office within 20 working days from the date of the 
letter providing notification of the fee estimate. If the requester is 
a noncommercial use requester, the notice shall specify that the 
requester is entitled to the statutory entitlements of 100 pages of 
duplication at no charge and, if the requester is charged search fees, 
two hours of search time at no charge, and shall advise the requester 
whether those entitlements have been provided.
    (c) After the FOIA office begins processing a request, if it finds 
that the actual cost will exceed the amount the requester previously 
agreed to pay, the FOIA office will stop processing the request and 
promptly notify the requester of the higher amount. The request will be 
placed on hold until the fee issue has been resolved. If the issue is 
not resolved within 20 working days from the date of the notification 
letter, NASA will provide the requester, if the requester is a non-
commercial use requester, the statutory entitlements of 100 pages of 
duplication at no charge and shall advise the requester that his 
statutory entitlements have been provided before closing the request.
* * * * *

0
17. Amend Sec.  1206.505 by revising paragraph (e) to read as follows:


Sec.  1206.505  Advance payments.

* * * * *
    (e) In cases in which a FOIA office requires advance payment, the 
request shall not be considered received, and further work will not be 
completed until the required payment is received. If the requester does 
not pay the advance payment within 20 working days after the date of 
the FOIA office's letter, the request will be closed without further 
notification.
* * * * *

0
18. Amend Sec.  1206.506 by revising paragraphs (d) and (e) to read as 
follows:


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

* * * * *
    (d) In deciding whether the standards of paragraph (c)(1) of this 
section are satisfied, the Agency must consider the factors described 
in paragraphs (d)(1) through (3) of this section:
    (1) Disclosure of the requested information would shed light on the 
operations or activities of the Government. The subject of the request 
must concern identifiable operations or activities of the Federal 
Government with a connection that is direct and clear, not remote or 
attenuated.
    (2) Disclosure of the requested information would be likely to 
contribute significantly to public understanding of those operations or 
activities. The factor in this paragraph (d)(2) is satisfied when the 
following criteria are met:
    (i) Disclosure of the requested records must be meaningfully 
informative about Government operations or activities. The disclosure 
of information that already is in the public domain, in either the same 
or a substantially identical form, would not be meaningfully 
informative if nothing new would be added to the public's 
understanding.
    (ii) The disclosure must contribute to the understanding of a 
reasonably broad audience of persons interested in the subject, as 
opposed to the individual understanding of the requester. A requester's 
expertise in the subject area as well as the requester's ability and 
intention to effectively convey information to the public must be 
considered. NASA will presume that a representative of the news media 
will satisfy the consideration in this paragraph (d)(2)(ii).
    (3) The disclosure must not be primarily in the commercial interest 
of the requester. To determine whether disclosure of the requested 
information is primarily in the commercial interest of the requester, 
components will consider the following criteria:
    (i) NASA, and its Centers processing requests, must identify 
whether the requester has any commercial interest that would be 
furthered by the requested disclosure. A commercial interest includes 
any commercial, trade, or profit interest. Requesters must be given an 
opportunity to provide explanatory information regarding the 
consideration in this paragraph (d)(3)(i).
    (ii) If there is an identified commercial interest, NASA must 
determine whether that is the primary interest furthered by the 
request. A waiver or reduction of fees is justified when the 
requirements of paragraphs (d)(1) and (2) of this section are satisfied 
and any commercial interest is not the primary interest furthered by 
the request. NASA ordinarily will presume that when a news media 
requester has satisfied the requirements of paragraphs (d)(1) and (2) 
of this section, the request is not primarily in the commercial 
interest of the requester. Disclosure to data brokers or others who 
merely compile and market government information for direct economic 
return will not be presumed to primarily serve the public interest.
    (4) Where only some of the records to be released satisfy the 
requirements for a waiver of fees under this section, a waiver shall be 
granted for those records.
    (5) Requests for a waiver or reduction of fees should be made when 
the request is first submitted to NASA and should address the criteria 
referenced in paragraph (d) of this section. A requester may submit a 
fee waiver request at a later time so long as the underlying record 
request is pending or on administrative appeal. When a requester who 
has committed to pay fees subsequently asks for a waiver of those fees 
and that waiver is denied, the requester shall be required to pay any 
costs incurred up to the date the fee waiver request was received.
    (e) FOIA offices may make available their FOIA Public Liaison or 
other FOIA professional to assist any requester in reformulating a 
request in an effort to reduce fees; however, the FOIA staff may not 
assist a requester in composing a request, advising what specific 
records

[[Page 54778]]

to request, or how to write a request to qualify for a fee waiver.
* * * * *

0
19. Amend Sec.  1206.507 by revising paragraphs (c)(1) through (4) to 
read as follows:


Sec.  1206.507  Categories of requesters.

* * * * *
    (c) * * *
    (1) Commercial use requesters. When NASA receives a request for 
documents appearing to be for commercial use, meaning a request from or 
on behalf of one whom seeks information for a use or purpose that 
furthers the commercial, trade, or profit interests, which can include 
furthering those interests through litigation, of either the requester 
or the person on whose behalf the request is made, it will assess 
charges to recover the full direct costs of searching for, reviewing 
for release, and duplicating the records sought. NASA will not consider 
a commercial-use request for a waiver or reduction of fees based upon 
an assertion that disclosure would be in the public interest. A request 
from a corporation (not a news media corporation) may be presumed to be 
for commercial use unless the requester demonstrates that it qualifies 
for a different fee category. Commercial use requesters are not 
entitled to two (2) hours of search time or to 100 pages of duplication 
of documents without charge.
    (2) Education and non-commercial scientific institution requesters. 
To be eligible for inclusion in the category in this paragraph (c)(2), 
requesters must show that the request being made is authorized by and 
under the auspices of a qualifying institution and that the records are 
not being sought for a commercial use (not operated for commerce, 
trade, or profit), but are being sought in furtherance of scholarly (if 
the request is from an educational institution) or scientific (if the 
request is from a non-commercial scientific institution) research.
    (i) Educational institution is any school that operates a program 
of scholarly research. A requester in the fee category in this 
paragraph (c)(2) must show that the request is made in connection with 
the requester's role at the educational institution. NASA may seek 
assurance from the requester that the request is in furtherance of 
scholarly research and will advise requesters of their placement in the 
category in this paragraph (c)(2). A request for educational purposes 
may be presumed if submitted on the Institution's letterhead and signed 
by the Dean of the School or Department.
    (A) Example 1. A request from a professor of geology at a 
university for records relating to soil erosion, written on letterhead 
of the Department of Geology, would be presumed to be from an 
educational institution.
    (B) Example 2. A request from the same professor of geology seeking 
drug information from the Food and Drug Administration in furtherance 
of a murder mystery he is writing would not be presumed to be an 
institutional request, regardless of whether it was written on 
institutional stationery.
    (C) Example 3. A student, who makes a request in furtherance of the 
student's coursework or other school-sponsored activities and provides 
a copy of a course syllabus or other reasonable documentation to 
indicate the research purpose for the request, would qualify as part of 
the fee category in this paragraph (c)(2).
    (ii) For the purposes of a non-commercial scientific institution, 
it must be solely for the purpose of conducting scientific research, 
the results of which are not intended to promote any particular product 
or industry. Requests must be sent on the letterhead of the scientific 
institution and signed by the responsible official-in-charge of the 
project/program associated with the subject of the documents that are 
being requested.
    (3) Representative of the news media. (i) NASA shall provide 
documents to requesters in the category in this paragraph (c)(3) for 
the cost of duplication alone, excluding charges for the first 100 
pages.
    (ii) Representative of the news media is any person or entity that 
gathers information of potential interest to a segment of the public, 
uses editorial skills to turn the raw materials into a distinct work, 
and distributes that work to an audience. The term ``news'' means 
information that is about current events or that would be of current 
interest to the public. Examples of new media entities include 
television or radio stations that broadcast ``news'' to the public at 
large and publishers of periodicals that disseminate ``news'' and make 
their products available through a variety of means to the general 
public, including news organizations that disseminate solely on the 
internet. These examples are not all inclusive. As methods of news 
delivery evolve, alternative news media entities may come into 
existence. A request for records supporting the news-dissemination 
function of the requester will not be considered to be for a commercial 
use. ``Freelance'' journalists who demonstrate a solid basis for 
expecting publication through a news media entity will be considered as 
a representative of the news media. A publishing contract would provide 
the clearest evidence that publication is expected; however, agencies 
can also consider a requester's past publication record in making this 
determination. Agencies will advise requesters of their placement in 
the category in this paragraph (c)(3).
    (iii) Requesters seeking the fee category in this paragraph (c)(3) 
who do not articulate sufficient information to support their request 
will not be included in the fee category in this paragraph (c)(3). 
Additionally, FOIA staff may grant a reduction of fees if the requester 
can articulate the information of this section for some of the 
documents.
    (4) All other requesters. NASA shall charge requesters who do not 
fit into any of the categories mentioned in this section fees in 
accordance with the fee table in paragraph (b) of this section.

Subpart G--Appeals


Sec.  1206.700  [Amended]

0
20. Amend Sec.  1206.700 by:
0
a. Removing the number ``30'' and adding in its place the number ``90'' 
in paragraph (a);
0
b. Adding ``Room 8U71, 300 E Street, SW,'' after the second occurrence 
of the word ``Headquarters,'' in paragraph (b)(2); and
0
c. Removing the number ``30'' and adding in its place the number ``90'' 
in paragraph (b)(6).

Subpart H--Responsibilities

0
22. Amend Sec.  1206.801 by revising paragraphs (b)(1) and (6) and (c) 
to read as follows:


Sec.  1206.801  Chief FOIA Officer.

* * * * *
    (b) * * *
    (1) Developing regulations in consultation with the Office of 
General Counsel, providing guidelines, procedures, and standards for 
the Agency's FOIA program;
* * * * *
    (6) Preparing all other reports as required to DOJ, OGIS, and 
Congress or within the Agency;
* * * * *
    (c) The Chief FOIA Officer is responsible for ensuring NASA has 
appointed FOIA Public Liaisons, who are responsible for and able to 
assist in reducing delays, increasing transparency and understanding of 
the status of requests, and assisting in the resolution of disputes at 
each Center or Component.

[[Page 54779]]


0
23. Amend Sec.  1206.804 by revising paragraphs (b) and (c) to read as 
follows:


Sec.  1206.804  NASA Centers and Components.

* * * * *
    (b) This delegated authority has further been delegated to the FOIA 
Officers who are designated to work at NASA Centers and supervised by 
the Director of Public Affairs or Head of the Public Affairs Office for 
that Center. If a FOIA Officer working at a particular NASA Center 
vacates the position, the Deputy Associate Administrator for 
Communications will designate a new FOIA Officer, supervised by the 
Principal Chief FOIA Officer, to process FOIA requests for that 
particular Center.
    (c) When denying records in whole or in part, the FOIA Officer 
designated to process records for the Center will consult with the 
Chief Counsel or the Counsel charged with providing legal advice to 
that FOIA office before releasing an initial determination under Sec.  
1206.307.


Sec.  1206.805  [Amended]

0
24. Amend Sec.  1206.805 by adding a comma after the second occurrence 
of the word ``General'' in paragraph (a).

Cheryl E. Parker,
Federal Register Liaison Officer.
[FR Doc. 2019-21710 Filed 10-10-19; 8:45 am]
 BILLING CODE 7510-13-P