Implementing the Freedom of Information Act, 70054-70062 [2020-22375]

Agencies

• Office of Science and Technology Policy

[Federal Register Volume 85, Number 214 (Wednesday, November 4, 2020)]
[Rules and Regulations]
[Pages 70054-70062]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-22375]


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OFFICE OF SCIENCE AND TECHNOLOGY POLICY

32 CFR Part 2402


Implementing the Freedom of Information Act

AGENCY: Office of Science and Technology Policy.

ACTION: Final rule.

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SUMMARY: The White House Office of Science and Technology Policy 
(OSTP), after consideration of the public comments submitted in 
response to its Notice of Proposed Rulemaking published on October 31, 
2018, is amending its regulations to implement the FOIA Improvement Act 
of 2016. The regulations reflect OSTP's policy and practices and 
reaffirm its commitment to providing the fullest possible disclosure of 
records to the public.

DATES: Effective December 4, 2020.

FOR FURTHER INFORMATION CONTACT: Nick Wittenberg, Legal Counsel, OSTP, 
(202) 456-4444. Questions about the content of this notice may also be 
sent to [email protected].

SUPPLEMENTARY INFORMATION: OSTP is amending its regulations governing 
its implementation of the Freedom of Information Act (FOIA). In 2013, 
OSTP implemented its FOIA regulations, currently codified at 32 CFR 
part 2402. The FOIA Improvement Act of 2016, Public Law 114-185, 
requires each agency to review and update its FOIA regulations in 
accordance with its provisions. Among other things, the FOIA 
Improvement Act makes changes that require agencies to (1) withhold 
information only when it is reasonably foreseeable that disclosure 
would harm an interest protected by an exemption; (2) allow a minimum 
of ninety (90) days to file an appeal following an adverse 
determination; and (3) inform requestors of their right to seek dispute 
resolution services.
    In connection with OSTP's review of its FOIA regulations, OSTP is 
updating these regulations to clarify OSTP's process for responding to 
requests for information, incorporate new language on partial 
disclosures of information, increase the period of time for a requestor 
to appeal an adverse determination from thirty (30) days to ninety (90) 
days, and require OSTP to notify requestors of their right to seek 
dispute resolution services. Due to the scope of the proposed 
revisions, the new rules will replace OSTP's current FOIA regulations 
in their entirety. The new rules will reflect statutory changes to the 
FOIA and improve FOIA-related service and performance, thereby 
strengthening OSTP's compliance with the FOIA.
    On October 31, 2018, OSTP issued a Notice of Proposed Rulemaking 
seeking comments on the proposed changes to its FOIA regulations. In 
response, OSTP received one public comment about the proposed rule. The 
commenter did not suggest any changes to the rule. OSTP, however, 
decided to make one minor additional change in order to clarify the 
calculation of fees. In the definition of ``direct cost'' in Sec.  
2402.3(c)(5), OSTP is changing the phrase, ``employee or

[[Page 70055]]

employees'' to ``personnel'' to more accurately reflect the fact that 
paid, contract, and other staff are used to search for, duplicate, and 
respond to FOIA requests. For this same reason, OSTP is revising Sec.  
2402.9(b) regarding calculation of fees to change the use of the word, 
``employee(s),'' to ``personnel.''

Statutory and Executive Order Reviews

Executive Orders 12866 and 13563--Regulatory Review

    This regulation has been drafted and reviewed in accordance with 
Executive Order 12866, Regulatory Planning and Review, section 1(b), 
Principles of Regulation, and in accordance with Executive Order 13563, 
Improving Regulation and Regulatory Review, section 1(b), General 
Principles of Regulation. This regulation is not a significant 
regulatory action under section 3(f) of Executive Order 12866; 
accordingly, this rule has not been reviewed by the Office of 
Management and Budget (OMB). Further, both Executive Orders 12866 and 
13563 direct agencies to assess all costs and benefits of available 
regulatory alternatives and, if regulation is necessary, to select 
regulatory approaches that maximize net benefits (including potential 
economic, environmental, public health and safety effects, distributive 
impacts, and equity). Executive Order 13563 emphasizes the importance 
of quantifying both costs and benefits, of reducing costs, of 
harmonizing rules, and of promoting flexibility. OSTP has assessed the 
costs and benefits of this regulation and believes that the regulatory 
approach selected maximizes net benefits.

Paperwork Reduction Act

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

Executive Order 12988--Civil Justice Reform

    These regulations meet the applicable standards set forth in 
sections 3(a) and 3(b) of Executive Order 12988, Civil Justice Reform.

Executive Order 13132--Federalism

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

Regulatory Flexibility Act

    This regulation finalizes the amendments to OSTP's FOIA regulations 
to incorporate certain changes made by the FOIA Improvement Act of 
2016, to reflect developments in case law, and to streamline its 
procedures. OSTP, in accordance with the Regulatory Flexibility Act, 5 
U.S.C. 605(b), has reviewed this regulation and certifies that it will 
not have a significant economic impact on a substantial number of small 
entities because it pertains to administrative matters affecting the 
agency.

Unfunded Mandates Reform Act of 1995

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

Small Business Regulatory Enforcement Fairness Act of 1996

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

National Environmental Policy Act of 1969

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

List of Subjects in 32 CFR Part 2402

    Freedom of information, Administrative practice and procedure.


0
For the reasons set forth in the preamble, OSTP revises 32 CFR part 
2402 to read as follows:

PART 2402--REGULATIONS IMPLEMENTING THE FREEDOM OF INFORMATION ACT

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

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


Sec.  2402.1  Purpose and scope.

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


Sec.  2402.2  Delegation of authority and responsibilities.

    (a) The Director of OSTP designates the OSTP General Counsel as the 
Chief FOIA Officer and hereby delegates to the Chief FOIA Officer the 
authority to act upon all requests for agency records and to re-
delegate such authority at his or her discretion.
    (b) The Chief FOIA Officer shall designate a FOIA Public Liaison, 
who shall serve as the supervisory official to whom a FOIA requester 
can raise concerns about the service the FOIA requestor has received 
following an initial request. The FOIA Public Liaison will be listed on 
the OSTP website (https://www.whitehouse.gov/ostp/foia) and may re-
delegate the FOIA Public Liaison's authority at his or her discretion.
    (c) The Director establishes a FOIA Requester Service Center that 
shall be staffed by the Chief FOIA Officer and the FOIA Public Liaison. 
The contact

[[Page 70056]]

information for the FOIA Requester Service Center is: Address: Office 
of Science and Technology Policy, Eisenhower Executive Office Building, 
1650 Pennsylvania Avenue NW, Washington, DC 20504; Telephone: (202) 
456-4444; Fax: (202) 395-1224; Email: [email protected]. Updates to 
this contact information will be made on the OSTP website.


Sec.  2402.3  General policy and definitions.

    (a) Non-exempt records available to public. Except for records 
exempt from disclosure by 5 U.S.C. 552(b) or published in the Federal 
Register under 5 U.S.C. 552(a)(1), OSTP's agency records subject to the 
FOIA are available to any requester who requests them in accordance 
with these regulations.
    (b) Record availability on the OSTP website. OSTP shall make 
records available on its website in accordance with 5 U.S.C. 552(a)(2), 
as amended, and other documents that, because of the nature of their 
subject matter, are likely to be the subject of FOIA requests. To save 
both time and money, OSTP strongly urges requesters to review documents 
available on the OSTP website before submitting a request.
    (c) Definitions. For purposes of this part:
    (1) All of the terms defined in the FOIA and the definitions 
included in OMB's ``Uniform Freedom of Information Act Fee Schedule and 
Guidelines'' apply unless otherwise defined in this subpart.
    (2) The term agency record means a record that is:
    (i) Either created or obtained by OSTP; and
    (ii) Under OSTP's control at the time the FOIA request is received.
    (3) The term commercial use request means a request from or on 
behalf of a person who seeks information for a use or purpose that 
furthers his or her commercial, trade, or profit interests, which can 
include furthering those interests through litigation. OSTP shall 
determine, whenever reasonably possible, the use to which a requester 
will put the requested records. When it appears that the requester will 
put the records to a commercial use, either because of the nature of 
the request itself or because OSTP has reasonable cause to doubt a 
requester's stated use, OSTP shall provide the requester a reasonable 
opportunity to submit further clarification.
    (4) The terms disclose and disclosure refer to making records 
available, upon request, for examination and copying, or furnishing a 
copy of records.
    (5) The term direct cost means those expenditures OSTP actually 
incurred in searching for and duplicating (and, in the case of 
commercial use requests, reviewing) records in response to a FOIA 
request. Direct costs include the salary of the personnel performing 
the work (i.e., the basic rate of pay for the employee plus 16 percent 
of that rate to cover benefits) and the cost of operating computers and 
other electronic equipment, such as photocopiers and scanners. Direct 
costs do not include overhead expenses, such as the cost of space, 
heating, or lighting of the facility in which the records are stored.
    (6) The term duplication means the making of a copy of a record, or 
of the information contained in it, necessary to respond to a FOIA 
request. Copies can take the form of paper, microform, audiovisual 
materials, or electronic records (e.g., magnetic tape or disk), among 
others.
    (7) The term educational institution means a preschool, a public or 
private elementary or secondary school, an institution of undergraduate 
higher education, an institution of graduate higher education, an 
institution of professional education, or an institution of vocational 
education that operates a program of scholarly research. To fall within 
this category, a requester must show that the request is authorized by 
and is made under the auspices of a qualifying institution and that the 
records are not sought for a commercial use, but rather are sought to 
further scholarly research.
    (8) The term fee waiver means the waiver or reduction of processing 
fees if a requester can demonstrate that certain statutory standards 
are satisfied.
    (9) The term FOIA Public Liaison means an agency official who is 
responsible for assisting requesters in defining the scope of their 
request to reduce processing time, increasing transparency and 
understanding of the status of requests, and assisting in the 
resolution of disputes.
    (10) The term non-commercial scientific institution means an 
institution that is not operated on a commercial basis, as that term is 
defined in these regulations, and that is operated solely for the 
purpose of conducting scientific research, the results of which are not 
intended to promote any particular product or industry. To fall within 
this category, a requester must show that the request is authorized by 
and is made under the auspices of a qualifying institution and that the 
records are not sought for a commercial use, but rather are sought to 
further scientific research.
    (11) The term perfected request means a FOIA request for records 
that reasonably describes the records sought and has been received by 
OSTP in accordance with the requirements set forth in Sec.  2402.4.
    (12) The terms representative of the news media and news media 
requester mean any person or entity that gathers information of 
potential interest to a segment of the public, uses its editorial 
skills to turn the raw materials into a distinct work, and distributes 
that work to an audience. In this clause, the term news means 
information that is about current events or that would be of current 
interest to the public. Examples of news media entities are television 
or radio stations broadcasting to the public at large and publishers of 
periodicals (but only if such entities qualify as disseminators of 
news) who make their products available for purchase by, subscription 
by, or through free distribution to the general public. These examples 
are not all-inclusive. Moreover, as methods of news delivery evolve, 
such as through electronic or digital means, such news sources shall be 
considered to be news media entities. A freelance journalist shall be 
regarded as working for a news media entity if the journalist can 
demonstrate a solid basis for expecting publication through that 
entity, whether or not the journalist is actually employed by the 
entity. A publication contract would present a solid basis for such an 
expectation; the Government may also consider the past publication 
record of the requester in making such a determination.
    (13) The term requester means any person, including an individual, 
partnership, corporation, association, Native American tribe, or other 
public or private organization, other than a Federal agency that 
requests access to records.
    (14) The term review means the process of examining documents 
located in response to a request that is for a commercial use to 
determine whether any portion of any document located is permitted to 
be withheld. It includes the processing of any documents for 
disclosure--i.e., doing all that is necessary to excise exempt 
information and otherwise prepare them for release. Review does not 
include time spent resolving general legal or policy issues regarding 
the application of exemptions.
    (15) The term search refers to the process of looking for and 
retrieving records or information responsive to a request. It includes 
page-by-page or line-by-line identification of information within 
records and also includes reasonable efforts to locate and retrieve 
information from records maintained in electronic form or format.
    (16) The term working day means a regular Federal working day 
between

[[Page 70057]]

the hours of 9:00 a.m. and 5:00 p.m. It does not include Saturdays, 
Sundays, or legal Federal holidays. Any requests received after 5:00 
p.m. on any given working day will be considered received on the next 
working day.


Sec.  2402.4  Procedure for requesting records.

    (a) Format of requests.(1) In general. Requests for information 
must be made in writing and may be delivered by mail, fax, or 
electronic mail, as specified in Sec.  2402.2(c). All requests must be 
made in English. Requests for information may specify the preferred 
format (including electronic formats) of the response. When a requester 
does not specify the preferred format of the response, OSTP shall 
produce scanned records to be delivered electronically.
    (2) Records in electronic formats. (i) OSTP shall provide 
responsive records in the format requested if the record or records are 
readily reproducible by OSTP in that format. OSTP shall make reasonable 
efforts to maintain its records in formats that are reproducible for 
the purposes of disclosure. For purposes of this paragraph, the term 
readily reproducible means, with respect to electronic format, a record 
that can be downloaded or transferred intact to an electronic medium 
using equipment currently in use by the agency processing the request. 
Even though some records may initially be readily reproducible, the 
need to segregate exempt records from nonexempt records may cause the 
releasable material to be not readily reproducible.
    (ii) In responding to a request for records, OSTP shall make 
reasonable efforts to search for the records in electronic format, 
except where such efforts would interfere with the operation of the 
agency's automated information system(s). For purposes of this 
paragraph, the term search means to locate, manually or by automated 
means, agency records for the purpose of identifying those records that 
are responsive to a request.
    (iii) Searches for records maintained in electronic format may 
require the application of codes, queries, or other minor forms of 
programming to retrieve the requested records.
    (3) Attachment restrictions. To protect OSTP's computer systems, 
OSTP will not accept files sent as email attachments or as web links. A 
requester may submit a request by postal mail, by fax, or in the body 
of the email text.
    (b) Contents. A request must describe the records sought in 
sufficient detail to enable OSTP personnel to locate the records with a 
reasonable amount of effort. To the extent possible, a requester should 
include specific information that may assist OSTP personnel in 
identifying the requested records, such as the date, title or name, 
author, recipient, and subject matter of the record. In general, a 
requester should include as much detail as possible about the specific 
records or the types of records sought. Before submitting a request, a 
requester may contact the OSTP FOIA Public Liaison to discuss the 
records sought and to receive assistance in describing the records. If, 
after receiving a request, OSTP determines that it does not reasonably 
describe the records sought or that the request will be unduly 
burdensome to process, OSTP shall inform the requester of the 
additional information that is needed or how the request may be 
modified. A Requester attempting to reformulate or modify such a 
request may discuss their requests with OSTP's FOIA Public Liaison.
    (c) Date of receipt. A request that complies with paragraphs (a) 
and (b) of this section is deemed a ``perfected request.'' A perfected 
request is deemed received on the actual date it is received by OSTP. A 
request that does not comply with paragraphs (a) and (b) of this 
section is deemed received when information sufficient to perfect the 
request is actually received by OSTP.
    (d) Contact information. A request must contain contact 
information, such as the requester's phone number, email address, or 
mailing address, to enable OSTP to communicate with the requester about 
the request and provide released records. If OSTP cannot contact the 
requester, or the requester does not respond within 30 calendar days to 
OSTP's requests for clarification, OSTP will administratively close the 
request.
    (e) Types of records not available. The FOIA does not require OSTP 
to:
    (1) Compile or create records solely for the purpose of satisfying 
a request for records;
    (2) Provide records not yet in existence, even if such records may 
be expected to come into existence at some future time; or
    (3) Restore records destroyed or otherwise disposed of, except that 
OSTP must notify the requester of the destruction or disposal of the 
requested records.


Sec.  2402.5  Responses to requests.

    (a) In general. In determining which records are responsive to a 
request, OSTP will ordinarily include only records in its possession as 
of the date it begins its search for records. If any other date is 
used, OSTP shall inform the requester of that date.
    (b) Authority to grant or deny requests. OSTP shall make initial 
determinations to grant or deny, in whole or in part, a request for 
records.
    (c) Granting of requests. When OSTP determines that any responsive 
records shall be made available, OSTP shall notify the requester in 
writing and provide copies of the requested records in whole or in 
part. Records disclosed in part shall be marked or annotated to show 
the exemption(s) applied to the withheld information and the amount of 
information withheld unless doing so would harm the interest protected 
by an applicable exemption. If a requested record contains exempted 
material along with nonexempt material, all reasonably segregable 
material shall be disclosed.
    (d) Adverse determinations. If OSTP makes an adverse determination 
denying a request in any respect, it must notify the requester of that 
adverse determination in writing. Adverse determinations include 
decisions that: The requested record is exempt from disclosure, in 
whole or in part; the request does not reasonably describe the records 
sought, but only if, after discussion with the FOIA Public Liaison, the 
requester refuses to modify the terms of the request; the information 
requested is not a record subject to the FOIA; the requested record 
does not exist, cannot be located, or has been destroyed; or the 
requested record is not readily reproducible in the form or format 
sought by the requester; denials involving fees or fee waiver matters; 
and denials of requests for expedited processing.
    (e) Content of adverse determinations. Any adverse determination 
issued by OSTP must include:
    (1) A brief statement of the reason(s) for the adverse 
determination, including any FOIA exemption applied by the agency in 
denying access to a record unless such inclusion would harm the 
interest protected by an applicable exemption;
    (2) An estimate of the volume of any records or information 
withheld, such as the number of pages or other reasonable form of 
estimation, although such an estimate is not required if the volume is 
otherwise indicated by deletions marked on records that are disclosed 
in part or if providing an estimate would harm an interest protected by 
an applicable exemption;
    (3) A statement that the adverse determination may be appealed 
under Sec.  2402.8 of this subpart and a description of the appeal 
requirements; and
    (4) A statement notifying the requester of the assistance available 
from OSTP's FOIA Public Liaison and the dispute

[[Page 70058]]

resolution services offered by the Office of Government Information 
Services.
    (f) Consultations, referrals, and coordinations. When OSTP receives 
a request for a record in its possession, it shall determine whether 
another agency of the Federal Government is better able to determine 
whether the record is exempt from disclosure under the FOIA and, if so, 
whether it should be disclosed as a matter of administrative 
discretion. If OSTP determines that it is best able to process the 
record in response to the request, then it shall do so. If OSTP 
determines that it is not best able to process the record, then it 
shall proceed in one of the following ways:
    (1) Consultation. When records originating with OSTP contain 
information of interest to another Federal agency, OSTP should 
typically consult with that Federal agency prior to making a release 
determination.
    (2) Referral. (i) When OSTP believes that a different Federal 
agency is best able to determine whether to disclose the record, OSTP 
should typically refer the responsibility for responding to the request 
regarding that record to that agency. Ordinarily, the agency creating 
the record is presumed to be the agency best able to determine whether 
the record should be disclosed. If OSTP and another Federal agency 
jointly agree that the agency processing the request is in the best 
position to respond regarding the record, then the record may be 
handled as a consultation.
    (ii) Whenever OSTP refers any part of the responsibility for 
responding to a request to another agency, OSTP must document the 
referral, maintain a copy of the record that it refers, and notify the 
requester of the referral.
    (iii) After OSTP refers a record to another Federal agency, the 
agency receiving the referral shall make a disclosure determination and 
respond directly to the requester. The referral of a record is not an 
adverse determination and no appeal rights accrue to the requester 
therefrom.
    (3) Coordination. The standard referral procedure is not 
appropriate where disclosure of the identity of the Federal agency to 
which a referral would be made could harm an interest protected by an 
applicable exemption, such as an exemption that protects personal 
privacy or national security interests. For example, if a non-law 
enforcement agency responding to a request for records on a living 
third party locates within its files records originating with a law 
enforcement agency, and if the existence of that law enforcement 
interest in the third party is not publicly known, then to disclose 
that law enforcement interest could cause an unwarranted invasion into 
the personal privacy of the third party. Similarly, if an agency 
locates within its files material originating with an Intelligence 
Community agency, and the involvement of that agency in the matter is 
classified and not publicly acknowledged, then to disclose or give 
attribution to the involvement of that Intelligence Community agency 
could harm national security interests. In such instances, in order to 
avoid harm to an interest protected by an applicable exemption, OSTP 
will coordinate with the agency that created the record to seek its 
views on disclosure of the record. OSTP will then notify the requester 
of the disclosure determination for the record that is the subject of 
the coordination.


Sec.  2402.6  Timing of responses to requests.

    (a) In general. OSTP shall ordinarily respond to requests in order 
of their receipt.
    (b) Initial determinations. OSTP will exercise all reasonable 
efforts to make an initial determination acknowledging and granting, 
partially granting, or denying a request for records within twenty (20) 
working days after receiving a perfected request.
    (c) Extensions of response time in ``unusual circumstances.'' (1) 
The twenty (20)-working day period provided in paragraph (b) of this 
section may be extended if unusual circumstances arise. If an extension 
is necessary, OSTP shall promptly notify the requester of the 
extension, briefly state the reasons for the extension, and estimate 
when a response will be issued. Unusual circumstances warranting 
extension are:
    (i) The need to search for and collect the requested records from 
field facilities or other establishments that are separate from the 
office processing the request;
    (ii) The need to search for, collect, and appropriately examine a 
voluminous amount of separate and distinct records which are demanded 
in a single request; or
    (iii) The need for consultation, which shall be conducted with all 
practicable speed, with another agency having a substantial interest in 
the determination of the request or among two or more components of the 
agency having substantial subject-matter interest therein.
    (2) After OSTP notifies the requester of the reasons for the delay, 
the requester will have an opportunity to modify the request or arrange 
for an alternative time frame for completion of the request. To assist 
in this process, OSTP shall advise the requester of the availability of 
OSTP's FOIA Public Liaison to aid in the resolution of any disputes 
between the requester and OSTP, and notify the requester of his or her 
right to seek dispute resolution services from the Office of Government 
Information Services.
    (3) If no initial determination is made at the end of the twenty-
day period provided for in paragraph (b) of this section, including any 
extension provided for in paragraph (c)(1) of this section, the 
requester may appeal the action to the FOIA Appeals Officer.
    (d) Expedited processing of request. (1) A requester may make a 
request for expedited processing at any time.
    (2) When a request for expedited processing is received, OSTP must 
determine whether to grant the request for expedited processing within 
ten (10) calendar days of its receipt. Requests will receive expedited 
processing if one of the following compelling needs is met:
    (i) The requester can establish that failure to receive the records 
quickly could reasonably be expected to pose an imminent threat to the 
life or physical safety of an individual; or
    (ii) The requester is primarily engaged in disseminating 
information and can demonstrate that an urgency to inform the public 
concerning actual or alleged Federal Government activity exists.
    (3) A requester who seeks expedited processing must submit a 
statement, certified to be true and correct, explaining in detail the 
basis for making the request for expedited processing. As a matter of 
administrative discretion, OSTP may waive the formal certification 
requirement.
    (4) Administrative appeals of denials of expedited processing will 
be given expeditious consideration. If the FOIA Appeals Officer upholds 
the denial of expedited processing, that decision is immediately 
subject to judicial review in the appropriate Federal district court.
    (e) Multi-track processing. (1) OSTP may use multi-track processing 
in responding to requests. Multi-track processing means placing simple 
requests that require limited review in one processing track and 
placing more voluminous and complex requests in one or more other 
processing tracks. Requests in each track are processed on a first-in, 
first-out basis.
    (i) Track one--expedited requests. Track one is made up of requests 
that sought and received expedited processing as provided for in 
paragraph (d)(2) of this section.
    (ii) Track two--simple requests. Track two is for requests of 
simple to moderate complexity that do not require

[[Page 70059]]

consultations with other entities and do not involve voluminous 
records.
    (iii) Track three--complex requests. Track three is for complex 
requests that involve voluminous records, require lengthy or numerous 
consultations, raise unique or novel legal questions, or require 
submitter review under Sec.  2402.7.
    (2) OSTP may provide requesters with requests in slower track(s) 
the opportunity to limit the scope of their requests in order to 
qualify for faster processing within the specified limits of faster 
track(s). OSTP will do so by contacting the requester by letter, 
telephone, email, or facsimile, whichever is more efficient in each 
case. When providing a requester with the opportunity to limit the 
scope of a request, OSTP shall also advise the requester of OSTP's FOIA 
Public Liaison to aid in the resolution of any dispute arising between 
the requester and OSTP as well as the requester's right to seek dispute 
resolution services from the Office of Government Information Services.
    (f) Aggregating requests. OSTP may aggregate requests if it 
reasonably appears that multiple requests, submitted either by a single 
requester or by a group of requesters acting in concert, involve 
related matters and constitute a single request that otherwise would 
involve unusual circumstances. For example, OSTP may aggregate multiple 
requests for similar information filed by a single requester within a 
short period of time.


Sec.  2402.7  Confidential commercial information.

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

[[Page 70060]]

Sec.  2402.8  Appeal of denials.

    (a) Right to administrative appeal. A requester has the right to 
appeal to the FOIA Appeals Officer any adverse determination.
    (b) Notice of appeal. (1) Time for appeal. To be considered timely, 
an appeal must be postmarked, or in the case of electronic submissions, 
transmitted no later than ninety (90) calendar days after the date of 
the initial adverse determination or after the time limit for response 
by OSTP has expired. Prior to submitting an appeal, the requester must 
pay in full any outstanding fees associated with the request.
    (2) Form of appeal. An appeal shall be initiated by filing a 
written notice of appeal. The notice shall specify the tracking number 
assigned to the FOIA request by OSTP and be accompanied by copies of 
the original request and adverse determination. To expedite the 
appellate process and give the requester an opportunity to present his 
or her arguments, the notice should contain a brief statement of the 
reason(s) why the requester believes the adverse determination to be in 
error. Requesters may submit appeals by mail or electronically. If sent 
by regular mail, appeals shall be sent to: Chief FOIA Officer, Office 
of Science and Technology Policy, Eisenhower Executive Office Building, 
1650 Pennsylvania Avenue NW, Washington, DC 20504. Appeals sent via 
electronic mail shall be submitted to [email protected]. Updates to 
this contact information will be made on the OSTP website. To 
facilitate handling, the requester should mark both the appeal letter 
and envelope, if submitted by mail, or subject line of the 
transmission, if submitted electronically, with ``Freedom of 
Information Act Appeal.''
    (c) Decisions on appeals. The FOIA Appeals Officer shall make a 
determination in writing on the appeal under 5 U.S.C. 552(a)(6)(A)(ii) 
within twenty (20) working days after the receipt of the appeal. If the 
denial is wholly or partially upheld, the Chief FOIA Officer shall:
    (1) Notify the requester that judicial review is available pursuant 
to 5 U.S.C. 552(a)(4)(B)-(G); and
    (2) Notify the requester that the Office of Government Information 
Services (OGIS) offers mediation services to resolve disputes between 
FOIA requesters and Federal agencies as a non-exclusive alternative to 
litigation. Contact information for OGIS is: Office of Government 
Information Services, National Archives and Records Administration, 
8601 Adelphi Road-OGIS, College Park, MD 20740, Email: [email protected], 
Telephone: 202-741-5770, Facsimile: 202-741-5769, Toll-free: 1-877-684-
6448.
    (d) Dispute resolution services. Dispute resolution is a voluntary 
process. If OSTP agrees to participate in the dispute resolution 
services provided by the Office of Government Information Services, it 
will actively engage as a partner to the process in an attempt to 
resolve the dispute.
    (e) When appeal is required. Before seeking judicial review of 
OSTP's adverse determination in Federal district court, a requester 
generally must first submit a timely administrative appeal.


Sec.  2402.9  Fees.

    (a) Fees generally required. OSTP shall use the most efficient and 
least costly methods to comply with requests for documents made under 
the FOIA. OSTP shall charge fees in accordance with paragraph (b) of 
this section unless fees are waived or reduced in accordance with Sec.  
2402.10.
    (b) Calculation of fees. In general, fees for searching, reviewing, 
and duplication will be based on the direct costs of these services, 
including the average hourly salary (basic pay plus 16% for benefits) 
of the personnel conducting the search, reviewing the records for 
exemption, or duplicating the records. Charges for time less than a 
full hour will be in increments of quarter hours.
    (1) Search fees. Search fees may be charged even if responsive 
documents are not located or are located but withheld on the basis of 
an exemption. However, search fees shall not be charged or shall be 
limited as follows:
    (i) Educational, scientific, or news media requests. No search fee 
shall be charged if the request is not sought for a commercial use and 
is made by an educational or non-commercial scientific institution, 
whose purpose is scholarly or scientific research, or by a 
representative of the news media.
    (ii) Other non-commercial requests. No search fee shall be charged 
for the first two hours of searching if the request is not for a 
commercial use and is submitted by an entity that is not an educational 
or scientific institution, whose purpose is scholarly or scientific 
research, or a representative of the news media.
    (iii) Requests for records about oneself. No search fee shall be 
charged to search for records performed under the terms of the Privacy 
Act, 5 U.S.C. 552a(f)(5).
    (2) Review fees. Review fees shall be assessed only with respect to 
those requesters who seek records for a commercial use. A review fee 
shall be charged for the initial examination of documents located in 
response to a request to determine whether the documents may be 
withheld from disclosure and for the redaction of document portions 
exempt from disclosure. Records or portions of records withheld under 
an exemption that is subsequently determined not to apply may be 
reviewed again to determine the applicability of other exemptions not 
previously considered. The costs for such subsequent review are also 
assessable.
    (3) Duplication fees. Records will be photocopied at a rate of ten 
cents ($0.10) per page. For other methods of reproduction or 
duplication, OSTP will charge the actual direct costs of producing the 
document(s). Duplication fees shall not be charged for the first 100 
pages of copies unless the copies are requested for a commercial use.
    (c) Aggregation of requests. When OSTP determines that a requester, 
or a group of requesters acting in concert, is attempting to evade the 
assessment of fees by submitting multiple requests in place of a 
single, more complex request, OSTP may aggregate any such requests and 
assess fees accordingly.
    (d) Fees likely to exceed $25. If total fee charges are likely to 
exceed $25, OSTP shall notify the requester of the estimated amount to 
be charged. The notification shall offer the requester an opportunity 
to confer with the FOIA Public Liaison to reformulate the request to 
meet the requester's needs at a lower cost. OSTP may administratively 
close a submitted FOIA request if the requester does not respond in 
writing within thirty (30) calendar days after the date on which OSTP 
notifies the requester of the fee estimate.
    (e) Advance payments. Fees may be paid upon provision of the 
requested records, except that payment may be required prior to that 
time if the requester has previously failed to pay fees or if OSTP 
determines that the total fees will exceed $250. When payment is 
required in advance of the processing of a request, the time limits 
prescribed in Sec.  2402.6 shall not be deemed to begin until OSTP has 
received payment of the assessed fees. If the requester has previously 
failed to pay fees or charges are likely to exceed $250, OSTP shall 
notify the requester of the estimated cost and:
    (1) Obtain satisfactory assurance from the requester, in writing, 
of full payment; or
    (2) OSTP may require the requester to pay the full amount of any 
fees owed or make an advance payment of the full amount of OSTP's 
estimated charges.

[[Page 70061]]

    (3) If OSTP does not receive an adequate response, assurance, or 
advance payment within thirty (30) calendar days of a fee determination 
or notification issued under the authority of this section, OSTP will 
administratively close the corresponding request.
    (f) Other charges. OSTP will recover the full costs of providing 
services, such as those enumerated below, when it elects to provide 
them:
    (1) Certifying that records are true copies; and
    (2) Sending records by special methods, such as express mail.
    (g) Remittances. Remittances shall be made either via personal 
check or bank draft drawn on a bank in the United States, or by postal 
money order. Remittances shall be made payable to the order of the 
Treasury of the United States and mailed to the Chief FOIA Officer, 
Office of Science and Technology Policy, Eisenhower Executive Office 
Building, 1650 Pennsylvania Avenue NW, Washington, DC 20504. Updates to 
this contact information will be made on the OSTP website.
    (h) Receipts and refunds. OSTP will provide a receipt for fees paid 
upon request. OSTP will not refund fees paid for services actually 
rendered.


Sec.  2402.10  Waiver of fees.

    (a) In general. OSTP shall waive part or all of the fees assessed 
under Sec.  2402.9 if, based upon information provided by a requester 
or otherwise made known to OSTP, the disclosure of the requested 
information is in the public interest. Disclosure is in the public 
interest if it is likely to contribute significantly to public 
understanding of government operations or activities and is not 
primarily for commercial purposes. Requests for a waiver or reduction 
of fees shall be considered on a case-by-case basis. To determine 
whether a fee waiver requirement is met, OSTP shall consider the 
following factors:
    (1) Disclosure of the requested information would shed light on the 
operations or activities of the Federal Government. The subject of the 
request must concern identifiable operations or activities of the 
Federal Government with a connection that is direct and clear, not 
remote or attenuated.
    (2) Disclosure of the requested information is likely to contribute 
significantly to public understanding of those operations or 
activities. This factor is satisfied when the following criteria are 
met:
    (i) Disclosure of the requested records must be meaningfully 
informative about government operations or activities. The disclosure 
of information already in the public domain, in either the same or a 
substantially similar form, would not be meaningfully informative if 
nothing new would be added to the public's understanding.
    (ii) The disclosure must contribute to the understanding of a 
reasonably broad audience of persons interested in the subject, as 
opposed to the individual understanding of the requester. A requester's 
expertise in the subject area as well as the requester's ability and 
intention to effectively convey information to the public must be 
considered. OSTP will presume that a representative of the news media 
will satisfy this consideration.
    (3) The disclosure must not be primarily in the commercial interest 
of the requester. To determine whether disclosure of the requested 
information is primarily in the commercial interest of the requester, 
OSTP will consider the following criteria:
    (i) OSTP will identify whether the requester has any commercial 
interest that would be furthered by the requested disclosure. A 
commercial interest includes any commercial, trade, or profit interest. 
Requesters are encouraged to provide explanatory information regarding 
this consideration.
    (ii) If there is an identified commercial interest, OSTP will 
determine whether that is the primary interest furthered by the 
request. OSTP will ordinarily presume that when a news media requester 
has satisfied the conditions in paragraphs (a)(1) and (2) of this 
section, the request is not primarily in the commercial interest of the 
requester. Data brokers or others who merely compile and market 
government information for direct economic return will not receive the 
benefit of this presumption.
    (b) Timing of fee waivers. A request for a waiver or reduction of 
fees should be made when a request for records is first submitted to 
the agency and should address the criteria referenced in paragraph (a) 
of this section. A requester may submit a fee waiver request at a later 
time so long as the underlying record request is pending or on 
administrative appeal. When a requester who has committed to pay fees 
subsequently asks for a waiver of those fees and that waiver is denied, 
the requester must pay any costs incurred up to the date of the fee 
waiver request was received.
    (c) Clarification. Where OSTP has reasonable cause to doubt the use 
to which a requester will put the records sought, or where that use is 
not clear from the request itself, OSTP may seek clarification from the 
requester before assigning the request to a specific category for fee 
assessment purposes.
    (d) Restrictions on charging fees. Except as described in 
paragraphs (c)(1) through (3) of this section, if OSTP fails to comply 
with the FOIA's time limits for responding to a request, it may not 
charge search fees. In addition, subject to the exceptions set forth in 
paragraphs (c)(1) through (3) of this section, if OSTP does not comply 
with the FOIA's time limits for responding to a request, it may not 
charge duplication fees when records are not sought for a commercial 
use and the request is made by an educational institution, non-
commercial scientific institution, or representative of the news media.
    (1) If OSTP determines that unusual circumstances, as defined by 
the FOIA, apply and provides timely written notice to the requester in 
accordance with the FOIA, then a failure to comply with the statutory 
time limit shall be excused for an additional ten (10) days.
    (2) If OSTP determines that unusual circumstances, as defined by 
the FOIA, apply and more than 5,000 pages are necessary to respond to 
the request, then OSTP may charge search fees and duplication fees, 
where applicable, if the following steps are taken. OSTP must:
    (i) Provide timely written notice of unusual circumstances to the 
requester in accordance with the FOIA; and
    (ii) Discuss with the requester via postal mail, email, or 
telephone (or made not less than three good-faith attempts to do so) 
how the requester could effectively limit the scope of the request in 
accordance with 5 U.S.C. 552(a)(6)(B)(ii).
    (3) If a court determines that exceptional circumstances exist, as 
defined by the FOIA, then a failure to comply with the statutory time 
limits shall be excused for the length of time provided by the court 
order.


Sec.  2402.11  Maintenance of statistics.

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

[[Page 70062]]

Sec.  2402.12  Disclaimer.

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

    Dated: October 5, 2020.
Stacy Lynn Murphy,
Operations Manager.
[FR Doc. 2020-22375 Filed 11-3-20; 8:45 am]
BILLING CODE 3270-F7-P