Privacy Act and Freedom of Information Act Regulations, 48821-48827 [2024-12667]

Agencies

• Management and Budget Office

[Federal Register Volume 89, Number 112 (Monday, June 10, 2024)]
[Rules and Regulations]
[Pages 48821-48827]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-12667]


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OFFICE OF MANAGEMENT AND BUDGET

5 CFR Parts 1302 and 1303

RIN 0348-AB87


Privacy Act and Freedom of Information Act Regulations

AGENCY: Office of Management and Budget.

ACTION: Final rule.

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SUMMARY: The Office of Management and Budget (``OMB'') is issuing a 
final rule revising its regulations implementing the Privacy Act and 
the Freedom of Information Act (``FOIA''). These revisions update OMB's 
regulations to reflect changes in OMB's current organizational 
structure and best practices. The revisions also ensure consistency 
between the access to records procedures in OMB's Privacy Act 
regulations and OMB's FOIA regulations, and with applicable law and 
policies that were enacted after OMB originally issued its Privacy Act 
regulations in 1976. Finally, the revisions align OMB's regulations 
with those of other agencies.

DATES: This rule is effective July 10, 2024.

FOR FURTHER INFORMATION CONTACT: Timothy Ziese, 202-395-8693, 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    On December 20, 2023, the Office of Management and Budget (``OMB'') 
published a proposed rule in the Federal Register to revise its 
regulations at 5 CFR part 1302 governing requests and responses under 
the Privacy Act of 1974, as amended, 5 U.S.C. 552a (``Privacy Act''), 
and corresponding changes at 5 CFR part 1303 governing requests and 
responses under the Freedom of Information Act, as amended, 5 U.S.C. 
552 (``FOIA''). 88 FR 87960 (Dec. 20, 2023). OMB received one comment 
in response to its proposed rule, specifically regarding the proposed 
revisions to OMB's FOIA regulations at 5 CFR part 1303. As described 
below, in this final rule OMB has made certain revisions, including in 
light of the helpful comment.

II. Response to Comment

    The commenter addressed three topics: (1) fees charged to ``all 
other requesters'' under proposed Sec.  1303.92(d); (2) FOIA's 
presumption of openness; and (3) FOIA's foreseeable harm standard.
    First, OMB proposed revisions to 5 CFR 1303.92 to track the FOIA 
statute with respect to the fees OMB charges requesters. See 5 U.S.C. 
552(a)(4)(A)(ii); see also id. 552(a)(4)(iv). The statute specifies 
different categories of fees for different categories of requesters: 
commercial use requesters are to be

[[Page 48822]]

charged ``for document search, duplication, and review,'' id. 
552(a)(4)(A)(ii)(I); certain educational or noncommercial scientific 
institutions and representatives of the news media are to be charged 
``for document duplication,'' id. 552(a)(4)(A)(ii)(II); and all other 
requesters are to be charged ``for document search and duplication,'' 
id. 552(a)(4)(A)(ii)(III). Consistent with the statutory standard, and 
as relevant here, OMB proposed that commercial use requesters be 
charged fees ``that recover the full direct costs of searching for, 
reviewing for release, and duplicating the record sought'' (proposed 
Sec.  1303.92(a)); that certain educational and noncommercial 
scientific institution requesters and representatives of the media be 
charged ``the cost of duplication alone'' (proposed Sec.  1303.92(b), 
(c)); and that all other requesters be charged ``the full reasonable 
direct cost of searching for and producing records'' (proposed Sec.  
1303.92(d)).
    The commenter pointed out that fees for document review are not to 
be charged under the statute's third category--all other requesters--
and suggested that OMB make that explicit, asserting that some other 
agencies improperly charge review fees to such requesters.
    OMB agrees that the category of all other requesters, see 5 U.S.C. 
552(a)(4)(A)(ii)(III), should not be charged fees for document review, 
and as proposed and finalized Sec.  1303.92(d) of OMB's regulations 
reflects that approach, intentionally omitting reference to review 
fees. The commenter's observation and suggestion have prompted OMB to 
clarify the language in Sec.  1303.92 in certain respects. Proposed 
paragraphs (a) through (c) used the term ``duplicating'' or 
``duplication,'' whereas proposed paragraph (d) used the term 
``producing,'' to refer to the same process. Additionally, proposed 
paragraphs (b) and (c) stated that OMB would provide records ``for the 
cost of duplication alone,'' and the term ``alone'' or a similar term 
did not appear in proposed paragraph (d) in a parallel way. OMB has 
therefore revised Sec.  1303.92 to eliminate any ambiguities and ensure 
consistency, including with the statutory language in 5 U.S.C. 
552(a)(4)(A). OMB has also made a few other clarifying revisions to 
Sec.  1303.92.
    Second, the commenter observed that a ``presumption of openness is 
a principle that guides the administration of FOIA'' and ``an integral 
part of the statute,'' and suggested that OMB include a statement about 
the presumption in its rules. Third, and relatedly, the commenter 
observed that the FOIA authorizes certain withholdings only when ``the 
agency reasonably foresees that disclosure would harm an interest 
protected by'' a FOIA exemption, 5 U.S.C. 552(a)(8)(A)(i), and 
suggested that OMB include a statement about this foreseeable harm 
standard in its rules. OMB acknowledges the importance of the 
presumption of openness, see, e.g., Department of Justice, Freedom of 
Information Act Guidelines at 1-2 (Mar. 15, 2022), https://www.justice.gov/ag/file/1208711-0/dl?inline, and the foreseeable harm 
standard, see 5 U.S.C. 552(a)(8)(A)(i), and will continue to apply both 
as OMB implements the FOIA. Because OMB's FOIA ``rules'' prescribe 
``the time, place, fees (if any), and procedures to be followed'' with 
respect to FOIA requests, consistent with the statute, 5 U.S.C. 
552(a)(3)(A), and are not intended to address other topics, OMB 
declines the commenter's suggestion to further revise its rules.

III. Additional Revisions

    OMB's proposed rule specifically requested comments regarding OMB's 
proposal, with respect to its Privacy Act regulations, to require 
verification of identity through approved OMB processes that will be 
described on OMB's privacy program web page. 88 FR 87962. While OMB 
received no comments on this issue, OMB has given further consideration 
to it generally and, in order to better protect personal identifiable 
information, has modified Sec. Sec.  1302.2 and 1302.5 to specify that 
Privacy Act requests should be submitted consistent with instructions 
on OMB's now operational web page for the agency's privacy program, 
www.whitehouse.gov/omb/privacy.

IV. Regulatory Certifications

    This rule is not a significant rule for purposes of Executive Order 
12866, as amended by Executive Order 14094. The Director of OMB, in 
accordance with the Regulatory Flexibility Act, 5 U.S.C. 605(b), has 
reviewed this rule and certifies that it will not have a significant 
economic impact on a substantial number of small entities. This rule 
will not result in the expenditure by state, local, and tribal 
governments, in the aggregate, or by the private sector, of 
$100,000,000 or more in any one year, and it will not significantly or 
uniquely affect small governments. Therefore, no written statement is 
necessary under the provisions of the Unfunded Mandates Reform Act of 
1995, 2 U.S.C. 1501 et seq.

List of Subjects in 5 CFR Parts 1302 and 1303

    Administrative practices and procedures, Archives and records, 
Freedom of information, Privacy.

    For the reasons set forth in the preamble, the Office of Management 
and Budget amends parts 1302 and 1303 of title 5 of the Code of Federal 
Regulations as follows:

0
1. Revise part 1302 to read as follows:

PART 1302--PRIVACY ACT PROCEDURES

Sec.
1302.1 General provisions.
1302.2 Requirements for making requests for access.
1302.3 Responsibility for responding to requests.
1302.4 Requests for an accounting.
1302.5 Requests for an amendment or correction.
1302.6 Appeals.
1302.7 Fees.

    Authority: 5 U.S.C. 552a.


Sec.  1302.1  General provisions.

    (a) Purpose and scope. This part implements the rules that the 
Office of Management and Budget (OMB) follows under the Privacy Act of 
1974, codified as amended at 5 U.S.C. 552a (Privacy Act). This part 
applies to all records in systems of records maintained by OMB that are 
retrieved by an individual's name or personal identifier. This part 
describes the procedures by which individuals may request access to 
records about themselves, request amendment or correction of those 
records, and request an accounting of disclosures of those records by 
OMB.
    (b) Definitions. As used in this part:
    Request for access to a record means a request made under 5 U.S.C. 
552a(d)(1).
    Request for amendment or correction of a record means a request 
made under 5 U.S.C. 552a(d)(2).
    Request for an accounting means a request made under 5 U.S.C. 
552a(c)(3).
    Requester means an individual who makes a request for access, a 
request for amendment or correction, or a request for an accounting 
under the Privacy Act. An individual is a citizen of the United States 
or an alien lawfully admitted for permanent residence.
    System manager means the OMB official identified in a system of 
records notice as the manager of a system of records; and for 
Government-wide systems of records, the individual designated by the 
agency to act on behalf of the system manager.
    (c) Providing written consent to disclose records protected under 
the

[[Page 48823]]

Privacy Act. OMB may disclose any record contained in a system of 
records by any means of communication to any person, or to another 
agency, pursuant to a written request by, or with the prior written 
consent of, the individual about whom the record pertains. An 
individual must verify the individual's identity in the same manner as 
required by Sec.  1302.2(d) when providing written consent to disclose 
a record protected under the Privacy Act and pertaining to the 
individual.


Sec.  1302.2  Requirements for making requests for access.

    (a) How made and addressed. You may make a Privacy Act request for 
access to an OMB record by mail or delivery service, to Privacy 
Officer, Office of Management and Budget, 725 17th Street NW, Room 
9204, Washington, DC 20503 or by electronic means as described on OMB's 
privacy program web page: www.whitehouse.gov/omb/privacy.
    (b) Description of the records sought. In making a request for 
access, you must describe the records that you want in enough detail to 
enable OMB to locate the system of records containing them with a 
reasonable amount of effort. Your access request should name the system 
of records or contain a concise description of such system of records. 
OMB publishes notices of OMB systems of records subject to the Privacy 
Act in the Federal Register.
    (c) Information about yourself. Your access request should also 
contain sufficient information to identify yourself in order to allow 
OMB to determine if there is a record pertaining to you in a particular 
system of records.
    (d) Verification of identity. To ensure that information about you 
is disclosed only to you or your authorized representative, you are 
required to verify your identity when making a Privacy Act request for 
access, as detailed in paragraphs (d)(1) through (3) of this section. 
If OMB cannot verify your identity, disclosure will be limited to 
information that would be required to be made available if requested 
under 5 U.S.C. 552 by any person.
    (1) You must state your name, current address, and date and place 
of birth and provide either a notarized statement of identity or a 
signed submission under 28 U.S.C. 1746; or
    (2) When available, verify your identity through remote identity-
proofing and authentication using digital processes.
    (3) OMB may require you to supply additional information as 
necessary in order to verify your identity.
    (e) Verification of guardianship. When making a request for access 
as the parent or guardian of a minor or as the guardian of someone 
determined by a court of competent jurisdiction to be incompetent, for 
access to records about that individual, you must establish the 
criteria listed in paragraphs (e)(1) through (4) of this section. If 
OMB cannot verify your identity, disclosure will be limited to 
information that would be required to be made available if requested 
under 5 U.S.C. 552 by any person.
    (1) The identity of the individual who is the subject of the 
record, by stating the name, current address, and date and place of 
birth;
    (2) Your own identity, as required in this paragraph (e);
    (3) That you are the parent or guardian of that individual, which 
you may prove by providing a copy of the individual's birth certificate 
showing your parentage or by providing a court order establishing your 
guardianship; and
    (4) That you are acting on behalf of that individual in making the 
request.
    (f) Submit identifying information only using approved OMB 
processes. In order to safeguard information you submit in making a 
request for access for purposes of verifying your identity or verifying 
guardianship, or any information about yourself that may assist in the 
rapid identification of the record to which you are requesting access 
(e.g., prior names, dates of employment, etc.) as well as any other 
identifying information contained in an OMB system of records, you must 
use one of OMB's approved processes as described on OMB's privacy 
program web page. Failure to submit identifying information through an 
OMB approved process may result in the failure to expunge your 
information in accordance with approved OMB records schedules after 
your access request has been processed.
    (g) Subsequent requests for access. If your request for access 
follows a prior request under this section, and you already provided 
appropriate verifications with that prior request, you do not need to 
include the same verification or identifying information in the 
subsequent request for access if you reference that prior request or 
attach a copy of the OMB response to that request.


Sec.  1302.3  Responsibility for responding to requests.

    (a) Acknowledgment of requests. OMB will acknowledge your request 
for access in writing and provide an individualized tracking number. 
Upon request, OMB will make information available to you about the 
status of your request using the assigned tracking number.
    (b) Timing of responses to a Privacy Act request for access. OMB 
will respond to Privacy Act requests for access to records according to 
the order in which OMB receives the requests. Consistent with OMB's 
FOIA procedures at 5 CFR 1303.40(b), OMB may designate multiple 
processing tracks that distinguish between simple and more complex 
Privacy Act requests for access, based on the estimated amount of work 
or time needed to process the request.
    (c) Additional information. If, after receiving a request, OMB 
determines that your request does not reasonably describe the records 
sought, OMB will inform you what additional information is needed and 
why the request is otherwise insufficient. If a request does not 
reasonably describe the records sought, OMB's response to the request 
may be delayed.
    (d) Grant of request for access. Once OMB makes a determination to 
grant a request for access, OMB will provide you a written response, 
which may include the following:
    (1) A statement as to whether OMB will grant access by providing a 
copy of the record through electronic means or the mail; and
    (2) The amount of fees charged, if any (see Sec.  1302.7). (Fees 
are applicable only to requests for duplicates.)
    (e) Adverse determination of request for access. OMB will notify 
you of an adverse determination denying a request for access in 
writing. Adverse determinations, or denials of requests, consist of: A 
determination to withhold any requested record in whole or in part; a 
determination that a requested record does not exist or cannot be 
located; a determination that what has been requested is not a record 
subject to the Privacy Act; a determination on any disputed fee matter; 
or a denial of a request for expedited treatment. OMB's notification 
letter to you will include:
    (1) The decision of OMB whether to grant in whole, or deny any part 
of the request;
    (2) The reasons for the determination for any portion of the 
request that is denied; and
    (3) A description of the procedure by which the OMB decision to 
deny your request may be appealed, including the name and address of 
the official with whom you may lodge such an appeal.

[[Page 48824]]

Sec.  1302.4  Requests for an accounting.

    You may request an accounting of disclosures by the same rules 
governing requests for access, outlined in Sec.  1302.2.


Sec.  1302.5  Requests for an amendment or correction.

    (a) Requirement for written requests. If you want to amend a record 
that pertains to you in a system of records maintained by OMB, you must 
submit your request in writing following the procedures established in 
this section unless the system manager waives the requirements in this 
section. OMB is not required to amend records that are not subject to 
the Privacy Act of 1974. However, individuals who believe that such 
records are inaccurate may bring this to the attention of OMB.
    (b) Procedures. (1) You should address your request to amend a 
record in a system of records to the system manager. You should include 
the name of the system and a brief description of the record proposed 
for amendment. If the request to amend the record is the result of you 
gaining access to the record in accordance with the provisions 
concerning access to records as set forth in Sec.  1302.2, you may 
attach a copy of previous correspondence between you and OMB instead of 
providing a separate description of the record.
    (2) If a requester cannot determine where within OMB to send the 
Privacy Act request to amend a record, the requester may send by mail 
or delivery to Privacy Officer, Office of Management and Budget, 725 
17th Street NW, Room 9204, Washington, DC 20503 or by electronic means 
as described on OMB's privacy program web page: www.whitehouse.gov/omb/privacy. OMB will forward the request to the component(s) it believes 
most likely to have the relevant records. For the quickest possible 
handling, the requester should specify ``Privacy Act Record Amendment 
Request'' on the letter.
    (3) You must validate your identity as described in Sec.  
1302.2(e). If OMB has previously verified your identity pursuant to 
Sec.  1302.2(e), further verification of identity is not required as 
long as the communication does not suggest that a need for verification 
is present.
    (4) You should clearly indicate the exact portion of the record you 
seek to have amended. If possible, you should also propose alternative 
language, or at a minimum, identify the facts that you believe are not 
accurate, relevant, timely, or complete, with such particularity as to 
permit OMB not only to understand the basis for your request, but also 
to make an appropriate amendment to the record.
    (5) Your request must also state why you believe your record is not 
accurate, relevant, timely, or complete. The burden of persuading OMB 
to amend a record will be upon you. You must furnish sufficient facts 
to persuade the official in charge of the system of the inaccuracy, 
irrelevancy, timeliness, or incompleteness of the record.
    (6) OMB will not categorically reject incomplete or inaccurate 
requests. OMB will ask you to clarify the request as needed.
    (c) OMB action on the request. (1) OMB will acknowledge, in 
writing, receipt of a request to amend a record within 10 business days 
(i.e., excluding Saturdays, Sundays, and legal Federal holidays) of 
OMB's receipt.
    (2) OMB will promptly respond to a Privacy Act request for 
amendment or correction. OMB ordinarily will respond to Privacy Act 
requests for amendment or correction according to their order of 
receipt. Consistent with OMB's FOIA procedures at 5 CFR 1303.40(b), OMB 
may designate multiple processing tracks that distinguish between 
simple and more complex Privacy Act requests for amendment or 
correction, based on the estimated amount of work or time needed to 
process the request. The response reflecting the decision upon a 
request for amendment will include the following:
    (i) The decision of OMB whether to grant in whole, or deny any part 
of, the request to amend the record;
    (ii) The reasons for the determination for any portion of the 
request which is denied; and
    (iii) A description of the procedure by which the OMB decision to 
deny your request may be appealed, including the name and address of 
the official with whom you may lodge such an appeal.


Sec.  1302.6  Appeals.

    (a) If you wish to appeal a decision by OMB with regard to your 
request to access or amend a record in accordance with the provisions 
of Sec. Sec.  1302.2 and 1302.5, you should submit the appeal in 
writing and, to the extent possible, include the information specified 
in paragraph (b) of this section.
    (b) Your appeal should contain a brief description of the record 
involved or copies of the correspondence from OMB in which the request 
to access or to amend was denied and also the reasons why you believe 
that access should be granted or the information amended, as relevant. 
Your appeal should refer to the information you furnished in support of 
your claim and the reasons set forth by OMB in its decision denying 
access or amendment, as required by Sec. Sec.  1302.2 and 1302.5. In 
order to make the appeal process as meaningful as possible, you should 
set forth your disagreement in an understandable manner. In order to 
avoid the unnecessary retention of personal information, OMB reserves 
the right to dispose of the material concerning the request to access 
or amend a record if OMB receives no appeal in accordance with this 
section within 180 days of the sending by OMB of its decision upon an 
initial request. OMB may treat an appeal received after the 180-day 
period as an initial request to access or amend a record.
    (c) You may send your appeal by mail or delivery to the Senior 
Agency Official for Privacy, Office of Management and Budget, 725 17th 
Street NW, Room 9204, Washington, DC 20503 or by electronic means as 
described on OMB's privacy program web page: www.whitehouse.gov/omb/privacy. For the quickest possible handling, the requester should 
specify ``Privacy Act Record Appeal'' on the letter.
    (d) The Senior Agency Official for Privacy will review a refusal to 
amend a record within 30 business days (excluding Saturdays, Sundays, 
and legal Federal holidays) from the date on which the individual 
requests such review, unless the OMB Director extends the 30-day period 
for good cause. If the Senior Agency Official for Privacy's decision 
does not grant in full the request, the notice of the decision will 
describe the steps you may take to obtain judicial review of such a 
decision.


Sec.  1302.7  Fees.

    (a) Prohibitions against charging fees for Privacy Act requests. 
OMB will not charge you for:
    (1) The search and review of requests for records subject to this 
part;
    (2) Any copies of the record produced as a necessary part of the 
process of making the record available for access; or
    (3) Any copies of the requested record when OMB determines that the 
only way you can access the record is by providing a copy to you 
through the mail.
    (b) Waiver. OMB may at no charge provide copies of a record if it 
is determined the production of the copies is in the interest of the 
Government.
    (c) Fee schedule and method of payment. OMB will charge fees as 
provided in paragraphs (c)(1) through (5) of this section except as 
provided in paragraphs (a) and (b) of this section.
    (1) OMB will duplicate records at a rate of $.10 per page for all 
copying of

[[Page 48825]]

4 pages or more. There is no charge for duplication 3 or fewer pages.
    (2) Where OMB anticipates that the fees chargeable under this 
section will amount to more than $25.00, OMB shall promptly notify you 
of the amount of the anticipated fee or such portion thereof as can 
readily be estimated. If the estimated fees will greatly exceed $25.00, 
OMB may require an advance deposit. OMB's request for an advance 
deposit shall extend an offer to the requester to consult with OMB 
personnel in order to reformulate the request in a manner which will 
reduce the fees, yet still meet the needs of the requester.
    (3) You should pay fees in full before the requested copies are 
issued. If the requester is in arrears for previous requests, OMB will 
not provide copies for any subsequent request until the arrears have 
been paid in full.
    (4) Remittances shall be in the form either of a personal check or 
bank draft drawn on a bank in the United States, or a postal money 
order. Remittances shall be made payable to the order of the Treasury 
of the United States and mailed or delivered to the Assistant Director 
for Management and Operations, Office of Management and Budget, 
Washington, DC 20503.
    (5) OMB will provide a receipt for fees paid upon request.

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

0
2. The authority citation for part 1303 continues to read as follows:

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


0
3. Amend Sec.  1303.3 by revising paragraph (a)(5) to read as follows:


Sec.  1303.3  Organization.

    (a) * * *
    (5) Statutory offices include the Office of Federal Financial 
Management; Office of Federal Procurement Policy; Office of E-
government and Information Technology; Made in America Office; and 
Office of Information and Regulatory Affairs.
* * * * *

0
4. Revise Sec.  1303.20 to read as follows:


Sec.  1303.20  Where to send requests.

    The FOIA Officer is responsible for acting on all initial requests. 
Individuals wishing to file a request under the FOIA should address 
their request in writing to FOIA Officer, Office of Management and 
Budget, 725 17th Street NW, Room 9272, Washington, DC 20503, via fax to 
(202) 395-3504, by email at [email protected], or the Government-wide 
FOIA.gov portal. Requesters must provide contact information sufficient 
to enable OMB to communicate with the requester. Additionally, OMB's 
FOIA Public Liaison is available to assist requesters who have 
questions and can be reached at (202) 395-FOIA or in writing at the 
address provided in this section.

0
5. Revise Sec.  1303.21 to read as follows:


Sec.  1303.21  Requesters making requests about themselves or on behalf 
of others.

    In order to obtain greater access to records, a requester who is 
making a request for records about the requester or on behalf of 
another individual must comply with the verification of identity 
requirements as determined by OMB pursuant to OMB's requirements for 
making requests for access in 5 CFR part 1302. OMB may require a 
requester to supply additional information as necessary in order to 
verify the identity of the requester or to verify that a particular 
individual has consented to disclosure.

0
6. Amend Sec.  1303.30 by revising paragraphs (c)(2)(i) and (ii) to 
read as follows:


Sec.  1303.30  Responsibility for responding to requests.

* * * * *
    (c) * * *
    (2) * * *
    (i) When OMB believes that a different agency is best able to 
determine whether to disclose the record, OMB will refer the 
responsibility for responding to the request regarding that record to 
that agency, will notify the requester, and will inform them of the 
agency which will be processing the record, including that agency's 
FOIA contact information. Ordinarily, the agency that originated the 
record is best situated to make the disclosure determination. However, 
if OMB and the originating agency jointly agree that OMB is in the best 
position to respond regarding the record, then OMB may respond to the 
requester.
    (ii) When OMB believes that a different agency is best able to 
determine whether to disclose the record, but also believes that 
disclosure of the identity of the different agency could harm an 
interest protected by an applicable FOIA exemption, such as the 
exemptions that protect personal privacy or national security 
interests, OMB will coordinate with the originating agency to seek its 
views on the disclosability of the record and convey the release 
determination for the record that is the subject of the coordination to 
the requester. For example, if a non-law enforcement agency responding 
to a request for records on a living third party locates within its 
files records originating with a law enforcement agency, and if the 
existence of that law enforcement interest in the third party was not 
publicly known, then to disclose that law enforcement interest could 
cause an unwarranted invasion of the personal privacy of the third 
party. Similarly, if an agency locates within its files material 
originating with an Intelligence Community agency, and the involvement 
of that agency in the matter is classified and not publicly 
acknowledged, then to disclose or give attribution to the involvement 
of that Intelligence Community agency could cause national security 
harms.

0
7. Amend Sec.  1303.40 by revising paragraphs (e)(1)(iv) and (e)(4) to 
read as follows:


Sec.  1303.40  Timing of responses to requests.

* * * * *
    (e) * * *
    (1) * * *
    (iv) There are possible questions, in a matter of widespread and 
exceptional public interest, about the Government's integrity which 
affect public confidence.
* * * * *
    (4) OMB will decide whether to grant a request for expedited 
processing and will notify the requester within 10 calendar days after 
the date of the request. If a request for expedited treatment is 
granted, OMB will prioritize the underlying FOIA request, place the 
request in the processing track for expedited requests, and process the 
request as soon as practicable. If a request for expedited processing 
is denied, any appeal of that decision will be acted on expeditiously.

0
8. Amend Sec.  1303.50 by revising paragraphs (a), (c) introductory 
text, and (c)(4) to read as follows:


Sec.  1303.50  Responses to requests.

    (a) Acknowledgments of requests. OMB will assign an individualized 
tracking number to each request received that will take longer than ten 
days to process; and acknowledge each request, informing the requester 
of their tracking number if applicable; and, upon request, make 
available information about the status of a request to the requester 
using the assigned tracking number, including--
    (1) The date on which OMB originally received the request; and
    (2) An estimated date on which OMB will complete action on the 
request.
* * * * *

[[Page 48826]]

    (c) Adverse determinations of requests. Adverse determinations, or 
denials of requests, include decisions that the requested record is 
exempt, in whole or in part; the request does not reasonably describe 
the records sought; 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. Adverse determinations 
also include denials involving fees or fee waiver matters or denials of 
requests for expedited processing. In the case of an adverse 
determination, the FOIA Officer will immediately notify the requester 
of--
* * * * *
    (4) OMB's estimate of the volume of any requested records OMB is 
withholding, unless providing such estimate would harm an interest 
protected by the exemption in 5 U.S.C. 552(b) under which the 
withholding is being made.

0
9. Amend Sec.  1303.60 by revising paragraphs (a)(2) and (e)(2) to read 
as follows:


Sec.  1303.60  Notification procedures for confidential commercial 
information.

    (a) * * *
    (2) Submitter means any person or entity, including a corporation, 
State, or foreign government, but not including another Federal 
Government entity, that provides confidential commercial information, 
either directly or indirectly, to the Federal Government.
* * * * *
    (e) * * *
    (2) If a submitter has any objections to disclosure, it should 
provide OMB a detailed written statement that specifies all grounds for 
withholding the particular information under any exemption of the FOIA. 
In order to rely on Exemption 4 as basis for nondisclosure, the 
submitter must explain why the information constitutes a trade secret 
or commercial or financial information that is privileged or 
confidential. OMB is not required to consider any information received 
after the date of any disclosure decision.
* * * * *

0
10. Amend Sec.  1303.70 by revising paragraph (a) to read as follows:


Sec.  1303.70  Appeals.

    (a) A requester must appeal to the head of OMB in writing within 90 
calendar days after the date of such adverse determination addressed to 
the FOIA Officer at the address specified in Sec.  1303.20. The appeal 
must include a statement explaining the basis for the appeal. 
Determinations of appeals will be set forth in writing and signed by 
the Deputy Director, or their designee, within 20 working days. If on 
appeal the denial is upheld in whole or in part, the written 
determination will also contain a notification of the provisions for 
judicial review, the names of the persons who participated in the 
determination, and notice of the services offered by OGIS as a non-
exclusive alternative to litigation.
* * * * *

0
11. Amend Sec.  1303.91 by revising the introductory text and paragraph 
(i) to read as follows:


Sec.  1303.91  Fees to be charged--general.

    OMB will charge fees that recoup the full allowable direct costs it 
incurs. Moreover, it will use the most efficient and least costly 
methods to comply with requests for documents made under the FOIA. For 
example, employees should not engage in line-by-line search when merely 
duplicating an entire document would prove the less expensive and 
quicker method of complying with a request. Search should be 
distinguished, moreover, from review of material in order to determine 
whether the material is exempt from disclosure. When documents that 
would be responsive to a request are maintained for distribution by 
agencies operating statutory-based fee schedule programs (see 5 U.S.C. 
552(a)(4)(A)(vi)), such as the National Technical Information Service, 
OMB will inform requesters of the steps necessary to obtain records 
from those sources.
* * * * *
    (i) No Fees under $25. No fee will be charged when the total fee, 
after deducting the first 100 free pages (or its cost equivalent) and 
the first two hours of search, is equal to or less than $25. If OMB 
estimates that the charges are likely to exceed $25, it will notify the 
requester of the estimated amount of fees, unless the requester has 
indicated in advance their willingness to pay fees as high as those 
anticipated. Such a notice shall offer a requester the opportunity to 
confer with agency personnel to meet the requester's needs at a lower 
cost.

0
12. Amend Sec.  1303.92 by revising paragraphs (a) through (d) to read 
as follows:


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

* * * * *
    (a) Commercial use requesters. When OMB receives a request for 
documents for commercial use, it will assess charges that recover the 
full direct costs of searching for, reviewing for release, and 
duplicating the record sought. Commercial use requesters are entitled 
to neither two hours of free search time nor 100 free pages of 
duplication of documents. OMB may recover the cost of searching for and 
reviewing records even if there is ultimately no disclosure of records 
(see Sec.  1303.93(b)).
    (b) Educational and noncommercial scientific institution 
requesters. OMB will provide documents to educational and noncommercial 
scientific institution requesters that meet the criteria in Sec.  
1303.90(f) or (g) for the cost of duplication alone, excluding charges 
for the first 100 pages. OMB may seek evidence from the requester that 
the request is in furtherance of scholarly research and will advise 
requesters of their determination whether the requester has met the 
criteria in Sec.  1303.90(f) or (g).
    (c) Requesters who are representatives of the news media. OMB will 
provide documents to requesters who are representatives of the news 
media that meet the criteria in Sec.  1303.90(h) and (i), and that do 
not make the request for commercial use, for the cost of duplication 
alone, excluding charges for the first 100 pages.
    (d) All other requesters. OMB will charge requesters who do not fit 
into any of the categories described in paragraphs (a) through (c) of 
this section fees that recover only the full reasonable direct cost of 
searching for and duplicating records that are responsive to the 
request, except that the first 100 pages of duplication and the first 
two hours of search time will be furnished without charge. Moreover, 
requests for records about the requesters filed in OMB's systems of 
records will continue to be treated under the fee provisions of the 
Privacy Act of 1974, which permit fees only for producing copies of 
records

0
13. Amend Sec.  1303.93 by revising paragraph (a), the first sentence 
of paragraph (c), and paragraph (d)(1) to read as follows:


Sec.  1303.93  Miscellaneous fee provisions.

    (a) Charging interest--notice and rate. OMB may begin assessing 
interest charges on an unpaid bill starting on the 31st day after OMB 
sends the bill. If OMB receives the fee within the thirty-day grace 
period, interest will not accrue on the paid portion of the bill, even 
if the payment is unprocessed. Interest will be at the rate prescribed 
in 31 U.S.C. 3717 and will accrue from the date of the billing.
* * * * *

[[Page 48827]]

    (c) * * * When OMB reasonably believes that a requester, or a group 
of requesters acting in concert, is attempting to divide a single 
request into a series of requests for the purpose of avoiding fees, OMB 
may aggregate those requests and charge fees accordingly. * * *
    (d) * * *
    (1) OMB will not require a requester to make an advance payment, 
i.e., payment before work is commenced or continued on a request, 
unless OMB estimates or determines that allowable charges that a 
requester may be required to pay will exceed $250 or the requester has 
previously failed to make a payment due within 30 days of billing.
* * * * *

Shraddha A. Upadhyaya,
Associate General Counsel, Office of Management and Budget.
[FR Doc. 2024-12667 Filed 6-7-24; 8:45 am]
BILLING CODE 3110-01-P