[Federal Register Volume 64, Number 140 (Thursday, July 22, 1999)]
[Rules and Regulations]
[Pages 39404-39414]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-17966]


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NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

14 CFR Part 1206

RIN 2700-AC36


Availability of Agency Records to Members of the Public

AGENCY: National Aeronautics and Space Administration (NASA).

ACTION: Final rule

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SUMMARY: This action amends 14 CFR Part 1206, ``Availability of Agency 
Records to Members of the Public,'' by making administrative changes to 
conform with requirements made by the Electronic Freedom of Information 
Act of 1996 as amended.

EFFECTIVE DATE: July 22, 1999.

ADDRESSES: Freedom of Information Act Officer, Code PO, NASA 
Headquarters, Washington, DC 20546.

FOR FURTHER INFORMATION CONTACT: Patricia M. Riep-Dice, 202/358-1764, 
or Sharon Smith, 202/358-2465.

SUPPLEMENTARY INFORMATION: The National Aeronautics and Space 
Administration last published a Final Rule to revise its Freedom of 
Information Act (FOIA) regulations on October 29, 1987, 52 FR 41406-
41416, Title 14 CFR Chapter V, Part 1206. This new amendment to NASA's 
regulation implementing the FOIA is required by the EFOIA of 1996 as 
amended by Pub. L. 104-231. The amendments made include changing the 
processing time from 10 working days to 20 working days; to include 
electronic searches as well as manual searches; the addition of FOIA e-
mail addresses for all of the NASA FOIA Offices; the establishment of 
an electronic FOIA reading room on all of NASA's FOIA Homepages on the 
Internet; an increase in the schedule of fees and to address and 
explain how records of NASA will be reviewed and released when the 
records are maintained in electronic format. However, documentation not 
previously subject to the FOIA when maintained in nonelectronic format 
is not made subject to FOIA by this new amendment. It has been 
determined that this addition is not a significant regulatory action 
and it will not:
    (1) Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy; a section of the 
economy; productivity; competition; jobs; the environment; public 
health or safety; or State, local or tribal governments or communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs, or the rights and obligations of 
recipients thereof;
    (4) Have a significant economic impact on a substantial number of 
small entities; or
    (5) Impose any reporting or record keeping requirements under the 
Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35).
    For the reasons set forth in the preamble, NASA amends 14 CFR 
chapter V by revising part 1206 to read as follows:

PART 1206--AVAILABILITY OF AGENCY RECORDS TO MEMBERS OF THE PUBLIC

Sec.

Subpart 1-- Basic Policy

1206.100  Scope of part.
1206.101  Definitions.
1206.102  General policy.

Subpart 2--Records Available

1206.200  Types of records to be made available.
1206.201  Records which have been published.
1206.202  Deletion of segregable portions of a record.
1206.203  Creation of records.
1206.204  Records of interest to other agencies.
1206.205  Incorporation by reference.
1206.206  Availability for copying.
1206.207  Copies.
1206.208  Release of exempt records.

Subpart 3--Exemptions

1206.300  Exemptions.
1206.301  Limitation of exemptions.

Subpart 4--Location for Inspection and Request of Agency Records

1206.400  Information Centers.
1206.401  Location of NASA Information Centers.
1206.402  Documents available for inspection at NASA Information 
Centers.
1206.403  Duty hours.

Subpart 5--Responsibilities

1206.500  Associate Deputy Administrator.
1206.501  General Counsel.
1206.502  Centers and Components.
1206.503  NASA Headquarters.
1206.504  Inspector General.
1206.505  Delegation of authority.

Subpart 6--Procedures

1206.600  Requests for records.
1206.601  Mail, fax and e-mail requests.
1206.602  Requests in person.
1206.603  Procedures and time limits for initial determinations.
1206.604  Request for records that exist elsewhere.
1206.605  Appeals.
1206.606  Requests for additional records.
1206.607  Actions on appeals.
1206.608  Time extensions in unusual circumstances.
1206.609  Litigation.
1206.610  Notice to submitters of commercial information.

Subpart 7--Search, Review, and Duplication Fees

1206.700  Schedule of fees.
1206.701  Categories of requesters.
1206.702  Waiver or reduction of fees.
1206.703  Aggregation of requests.
1206.704  Advance payments.
1206.705  Form of payment.
1206.706  Nonpayment of fees.

Subpart 8--Failure to Release Records to the Public

1206.800  Failure to release records to the public.

Subpart 9--Annual Report

1206.900  Requirements for annual report.

    Authority: 5 U.S.C. 552, 552a; 42 U.S.C. 2473.

Subpart 1--Basic Policy


Sec. 1206.100  Scope of Part.

    This Part 1206 establishes the policies, responsibilities, and 
procedures for the release of Agency records which are under the 
jurisdiction of the National Aeronautics and Space Administration, 
hereinafter NASA, to members of the public. This part applies to 
information and Agency records located at NASA Headquarters, at NASA 
Centers, and at NASA Component, as defined in Part 1201 of this 
chapter.


Sec. 1206.101  Definitions.

    For the purposes of this part, the following definitions shall 
apply:
    (a) The term Agency records or records means any information that 
would be an Agency record subject to

[[Page 39405]]

the requirements of the Freedom of Information Act (FOIA) when 
maintained by NASA in any format, including an electronic format. Such 
information includes all books, papers, maps, photographs, or other 
documentary materials made or received by NASA in pursuance of Federal 
law or in connection with the transaction of public business and 
preserved by NASA as evidence of the organization, functions, policies, 
decisions, procedures, operations, or other activities or because of 
the informational value of data contained therein. It does not include 
tangible objects or articles, such as structures, furniture, paintings, 
sculptures, exhibits, models, vehicles or equipment; library or museum 
material made or acquired and preserved solely for reference or 
exhibition purposes; or records of another agency, a copy of which may 
be in NASA's possession.
    (b) The term initial determination means a decision by a NASA 
official, in response to a request by a member of the public for an 
Agency record, on whether the record described in the request can be 
identified and located after a reasonable search and, if so, whether 
the record (or portions thereof) will be made available under this part 
or will be withheld from disclosure under Subpart 3 of this part.
    (c) The term appeal means a request by a member of the public, 
hereinafter requester, to the Administrator or designee, or, in the 
case of records as specified in Sec. 1206.504, to the Inspector General 
or designee for reversal of any adverse initial determination the 
requester has received in response to a request for an Agency record.
    (d) The term final determination means a decision by the 
Administrator or designee, or, in the case of records as specified in 
Sec. 1206.504, by the Inspector General or designee on an appeal.
    (e) The term working days means all days except Saturdays, Sundays, 
and Federal holidays.
    (f) As used in Sec. 1206.608, the term unusual circumstance means, 
but only to the extent reasonably necessary to the proper processing of 
a particular request for Agency records--
    (1) The need to search for and collect the requested records from 
NASA Centers or other establishments that are separate from the NASA 
Information Center processing the request (see Subpart 6 of this part 
for procedures for processing a request for Agency records);
    (2) 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
    (3) 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 
NASA having substantial subject-matter interest therein.
    (g) A statute specifically providing for setting the level of fees 
for particular types of records (5 U.S.C. 552(a)(4)(A)(vi)) means any 
statute that specifically requires a government agency to set the level 
of fees for particular types of records in order to:
    (1) Serve both the general public and private sector organizations 
by conveniently making available government information;
    (2) Ensure that both groups and individuals pay the cost of 
publications and other services that are for their special use so that 
these costs are not borne by the general taxpaying public;
    (3) Operate, to the maximum extent possible an information 
dissemination activity on a self-sustaining basis (to the maximum 
extent possible); or
    (4) Return revenue to the Treasury for defraying, wholly or in 
part, appropriated funds used to pay the cost of disseminating 
government information.
    (h) The term direct costs means those expenditures that NASA 
actually incurs in searching for, duplicating, and downloading computer 
files and documents in response to a FOIA request. Direct costs 
include, for example, the salary of the employee who would ordinarily 
perform the work (the basic rate of pay for the employee plus 16 
percent of that rate to cover benefits) and the cost of operating 
duplicating machinery. Direct costs do not include overhead expenses 
such as costs of space, heating, or lighting in the records storage 
facility.
    (i) The term search includes all time spent looking for material 
that is responsive to a request, including page-by-page or line-by-line 
identification of material within documents. A search for Agency 
records that are responsive to the request may be accomplished by 
manual or automated means. NASA will make reasonable efforts to search 
for records in electronic form or format, except when such efforts 
would significantly interfere with the operation of NASA's automated 
information systems. NASA will ensure that searching for material is 
done in the most efficient, least expensive manner so as to minimize 
costs for both the Agency and the requester and will only utilize line-
by-line, page-by-page search when consistent with this policy. Search 
should be distinguished, however, from review of material in order to 
determine whether the material is exempt from disclosure (see paragraph 
(k) of this section).
    (j) The term duplication means the process of making a copy of a 
document in order to respond to a FOIA request. Such copies can take 
the form of paper copy, electronic forms, microfilm, audio-visual 
materials, or machine-readable documentation (e.g., magnetic tape on 
disk), among others.
    (k) The term review means the process of examining documents 
located in response to a request (see paragraph (l) of this section) to 
determine whether any portion of any document located is permitted to 
be withheld. It also includes processing any documents for disclosure, 
e.g., doing all that is necessary to excise them and otherwise prepare 
them for release. Review does not include time spent resolving general 
legal or policy issues regarding the application of exemptions.
    (l) The term commercial use request means a request from or on 
behalf of one whom seeks information for a use or purpose that furthers 
the commercial, trade, or profit interests of either the requester or 
the person on whose behalf the request is made. In determining whether 
a requester properly belongs in this category, NASA will look first to 
the use to which a requester will put the documents requested. When 
NASA has reasonable cause to doubt the use to which a requester will 
put the records sought or when the use is not clear from the request 
itself, NASA will ask the requester to further clarify the immediate 
use for the requested records. A request from a corporation (not a news 
media corporation) may be presumed to be for commercial use unless the 
requester demonstrates that it qualifies for a different fee category.
    (m) The term educational institution refers to a preschool, a 
public or private elementary or secondary school, an institution of 
graduate higher education, an institution of undergraduate higher 
education, an institution of professional education, and an institution 
of vocational education, operating a program or programs of scholarly 
research.
    (n) The term noncommercial scientific institution refers to an 
institution that is not operated on a commercial basis as that term is 
referenced in paragraph (l) of this section, and which is operated 
solely for the purpose of conducting scientific research, the results 
of which are not intended to promote any particular product or 
industry.
    (o) The term representative of the news media means any person 
actively

[[Page 39406]]

gathering news for an entity that publishes, broadcasts, or makes news 
available to the public. The term news means information about events 
that would be of interest to the public. Examples of news media 
include, but are not limited to, television or radio stations 
broadcasting to the public at large, publishers of periodicals who make 
their products available for purchase or subscription by the general 
public (but only in those instances when they can qualify as 
disseminators of news), and entities that disseminate news to the 
general public through telephone, computer or other telecommunications 
methods. Moreover, as traditional methods of news delivery evolve 
(e.g., electronic dissemination of newspapers through 
telecommunications services), such alternative media would be included 
in this category. In the case of freelance journalists, they may be 
regarded as working for a news organization if they can demonstrate a 
solid basis for expecting publication through that organization, even 
though not actually employed by it. A publication contract would be the 
clearest proof, but NASA may also look to the past publication record 
of a requester in making this determination.
    (p) The term commercial information means, for the purpose of 
applying the notice requirements of Sec. 1206.610, information provided 
by a submitter and in the possession of NASA, that may arguably be 
exempt from disclosure under the provisions of Exemption 4 of the FOIA 
(5 U.S.C. 552(b)(4)). The meaning ascribed to this term for the purpose 
of this notice requirement is separate and should not be confused with 
use of this or similar terms in determining whether information 
satisfies one of the elements of Exemption 4.
    (q) The term submitter means a person or entity that is the source 
of commercial information in the possession of NASA. The term submitter 
includes, but is not limited to, corporations, state governments, and 
foreign governments. It does not include other Federal Government 
agencies or departments.
    (r) The term compelling need means:
    (1) That a failure to obtain requested records on an expedited 
basis could reasonably be expected to pose an imminent threat to the 
life or physical safety of an individual; or
    (2) With respect to a request made by a person primarily engaged in 
disseminating information, urgency to inform the public concerning 
actual or alleged Federal government activity.
    (s) The term electronic reading room means a World Wide Web site 
from which members of the public can access information regarding 
activities, missions, organizations, publications, or other material 
related to NASA's congressional mandate.


Sec. 1206.102  General policy.

    (a) In accordance with section 203(a)(3) of the National 
Aeronautics and Space Act of 1958 (42 U.S.C. 2473(a)(3)), it has been 
and continues to be NASA policy to provide for the ``widest practicable 
and appropriate dissemination of information concerning its activities 
and the results thereof.''
    (b) In compliance with the Freedom of Information Act, as amended 
(5 U.S.C. 552), a positive and continuing obligation exists for NASA to 
make available to the fullest extent practicable upon request by 
members of the public all Agency records under its jurisdiction, as 
described in Subpart 2 of this part, except to the extent that they may 
be exempt from disclosure under Subpart 3 of this part.

Subpart 2--Records Available


Sec. 1206.200  Types of records to be made available.

    (a) Records required to be published in the Federal Register. The 
following records are required to be published in the Federal Register, 
for codification in Title 14, Chapter V, of the CFR.
    (1) Description of NASA Headquarters and NASA Centers and the 
established places at which, the employees from whom, and the methods 
whereby, the public may secure information, make submittals or 
requests, or obtain decisions;
    (2) Statements of the general course and method by which NASA's 
functions are channeled and determined, including the nature and 
requirements of all formal and informal procedures available;
    (3) Rules of procedure, descriptions of forms available or the 
places at which forms may be obtained, and instructions regarding the 
scope and contents of all papers, reports, or examinations;
    (4) Substantive rules of general applicability adopted as 
authorized by law, and statements of general policy or interpretations 
of general applicability formulated and adopted by NASA;
    (5) Each amendment, revision, or repeal of the foregoing.
    (b) Agency opinions, orders, statements, and manuals.
    (1) Unless they are exempt from disclosure under Subpart 3 of this 
part, or unless they are promptly published and copies offered for 
sale, NASA shall make available the following records for public 
inspection and copying or purchase:
    (i) All final opinions (including concurring and dissenting 
opinions) and all orders made in the adjudication of cases;
    (ii) Those statements of NASA policy and interpretations which have 
been adopted by NASA and are not published in the Federal Register;
    (iii) Administrative staff manuals (or similar issuances) and 
instructions to staff that affect a member of the public;
    (iv) Copies of all records, regardless of form or format, which 
have been released to any person under subpart 6 herein and which, 
because of the nature of their subject matter, the Agency determines 
have become or are likely to become the subject of subsequent requests 
for substantially the same records.
    (v) A general index of records referred to under paragraph 
(b)(1)(iv) of this section.
    (2) (i) For records created after November 1, 1997, which are 
covered by paragraph (b)(l)(i) through (b)(l)(v) of this section, such 
records shall be available electronically, through an electronic 
reading room and in electronic forms or formats.
    (ii) In connection with all records required to be made available 
or published under this paragraph (b), identifying details shall be 
deleted to the extent required to prevent a clearly unwarranted 
invasion of personal privacy. However, in each case the justification 
for the deletion shall be explained fully in writing. The extent of 
such deletion shall be indicated on the portion of the record which is 
made available or published, unless including that indication would 
harm an interest protected by an exemption in Subpart 3. If technically 
feasible, the extent of the deletion shall be indicated at the place in 
the record where the deletion is made.
    (c) Other Agency records.
    (1) In addition to the records made available or published under 
paragraphs (a) and (b) of this section, NASA shall, upon request for 
other records made in accordance with this part, make such records 
promptly available to any person, unless they are exempt from 
disclosure under Subpart 3 of this part, or unless they may be 
purchased from other readily available sources, as provided in 
Sec. 1206.201.
    (2) Furthermore, at a minimum, NASA will maintain in its electronic 
reading room records created after November 1, 1997, under paragraphs 
(b)(1)(iv) and (v) and a guide for

[[Page 39407]]

requesting records or information from NASA. Such guide shall include 
all NASA major information systems, a description of major information 
and record locator systems, and a handbook for obtaining various types 
and categories of NASA public information through the FOIA.


Sec. 1206.201  Records which have been published.

    Publication in the Federal Register is a means of making certain 
Agency records are available to the public. NASA has a FOIA Electronic 
Reading Room at NASA Headquarters and each of its Centers. Also, the 
Commerce Business Daily, Synopsis of U.S. Government Proposed 
Procurement, Sales and Contract Awards (Department of Commerce) is a 
source of information concerning Agency records or actions. Various 
other NASA publications and documents, and indexes thereto, are 
available from other sources, such as the U.S. Superintendent of 
Documents, the National Technical Information Service (Department of 
Commerce), and the Earth Resources Observation Systems Data Center 
(Department of the Interior). Such publications and documents are not 
required to be made available or reproduced in response to a request 
unless they cannot be purchased readily from available sources. If a 
publication or document is readily available from a source other than 
NASA, the requester shall be informed of the procedures to follow to 
obtain the publication or document.


Sec. 1206.202  Deletion of segregable portions of a record.

    If a record requested by a member of the public contains both 
information required to be made available and that which is exempt from 
disclosure under Subpart 3 of this part, and the portion of the records 
that is required to be made available is reasonably segregable from the 
portion that is exempt, the portion that is exempt from disclosure 
shall be deleted and the balance of the record shall be made available 
to the requester. If the nonexempt portion of the record appears to be 
unintelligible or uninformative, the requester shall be informed of 
that fact, and such nonexempt portion shall not be sent to the 
requester unless thereafter specifically requested. If technically 
feasible, the amount of information deleted shall be indicated on the 
released portion of the record, unless including that indication would 
harm an interest protected by the exemption in Subpart 3 under which 
the deletion is made.


Sec. 1206.203  Creation of records.

    Records will not be created by compiling selected items from the 
files at the request of a member of the public, nor will records be 
created to provide the requester with such data as ratios, proportions, 
percentages, frequency distributions, trends, correlations, or 
comparisons.


Sec. 1206.204  Records of interest to other agencies.

    If a NASA record is requested and another agency has a substantial 
interest in the record, such an agency shall be consulted on whether 
the record shall be made available under this part (see 
Sec. 1206.101(f)(3)). If a record is requested that is a record of 
another agency, the request shall be returned to the requester, as 
provided in Sec. 1206.604(c) unless NASA has possession and control of 
the record requested.


Sec. 1206.205  Incorporation by reference.

    Records reasonably available to the members of the public affected 
thereby, shall be deemed published in the Federal Register when 
incorporated by reference in material published in the Federal Register 
(pursuant to the Federal Register regulation on incorporation by 
reference, 1 CFR Part 51).


Sec. 1206.206  Availability for copying.

    Except as provided in Sec. 1206.201, the availability of a record 
for inspection shall include the opportunity to extract information 
therefrom or to purchase copies.


Sec. 1206.207  Copies.

    The furnishing of a single copy of the requested record will 
constitute compliance with this part.


Sec. 1206.208  Release of exempt records.

    If a record which has been requested is exempt from disclosure 
under Subpart 3 of this part, the record may nevertheless be made 
available under the procedures of Subpart 6 of this part if it is 
determined by an official authorized to make either an initial 
determination or a final determination that such action would not be 
inconsistent with a purpose of the exemptions set forth in Subpart 3 of 
this part.

Subpart 3--Exemptions


Sec. 1206.300  Exemptions.

    (a) Under 5 U.S.C. 552(b) Agency records falling within the 
exemptions of paragraph (b) of this section are not required to be made 
available under this part. Such records may nevertheless be made 
available if it is determined that such actions would not be 
inconsistent with a purpose of the exemption (see Sec. 1206.208).
    (b) The requirements of this part to make Agency records available 
do not apply to matters that are--
    (1)(i) Specifically authorized under criteria established by an 
Executive Order to be kept secret in the interest of national defense 
or foreign policy and
    (ii) Are in fact properly classified pursuant to such Executive 
Order;
    (2) Related solely to the internal personnel rules and practices of 
NASA;
    (3) Specifically exempted from disclosure by statute (other than 5 
U.S.C. 552), provided that such statute:
    (i) Requires that the matters be withheld from the public in such a 
manner as to leave no discretion on the issue, or
    (ii) Establishes particular criteria for withholding or refers to 
particular types of matters to be withheld;
    (4) Trade secrets and commercial or financial information obtained 
from a person which is privileged or confidential;
    (5) Interagency or intra-agency memoranda or letters which would 
not be available by law to a party other than an agency in litigation 
with NASA;
    (6) Personnel and medical files and similar files the disclosure of 
which would constitute a clearly unwarranted invasion of personal 
privacy;
    (7) Records or information compiled for law enforcement purposes, 
but only to the extent that the production of such law enforcement 
records or information--
    (i) Could reasonably be expected to interfere with enforcement 
proceedings,
    (A) Whenever a request is made which involves access to these 
records and--
    (1) The investigation or proceeding involves a possible violation 
of criminal law; and
    (2) There is reason to believe that the subject of the 
investigation or proceeding is not aware of its pendency, and 
disclosure of the existence of the records could reasonably be expected 
to interfere with enforcement proceedings, the Agency may, during only 
such time as that circumstance continues, treat the records as not 
subject to the requirements of 5 U.S.C. 552.
    (B) [Reserved]
    (ii) Would deprive a person of a right to a fair trial or an 
impartial adjudication,
    (iii) Could reasonably be expected to constitute an unwarranted 
invasion of personal privacy,
    (iv) Could reasonably be expected to disclose the identity of a 
confidential source, including a State, local, or

[[Page 39408]]

foreign agency or authority or any private institution which furnished 
information on a confidential basis, and, in the case of a record or 
information compiled by criminal law enforcement authority in the 
course of a criminal investigation or by an agency conducting a lawful 
national security intelligence investigation, information furnished by 
a confidential source. Whenever informant records maintained by a 
criminal law enforcement agency under an informant's name or personal 
identifier are requested by a third party according to the informant's 
name or personal identifier, the Agency may treat the records as not 
subject to the requirements of 5 U.S.C. 552 unless the informant's 
status as an informant has been officially confirmed.
    (v) Would disclose techniques and procedures for law enforcement 
investigations or prosecutions, or would disclose guidelines for law 
enforcement investigations or prosecutions if such disclosure could 
reasonably be expected to risk circumvention of the law, or
    (vi) Could reasonably be expected to endanger the life or physical 
safety of any individual.
    (8) Contained in or related to examination, operating, or condition 
reports prepared by, on behalf of, or for the use of an agency 
responsible for the regulation or supervision of financial 
institutions; or
    (9) Geological and geophysical information and data, including 
maps, concerning wells.


Sec. 1206.301  Limitation of exemptions.

    (a) This Part 1206 does not authorize the withholding of 
information or the availability of records to the public, except as 
specifically stated in this part.
    (b) Nothing in this part shall be construed as authority to 
withhold information from Congress.

Subpart 4--Location for Inspection and Request of Agency Records


Sec. 1206.400  Information Centers.

    NASA will maintain Information Centers as set forth in this 
subpart.


Sec. 1206.401  Location of NASA Information Centers.

    (a) NASA will maintain the following Information Centers, at which 
Agency records may be inspected, from which copies of Agency records 
may be requested and at which copies of Agency forms may be obtained:
    (1) NASA Headquarters (HQ) Information Center, National Aeronautics 
and Space Administration, Washington, DC 20546.
    (2) NASA Information Center, Ames Research Center (ARC), Moffett 
Field, CA 94035.
    (3) NASA Information Center, Hugh L. Dryden Flight Research Center, 
(DFRC), Post Office Box 273, Edwards, CA 93523.
    (4) NASA Information Center, Glenn Research Center (GRC), 21000 
Brookpark Road, Cleveland, OH 44135.
    (5) NASA Information Center, Goddard Space Flight Center (GSFC), 
Greenbelt, MD 20771.
    (6) NASA Information Center, John F. Kennedy Space Center (KSC), 
Kennedy Space Center, FL 32899.
    (7) NASA Information Center, Langley Research Center (LaRC), 
Langley Station, Hampton, VA 23665.
    (8) NASA Information Center, Lyndon B. Johnson Space Center (JSC), 
2101 NASA Road 1, Houston, TX 77058.
    (9) NASA Information Center, George C. Marshall Space Flight Center 
(MSFC), Huntsville, AL 35812.
    (10) NASA Information Center, John C. Stennis Space Center (SSC), 
MS 39529.
    (11) NASA Information Center, NASA Management Office Jet Propulsion 
Laboratory (JPL), 4800 Oak Grove Drive, Pasadena, CA 91109.
    (12) NASA Information Center, Wallops Flight Facility (WFF), 
Wallops Island, VA 23337.
    (b) NASA Headquarters and each NASA Center also has a FOIA 
Electronic Reading Room on the Internet. The Uniform Resource Locator 
(URL) addresses are as follows:
    (1) (HQ) http://www.hq.nasa.gov/office/pao/FOIA/;
    (2) (ARC) http://george.arc.nasa.gov/dx/FOIA/elec.html;
    (3) (DFRC) http://www.dfrc.nasa.gov/FOIA/readroom.html;
    (4) (GRC) http://www.grc.nasa.gov/WWW/FOIA/ReadingRm.htm;
    (5) (GSFC) http://genesis.gsfc.nasa.gov//foia/read-rm.htm;
    (6) (JSC) http://www.jsc.nasa.gov/pao/public/foia/edocs.html;
    (7) (KSC) http://www-foia.ksc.nasa.gov/foia/READROOM.HTM;
    (8) (LaRC) http://foia.larc.nasa.gov/readroom.html;
    (9) (MSFC) http://www1.msfc.nasa.gov/FOIA/docs/docs.html and
    (10) (SSC) http://www.ssc.nasa.gov/foia/reading/
    (c) In addition a requester may submit a FOIA request 
electronically. The addresses are as follows: (HQ) [email protected]; 
(ARC) [email protected]; (DFRC) [email protected]; (GRC) 
[email protected]; (GSFC) [email protected]; (JSC) 
[email protected]; (KSC)[email protected]; (LaRC) 
[email protected]; (MSFC) [email protected] and (SSC) 
[email protected]; and for Inspector General records, 
[email protected].


Sec. 1206.402  Documents available for inspection at NASA Information 
Centers.

    (a) Each NASA Information Center will have available for 
inspection, as a minimum, a current version of the following documents:
    (1) 5 U.S.C. 552;
    (2) Title 14 CFR Chapter V, and Title 41 CFR Chapter 18, and 
material published in the Federal Register for codification but not yet 
included in the Code of Federal Regulations;
    (3) A master list and index of NASA Issuances, and a copy of all 
such issuances;
    (4) A list and index of the management issuances of the NASA Center 
at which the Information Center is located, and a copy of such 
issuances;
    (5) NASA's Scientific and Technical AeroSpace Reports and current 
indexes thereto;
    (6) Cumulative Index to Selected Speeches and News Releases issued 
by NASA Headquarters;
    (7) Index/Digest of Decisions, NASA Board of Contract Appeals;
    (8) Decisions of the NASA Contract Adjustment Board and a current 
index thereto;
    (9) Copies of Environmental Impact Statements filed by NASA under 
the National Environmental Policy Act of 1969;
    (10) Collection of all issues of ``NASA Activities'';
    (11) List of licenses granted under NASA-owned patents; and
    (12) A master list and an index of NASA Policy Directives, 
Guidelines, and Charters, and a copy of all such Directives, 
Guidelines, and Charters.
    (b) Because the indexes listed in paragraph (a) of this section are 
voluminous and because current versions thereof will be available for 
inspection at NASA Information Centers, from which copies of the 
indexes may be requested under Sec. 1206.603, it is determined and so 
ordered that publication of the indexes quarterly in the Federal 
Register would be unnecessary and impractical.


Sec. 1206.403  Duty hours.

    The NASA Information Centers listed in Sec. 1206.401 shall be open 
to the public during all regular workdays, from 9 a.m. to 4 p.m.

[[Page 39409]]

Subpart 5--Responsibilities


Sec. 1206.500  Associate Deputy Administrator.

    Except as otherwise provided in Sec. 1206.504, the Associate Deputy 
Administrator or designee is responsible for the following:
    (a) Providing overall supervision and coordination of the 
implementation of the policies and procedures set forth in this Part 
1206;
    (b) After consultation with the General Counsel, making final 
determinations under Sec. 1206.607, within the time limits specified in 
Subpart 6 of this part;
    (c) Determining whether unusual circumstances exist under 
Sec. 1206.608 as would justify the extension of the time limit for a 
final determination.


Sec. 1206.501  General Counsel.

    The General Counsel is responsible for the interpretation of 5 
U.S.C. 552 and of this part, and for the handling of litigation in 
connection with a request for an Agency record under this part.


Sec. 1206.502  Centers and Components.

    (a) Except as otherwise provided in Sec. 1206.504, the Director of 
each NASA Center or the Official-in-Charge of each Component, is 
responsible for the following:
    (1) After consultation with the Chief Counsel or the Counsel 
charged with providing legal advice to a Center or a Component 
Facility, making initial determinations under Sec. 1206.603 and 
Sec. 1206.604;
    (2) Determining whether unusual circumstances exist under 
Sec. 1206.608 as would justify the extension of the time limit for an 
initial determination; and
    (3) In coordination with the Associate Deputy Administrator, 
ensuring that requests for records under the cognizance of his/her 
respective Center are processed and initial determinations made within 
the time limits specified in Subpart 6 of this part.
    (b) If so designated by the Director or Officials-in-Charge of the 
respective Center, the principal Public Affairs Officer at the Center 
may perform the functions set forth in paragraphs (a)(1) and (2) of 
this section.


Sec. 1206.503  NASA Headquarters.

    (a) Except as otherwise provided in Sec. 1206.504, the Associate 
Administrator for Public Affairs, is responsible for the following:
    (1) Preparing the annual reports required by Sec. 1206.900, 
including establishing reporting procedures throughout NASA to 
facilitate the preparation of such reports;
    (2) After consultation with the Office of General Counsel, making 
initial determinations under Sec. 1206.603 and Sec. 1206.604;
    (3) Determining whether unusual circumstances exist under 
Sec. 1206.608 as would justify the extension of the time limit for an 
initial determination; and
    (4) In coordination with the Associate Deputy Administrator, 
ensuring that requests for Agency records under the cognizance of 
Headquarters are processed and initial determinations made within the 
time limits specified in Subpart 6 of this part.
    (b) The functions set forth in paragraphs (a)(1), (2) and (3) of 
this section may be delegated by the Associate Administrator for Public 
Affairs to a Public Affairs Officer or Specialist and to the Manager or 
his/her designee, NASA Management Office--JPL.


Sec. 1206.504  Inspector General.

    (a) The Inspector General or designee is responsible for making 
final determinations under Sec. 1206.607, within the time limits 
specified in Subpart 6 of this part, concerning audit inspection and 
investigative records originating in the Office of the Inspector 
General records from outside the Government related to an audit 
inspection or investigation, records prepared in response to a request 
from or addressed to the Office of the Inspector General, or other 
records originating within the Office of the Inspector General, after 
consultation with the General Counsel or designee on an appeal of an 
initial determination to the Inspector General.
    (b) The Assistant Inspectors General or their designees are 
responsible for making initial determinations under Sec. 1206.603 and 
Sec. 1206.604 concerning audit inspection and investigative records 
originating in the Office of the Inspector General, records from 
outside the Government related to an audit inspection or investigation, 
records prepared in response to a request from or addressed to the 
Office of the Inspector General, or other records originating with the 
Office of the Inspector General, after consultation with the Attorney-
Advisor to the Inspector General or designee.
    (c) The Inspector General or designee is responsible for ensuring 
that requests for Agency records as specified in paragraphs (a) and (b) 
of this section are processed and initial determinations are made 
within the time limits specified in Subpart 6 of this part.
    (d) The Inspector General or designee is responsible for 
determining whether unusual circumstances exist under Sec. 1206.608 
that would justify extending the time limit for an initial or final 
determination, for records as specified in paragraphs (a) and (b) of 
this section.
    (e) Records as specified in paragraphs (a) and (b) of this section 
include any records located at Regional and field Inspector General 
Offices, as well as records located at the Headquarters Office of the 
Inspector General.


Sec. 1206.505  Delegation of authority.

    Authority necessary to carry out the responsibilities specified in 
this subpart is delegated from the Administrator to the officials named 
in this subpart.

Subpart 6--Procedures


Sec. 1206.600  Requests for Records.

    A member of the public may request an Agency record by mail, 
facsimile (FAX), electronic-mail (e-mail), or in person from the FOIA 
Office having cognizance over the record requested or from the NASA 
Headquarters FOIA Office.


Sec. 1206.601  Mail, fax and e-mail requests.

    In view of the time limits under 5 U.S.C. 552(a)(6) for an initial 
determination on a request for an Agency record (see Sec. 1206.603), a 
request must meet the following requirements:
    (a) The request must be addressed to an appropriate NASA FOIA 
Office or otherwise be clearly identified in the letter as a request 
for an Agency record under the ``Freedom of Information Act.''
    (b) The request must identify the record requested or reasonably 
describe it in a manner that enables a professional NASA employee who 
is familiar with the subject area of the request to identify and locate 
the record with a reasonable amount of effort. NASA need not comply 
with a blanket or categorical request (such as ``all matters relating 
to'' a general subject) where it is not reasonably feasible to 
determine what is sought. NASA will in good faith endeavor to identify 
and locate the record sought and will consult with the requester when 
necessary and appropriate for that purpose. However, as provided in 
Sec. 1206.203, NASA will undertake no obligation to compile or create 
information or records not already in existence at the time of the 
request.
    (c) If a fee is chargeable under Subpart 7 of this part for search 
or duplication costs incurred in connection with a request for an 
Agency record, and the requester knows the amount of the fee at the 
time of the request, the request should be accompanied by a check or

[[Page 39410]]

money order payable in that amount to the ``National Aeronautics and 
Space Administration.'' NASA cannot be responsible for cash sent by 
mail; stamps will not be accepted. If the amount of the fee chargeable 
is not known at the time of the request, the requester will be notified 
in the initial determination (or in a final determination in the case 
of an appeal) of the amount of the fee chargeable (see 
Sec. 1206.608(c)). For circumstances in which advance payment of fees 
is required, see Sec. 1206.704.


Sec. 1206.602  Requests in person.

    (a) A member of the public may request an Agency record in person 
at a NASA FOIA Office (see Sec. 1206.401) during the duty hours of NASA 
Headquarters or the Center.
    (b) A request at a FOIA Office must identify the record requested 
or reasonably describe it as provided in Sec. 1206.601(b).
    (c) If the record requested is located at the FOIA Office or 
otherwise readily obtainable, it shall be made available to the 
requester upon the payment of any fees that are chargeable (see Subpart 
7 of this part), which fees may be paid by a check or money order 
payable to the ``National Aeronautics and Space Administration.'' If 
the record requested is not located at the FOIA Office or otherwise 
readily obtainable, the request will be docketed at the FOIA Office and 
processed in accordance with the procedures in Sec. 1206.603 and 
Sec. 1206.604, with any fee chargeable being handled in accordance with 
Sec. 1206.601(c).


Sec. 1206.603  Procedures and time limits for initial determinations.

    (a) Except as provided in Sec. 1206.608, an initial determination 
on a request for an Agency record, addressed in accordance with 
Sec. 1206.601(a) or made in person at a NASA FOIA Office shall be made, 
and the requester shall be sent notification thereof, within 20-working 
days after receipt of the request, as required by 5 U.S.C. 552(a)(6).
    (b) An initial determination on a request for an Agency record by 
mail not addressed in accordance with Sec. 1206.601(a) shall be made, 
and the requester shall be sent notification thereof, within 20-working 
days after the correspondence is recognized as a request for an Agency 
record under the ``Freedom of Information Act'' and received by the 
appropriate NASA FOIA Office. With respect to such a request, unless an 
initial determination can reasonably be made within 20-working days of 
the original receipt, the request will be promptly acknowledged and the 
requester notified of the date the request was received at that FOIA 
Office and that an initial determination on the request will be made 
within 20-working days of that date.
    (c) If it is determined that the requested record (or portion 
thereof) will be made available, and if the charges are under $250, 
NASA will either send a copy of the releasable record and a bill for 
the fee or send the initial determination and a bill for the fee to the 
requester. In the latter case, the documents will be released when the 
fee is received. If the fee chargeable is over $250, a request for 
payment of the fee will always be sent with the initial determination, 
and the records will be mailed only upon receipt of payment. When 
records are sent before payment is received, the fact that interest 
will be charged from the 31st day after the day of the response shall 
be stated in the response. The date of the mailing of an initial 
determination, with or without the records(s), shall be deemed to 
satisfy the time limit for initial determinations.
    (d) Any notification of an initial determination that does not 
comply fully with the request for an Agency record, including those 
searches that produce no documents, shall include a statement of the 
reasons for the adverse determination, include the name and title of 
the person making the initial determination, and notify the requester 
of the right to appeal to the Administrator, or the Inspector General, 
as appropriate, under Sec. 1206.605.
    (e) If the requester demonstrates a ``compelling need'' as defined 
in Sec. 1206.101(r) for records, NASA shall provide expedited 
processing of the request. NASA will inform the requester as to whether 
the request for expedited processing has been granted within 10 working 
days after the date of the request.


Sec. 1206.604  Request for records that exist elsewhere.

    (a) If a request for an Agency record is received by a FOIA Office 
not having cognizance of the record (for example, when a request is 
submitted to one NASA Center or Headquarters and the requested record 
exists only at another NASA Center), the FOIA Office receiving the 
request shall promptly forward it to the NASA FOIA Office having 
cognizance of the record requested. That Center shall acknowledge the 
request and inform the requester that an initial determination on the 
request will be sent within 20 working days from the date of receipt by 
such Center.
    (b) If a request is received for Agency records which exist at two 
or more Centers, the FOIA Office receiving the request shall undertake 
to comply with the request, if feasible, or to forward the request (or 
portions thereof) promptly to a more appropriate Center for processing. 
The requester shall be kept informed of the actions taken to respond to 
the request.
    (c) If a request is received by a NASA FOIA Office for a record of 
another agency, the requester shall promptly be informed of that fact, 
and the request shall be returned to the requester, with advice as to 
where the request should be directed.


Sec. 1206.605  Appeals.

    (a) A member of the public who has requested an Agency record in 
accordance with Sec. 1206.601 or Sec. 1206.602, and who has received an 
initial determination which does not comply fully with the request, may 
appeal such an adverse initial determination to the Administrator, or, 
for records as specified in Sec. 1206.504, to the Inspector General 
under the procedures of this section.
    (b) The Appeal must:
    (1) Be in writing;
    (2) Be addressed to the Administrator, NASA Headquarters, 
Washington, DC 20546, or, for records as specified in Sec. 1206.504, to 
the Inspector General, NASA Headquarters, Washington, DC 20546;
    (3) Be identified clearly on the envelope and in the letter as an 
``Appeal under the Freedom of Information Act'';
    (4) Include a copy of the request for the Agency record and a copy 
of the adverse initial determination;
    (5) To the extent possible, state the reasons why the requester 
believes the adverse initial determination should be reversed; and
    (6) Be sent to the Administrator or the Inspector General, as 
appropriate, within 30 calendar days of the date of receipt of the 
initial determination.
    (c) An official authorized to make a final determination may waive 
any of the requirements of paragraph (b) of this section, in which case 
the time limit for the final determination (see Sec. 1206.607(a)) shall 
run from the date of such waiver.


Sec. 1206.606  Request for additional records.

    If, upon receipt of a record (or portions thereof) following an 
initial determination to comply with a request, the requester believes 
that the materials received do not comply with the request, the 
requester may elect either to request additional records under the 
procedures of Sec. 1206.601 or Sec. 1206.602,

[[Page 39411]]

or to file an appeal under the procedures of Sec. 1206.605, in which 
case the appeal must be sent to the Administrator, or to the Inspector 
General, in the case of records as specified in Sec. 1206.504, within 
30 days of receipt of the record (or portions thereof), unless good 
cause is shown for any additional delay.


Sec. 1206.607  Actions on appeals.

    (a) Except as provided in Sec. 1206.608, the Administrator or 
designee, or in the case of records as specified in Sec. 1206.504, the 
Inspector General or designee, shall make a final determination on an 
appeal and notify the requester thereof, within 20 working days after 
the receipt of the appeal.
    (b) If the final determination reverses in whole or in part the 
initial determination, the record requested (or portions thereof) shall 
be made available promptly to the requester, as provided in the final 
determination.
    (c) If the final determination sustains in whole or in part an 
adverse initial determination, the notification of the final 
determination shall:
    (1) Explain the basis on which the record (or portions thereof) 
will not be made available;
    (2) Include the name and title of the person making the final 
determination;
    (3) Include a statement that the final determination is subject to 
judicial review under 5 U.S.C. 552(a)(4); and
    (4) Enclose a copy of 5 U.S.C. 552(a)(4).


Sec. 1206.608  Time extensions in unusual circumstances.

    (a) In ``unusual circumstances'' as that term is defined in 
Sec. 1206.101(f), the time limits for an initial determination (see 
Sec. 1206.603 and Sec. 1206.604) and for a final determination (see 
Sec. 1206.607) may be extended, but not to exceed a total of 10-working 
days in the aggregate in the processing of any specific request for an 
Agency record.
    (b) If an extension of time under this section would be required, 
the requester shall be promptly notified of the reasons therefor and 
the date when a determination will be sent.
    (c) If a record described in a request cannot be located within the
20-working-day time limit for an initial determination, after 
consultation with a professional NASA employee who is familiar with the 
subject area of the request, that fact normally will justify an initial 
determination that the record requested cannot be identified or 
located, rather than a decision that an extension of time under this 
section would be appropriate.
    (d) In exceptional circumstances, if it would be impossible to 
complete a search for or review of Agency records within the 20-
working-day period for an initial determination, an official authorized 
to make an initial determination or the designee may seek an extension 
of time from the requester. If such an extension of time can be agreed 
upon, that fact should be clearly documented and the initial 
determination made within the extended time period; if not, an initial 
determination that the record cannot be identified or located, or 
reviewed, within the 20-working-day time limit shall be made under 
Sec. 1206.603. ``Exceptional circumstances'' do not include a delay 
that results from a predictable Agency workload of requests unless the 
Agency demonstrates reasonable progress in reducing its backlog of 
pending requests. Refusal by the requester to reasonably modify the 
scope of a request or arrange an alternative time frame for processing 
the request shall be considered as a factor in determining whether 
exceptional circumstances exist.


Sec. 1206.609  Litigation.

    In any instance in which a requester brings suit concerning a 
request for an Agency record under this part, the matter shall promptly 
be referred to the General Counsel together with a report on the 
details and status of the request. In such a case, if a final 
determination with respect to the request has not been made, such a 
determination shall be made as soon as possible, under procedures 
prescribed by the General Counsel in each case.


Sec. 1206.610  Notice to submitters of commercial information.

    (a) General policy. Upon receipt of a request for commercial 
information pursuant to the Freedom of Information Act, NASA shall 
provide the submitter with notice of the request in accordance with the 
requirements of this section.
    (b) Notice to submitters. Except as provided in paragraph (g) or 
(h) of this section, the Agency shall make a good faith effort to 
provide a submitter with prompt notice of a request appearing to 
encompass its commercial information whenever required under paragraph 
(c) of this section. Such notice shall identify the commercial 
information requested and shall inform the submitter of the opportunity 
to object to its disclosure in accordance with paragraph (d) of this 
section. If the submitter would not otherwise have access to the 
document that contains the information, upon the request of the 
submitter, the Agency shall provide access to, or copies of, the 
records or portions thereof containing the commercial information. This 
notice shall be provided in writing upon the request of the submitter. 
Whenever the Agency provides notice pursuant to this section, the 
Agency shall advise the requester that notice and opportunity to 
comment are being provided to the submitter.
    (c) When notice is required. Notice shall be given to a submitter 
whenever the information has been designated by the submitter as 
information deemed protected from disclosure under Exemption 4 of the 
Act, or the Agency otherwise has reason to believe that the information 
may be protected from disclosure under Exemption 4.
    (d) Opportunity to object to disclosure. Through the notice 
described in paragraph (b) of this section, the Agency shall afford a 
submitter a reasonable period within which to provide the Agency with a 
detailed statement of any objection to disclosure. This period shall 
not exceed 10 working days from the date after which the Agency can 
reasonably assume receipt of notice by the submitter, unless the 
submitter provides a reasonable explanation justifying additional time 
to respond. If the Agency does not receive a response from the 
submitter within this period, the Agency shall proceed with its review 
of the information and initial determination. The submitter's response 
shall include all bases, factual or legal, for withholding any of the 
information pursuant to Exemption 4. Information provided by a 
submitter pursuant to this paragraph may itself be subject to 
disclosure under the FOIA. Submitters will not be provided additional 
opportunities to object to disclosure, and, therefore, should provide a 
complete explanation of any and all bases for withholding any 
information from disclosure.
    (e) Notice of intent to disclose. The Agency shall carefully 
consider any objections of the submitter in the course of determining 
whether to disclose commercial information. Whenever the Agency decides 
to disclose commercial information over the objection of a submitter, 
the Agency shall forward to the submitter a written statement which 
shall include the following:
    (1) A brief explanation as to why the Agency did not agree with any 
objections;
    (2) A description of the commercial information to be disclosed, 
sufficient to identify the information to the submitter; and
    (3) A date after which disclosure is expected. Such notice of 
intent to disclose shall be forwarded to the

[[Page 39412]]

submitter in a reasonable number of working days prior to the expected 
disclosure date.
    (4) If no comments are received by the Agency by the date described 
in paragraph (e)(3) of this section, the information in question will 
be released.
    (f) Notice of FOIA lawsuit. Whenever a requester brings suit 
seeking to compel disclosure of commercial information covered by 
paragraph (c) of this section, the Agency shall promptly notify the 
submitter. Whenever a submitter brings suit against the Agency in order 
to prevent disclosure of commercial information, the Agency shall 
promptly notify the requester.
    (g) Exceptions to notice requirements. The notice requirements of 
this section do not apply if--
    (1) The information has been published or otherwise made available 
to the public.
    (2) Disclosure of the information is required by law (other than 5 
U.S.C. 552);
    (3) The submitter has received notice of a previous FOIA request 
which encompassed information requested in the later request, and the 
Agency intends to withhold and/or release information in the same 
manner as in the previous FOIA request;
    (4) Upon submitting the information or within a reasonable period 
thereafter,
    (i) The submitter reviewed its information in anticipation of 
future requests pursuant to the FOIA,
    (ii) Provided the Agency a statement of its objections to 
disclosure consistent with that described in paragraph (e) of this 
section, and
    (iii) The Agency intends to release information consistent with the 
submitter's objections;
    (5) Notice to the submitter may disclose information exempt from 
disclosure pursuant to 5 U.S.C. 552(b)(7).
    (h)(1) An additional limited exception to the notice requirements 
of this section, to be used only when all of the following exceptional 
circumstances are found to be present, authorizes the Agency to 
withhold information which is the subject of a FOIA request, based on 
Exemption 4 (5 U.S.C. 552(b)(4)), without providing the submitter 
individual notice:
    (i) The Agency would be required to provide notice to over 10 
submitters, in which case, notification may be accomplished by posting 
or publishing the notice in a place reasonably calculated to accomplish 
notification.
    (ii) Absent any response to the published notice, the Agency 
determines that if it provided notice as is otherwise required by 
paragraph (c) of this section, it is reasonable to assume that the 
submitter would object to disclosure of the information based on 
Exemption 4; and,
    (iii) If the submitter expressed the anticipated objections, the 
Agency would uphold those objections.
    (2) This exemption shall be used only with the approval of the 
Chief Counsel of the Center, the Attorney-Advisor to the Inspector 
General, or the Associate General Counsel responsible for providing 
advice on the request. This exception shall not be used for a class of 
documents or requests, but only as warranted by an individual FOIA 
request.

Subpart 7--Search, Review, and Duplication Fees


Sec. 1206.700  Schedule of fees.

    The fees specified in this section shall be charged for searching 
for, reviewing, and/or duplicating Agency records made available in 
response to a request under this part.
    (a) Copies. For copies of documents such as letters, memoranda, 
statements, reports, contracts, etc., $0.10 per copy of each page. For 
copies of oversize documents, such as maps, charts, etc., $0.15 for 
each reproduced copy per square foot. These charges for copies include 
the time spent in duplicating the documents. For copies of computer 
disks, still photographs, blueprints, videotapes, engineering drawings, 
hard copies of aperture cards, etc., the fee charged will reflect the 
full direct cost to NASA of reproducing or copying the record.
    (b) Clerical searches. For each one-quarter hour spent by clerical 
personnel in searching for an Agency record in response to a request 
under this part, $3.75.
    (c) Nonroutine, nonclerical searches. When a search cannot be 
performed by clerical personnel; for example, when the task of 
determining which records fall within a request and collecting them 
requires the time of professional or managerial personnel, and when the 
amount of time that must be expended in the search and collection of 
the requested records by such higher level personnel is substantial, 
charges for the search may be made at a rate in excess of the clerical 
rate, namely for each one-quarter hour spent by such higher level 
personnel in searching for a requested record, $7.50.
    (d) Review of records. For commercial use requests only, when time 
is spent reviewing to determine whether they are exempt from mandatory 
disclosure, a charge may be made at the rate for each one-quarter hour 
spent by an attorney, $11.25. No charge shall be made for the time 
spent in resolving general legal or policy issues regarding the 
application of exemptions. This charge will only be assessed the first 
time NASA reviews a record and not at the administrative appeal level.
    (e) Computerized records. Because of the diversity in the types and 
configurations of computers which may be required in responding to 
requests for Agency records maintained in whole or in part in 
computerized form, it is not feasible to establish a uniform schedule 
of fees for search and printout of such records. In most instances, 
records maintained in computer data banks are available also in printed 
form and the standard fees specified in paragraph (a) of this section 
shall apply. If the request for an Agency record required to be made 
available under this part requires a computerized search or printout, 
the charge for the time of personnel involved shall be at the rates 
specified in paragraphs (b) and (c) of this section. The charge for the 
computer time involved and for any special supplies or materials used 
shall not exceed the direct cost to NASA. This charge may be as high as 
$125.00 per quarter hour. Before any computer search or printout is 
undertaken in response to a request for an Agency record, the requester 
shall be notified of the applicable unit costs involved and the total 
estimated cost of the search and/or printout.
    (f) Other search and duplication costs. Reasonable standard fees, 
other than as specified in paragraphs (a) through (e) of this section, 
may be charged for additional direct costs incurred in searching for or 
duplicating an Agency record in response to a request under this part. 
Charges which may be made under this paragraph include, but are not 
limited to, the transportation of NASA personnel to places of record 
storage for search purposes or freight charges for transporting records 
to the personnel searching for or duplicating a requested record.
    (g) Charges for special services. Complying with requests for 
special services such as those listed in (g)(1), (2), and (3) of this 
section is entirely at the discretion of NASA. Neither the FOIA nor its 
fee structure cover these kinds of services. To the extent that NASA 
elects to provide the following services, it will levy a charge 
equivalent to the full cost of the service provided:
    (1) Certifying that records are true copies.
    (2) Sending records by special methods such as express mail.
    (3) Packaging and mailing bulky records that will not fit into the 
largest

[[Page 39413]]

envelope carried in the supply inventory.
    (h) Unsuccessful or unproductive searches. Search charges, as set 
forth in paragraphs (b) and (c) of this section, may be made even when 
an Agency record which has been requested cannot be identified or 
located after a diligent search and consultation with a professional 
NASA employee familiar with the subject area of the request, or if 
located, cannot be made available under Subpart 3 of this part. 
Ordinarily, however, fees will not be charged in such instances unless 
they are substantial (over $50.00) and the requester has consented to 
the search after having been advised that it cannot be determined in 
advance whether any records exist which can be made available (see 
Sec. 1201206.704) and that search fees will be charged even if no 
record can be located and made available.
    (i) Fees not chargeable.
    (1) NASA will not charge for the first 100 pages of duplication and 
the first 2 hours of search time either manual or electronic except to 
requesters seeking documents for commercial use.
    (2) If the cost to be billed to the requester is equal to or less 
than $15.00, no charges will be billed.
    (j) Records will be provided in a form or format specified by the 
requester if they are readily reproducible in such format with 
reasonable efforts. If the records are not readily reproducible in the 
requested form or format, the Agency will so inform the requester. The 
requester may specify an alternative form or format that is available. 
If the requester refuses to specify an alternative form or format, the 
Agency will not process the request further.


Sec. 1206.701  Categories of requesters.

    There are four categories of FOIA requesters: Commercial use 
requesters; educational and noncommercial scientific institutions; 
representatives of the news media; and all other requesters. The Act 
prescribes specific levels of fees for each of these categories:
    (a) Commercial use requesters. When NASA receives a request for 
documents appearing to be for commercial use, it will assess charges 
which recover the full direct costs of searching for, reviewing for 
release, and duplicating the records sought. Requesters must reasonably 
describe the records sought. Moreover, in the case of such a request, 
NASA will not consider a request for waiver or reduction of fees based 
upon an assertion that disclosure would be in the public interest. 
Commercial use requesters are not entitled to 2 hours of free search 
time or to 100 free pages of reproduction of documents.
    (b) Education and noncommercial scientific institution requesters. 
NASA shall provide documents to requesters in this category for the 
cost of reproduction alone, excluding charges for the first 100 pages. 
To be eligible for inclusion in this category, requesters must show 
that the request being made is authorized by and under the auspices of 
a qualifying institution and that the records are not being sought for 
a commercial use, but are being sought in furtherance of scholarly (if 
the request is from an educational institution) or scientific (if the 
request is from a noncommercial scientific institution) research. 
Requesters must reasonably describe the records sought.
    (c) Requesters who are representatives of the news media. NASA 
shall provide documents to requesters in this category for the cost of 
reproduction alone, excluding charges for the first 100 pages. To be 
eligible for inclusion in this category, a requester must demonstrate 
that he/she meets the criteria in Sec. 1206.101(o) of this part, and 
his/her request must not be made for a commercial use. Requesters must 
reasonably describe the records sought.
    (d) All other requesters. NASA shall charge requesters who do not 
fit into any of the categories mentioned in this section, fees which 
recover the full direct reasonable cost of searching for and 
reproducing records that are responsive to the request, except that the 
first 100 pages of reproduction and the first 2 hours of search time 
shall be furnished without charge. Moreover, requests from individuals 
for records about themselves located in NASA's systems of records will 
continue to be processed under the fee provisions of the Privacy Act of 
1974, which permits fees only for reproduction. Requesters must 
reasonably describe the records sought.


Sec. 1206.702  Waiver or reduction of fees.

    The burden is always on the requester to provide the evidence to 
qualify him/her for a fee waiver or reduction.
    (a) NASA shall furnish documents without charge or at reduced 
charges in accordance with 5 U.S.C. 552(a)(4)(A)(iii), provided that:
    (1) Disclosure of the information is in the public interest because 
it is likely to contribute significantly to public understanding of the 
operations or activities of the government and
    (2) It is not primarily in the commercial interest of the 
requester.
    (b) Where these two statutory requirements are satisfied, based 
upon information supplied by the requester or otherwise made known to 
NASA, the FOIA fee shall be waived or reduced. Where one or both of 
these requirements is not satisfied, a fee waiver or reduction is not 
warranted under the statute.
    (c) In determining whether disclosure is in the public interest 
because it is likely to contribute significantly to public 
understanding of the operations or activities of the government, the 
following considerations shall be applied:
    (1) Whether the subject of the requested records concerns ``the 
operations or activities of the government'';
    (2) Whether the disclosure is ``likely to contribute'' to an 
understanding of government operations or activities;
    (3) Whether disclosure of the requested information will contribute 
to ``public understanding''; and
    (4) Whether the disclosure is likely to contribute 
``significantly'' to public understanding of government operations or 
activities.
    (d) In determining whether disclosure of the information ``is not 
primarily in the commercial interest of the requester,'' the following 
consideration shall be applied:
    (1) Whether the requester has a commercial interest that would be 
furthered by the requested disclosure; and if so,
    (2) Whether the magnitude of the identified commercial interest of 
the requester is sufficiently large, in comparison with the public 
interest in disclosure, that disclosure is ``primarily in the 
commercial interest of the requester.''


Sec. 1206.703  Aggregation of requests.

    A requester may not file multiple requests at the same time, each 
seeking portions of a document or documents, solely in order to avoid 
payment of fees. When NASA has reason to believe that a requester or a 
group of requesters acting in concert, is attempting to break a request 
down into a series of requests for the purpose of evading the 
assessment of fees, NASA will aggregate any such requests and charge 
accordingly. NASA will consider that multiple requests made within a 
30-day period were so intended, unless there is evidence to the 
contrary. Where the relevant time period exceeds 30 days, NASA will not 
assume such a motive unless there is evidence to the contrary. In no 
case will NASA aggregate multiple requests on unrelated subjects from 
one requester.


Sec. 1206.704  Advance payments.

    (a) NASA will not require a requester to make an advance payment, 
i.e.,

[[Page 39414]]

payment before work is commenced or continued on a request, unless:
    (1) NASA estimates or determines that the allowable charges are 
likely to exceed $250. NASA will notify the requester of the likely 
cost and obtain satisfactory assurance of full payment where the 
requester has a history of prompt payment of FOIA fees, or require an 
advance payment of an amount up to the full estimated charges in the 
case of requesters with no history of payment; or
    (2) A requester has previously failed to pay a fee in a timely 
fashion (within 30 days of billing), then NASA may require the 
requester to pay the full amount owed plus any applicable interest as 
provided below (see Sec. 1206.706(a)), or demonstrate that he/she has, 
in fact, paid the fee, and to make an advance payment of the full 
amount of the estimated fee before the Agency begins to process a new 
request or a pending request from that requester.
    (b) When NASA acts under paragraphs (a)(1) and (2) of this section, 
the administrative time limits will begin only after NASA has received 
the fee payments described in paragraph (a) of this section.


Sec. 1206.705  Form of payment.

    Payment shall be made by check or money order payable to the 
``National Aeronautics and Space Administration'' and sent per 
instructions in the initial determination.


Sec. 1206.706  Nonpayment of fees.

    (a) Interest to be charged. Requesters are advised that should they 
fail to pay the fees assessed, they may be charged interest on the 
amount billed starting on the 31st day following the day on which the 
billing was sent. Interest will be at the rate prescribed in section 
3717 of Title 31 U.S.C.
    (b) Applicability of Debt Collection Act of 1982 (Pub. L. 97-365). 
Requesters are advised that if full payment is not received within 60 
days after the billing was sent, the procedures of the Debt Collection 
Act may be invoked (14 CFR 1261.407-1261.409). These procedures include 
three written demand letters at not more than 30-day intervals, 
disclosure to a consumer reporting agency, and the use of a collection 
agency, where appropriate.

Subpart 8--Failure to Release Records to the Public


Sec. 1206.800  Failure to release records to the public.

    (a) Except to the extent that a person has actual and timely notice 
of the terms thereof, a person may not in any manner be required to 
resort to, or be adversely affected by, a matter required to be 
published in the Federal Register under Sec. 1206.200(a) and not so 
published.
    (b) A final order, opinion, statement of policy, interpretation, or 
staff manual or instruction that affects a member of the public may be 
relied upon, used, or cited as precedent by NASA against any member of 
the public only if it has been indexed and either made available or 
published as provided by Sec. 1206.200(b) or if the member of the 
public has actual and timely notice of the terms thereof.
    (c) Failure to make available an Agency record required to be made 
available under this part could provide the jurisdictional basis for a 
suit against NASA under 5 U.S.C. 552(a)(4) (B) through (G), which 
provides as follows:

    (B) On complaint, the District Court of the United States in the 
district in which the complainant resides, or has his principal 
place of business, or in which the Agency records are situated, or 
in the District of Columbia, has jurisdiction to enjoin the Agency 
from withholding Agency records and to order the production of any 
Agency records improperly withheld from the complainant. In such a 
case the court shall determine the matter de novo, and may examine 
the contents of such Agency records in camera to determine whether 
such records or any part thereof shall be withheld under any of the 
exemptions set forth in subsection (b) of this section, and the 
burden is on the Agency to sustain its action.
    (C) Notwithstanding any other provision of law, the defendant 
shall serve an answer or otherwise plead to any complaint made under 
this subsection within 30 days after service upon the defendant of 
the pleading in which such complaint is made, unless the court 
otherwise directs for good cause shown.
    [(D) Repealed. Pub. L. 98-620, Title IV, 402(2), Nov. 8, 1984, 
98 Stat. 3335, 3375.]
    (E) The court may assess against the United States reasonable 
attorney fees and other litigation costs reasonably incurred in any 
case under this section in which the complainant has substantially 
prevailed.
    (F) Whenever the court orders the production of any Agency 
records improperly withheld from the complainant and assesses 
against the United States reasonable attorney fees and other 
litigation costs, and the court additionally issues a written 
finding that the circumstances surrounding the withholding raise 
questions whether Agency personnel acted arbitrarily or capriciously 
with respect to the withholding, the Special Counsel shall promptly 
initiate a proceeding to determine whether disciplinary action is 
warranted against the officer or employee who was primarily 
responsible for the withholding. The Special Counsel, after 
investigation and consideration of the evidence submitted, shall 
submit his findings and recommendations to the administrative 
authority of the Agency concerned and shall send copies of the 
findings and recommendations to the officer or employee or his 
representative. The administrative authority shall take the 
corrective action that the Special Counsel recommends.
    (G) In the event of noncompliance with the order of the court, 
the district court may punish for contempt the responsible employee, 
and in the case of a uniformed service, the responsible member.

Subpart 9--Annual Report


Sec. 1206.900  Requirements for annual report.

    On or before February 1 of each year, NASA shall submit a report 
covering the preceding fiscal year to the Department of Justice.

    Dated: July 2, 1999.
Daniel S. Goldin,
Administrator.
[FR Doc. 99-17966 Filed 7-21-99; 8:45 am]
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