[Federal Register Volume 78, Number 107 (Tuesday, June 4, 2013)]
[Rules and Regulations]
[Pages 33209-33216]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-13072]


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OFFICE OF SCIENCE AND TECHNOLOGY POLICY

32 CFR Part 2402


Implementation of the Freedom of Information Act

AGENCY: Office of Science and Technology Policy.

ACTION: Final rule.

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SUMMARY: The White House Office of Science and Technology Policy (OSTP) 
issues this final rule to implement the Freedom of Information Act 
(FOIA), as amended. This final rule implements the requirement of the 
FOIA by setting forth procedures for requesting access to, and making 
disclosures of, information contained by OSTP.
    This final rule contains provisions to comply with the President's 
January 21, 2009, Executive Memoranda on ``The Freedom of Information 
Act'' and ``Transparency and Open Government,'' and Attorney General 
Holder's March 19, 2009, Memorandum on ``The Freedom of Information Act 
(FOIA).'' In addition, this rule reflects OSTP's policy and practices 
and reaffirms its

[[Page 33210]]

commitment to provide the fullest possible disclosure of records to the 
public.

DATES: This rule is effective July 5, 2013.

FOR FURTHER INFORMATION CONTACT: Rachael Leonard, General Counsel, 
Chief FOIA Officer and FOIA Public Liaison, Office of Science and 
Technology Policy, Executive Office of the President, 
[email protected], (202) 456-4444.

SUPPLEMENTARY INFORMATION:

I. Background

    The Office of Science and Technology Policy (OSTP) is issuing 
regulations to govern its implementation of the Freedom of Information 
Act (FOIA), 5 U.S.C. 552, as amended. FOIA requires Federal agencies, 
as defined by the Act, to make official documents and other records 
available to the public upon request, unless the material requested 
falls under one of several statutorily prescribed exemptions. FOIA also 
requires agencies to publish rules stating the time, place, fees, and 
procedures to apply in making records available pursuant to a proper 
request.
    On May 9, 2012 (77 FR 27151), OSTP requested public comments on a 
proposed rule that would implement the requirements of the FOIA. The 
proposed rule, among other things, described how information would be 
made available and the timing and procedures for public requests.

II. This Final Rule and Discussion of Public Comments

    The comment period closed on June 11, 2012, and OSTP received two 
comments. This section of the preamble discusses the issues raised by 
the commenters.

Section 2402.3 (b)

Commenter 1
    Proposed Sec.  2402.3(b) requires OSTP to publish available records 
on its e-FOIA Reading Room (``Reading Room'') as well as other 
documents that, because of the nature of their subject matter, are 
likely to be the subject of FOIA requests. In addition to the proposed 
language, Commenter 1 recommends that the Chief FOIA Officer 
be assigned responsibility of the Reading Room.
    OSTP has created a ``Reading Room'' on its Web site. This section 
contains records disclosed in response to a FOIA request that ``the 
agency determines have become or are likely to become the subject of 
subsequent requests for substantially the same records.'' See 5 U.S.C. 
552(a)(2)(D). Furthermore, this section will be updated by the 
contribution of various staff members, not just the Chief FOIA Officer. 
To save both time and money, OSTP strongly urges requesters to review 
documents available at the Reading Room before submitting a FOIA 
request.

Section 2402.3(c)

Commenter 1
    As proposed, Sec.  2402.3(c) defines the term ``search'' as 
referring to ``the process of looking for and retrieving records or 
information responsive to a request. It includes page-by-page or line-
by-line identification of information within records and also includes 
reasonable efforts to locate and retrieve information from records 
maintained in electronic form or format.'' Commenter 1 
suggests that this definition should ``explicitly state that `search' 
shall not include time spent reviewing a record for release.''
    FOIA law resolves whether time spent reviewing a record should be 
included in the ``search'' definition. Specifically, the current FOIA 
language found in 5 U.S.C. 552(a)(3)(D) provides that the term 
``search'' means ``to review, manually or by automated means, agency 
records for the purpose of locating those records which are responsive 
to a request.'' Under this definition, time spent in reviewing a record 
to determine whether it is responsive material to a FOIA request is 
implied for the task at hand. Therefore, OSTP does not adopt Commenter 
1's proposal.

Section 2402.3(c)

Commenter  2
    As proposed, Sec.  2402.3(c) defines the term ``representative of 
the news media'' or ``news media requester'' as any person actively 
gathering news for an entity that is organized and operated to publish 
or broadcast news to the public. For purposes of this definition, the 
term ``news'' means information that is about current events or that 
would be of current interest to the public. Examples of news media 
entities include television or radio stations broadcasting to the 
public at large and publishers of periodicals (but only in those 
instances where they can qualify as disseminators of ``news'') who make 
their products available for purchase or subscription by the general 
public. For ``freelance'' journalists to be regarded as working for a 
news organization, they must demonstrate a solid basis for expecting 
publication through that organization. A publication contract would be 
the clearest proof, but OSTP shall also look to the past publication 
record of a requester in making this determination. To be in this 
category, a requester must not be seeking the requested records for a 
commercial use. A request for records supporting the news-dissemination 
function of the requester shall not be considered to be for a 
commercial use.
    Commenter  2 proposes a definition that mirrors FOIA's 
language in 5 U.S.C. 552(a)(4)(A)(ii) (as amended by the OPEN 
Government Act of 2007, Pub. L. 110-175, 121 Stat. 2524) which provides 
that the term ``representative of the news media'' means any person or 
entity that gathers information of potential interest to a segment of 
the public, uses its editorial skills to turn the raw materials into a 
distinct work, and distributes that work to an audience. In this 
clause, the term `news' means information that is about current events 
or that would be of current interest to the public. Examples of news-
media entities are television or radio stations broadcasting to the 
public at large and publishers of periodicals (but only if such 
entities qualify as disseminators of `news') who make their products 
available for purchase by or subscription by or free distribution to 
the general public. These examples are not all-inclusive. Moreover, as 
methods of news delivery evolve (for example, the adoption of the 
electronic dissemination of newspapers through telecommunications 
services), such alternative media shall be considered to be news-media 
entities. A freelance journalist shall be regarded as working for a 
news-media entity if the journalist can demonstrate a solid basis for 
expecting publication through that entity, whether or not the 
journalist is actually employed by the entity. A publication contract 
would present a solid basis for such an expectation; the Government may 
also consider the past publication record of the requester in making 
such a determination.
    OSTP accepts Commenter  2's proposal and hereby adopts the 
current language found in the FOIA.

Section 2402.4(a)(1)

Commenter  1
    As proposed, Sec.  2402.4(a)(1) provides that, when requesters do 
not specify the preferred form or format of the response, OSTP shall 
produce printed copies of responsive records. Commenter  1 
suggests that this approach is problematic because ``inexperienced 
requesters do not recognize that they can specify a preferred format.'' 
Moreover, Commenter  1 notes that ``[p]rinted copies are 
typically more expensive than electronic copies due to the cost of 
duplication.'' Accordingly,

[[Page 33211]]

he proposes the following definition: ``When requesters do not specify 
the preferred form or format of the response, OSTP shall either inquire 
of the requester or alternatively produce the records in the least 
expensive format. OSTP will endeavor to provide electronic/digital 
copies wherever possible to minimize duplication costs.''
    OSTP believes that Commenter  1's approach can reduce 
overhead costs; however, we do not adopt his suggested definition 
because, based on years of experience in processing FOIA requests, the 
list of responsive documents may be of such large volume that some 
email accounts cannot handle the digital file. Additionally, there are 
many FOIA requesters who do not have access to email or a means of 
reading an electronic file. Nevertheless, OSTP recognizes that it is 
useful for requesters to have the option to seek FOIA records in 
electronic format. Therefore, OSTP will add clear and conspicuous 
language on its FOIA page informing the public that they can choose an 
electronic/digital response with their FOIA. If no particular 
preference is indicated, OSTP will continue to provide printed copies 
of the responsive records.

Section 2402.8

Commenter  1
    Commenter  1 suggests the adoption of a threshold amount 
below which fees are not charged as they would cost more to collect 
than would be collected. Commenter  1 suggests the amount of 
$15.00 as a threshold fee for OSTP.
    OSTP is adopting various provisions which address Commenter 
 1's suggestion, see Sec.  2402.8. To illustrate, Sec.  
2402.8(b)(3) provides that OSTP will not charge duplication fees for 
the first 100 page of copies unless the copies are requested for a 
commercial use. Similarly, OSTP will not charge a fee provided that the 
FOIA record being sought is ``easily identifiable'' as provided by 
Sec.  2402.8(b)(1)(A). OSTP believes that the provisions mentioned 
above, and the others provided by Sec.  2402.8, serve the same purpose 
as Commenter  1's suggestion; therefore, OSTP does not find it 
necessary to adopt a threshold fee.

Section 2402.8(b)(3)

Commenter  1
    As proposed, the duplication fee for photocopied records is $0.15 
per page. Commenter  1 is concerned that this fee may be too 
high, which may, in turn, discourage FOIA requests from the public. 
Instead, he suggests a fee of $0.10 per page.
    OSTP hereby adopts a duplication fee of $0.10, which is consistent 
with Department of Justice guidelines.

Section 2402.9(c)

Commenter  1
    Commenter  1 argues that the proposed rules ``incorporate 
a new standard that is not found in the law'' regarding fee waivers. 
Specifically, Commenter  1 cites to the second sentence in 
proposed subsection Sec.  2402.9(c) that provides ``[i]n exceptional 
cases, however, a partial waiver may be granted if the request for 
records would impose an exceptional burden or require an exceptional 
expenditure of OSTP resources.''
    OSTP finds that the standard for fee waivers is properly stated by 
Sec.  2402.9(a), which provides that ``OSTP shall waive part or all of 
the fees'' if two conditions are met: (1) disclosure of the information 
is in the public interest because it is likely to contribute 
significantly to public understanding of the operations of activities 
of the government; and (2) disclosure is not primarily in the 
commercial interest of the requester. This provision mirrors the 
current legal standard found in the FOIA, see 5 U.S.C. 
552(a)(4)(A)(iii).
    OSTP understands Commenter  1's concern to be that OSTP 
would charge a partial fee to a FOIA requester under Sec.  2402.9(c) 
even when the requester meets the conditions for a waiver under Sec.  
2402.9(a); however, the first part of Sec.  2402.9(c) states that 
``[i]f the two conditions in paragraph (a) of this section are met, 
OSTP will ordinarily waive all fees.'' OSTP thus finds that the 
standard we are proposing adheres to the FOIA. When a requester meets 
the standard under Sec.  2402.9(a), OSTP's general policy is to waive 
all fees. Nevertheless, for the sake of clarity, OSTP will modify the 
second part of Sec.  2402.9(c) to apply only if the requester does not 
meet the conditions stated in Sec.  2402.9(a).

Section 2402.9(d)

Commenter  1
    Commenter  1 notes that the proposed rules do not define 
``exceptional circumstances'' for purposes of failure to comply with 
statutory time limits but provides no further comment. OSTP takes no 
further action regarding this subsection.

Consultation With the National Archives and Records Administration

    The National Archives and Records Administration's Office of 
Government Information Services (OGIS) reviewed OSTP's draft 
regulations and made recommendations, which OSTP took into account in 
drafting this final rule.

III. Statutory and Executive Order Reviews

Executive Order 12866

    These regulations have been drafted and reviewed in accordance with 
Executive Order 12866, Regulatory Planning and Review, Section 1(b), 
Principles of Regulation. These regulations are not a significant 
regulatory action under Section 3(f) of Executive Order 12866.

Paperwork Reduction Act

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

Executive Order 12988

    These regulations meet the applicable standards set forth in 
Executive Order 12988, Civil Justice Reform.

Executive Order 13132

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

Regulatory Flexibility Act

    OSTP, in accordance with the Regulatory Flexibility Act, 5 U.S.C. 
605(b), has reviewed these proposed regulations and certifies that they 
will not have a significant economic impact on a substantial number of 
small entities because they pertain to administrative matters affecting 
the agency.

Unfunded Mandates Reform Act of 1995

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

Small Business Regulatory Enforcement Fairness Act of 1996

    These regulations are not major regulations as defined by section 
251 of

[[Page 33212]]

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

National Environmental Policy Act of 1969

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

List of Subjects in 32 CFR Part 2402

    Classified information.

    Therefore, according to the reasons stated in the preamble, the 
Office of Science and Technology Policy adds 32 CFR Part 2402 to read 
as follows:

PART 2402--REGULATIONS IMPLEMENTING THE FREEDOM OF INFORMATION ACT

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

    Authority:  5 U.S.C. 552; E.O. 13392, 70 FR 75373 (Dec. 14, 
2005).


Sec.  2402.1  Purpose and scope.

    The regulations in this part prescribe procedures to obtain 
information and records from the Office of Science and Technology 
Policy (OSTP) under the Freedom of Information Act (FOIA), 5 U.S.C. 
552. The regulations in this part apply only to records that are:
    (a) Either created or obtained by OSTP; and
    (b) Under OSTP control at the time of the FOIA request.


Sec.  2402.2  Delegation of authority and responsibilities.

    (a) The Director of the Office of Science and Technology Policy 
designates the OSTP General Counsel as the Chief FOIA Officer, and 
hereby delegates to the Chief FOIA Officer the authority to act upon 
all requests for agency records and to re-delegate such authority at 
his or her discretion.
    (b) The Chief FOIA Officer shall designate a FOIA Public Liaison, 
who shall serve as the supervisory official to whom a FOIA requester 
can raise concerns about the service the FOIA requester has received 
following an initial response. The FOIA Public Liaison will be listed 
on the OSTP Web site (http://www.whitehouse.gov/administration/eop/ostp) and may re-delegate the FOIA Public Liaison's authority at his or 
her discretion.
    (c) The Director establishes a FOIA Requester Service Center that 
shall be staffed by the Chief FOIA Officer and the FOIA Public Liaison. 
The contact information for the FOIA Requester Service Center is Office 
of Science and Technology Policy, Eisenhower Executive Office Building, 
1650 Pennsylvania Ave. NW., Washington, DC 20504; Telephone: (202) 456-
4444 Fax: (202) 456-6021; Email: [email protected]. Updates to this 
contact information will be made on the OSTP Web site.


Sec.  2402.3  General policy and definitions.

    (a) Non-exempt records available to public. Except for records 
exempt from disclosure by 5 U.S.C. 552(b) or published in the Federal 
Register under 5 U.S.C. 552(a)(1), agency records of OSTP subject to 
FOIA are available to any person who requests them in accordance with 
these regulations.
    (b) Record availability at the OSTP e-FOIA Reading Room. OSTP shall 
make records available on its Web site in accordance with 5 U.S.C. 
552(a)(2), as amended, and other documents that, because of the nature 
of their subject matter, are likely to be the subject of FOIA requests. 
To save both time and money, OSTP strongly urges requesters to review 
documents available at the OSTP e-FOIA Reading Room before submitting a 
request.
    (c) Definitions. For purposes of this part:
    (1) All of the terms defined in the Freedom of Information Act, and 
the definitions included in the ``Uniform Freedom of Information Act 
Fee Schedule and Guidelines'' issued by the Office of Management and 
Budget apply, unless otherwise defined in this subpart.
    (2) The term ``commercial use request'' means a request from or on 
behalf of a person who seeks information for a use or purpose that 
furthers his or her commercial, trade, or profit interests, which can 
include furthering those interests through litigation. OSTP shall 
determine, whenever reasonably possible, the use to which a requester 
will put the requested records. When it appears that the requester will 
put the records to a commercial use, either because of the nature of 
the request itself or because OSTP has reasonable cause to doubt a 
requester's stated use, OSTP shall provide the requester a reasonable 
opportunity to submit further clarification.
    (3) The terms ``disclose'' or ``disclosure'' refer to making 
records available, upon request, for examination and copying, or 
furnishing a copy of records.
    (4) The term ``duplication'' means the making of a copy of a 
record, or of the information contained in it, necessary to respond to 
a FOIA request. Copies can take the form of paper, microform, 
audiovisual materials, or electronic records (for example, magnetic 
tape or disk), among others.
    (5) The term ``educational institution'' means a preschool, a 
public or private elementary or secondary school, an institution of 
undergraduate higher education, an institution of graduate higher 
education, an institution of professional education, or an institution 
of vocational education that operates a program of scholarly research. 
To be in this category, a requester must show that the request is 
authorized by and is made under the auspices of a qualifying 
institution and that the records are not sought for a commercial use 
but are sought to further scholarly research.
    (6) The term ``fee waiver'' means the waiver or reduction of 
processing fees if a requester can demonstrate that certain statutory 
standards are satisfied.
    (7) The term ``FOIA Public Liaison'' means an agency official who 
is responsible for assisting in reducing delays, increasing 
transparency and understanding of the status of requests, and assisting 
in the resolution of disputes.
    (8) The term ``noncommercial scientific institution'' means an 
institution that is not operated on a ``commercial'' basis, as that 
term is defined in these regulations, and that is operated solely for 
the purpose of conducting scientific research, the results of which are 
not intended to promote any particular product or industry. To be in 
this category, a requester must show that the request is authorized by 
and is made under the auspices of a qualifying institution and that the 
records are not sought for a commercial use but are sought to further 
scientific research.
    (9) The term ``perfected request'' means a FOIA request for records 
that adequately describes the records sought, that has been received by 
OSTP, and for

[[Page 33213]]

which there is no remaining question about the payment of applicable 
fees.
    (10) The terms ``representative of the news media'' or ``news media 
requester'' mean any person or entity that gathers information of 
potential interest to a segment of the public, uses its editorial 
skills to turn the raw materials into a distinct work, and distributes 
that work to an audience. In this clause, the term ``news'' means 
information that is about current events or that would be of current 
interest to the public. Examples of news-media entities are television 
or radio stations broadcasting to the public at large and publishers of 
periodicals (but only if such entities qualify as disseminators of 
`news') who make their products available for purchase by or 
subscription by or free distribution to the general public. These 
examples are not all-inclusive. Moreover, as methods of news delivery 
evolve (for example, the adoption of the electronic dissemination of 
newspapers through telecommunications services), such alternative media 
shall be considered to be news-media entities. A freelance journalist 
shall be regarded as working for a news-media entity if the journalist 
can demonstrate a solid basis for expecting publication through that 
entity, whether or not the journalist is actually employed by the 
entity. A publication contract would present a solid basis for such an 
expectation; the Government may also consider the past publication 
record of the requester in making such a determination.
    (11) The term ``search'' refers to the process of looking for and 
retrieving records or information responsive to a request. It includes 
page-by-page or line-by-line identification of information within 
records and also includes reasonable efforts to locate and retrieve 
information from records maintained in electronic form or format.
    (12) The term ``working day'' means a regular Federal working day. 
It does not include Saturdays, Sundays, or legal Federal holidays.


Sec.  2402.4  Procedure for requesting records.

    (a) Format of requests. (1) In general. Requests for information 
must be made in writing and may be delivered by mail, fax, or 
electronic mail, as specified in Sec.  2402.2(c). All requests must be 
made in English. Requests for information must specify the preferred 
form or format (including electronic formats) of the response. When 
requesters do not specify the preferred form or format of the response, 
OSTP shall produce printed copies of responsive records.
    (2) Electronic format records. (i) OSTP shall provide the 
responsive record or records in the form or format requested if the 
record or records are readily reproducible by OSTP in that form or 
format. OSTP shall make reasonable efforts to maintain its records in 
forms or formats that are reproducible for the purpose of disclosure. 
For purposes of this paragraph, the term readily reproducible means, 
with respect to electronic format, a record or records that can be 
downloaded or transferred intact to a floppy disk, computer disk (CD), 
tape, or other electronic medium using equipment currently in use by 
the office or offices processing the request. Even though some records 
may initially be readily reproducible, the need to segregate exempt 
from nonexempt records may cause the releasable material to be not 
readily reproducible.
    (ii) In responding to a request for records, OSTP shall make 
reasonable efforts to search for the records in electronic form or 
format, except where such efforts would significantly interfere with 
the operation of the agency's automated information system(s). For 
purposes of this paragraph, the term ``search'' means to locate, 
manually or by automated means, agency records for the purpose of 
identifying those records that are responsive to a request.
    (iii) Searches for records maintained in electronic form or format 
may require the application of codes, queries, or other minor forms of 
programming to retrieve the requested records.
    (b) Contents. A request must describe the records sought in 
sufficient detail to enable OSTP personnel to locate the records with a 
reasonable amount of effort. OSTP will regard a request for a specific 
category of records as fulfilling the requirements of this paragraph if 
it enables responsive records to be identified by a technique or 
process that is not unreasonably burdensome or disruptive to OSTP 
operations. Whenever possible, a request should include specific 
information about each record sought, such as the date, number, title 
or name, author, recipient, and subject matter of the record. If OSTP 
determines that a request does not reasonably describe the records 
sought, it will either provide notice of any additional information 
needed or otherwise state why the request is insufficient. OSTP will 
offer a requester reasonable opportunity to reformulate the request so 
that it meets the requirements of this section.
    (c) Date of receipt. A request that complies with paragraphs (a) 
and (b) of this section is deemed a ``perfected request.'' A perfected 
request is deemed received on the actual date it is received by OSTP. A 
request that does not comply with paragraphs (a) and (b) of this 
section is deemed received when sufficient information to perfect the 
request is actually received by OSTP. For requests that are expected to 
result in fees exceeding $250, the request shall not be deemed to have 
been received until OSTP has received full payment or satisfactory 
assurance of full payment as provided under Sec.  2402.8.


Sec.  2402.5  Responses to requests.

    (a) Responses within 20 working days. OSTP will exercise all 
reasonable efforts to acknowledge, grant, partially grant, or deny a 
request for records within 20 working days after receiving a perfected 
request.
    (b) Extensions of response time in ``unusual circumstances.'' In 
circumstances where a determination as provided in paragraph (a) of 
this section is not possible within 20 working days, OSTP may extend 
the time limit prescribed in paragraph (a) of this section as necessary 
to adequately respond to a request. OSTP shall notify the requester of 
the extension, the reasons for the extension, and the date on which a 
determination is expected. In such instances, the requester will be 
provided an opportunity to limit the scope of the request so that it 
may be processed within the time limit, or to agree to a reasonable 
alternative time frame for processing. Circumstances justifying a time 
limit extension as provided in this paragraph (b) include, but are not 
limited to, requests that require OSTP to:
    (1) Search for and collect the requested records from off-site 
storage facilities;
    (2) Search for, collect, and appropriately examine a voluminous 
amount of separate and distinct records that are demanded in a single 
request;
    (3) Consult, with all practicable speed, with another agency having 
a substantial interest in the determination of the request; or
    (4) Perform searches of records of former employees.
    (c) Two-track processing. To ensure the most equitable treatment 
possible for all requesters, OSTP will process requests on a first-in, 
first-out basis, using a two-track processing system based upon the 
estimated time it will take to process the request.
    (1) Simple requests. The first track is for requests of simple to 
moderate complexity that are expected to be completed within 20 working 
days. A requester whose request does not qualify as a simple request 
may be given an opportunity to limit the scope of his or her request in 
order to qualify for faster processing.

[[Page 33214]]

    (2) Complex requests. The second track is for requests involving 
``unusual circumstances,'' as described in paragraph (b) of this 
section, that are expected to take more than 20 working days to 
complete.
    (d) Expedited processing. (1) Expedited requests: OSTP may take 
requests out of order and expedite the processing of a request upon 
receipt of a written statement that clearly demonstrates a compelling 
need for expedited processing. Requesters must provide detailed 
explanations to support their expedited requests. For purposes of 
determining expedited processing, the term compelling need means:
    (i) 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 any individual; or
    (ii) That a request is made by a person primarily engaged in 
disseminating information, and the person establishes that there is an 
urgency to inform the public concerning actual or alleged Federal 
Government activity.
    (2) A person requesting expedited processing must include a 
statement certifying that the compelling need provided is true to the 
best of the requester's knowledge and belief.
    (3) OSTP may grant or deny a request for expedited processing as a 
matter of agency discretion. A determination of whether to provide 
expedited processing shall be made, and notice of the determination 
shall be provided to the person making the request, within 10 working 
days after receipt of the perfected request.
    (e) Content of denial. When OSTP denies a request for records, 
either in whole or in part, the written notice of the denial shall 
state the reason for denial, and cite the applicable statutory 
exemption(s), unless doing so would harm an interest protected by the 
exemption(s) under which the request was denied, and notify the 
requester of the right to appeal the determination as specified in 
Sec.  2402.7. The requester's failure to make advance payment or to 
give a satisfactory assurance of full payment required under Sec.  
2402.8 may be treated as a denial of the request and appealed under 
Sec.  2402.7.
    (f) Identifying responsive records. In determining which records 
are responsive to a request, OSTP ordinarily will include only records 
in its possession as of the date the component begins its search for 
them.
    (g) Consultations and referrals. When OSTP receives a request for a 
record in its possession, it shall determine whether another agency of 
the Federal Government is better able to determine whether the record 
is exempt from disclosure under FOIA and, if so, whether it should be 
disclosed as a matter of administrative discretion. If the receiving 
component determines that it is best able to process the record in 
response to the request, then it shall do so. If the receiving 
component determines that it is not best able to process the record, 
then it shall either:
    (1) Respond to the request regarding that record after consulting 
with the agency best able to determine whether to disclose it and with 
any other agency that has a substantial interest in it; or
    (2) Refer the responsibility for responding to the request 
regarding that record to the agency best able to determine whether to 
disclose it, or to another agency that originated the record (but only 
if that agency is subject to the FOIA). Ordinarily, the agency that 
originated a record will be presumed to be best able to determine 
whether to disclose it. OSTP shall notify the FOIA requester in writing 
that a referral of records has been made, provide the name of the 
agency to which the referral was directed, and include that agency's 
FOIA contact information.
    (h) Redactions. For redactions within disclosed records, OSTP 
shall:
    (1) Indicate the FOIA exemption under which a redaction is made, 
unless including that exemption would harm an interest protected by the 
exemption; and
    (2) Indicate, if technically feasible and reasonable, the amount of 
information deleted and the exemption under which the deletion is made 
at the place in the record where the deletion is made.


Sec.  2402.6   Business information.

    (a) In general. Business information obtained by OSTP from a 
submitter will be disclosed under FOIA only under this section.
    (b) Definitions. For purposes of this section:
    (1) Business information means commercial or financial information 
obtained by OSTP from a submitter that may be protected from disclosure 
under Exemption 4 of FOIA.
    (2) Submitter means any person or entity from whom OSTP obtains 
business information, directly or indirectly. The term includes 
corporations; state, local, and tribal governments; and foreign 
governments.
    (c) Designation of business information. A submitter of business 
information will use good-faith efforts to designate, by appropriate 
markings, either at the time of submission or at a reasonable time 
thereafter, any portions of its submission that it considers to be 
protected from disclosure under Exemption 4. These designations will 
expire ten years after the date of the submission unless the submitter 
requests, and provides justification for, a longer designation period.
    (d) Notice to submitters. OSTP shall provide a submitter with 
prompt written notice of a FOIA request or administrative appeal that 
seeks its business information, in order to give the submitter an 
opportunity to object to disclosure of any specified portion of that 
information. The notice shall either describe the business information 
requested or include copies of the requested records or record portions 
containing the information. When notification of a voluminous number of 
submitters is required, notification may be made by posting or 
publishing the notice in a place reasonably likely to accomplish it.
    (e) Where notice is required. Notice shall be given to a submitter 
wherever:
    (1) The information has been designated in good faith by the 
submitter as information considered protected from disclosure under 
Exemption 4; or
    (2) OSTP has reason to believe that the information may be 
protected from disclosure under Exemption 4.
    (f) Opportunity to object to disclosure. OSTP will allow a 
submitter a reasonable time to respond to the notice described in 
paragraph (d) of this section and will specify that time period within 
the notice. If a submitter has any objection to disclosure, the 
submitter is required to provide a detailed written statement of 
objections. The statement must specify all grounds for withholding any 
portion of the information under any exemption of FOIA and, in the case 
of Exemption 4, the submitter must show why the information is a trade 
secret or commercial or financial information that is privileged or 
confidential. In the event that a submitter fails to respond to the 
notice within the time specified, the submitter will be considered to 
have no objection to disclosure of the information. Information 
provided by the submitter that OSTP does not receive within the time 
specified shall not be considered by OSTP. Information provided by a 
submitter under this paragraph may itself be subject to disclosure 
under FOIA.
    (g) Notice of intent to disclose. OSTP shall consider a submitter's 
objections and specific grounds for nondisclosure in deciding whether 
to disclose business information. Whenever OSTP decides to disclose 
business information over the objection of a submitter, OSTP shall

[[Page 33215]]

give the submitter written notice, which shall include:
    (1) A statement of the reason(s) why each of the submitter's 
disclosure objections was not sustained;
    (2) A description of the business information to be disclosed; and
    (3) A specified disclosure date, which shall be a reasonable time 
subsequent to the notice.
    (h) Exceptions to notice requirements. The notice requirements of 
paragraphs (d) and (g) of this section shall not apply if:
    (1) OSTP determines that the information should not be disclosed;
    (2) The information lawfully has been published or has been 
officially made available to the public;
    (3) Disclosure of the information is required by statute (other 
than FOIA) or by a regulation issued in accordance with the 
requirements of Executive Order 12600 (3 CFR, 1988 Comp., p. 235); or
    (4) The designation made by the submitter under paragraph (c) of 
this section appears obviously frivolous--except that, in such a case, 
OSTP shall, within a reasonable time prior to a specified disclosure 
date, give the submitter written notice of any final decision to 
disclose the information.
    (i) Notice of FOIA lawsuit. Whenever a requester files a lawsuit 
seeking to compel the disclosure of business information, OSTP shall 
promptly notify the submitter.
    (j) Corresponding notice to requesters. Whenever OSTP provides a 
submitter with notice and an opportunity to object to disclosure under 
paragraph (d) of this section, OSTP shall also notify the requester(s). 
Whenever OSTP notifies a submitter of its intent to disclose requested 
information under paragraph (g) of this section, OSTP shall also notify 
the requester(s). Whenever a submitter files a lawsuit seeking to 
prevent the disclosure of business information, OSTP shall notify the 
requester(s).


Sec.  2402.7  Appeal of denials.

    (a) A denial of a request for records, either in whole or in part, 
may be appealed in writing to the Chief FOIA Officer within 30 working 
days of the date of the letter denying an initial request.
    (b) Appeals may be sent via email to [email protected] or by 
mail to: Chief FOIA Officer, Office of Science and Technology Policy, 
Eisenhower Executive Office Building, 1650 Pennsylvania Ave. NW., 
Washington, DC 20504. Updates to this contact information will be made 
on the OSTP Web site. The appeal letter should specify the internal 
control number assigned to the FOIA request by OSTP in its response, 
the records requested, and the basis for the appeal.
    (c) The Chief FOIA Officer shall make a determination on the appeal 
under 5 U.S.C. 552(a)(6)(A)(ii) within 20 working days after the 
receipt of the appeal. If the denial is wholly or partially upheld, the 
Chief FOIA Officer shall:
    (1) Notify the requester that judicial review is available pursuant 
to 5 U.S.C. 552(a)(4)(B)-(G); and
    (2) Notify the requester that the Office of Government Information 
Services (OGIS) offers mediation services to resolve disputes between 
FOIA requesters and Federal agencies as a non-exclusive alternative to 
litigation. OGIS' contact information is: Office of Government 
Information Services, National Archives and Records Administration, 
8601 Adelphi Road-OGIS, College Park, MD 20740, Email: [email protected], 
Telephone: 202-741-5770, Facsimile: 202-741-5769, Toll-free: 1-877-684-
6448.
    (d) If OGIS' services are requested, OSTP will work with OGIS and 
the FOIA requester to resolve any dispute as a non-exclusive 
alternative to litigation.


Sec.  2402.8  Fees.

    (a) Fees generally required. OSTP shall use the most efficient and 
least costly methods to comply with requests for documents made under 
FOIA. OSTP shall charge fees in accordance with paragraph (b) of this 
section unless fees are waived in accordance with Sec.  2402.9.
    (b) Calculation of fees. In general, fees for searching, reviewing, 
and duplication will be based on the direct costs of these services, 
including the average hourly salary (base plus locality payment plus 16 
percent) for the employee(s) making the search.
    (1) Search fee. Search fees may be charged even if responsive 
documents are not located or if they are located but withheld on the 
basis of an exemption. However, search fees shall be limited or not 
charged as follows:
    (i) Easily identifiable records. Search fees shall not be charged 
for records that are identified by the requester by title of the record 
and name of the person possessing the record
    (ii) Educational, scientific or news media requests. No search fee 
shall be charged if the request is not sought for a commercial use and 
is made by an educational or scientific institution, whose purpose is 
scholarly or scientific research, or by a representative of the news 
media.
    (iii) Other non-commercial requests. No search fee shall be charged 
for the first two hours of searching if the request is not for a 
commercial use but is not by an educational or scientific institution, 
or a representative of the news media.
    (iv) Requests for records about self. No search fee shall be 
charged to search for records performed under the terms of the Privacy 
Act, 5 U.S.C. 552a(f)(5).
    (2) Review fee. A review fee shall be charged only for commercial 
requests. A review fee shall be charged for the initial examination of 
documents located in response to a request to determine the documents 
may be withheld from disclosure and for the redaction of document 
portions exempt from disclosure. Records or portions of records 
withheld in full under an exemption that is subsequently determined not 
to apply may be reviewed again to determine the applicability of other 
exemptions not previously considered. The costs for such a subsequent 
review are also assessable.
    (3) Duplication fee. Records will be photocopied at a rate of $0.10 
per page. For other methods of reproduction or duplication, OSTP will 
charge the actual direct costs of producing the document(s). 
Duplication fees shall not be charged for the first 100 pages of copies 
unless the copies are requested for a commercial use.
    (c) Aggregation of requests. When OSTP determines that a requester, 
or a group of requesters acting in concert, is attempting to evade the 
assessment of fees by submitting multiple requests in the place of a 
single more complex request, OSTP may aggregate any such requests and 
charge accordingly.
    (d) Fees likely to exceed $25. If the total fee charges are likely 
to exceed $25, OSTP shall notify the requester of the estimated amount 
of the charges. The estimate shall include a breakdown of the fees for 
search, review, and/or duplication. The notification shall offer the 
requester an opportunity to confer with the FOIA Public Liaison to 
reformulate the request to meet the requester's needs at a lower cost.
    (e) Advance payments. Advance payment of fees will generally not be 
required. If, however, charges are likely to exceed $250, OSTP shall 
notify the requester of the likely cost and:
    (1) Obtain satisfactory assurance of full payment; or
    (2) Regardless of when a FOIA request becomes perfected under Sec.  
2402.4(c), if the requester has no history of payment or has failed to 
pay a fee within 30 days of the date of billing, OSTP may require the 
requester to pay the full amount of any fees owed and/or to make an 
advance payment of the full amount of

[[Page 33216]]

the estimated charges before OSTP begins to process the new request or 
a pending request from that requester. In this case, OSTP's working 
days to process the request as described in Sec.  2402.5 will not begin 
to run until the date OSTP receives the full amount of any fees owed 
and/or the advance payment of the full amount of the estimated charges.
    (f) Other charges. OSTP will recover the full costs of providing 
services such as those enumerated below when it elects to provide them:
    (1) Certifying that records are true copies;
    (2) Sending records by special methods such as express mail.
    (g) Remittances. 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 Treasury 
of the United States and mailed to the Chief FOIA Officer, Office of 
Science and Technology Policy, Eisenhower Executive Office Building, 
1650 Pennsylvania Ave. NW., Washington, DC 20504. Updates to this 
contact information will be made on the OSTP Web site.
    (h) Receipts and refunds. A receipt for fees paid will be given 
upon request. A refund of fees paid for services actually rendered will 
not be made.


Sec.  2402.9  Waiver of fees.

    (a) In general. OSTP shall waive part or all of the fees assessed 
under Sec.  2402.8 if the following conditions are satisfied:
    (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) Disclosure is not primarily in the commercial interest of the 
requester.
    (b) Clarification. Where OSTP has reasonable cause to doubt the use 
to which a requester will put the records sought, or where that use is 
not clear from the request itself, OSTP may seek clarification from the 
requester before assigning the request to a specific category for fee 
assessment purposes.
    (c) Partial waiver of fees. If the two conditions stated in 
paragraph (a) of this section are met, OSTP will ordinarily waive all 
fees. In exceptional cases and provided that the requester does not 
meet the conditions stated in paragraph (a), however, a partial waiver 
may be granted if the request for records would impose an exceptional 
burden on OSTP or require an exceptional expenditure of OSTP resources.
    (d) Failure to comply. OSTP will not assess fees under Sec.  2402.8 
if the Agency fails to comply with any time limit and no exceptional 
circumstances apply to processing the request.
    (e) Waivers. OSTP may waive fees in other circumstances solely at 
its discretion, consistent with 5 U.S.C. 552 and the Fee Waiver Policy 
Guidance issued by the Department of Justice.


Sec.  2402.10  Maintenance of statistics.

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


Sec.  2402.11  Disclaimer.

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

Ted Wackler,
Deputy Chief of Staff and Assistant Director.
[FR Doc. 2013-13072 Filed 6-3-13; 8:45 am]
BILLING CODE 3270-F3-P