Federal Register, Volume 79 Issue 33 (Wednesday, February 19, 2014)

[Federal Register Volume 79, Number 33 (Wednesday, February 19, 2014)]
[Proposed Rules]
[Pages 9430-9442]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-03450]

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Proposed Rules
Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.

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Federal Register / Vol. 79, No. 33 / Wednesday, February 19, 2014 /
Proposed Rules

[[Page 9430]]

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

14 CFR Part 1206

[Docket No. NASA-2700-0006]
RIN 2700-AE04

Procedures for Disclosure of Records Freedom of Information Act
Regulations

AGENCY: National Aeronautics and Space Administration.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The National Aeronautics and Space Administration (NASA) is
proposing to amend its regulations implementing the Freedom of
Information Act (FOIA). The regulations are being revised to update and
streamline the language of several procedural provisions and to
incorporate certain changes brought about by the amendments to the FOIA
under the Openness Promotes Effectiveness in our National (OPEN)
Government Act of 2007. Additionally, the regulations are being updated
to reflect developments in case law and to include current cost figures
to be used in calculating and charging fees.

DATES: Submit comments on or before March 21, 2014.

ADDRESSES: Comments must be identified with RIN 2700-AE04 and may be
sent to NASA via the Federal E-Rulemaking Portal: http://www.regulations.gov. Follow the online instructions for submitting
comments. Please note that NASA will post all comments on the internet
with changes, including any personal information provided.

FOR FURTHER INFORMATION CONTACT: Miriam Brown-Lam, (202) 358-0718.

SUPPLEMENTARY INFORMATION:

Background

The FOIA provides that any person has a right, enforceable in
court, to obtain access to Federal agency records, except to the extent
that such records (or portions of them) are protected from public
disclosure by one of nine exemptions or by one of three special law
enforcement record exclusions. The FOIA thus established a statutory
right of public access to Executive Branch information in the Federal
Government.
Part 1206 establishes the policies, responsibilities, and
procedures for the release of Agency records, which are under the
jurisdiction of NASA to members of the public. These regulations apply
to information found in Agency records located at NASA Headquarters and
NASA Centers, including Component Facilities and Technical and Service
Support Centers (herein Centers).
This rule proposes revisions to the Agency's regulations under the
FOIA to update and streamline the language of several procedural
provisions and to incorporate certain of the changes brought about by
the amendments to the FOIA under the OPEN Government Act of 2007,
Public Law 110-175, 121 Stat. 2524. Additionally, the regulations are
being updated to reflect developments in case law and to include
current cost figures to be used in calculating and charging fees. The
revisions to the FOIA regulations incorporate changes to the language
and structure of the regulations. Revised provisions include
restructuring and renumbering of the current regulations: Sec.
1206.101 (Definitions), Sec. 1206.102 (General Policy), Sec. 1206.200
(Types of records to be made available), Sec. 1206.300 (Exemptions)
(Requirements for making requests), Sec. 1206.5 (Timing of responses
to requests), Sec. 1206.6 (Responses to requests), Sec. 1206.7
(Confidential commercial information), and Sec. 1206.8 (Administrative
appeals). The current Sec. 1206.101 (Definitions) and Sec. 1206.7
(Classified Information) will be deleted and subsequent sections
renumbered accordingly. Proposed revisions of the Administration's fee
schedule can be found in Subpart 5. The duplication charge for
photocopying will increase to .15 cents a page (.30 for double-sided
copying), while document search and review charges will increase in
accordance with Subpart 5. Fee rates will be effective upon final
publication of this regulation.

Regulatory Analysis

Executive Order 12866 and Executive Order 13563

Executive Orders 13563 and 12866 direct agencies to assess all
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). Executive
Order 13563 emphasizes the importance of quantifying both costs and
benefits, reducing costs, harmonizing rules, and promoting flexibility.
This final rule has been designated a ``significant regulatory
action,'' although not economically significant, under section 3(f) of
Executive Order 12866. Accordingly, this rule has been reviewed by the
Office of Management and Budget.

Regulatory Flexibility Act

It has been certified that this rule is not subject to the
Regulatory Flexibility Act (5 U.S.C. 601) because it would not, if
promulgated, have a significant economic impact on a substantial number
of small entities. Fees assessed by the Administration are nominal.
Further, the ``small entities'' that make FOIA requests, as compared
with individual requesters and other requesters, are relatively few in
number.

Paperwork Reduction Act Statement

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

Unfunded Mandates Reform Act of 1995

This rule will not result in the expenditure by State, local, and
Tribal governments, in the aggregate, or by the private sector, of
$100,000,000 or more in any one year, and it will not significantly or
uniquely affect small governments. Therefore, no actions were deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
1995.

Small Business Regulatory Enforcement Fairness Act of 1996

This rule is not a major rule as defined by Sec. 251 of the Small
Business Regulatory Enforcement Fairness Act of 1996 (as amended), 5
U.S.C. 804. This

[[Page 9431]]

rule will not result in an annual effect on the economy of $100,000,000
or more; a major increase in costs or prices; or significant adverse
effects on competition, employment, investment, productivity,
innovation, or on the ability of United States-based companies to
compete with foreign based companies in domestic and export markets.

List of Subjects in 14 CFR Part 1206

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

For the reasons stated in the preamble, NASA is proposing to revise
14 CFR Part 1206 as follows:

PART 1206--PROCEDURES FOR DISCLOSURE OF RECORDS FREEDOM OF
INFORMATION ACT REGULATIONS

Sec.
Subpart 1--Basic Policy
1206.100 Scope of part.
1206.101 General policy.
Subpart 2--Types of Records To Be Made Available
1206.200 Publishing of records.
1206.201 Proactive disclosure of Agency records.
1206.202 Records that have been published.
1206.203 Incorporation by reference.
Subpart 3--Procedures
1206.300 How to make a request for Agency records.
1206.301 Describing records sought.
1206.302 Fee agreements.
1206.303 Format of records disclosed.
1206.304 Expedited processing.
1206.305 Responding to requests.
1206.306 Granting a request.
1206.307 Denying a request.
1206.308 Referrals and consultations within NASA or other Federal
agencies.
Subpart 4--Procedures and Time Limits for Responding to Requests
1206.400 Procedures for processing queues and expedited processing.
1206.401 Procedures and time limits for acknowledgement letters and
initial determinations.
1206.402 Suspending the basic time limit.
1206.403 Time extensions.
Subpart 5--Fees Associated With Processing Requests
1206.500 Search.
1206.501 Review.
1206.502 Duplication.
1206.503 Restrictions on charging fees.
1206.504 Charging fees.
1206.505 Advance payments.
1206.506 Requirements for a waiver or reduction of fees.
1206.507 Categories of requesters.
1206.508 Aggregation of requests.
1206.509 Form of payment.
1206.510 Nonpayment of fees.
1206.511 Other rights and services.
Subpart 6--Commercial Information
1206.600 General policy.
1206.601 Notice to submitters.
1206.602 Opportunity to object to disclosure.
1206.603 Notice of intent to disclose.
Subpart 7--Appeals
1206.700 How to submit an appeal.
1206.701 Actions on appeals.
1206.702 Litigation.
Subpart 8--Responsibilities
1206.800 Delegation of authority.
1206.801 Chief FOIA Officer.
1206.802 General Counsel.
1206.803 NASA Headquarters.
1206.804 NASA Centers and Components.
1206.805 Inspector General.
Subpart 9--Location for Inspection and Request of Agency Records
1206.900 FOIA offices and electronic libraries.

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

Subpart 1--Basic Policy

Sec. 1206.100 Scope of the 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 and NASA
Centers, including Component Facilities and Technical and Service
Support Center, herein NASA Headquarters and Centers, as defined in
this part.

Sec. 1206.101 General policy.

(a) In compliance with the Freedom of Information Act (FOIA), as
amended 5 U.S.C. 552, a positive and continuing obligation exists for
NASA, herein Agency, to make available to the fullest extent
practicable upon request by members of the public, all Agency records
under its jurisdiction, as described in this regulation.
(b) Part 1206 does not entitle any person to any service or to the
disclosure of any record that is not required under the FOIA.

Subpart 2--Types of Records To Be Made Available

Sec. 1206.200 Publishing of records.

(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 in accordance with the
FOIA, 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, that have
been released to any person under Subpart 3 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 (frequently requested documents).
(2) A general index of records referred to under (b)(1)(iv).
(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 library 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

[[Page 9432]]

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, or unless they may be purchased by the public from other
readily available sources, i.e., books.
(2) Furthermore, at a minimum, NASA will maintain in its electronic
library records created after November 1, 1997, under paragraphs
(b)(1)(iv) and a guide for requesting records or information from NASA.

Sec. 1206.201 Proactive disclosure of Agency records.

Records that are required by the FOIA to be made available for
public inspection and copying are accessible on the Agency's Web site,
http://www.nasa.gov. Each Center is responsible for determining which
of its records are required to be made publicly available, as well as
identifying additional records of interest to the public that are
appropriate for public disclosure, and for posting such records. Each
Center has a FOIA Public Liaison who can assist individuals in locating
records particular to a Center. A list of the Agency's FOIA Public
Liaisons is available at http://www.hq.nasa.gov/office/pao/FOIA/agency/.

Sec. 1206.202 Records that have been published.

Publication in the Federal Register is a means of making certain
Agency records are available to the public in accordance with 5 U.S.C.
552(a)(2) without requiring the filing of a FOIA request. NASA has a
FOIA Electronic Library Web site at NASA Headquarters and each of its
Centers. Also, the FedBizOpps (FBO) (formerly Commerce Business Daily),
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, and the Earth Resources Observation and Science 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.

Sec. 1206.203 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).

Subpart 3--Procedures

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

(a) A requester submitting a request for records must include his/
her name and mailing address, a description of the record(s) sought
(see Sec. 1206.301), and must address fees or provide justification
for a fee waiver (see Sec. 1206.302) as well as address the fee
category in accordance with Sec. 1206.507. It is also helpful to
provide a telephone number and email address in case the FOIA office
needs to contact you regarding your request; however, this information
is optional when submitting a written request. If a requester chooses
to submit a request online via the NASA FOIA Web site, the required
information must be completed. Do not include a social security number
on any correspondence with the FOIA office.
(b) NASA does not have a central location for submitting FOIA
requests and it does not maintain a central index or database of
records in its possession. Instead, Agency records are decentralized
and maintained by various Centers and Offices throughout the country.
(c) In accordance with the Agency Records Management procedures
NASA has not yet implemented a records management application for
automated capture and control of e-records; therefore, official files
are primarily paper files.
(d) A member of the public may request an Agency record by mail,
facsimile (FAX), electronic-mail (email), or by submitting a written
request in person to the FOIA office having responsibility over the
record requested or to the NASA Headquarters (HQ) FOIA Office.
(e) When a requester is unable to determine the proper NASA FOIA
Office to direct a request to, the requester may send the request to
the NASA HQ FOIA Office, 300 E Street SW., Washington, DC 20546-0001.
The HQ FOIA Office will forward the request to the Center(s) that it
determines to be most likely to maintain the records that are sought.
(1) It is in the interest of the requester to send the request to
the office they believe has responsibility over the records being
sought. (See Appendix A for NASA FOIA Office locations and addresses.)
(2) A misdirected request may take up to ten (10) additional
working days to re-route to the proper FOIA office.
(f) A requester who is making a request for records about himself
or herself (a Privacy Act request) must comply with the verification of
identity provisions set forth in 14 CFR 1212.202.
(g) Where a request pertains to a third party, a requester may
receive greater access by submitting either a notarized authorization
signed by the individual who is the subject of the record requested, or
a declaration by that individual made in compliance with the
requirements set forth in 28 U.S.C. 1746, authorizing disclosure of the
records to the requester, or submit proof that the individual is
deceased (e.g., a copy of a death certificate or a verifiable
obituary).
(h) As an exercise of its administrative discretion, each Center
FOIA office may require a requester to supply additional information if
necessary, i.e., a notarized statement from the subject of the file, in
order to verify that a particular individual has consented to a third
party disclosure. Information will only be released on a case-by-case
to third party requesters if they have independently provided
authorization from the individual who is the subject of the request.

Sec. 1206.301 Describing records sought.

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, a request must meet
the following requirements:
(a) The request must be addressed to an appropriate FOIA office or
otherwise be clearly identified in the letter as a request for an
Agency record under the ``Freedom of Information Act.''
(b) Requesters must describe the records sought in sufficient
detail to enable Agency personnel who are familiar with the subject
area of the request to identify and locate the record with a reasonable
amount of effort. To the extent possible, requesters should include
specific information that may assist a FOIA office in identifying the
requested records, such as the date, title or name, author, recipient,
subject matter of the record, case number, file

[[Page 9433]]

designation, or reference number. In general, requesters should include
as much detail as possible about the specific records or the types of
records sought.
(c) If the requester fails to reasonably describe the records
sought, the FOIA office shall inform the requester of what additional
information is needed or why the request is deficient. The FOIA office
will also notify the requester that it will not be able to comply with
the FOIA request unless the additional information requested is
provided within 20 working days from the date of the letter. If the
additional information is not provided within that timeframe, the
request will be closed without further notification.
(d) If after being asked to clarify a request, the requester
provides additional information to the FOIA office but fails to provide
sufficient details or information to allow the FOIA office to ascertain
exactly what records are being requested and locate them, or in general
to process the request, the FOIA office will notify the requester that
the request has not been properly made and the request will be closed.
The FOIA office will advise him/her that they may submit a new request
for the information; however, they will need to provide more
information to allow processing of the request.
(e) 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 record is sought.
(f) NASA will in good faith attempt to identify and locate the
record(s) sought and will consult with the requester when necessary and
appropriate for that purpose in accordance with these regulations.
(g) NASA is not required to create or compile records in response
to a FOIA request.

Sec. 1206.302 Fee agreements.

(a) A request must explicitly state a willingness to pay all fees
associated with processing the request, fees up to a specified amount,
or a request for a fee waiver.
(b) If the FOIA office determines that fees for processing the
request will exceed the agreed upon amount or the statutory
entitlements, the FOIA office will notify the requester that:
(1) He/she must provide assurance of payment for all anticipated
fees or provide an advance payment if estimated fees are expected to
exceed $250.00, or
(2) The FOIA office will not be able to fully comply with the FOIA
request unless an assurance or advance payment as requested has been
provided.
(3) He/she may wish to limit the scope of the request to reduce the
processing fees.
(c) If the FOIA office does not receive a written response within
20 working days (meaning all days except Saturdays, Sundays and all
Federal legal holidays) after requesting the information, it will
presume the requester is no longer interested in the records requested
and will close the file on the request without further notification.
(d) A commercial-use requester must:
(1) State a willingness to pay all fess associated with processing
a request; or
(2) State a willingness to pay fees to cover the costs of
conducting an initial search for responsive records to determine a fee
estimate.
(e) If a requester is only willing to pay a limited amount for
processing a request and it is for more than one document, the
requester must state the order in which he/she would like the request
for records to be processed.
(f) If a requester is seeking a fee waiver, the request must
include sufficient justification to substantiate a waiver. (See Subpart
5 for information on fee waivers.) Failure to provide sufficient
justification will result in a denial of the fee waiver request.
(g) If a requester is seeking a fee waiver, he/she may also choose
to state a willingness to pay fees in case the fee waiver request is
denied in order to allow the FOIA office to begin processing the
request while considering the fee waiver.
(h) If a fee is chargeable for search, review, duplication, or
other costs incurred in connection with a request for an Agency record,
the requester will be billed prior to releasing Agency documents. If
the total amount of processing fees is under $50.00, the Agency will
release the records and bill the requester when final processing is
complete.
(1) If the exact 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 fees chargeable.
(2) For circumstances in which advance payment of fees is required,
the requester will be notified after the FOIA office has obtained an
estimate of associated fees.
(i) The FOIA office will begin processing a request only after the
request has been properly described in accordance with these
regulations and fees have been resolved.
(j) If the requester is required to pay a fee and it is later
determined on appeal that he/she was entitled to a full or partial fee
waiver, a refund will be sent as appropriate.
(k) NASA may refuse to consider a waiver or reduction of fees for
requesters (persons or organizations) from whom unpaid fees remain owed
to the Agency for another information access request.

Sec. 1206.303 Format of records disclosed.

(a) The FOIA office will provide the records in the requested
format if the records can readily be reproduced from the original file
to that specific format.
(b) The FOIA office may charge direct costs associated with
converting the records or files into the requested format if they are
not maintained in that format. If the costs to convert the records
exceed the amount the requester has agreed to pay, the FOIA office will
notify the requester in writing. If the requester does not agree to pay
the additional fees for converting the records, the records may not be
provided in the requested format.

Sec. 1206.304 Expedited processing.

A requester may ask for expedited processing of a request. However,
information to substantiate the request must be included in accordance
with Sec. 1206.400, Criteria for Expedited Processing, otherwise, the
request for expedited processing will be denied and processed in the
simple or complex queue.

Sec. 1206.305 Responding to requests.

(a) Except in the instances described in paragraphs (e) and (f) of
this section, the FOIA office that first receives a request for a
record and maintains that record, is the FOIA office responsible for
responding to the request.
(b) In determining what records are responsive to a request, a FOIA
office ordinarily will include only records in its possession as of the
date that it begins its search. If any other date is used, the FOIA
office shall inform the requester of that date.
(c) A record that is excluded from the requirements of the FOIA
pursuant to 5 U.S.C. 552(c), shall not be considered responsive to a
request.
(d) The Head of a Center, or designee, is authorized to grant or to
deny any requests for records that are maintained by that Center.
(e) The FOIA office may refer a request to or consult with another
Center FOIA office or Federal agency in accordance with Sec. 1206.308,
if the FOIA office receives a request for records that are in its
possession that were not

[[Page 9434]]

created at that Center. If another Center within NASA or another
Federal agency has substantial interest in or created the records, the
request will either be referred or they will consult with that FOIA
office/agency.
(f) If a request for an Agency record is received by a FOIA office
not having responsibility of the record (for example, when a request is
submitted to one NASA Center or Headquarters and another NASA Center
has responsibility of the record), the FOIA office receiving the
request shall promptly forward it to that FOIA office within 10 working
days from the date of receipt. The receiving FOIA office shall
acknowledge the request and provide the requester with a tracking
number.

Sec. 1206.306 Granting a request.

(a) The FOIA office will not begin processing a request until all
issues regarding scope and fees have been resolved.
(b) If fees are not expected to exceed the minimum threshold of
$25.00, and the scope of the request is in accordance with Sec.
1206.301, the FOIA office will begin processing the request.
(c) If the FOIA office contacts the requester regarding fees or
clarification and the requester has provided a response, the FOIA
office will notify the requester in writing of the decision to either
grant or deny the request.

Sec. 1206.307 Denying a request.

(a) If the FOIA office denies records in response to a request
either in full or in part, it will advise the requester in writing
that:
(1) The requested record(s) is exempt in full or in part; or
(2) Records do not exist, cannot be located, or are not in the
Agency's possession; or
(3) A record is not readily reproducible in the form or format
requested; or
(4) Denial is based on a procedural issue only and not access to
the underlying records when it makes a decision that:
(i) A fee waiver or another fee-related issue will not be granted;
or
(ii) Expedited processing will not be provided.
(b) The denial notification must include:
(1) The name, title, or position of the person(s) responsible for
the denial;
(2) A brief statement of the reasons for the denial, including a
reference to any FOIA exemption(s) applied by the FOIA office to
withhold records in full or in part;
(3) An estimate of the volume of any records or information
withheld, i.e., the number of pages or a reasonable form of estimation,
unless such an estimate would harm an interest protected by the
exemption(s) used to withhold the records or information;
(4) A statement that the denial may be appealed under Subpart 7 of
this part and a description of the requirements set forth therein.
(c) If the requested records contain both exempt and non-exempt
material, the FOIA office will:
(1) Segregate and release the non-exempt material unless the non-
exempt material is so intertwined with the exempt material that
disclosure of it would leave only meaningless words and phrases;
(2) Indicate on the released portion(s) of the records the amount
of information redacted and the FOIA exemption(s) under which the
redaction was made, unless doing so would harm an interest protected by
the FOIA exemption used to withhold the information; and
(3) If technically feasible, place the exemption at the place of
excision.

Sec. 1206.308 Referrals and consultations within NASA or other
Federal Agencies.

(a) Referrals and consultations can occur within the Agency or
outside the Agency.
(b) If a FOIA office (other than the Office of Inspector General)
receives a request for records in its possession that another NASA FOIA
office has responsibility over or is substantially concerned with, it
will either:
(1) Consult with the other FOIA office before deciding whether to
release or withhold the records; or
(2) Refer the request, along with the records, to that FOIA office
for direct response.
(c) If the FOIA office that originally received the request refers
all or part of the request to another FOIA office within the Agency for
further processing, they will notify the requester of the partial
referral and provide that FOIA contact information.
(d) If while responding to a request, the FOIA office locates
records that originated with another Federal agency, it will generally
refer the request and any responsive records to that other agency for a
release determination and direct response.
(e) If the FOIA office refers all the records to another agency, it
will document the referral and maintain a copy of the records that it
refers; notify the requester of the referral in writing, unless that
identification will itself disclose a sensitive, exempt fact; and may
provide the name of a contact at the other agency.
(f) If the FOIA office locates records that originated with another
Federal agency while responding to a request, the office will make the
release determination itself (after consulting with the originating
agency) when:
(1) The record is of primary interest to NASA (for example, a
record may be of primary interest to NASA if it was developed or
prepared according to Agency regulations or directives, or in response
to an Agency request); or
(2) NASA is in a better position than the originating agency to
assess whether the record is exempt from disclosure; or
(3) The originating agency is not subject to the FOIA; or
(4) It is more efficient or practical depending on the
circumstances.
(g) If the FOIA office receives a request for records that another
Federal agency has classified under any applicable executive order
concerning record classification, it must refer the request to that
agency for response.
(h) If the FOIA office receives a request for records that are
under the purview of another Federal agency, the office will return the
request to the requester and may advise the requester to submit it
directly to another agency. The FOIA office will then close the
request.
(i) All consultations and referrals received by the Agency will be
handled according to the date that the FOIA request initially was
received by the first FOIA office.

Subpart 4--Procedures and Time Limits for Responding to Requests

Sec. 1206.400 Procedures for processing queues and expedited
processing.

(a) The FOIA office will normally process requests in the order in
which they are received in each of the processing tracks.
(b) FOIA offices use three queues for multi-track processing
depending on the complexity of the request. Once it has been determined
the request meets the criteria in accordance with Subpart 3 of this
regulation, the FOIA office will place the request in one of the
following tracks:
(1) Simple--A request that can be processed within 20 working days.
(2) Complex--A request that will take over 20 working days to
process. (A complex request will generally require coordination with
more than one office and a legal 10 working day extension for unusual
circumstances (see Sec. 1206.403) may be taken either up front or
during the first 20 days of processing the request.)
(3) Expedited processing--A request for expedited processing will
be processed in this track if the requester can show exceptional need
or urgency

[[Page 9435]]

that their request should be processed out of turn in accordance with
Sec. 1206.400(c).
(c) Requests and appeals will be processed on an expedited basis
whenever it is determined that they involve one or more of the
following:
(1) Circumstances in which the lack of expedited treatment could
reasonably be expected to pose an imminent threat to the life or
physical safety of an individual;
(2) Circumstances in which there is an urgency to inform the public
about an actual or alleged Federal Government activity if the FOIA
request is made by a person primarily engaged in disseminating
information; or
(i) In most situations, a person primarily engaged in disseminating
information will be a representative of the news media and therefore,
will qualify as a person primarily engaged in disseminating
information.
(ii) If the requester is not a full-time member of the news media,
to qualify for expediting processing with regard to item Sec.
1206.400(c)(1)(ii), he/she must establish that their main professional
activity or occupation is information dissemination, although it need
not be their sole occupation.
(iii) To substantiate Sec. 1206.400(c)(1)(ii), the requested
information must be the type of information which has particular value
that will be lost if not disseminated quickly; this ordinarily refers
to a breaking news story of general public interest. Information of
historical interest only or information sought for litigation or
commercial activities would not qualify, nor would a news media
deadline unrelated to breaking news.
(3) The loss of substantial due process rights.
(d) A request for expedited processing must contain a statement
that:
(1) Explains in detail how the request meets one or more of the
criteria in paragraph (c) of this section; and
(2) Certifies that the explanation is true and correct to the best
of the requester's knowledge and belief.
(3) If the request is made referencing (c)(ii), the requester must
substantiate the public interest.
(e) A request for expedited processing may be made at any time.
Requests must be submitted to the FOIA office responsible for
processing the requested records.
(f) The FOIA office must notify the requester of its decision to
grant or deny expedited processing within 10 calendar days from the
date of receipt.
(g) If expedited processing is granted, the request will be
processed on a first-in, first-out basis in that queue.
(h) If expedited processing is denied, the FOIA office will notify
the requester and provide information on appealing this decision in
accordance with Subpart 7 of this part and place the request in the
appropriate processing queue.
(i) If the FOIA office processing the request does not provide
notification of either granting or denying the request for expedited
processing within 10 calendar days from the date of receipt, the
requester may file an appeal for non-response in accordance with
Subpart 7 of this part.

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

(a) Following receipt of a request submitted under the FOIA, the
FOIA staff will send an acknowledgement letter providing the case
tracking number and processing track within ten (10) working days from
date of receipt to the requester.
(b) An initial determination is 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) An initial determination on a request for an Agency record
addressed in accordance with this regulation (to include one made in
person at a FOIA office) shall be made, and the requester shall be sent
an initial determination letter within 20 working days after receipt of
the request, as required by 5 U.S.C. 552(a)(6) (unless unusual
circumstances exist as defined in Sec. 1206.403).
(d) The basic time limit for a misdirected FOIA request begins on
the date on which the request is first received by the appropriate FOIA
office within the Agency, but in any event no later than ten (10)
working days after the date the request is first received by a FOIA
office designated to receive FOIA requests.
(e) Any notification of an initial determination that does not
comply fully with the request for an Agency record, including those
searches that produce no responsive documents, shall include a
statement of the reasons for the adverse determination, include the
name and title of the person making the initial determination, and
notify the requester of the right to appeal to the Administrator or the
Inspector General, as appropriate, pursuant to Subpart 7.

Sec. 1206.402 Suspending the basic time limit.

(a) In accordance with 5 U.S.C. 552(a)(6)(A)(ii)(I), the FOIA
office may make one request to the requester for information to clarify
a request and temporarily suspend (toll) the time (the 20-day period)
while it is awaiting such information that it has reasonably requested
from the requester. Receipt of the requester's response by the FOIA
office to the Agency's request for additional information or
clarification ends the temporary time suspension.
(b) In accordance with 5 U.S.C. 552(a)(6)(A)(ii)(II), the FOIA
office may temporarily suspend (toll) the 20-day period as many times
as is necessary to clarify with the requester issues regarding fees.
Receipt of the requester's response by the FOIA office to the Agency's
request for information regarding fees ends the temporary time
suspension.

Sec. 1206.403 Time extensions.

(a) In ``unusual circumstances'' as defined in this section, the
time limits for an initial determination and for a final determination
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. The extension must be taken before the expiration of the 20
working day time limits. The requester will be notified in writing of:
(1) The unusual circumstances surrounding the extension of the time
limit;
(2) The date by which the FOIA office expects to complete the
processing of the request.
(b) Unusual circumstances are defined as:
(1) The need to search for and collect the requested records from
offices other than the office processing the request;
(2) The need to search for, collect, and appropriately examine a
voluminous amount of documents;
(3) The need to coordinate and/or consult with another NASA office
or Agency having a substantial subject-matter interest in the
determination of the request.
(c) If initial processing time will exceed or is expected to exceed
30 working days, the FOIA office will notify the requester of the delay
in processing and:
(1) Provide an opportunity to modify or limit the scope of the
request to reduce processing time; and
(2) Provide appeal rights, since the FOIA office has exceeded the
30 working day time period.

[[Page 9436]]

(3) Shall make available its designated FOIA contact and its FOIA
Public Liaison for this purpose.
(d) The requester's refusal to reasonably modify the scope of a
request or arrange an alternative timeframe for processing a request
after being given the opportunity to do so may be considered a factor
when determining whether exceptional circumstances exist. Exceptional
circumstances means a delay that does not result from a predictable
workload of requests, unless the Agency demonstrates reasonable
progress in reducing its backlog of pending requests.

Subpart 5--Fees Associated With Processing Requests

Fees such as search, review, and duplication will be charged in
accordance with the requester's fee category as defined in Sec.
1206.507 of this subpart.

Sec. 1206.500 Search.

(a) 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 will determine
what specific documents, if any, are responsive to a request. A search
for Agency records responsive to a request may be accomplished by
manual or automated means.
(b) Search charges, as set forth in this part may be billed 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 has been
conducted or if located, cannot be made available under Sec. 1206.308.
(c) In responding to FOIA requests, FOIA offices shall charge the
following fees based on the date the request is received in the NASA
FOIA Office unless a waiver or reduction of fees has been granted under
Sec. 1206.506. Fees will be determined on October 1st of each year
based on the appropriate General Schedule (GS) base salary, plus the
District of Columbia locality payment, plus 16 percent for benefits of
employees.
(d) For each quarter hour spent by personnel searching for
requested records, including electronic searches that do not require
new programming, the fees will be the average hourly General Schedule
(GS) base salary, plus the District of Columbia locality payment, plus
16 percent for benefits of employees in the following three categories,
as applicable:
(1) Clerical--Based on a GS-6, Step 5 (all employees at a GS-7 and
below are classified as clerical for this purpose).
(2) Professional--Based on a GS-11, Step 7 pay (all employees at a
GS-8 through GS-12 are classified as professional for this purpose);
(3) Managerial--Based on GS-14, Step 2, pay (all employees at a GS-
13 and above are classified as managerial for this purpose).
(e) Requesters will be charged the direct costs associated with
conducting any search that requires the creation of a new program to
locate the requested records.
(f) For requests that require the retrieval of records stored by an
agency at a Federal records center operated by the National Archives
and Records Administration (NARA), additional costs shall be charged in
accordance with the Transactional Billing Rate Schedule established by
NARA.

Sec. 1206.501 Review.

(a) Review means the process of examining a document(s) located in
response to a request to determine whether the document(s) or any
portion thereof is disclosable. Review does not include time spent
resolving general legal or policy issues regarding the application of
exemptions.
(b) Review fees will be assessed in connection with the initial
review of the record, i.e., the review conducted by Agency staff to
determine whether an exemption applies to a particular record or
portion of a record.
(c) Review fees will be charged to commercial use requesters.
(d) No charge will be made for review at the administrative appeal
stage of exemptions applied at the initial review stage. However, when
the appellate authority determines that a particular exemption no
longer applies, any costs associated with an additional review of the
records in order to consider the use of other exemptions may be
assessed as review fees.
(e) Review fees will be charged at the same rates as those charged
for a search under Sec. 1206.500.
(f) Review fees can be charged even if the record(s) reviewed
ultimately is not disclosed.
(g) Review fees will not include costs incurred in resolving issues
of law or policy that may be raised in the course of processing a
request under this section.

Sec. 1206.502 Duplication.

(a) Duplication is reproducing 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, audiovisual materials, or electronic
records, among others.
(b) FOIA offices shall honor a requester's preference for receiving
a record in a particular form or format where it is readily
reproducible by the FOIA office in the form or format requested. 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 in this situation the
requester refuses to specify an alternative form or format, the Agency
will not process the request any further.
(c) Where standard-sized photocopies or scans are supplied, the
FOIA office will provide one copy per request at the regular copy rate
per page.
(d) For copies of records produced on tapes, disks, or other
electronic media, FOIA offices will charge the direct costs of
producing the copy, including the time spent by personnel duplicating
the requested records. For each quarter hour spent by personnel
duplicating the requested records, the fees will be the same as those
charged for a search under this subpart.
(e) If NASA staff must scan paper documents in order to accommodate
a requester's preference to receive the records in an electronic
format, the requester shall pay the appropriate copy fee charge per
page as well as each quarter hour spent by personnel scanning the
requested records. Fees will be the same as those charged for search
under this subpart for each quarter hour spent by personnel scanning
the requested records.
(f) For other forms of duplication, FOIA offices will charge the
direct costs as well as any associated personnel costs. For standard-
sized copies of documents such as letters, memoranda, statements,
reports, contracts, etc., $0.15 per copy of each page; charges for
double-sided copies will be $0.30. For copies of oversized documents,
such as maps, charts, etc., fees will be assessed as direct costs.
Charges for copies (and scanning) include the time spent in duplicating
the documents. For copies of computer disks, still photographs,
blueprints, videotapes, engineering drawings, hard copies of aperture
cards, etc., the fee charged will reflect the direct cost to NASA of
reproducing, copying, or scanning the record.
(g) 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 this part or the direct costs assessed to the Agency. The
charge for computer time involved and for any

[[Page 9437]]

special supplies or materials used shall not exceed the direct cost to
NASA.
(h) Reasonable standard fees 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 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.
(i) Complying with requests for special services such as those
listed in (h)(1), (2) and (3) of this section is entirely at the
discretion of NASA. 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 envelope carried in the supply inventory.

Sec. 1206.503 Restrictions on charging fees.

(a) No search fees will be charged when the FOIA office fails to
comply with the statutory time limits in response to a request if no
unusual or exceptional circumstances apply to the processing of the
request, as those terms are defined in Subpart 4 of this regulation.
(b) In the case of a requester as defined in Sec. 1206.507(c)(2)
(education and noncommercial scientific institution) and (c)(3)
(representative of the news media), no duplication fees will be charged
when the FOIA office fails to comply with the statutory time limits in
response to a request if no unusual or exceptional circumstances apply
to the processing of the request, as those terms are defined in Subpart
4 of this regulation.
(c) Fees will not be charged unless they are over $25.00.
(d) No search or review fees will be charged for a quarter-hour
period unless more than half of that period is required to fulfill
processing of the request.

Sec. 1206.504 Charging fees.

(a) When a FOIA office determines or estimates the fees to be
assessed in accordance with this section will exceed $25.00, the FOIA
office shall notify the requester unless the requester has indicated a
willingness to pay fees as high as those anticipated. If a portion of
the fees can be readily estimated, the FOIA office shall advise the
requester accordingly.
(b) In cases in which a requester has been notified that actual or
estimated fees are in excess of $25.00, the request shall be placed on
hold and further work will not be completed until the requester commits
in writing to pay the actual or estimated fees. Such a commitment must
be made by the requester in writing, must indicate a given dollar
amount or a willingness to pay all processing fees, and must be
received by the FOIA office within 20 working day days from the date of
the letter providing notification of the fee estimate. If a commitment
is not received within this period, the request shall be closed without
further notification.
(c) After the FOIA office begins processing a request, if it finds
that the actual cost will exceed the amount the requester previously
agreed to pay, the FOIA office will: (1) Stop processing the request;
and (2) promptly notify the requester of the higher amount. The request
will be placed on hold until the fee issue has been resolved. If the
issue is not resolved within 20 working days from the date of the
notification letter, the request shall be closed without further
notification.
(d) Direct costs, meaning those expenditures that NASA actually
incurs in searching for, duplicating, and downloading computer files
and documents in response to a FOIA request will be included on the
invoice as appropriate. 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), the cost of operating computers and other electronic
equipment, such as photocopiers and scanners, the costs associated with
retrieving records stored at a Federal records center operated by the
National Archives and Records Administration (NARA).
(e) NASA may charge interest on any unpaid bill starting on the
31st day following the date of billing the requester. Interest charges
will be assessed at the rate provided in 31 U.S.C. 3717 and will accrue
from the billing date until payment is received by the FOIA office.
NASA will follow the provisions of the Debt Collection Act of 1982
(Pub. L. 97-365, 96 Stat. 1749), as amended, and its administrative
procedures, including the use of consumer reporting agencies,
collection agencies, and offset.
(f) If processing fees are less than $50.00, NASA will send all
releaseable documents (or portions thereof) along with a copy of the
billing invoice following the completion of the initial determination.
If fees are greater than $50.00, the documents will not be released
until the invoice has been paid and verified by the FOIA office.
(g) Final billing will be sent when the initial determination has
been completed. At that time the case will be closed.

Sec. 1206.505 Advance payments.

(a) For requests other than those described in paragraphs (b), (c)
and (f) of this section, a FOIA office shall not require the requester
to make an advance payment before work is commenced or continued on a
request. Payment owed for work already completed (i.e., payment for
search, review and/or before records are released to a requester) is
not an advance payment.
(b) When a FOIA office determines or estimates that a total fee to
be charged under this section will exceed $250.00, it may require that
the requester make an advance payment up to the amount of the entire
anticipated fee before beginning to process the request. A FOIA office
may elect to process the request prior to collecting fees when it
receives a satisfactory assurance of full payment from a requester.
(c) Where a requester has previously failed to pay a properly
charged FOIA fee assessed by any FOIA office in the agency within 30
calendar days of the billing date, a FOIA office may require the
requester to pay the full amount due, plus any applicable interest due
on the outstanding debt, before the FOIA office begins to process a new
request or continues to process a pending request or any pending remand
of an appeal. Once the outstanding bill has been paid, the FOIA office
may also require the requester to make an advance payment of the full
amount of any anticipated fee before processing the new request.
(d) Where a FOIA office has a reasonable basis to believe that a
requester has misrepresented his or her identity in order to avoid
paying outstanding fees, it may require that the requester provide
further proof of identity.
(e) In cases in which a FOIA office requires advance payment, the
request shall be placed on hold and further work will not be completed
until the required payment is received. If the requester does not pay
the advance payment within 20 working days after the date of the FOIA
office's letter, the request will be closed without further
notification.
(f) When advance payment is required in order to initiate
processing, after a fee

[[Page 9438]]

estimate has been determined, the FOIA office will require payment
before continuing to process the request.
(g) The fee schedule of this section does not apply to fees charged
under any statute that specifically requires an agency to set and
collect fees for particular types of records. In instances where
records responsive to a request are subject to a statutorily-based fee
schedule program, the FOIA office will inform the requester of the
contact information for that source.

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

(a) The burden is on the requester to justify an entitlement to a
fee waiver.
(b) Requests for a waiver or reduction of fees shall be considered
on a case-by-case basis using the criteria in this section. These
statutory requirements must be satisfied by the requester before
properly assessable fees are waived or reduced under the statutory
standard.
(c) Records shall be furnished without charge or at a reduced rate
if the requester has demonstrated, based on all available information,
that disclosure of the information is in the public interest because
it:
(1) Is likely to contribute significantly to public understanding
of the operations or activities of the Government; and
(2) Is not primarily in the commercial interest of the requester.
(d) In deciding whether a request for a fee waiver meets the
requirements in Sec. 1206.506(c)(1), of this subpart, the FOIA office
will use the following factors, which must be addressed by the
requester:
(1) Does the subject of the request specifically concern
identifiable operations or activities of the Agency with a connection
that is direct and clear, not remote or attenuated? For example, is the
information requested clearly associated to current events?
(2) If the record(s) concern the operations or activities of the
Government, is disclosure likely to contribute to an increased public
understanding of those operations or activities? For example, are the
disclosable contents of the record(s) meaningfully informative in
relation to the subject matter of the request?
(3) Is the focus of the requester on contributing to public
understanding, rather than on the individual understanding of the
requester or a narrow segment of interested persons? The requester must
demonstrate how he/she plans to disseminate the information. The
dissemination of information must be to the general public or a
reasonably broad audience. (Dissemination to a wide audience is not
merely posting the documents on a Web site, but providing an
informative analysis of the information.)
(4) If there is likely to be a contribution to public
understanding, will that contribution be significant? A contribution to
public understanding will be significant if the information disclosed
is new, clearly supports public oversight of Agency operations,
including the quality of Agency activities and the effect of policy and
regulations on public health and safety, or otherwise confirms or
clarifies data on past or present operations of the Agency.
(e) In deciding whether the fee waiver meets the requirements in
Sec. 1206.506 (c)(2) of this subpart, the FOIA office will consider
any commercial interest of the requester that would be furthered by the
requested disclosure.
(1) Requesters are encouraged to provide explanatory information
regarding this consideration.
(2) A waiver or reduction of fees is justified where the public
interest is greater than any identified commercial interest in
disclosure.
(3) If the requester is a representative of a news media
organization seeking information as part of a news gathering process,
the FOIA office will presume that the public interest outweighs the
requester's commercial interest.
(4) If the requester represents a business, corporation, or is an
attorney representing such an organization, the FOIA office will
presume that the commercial interest outweighs the public interest
unless otherwise demonstrated.
(f) Where only some of the records to be released satisfy the
requirements for a waiver of fees, a partial waiver shall be granted
for those records.
(g) Requests for a waiver or reduction of fees should be made when
the request is first submitted to the Agency and should address the
criteria referenced above. A requester may submit a fee waiver request
at a later time so long as the underlying record request is pending or
on administrative appeal.
(h) When a requester who has committed to pay fees subsequently
asks for a waiver of those fees and that waiver is denied, the
requester will be required to pay any costs incurred up to the date the
fee waiver request was received by the office processing the original
request.
(i) When deciding whether to waive or reduce fees, the FOIA office
will rely on the fee waiver justification submitted in the request
letter. If the request letter does not include sufficient
justification, the FOIA office will either deny the fee waiver request
or at its discretion, ask for additional justification from the
requester.
(j) FOIA offices may make available their FOIA Public Liaison or
other FOIA professional to assist any requester in reformulating a
request in an effort to reduce fees; however, the FOIA staff may not
assist a requester in composing a request, advising what specific
records to request, or how to write a request to qualify for a fee
waiver.

Sec. 1206.507 Categories of requesters.

(a) A request should indicate the fee category. If the requester
does not indicate a fee category, or it is unclear to the FOIA office,
they will make a determination of the fee category based on the
request. If the requester does not agree with their determination, he/
she will be afforded the opportunity to provide information to support
a different fee category.
(b) If the request is submitted on behalf of another person or
organization (e.g., if an attorney is submitting a request on behalf of
a client), the fee category will be determined by considering the
underlying requester's identity and intended use of the information.
The following table outlines the basic fee categories and
applicable fees:

----------------------------------------------------------------------------------------------------------------
Requester category Search fees Review fees Duplication fees
----------------------------------------------------------------------------------------------------------------
Commercial use requester............. Yes.................... Yes............... Yes.
Educational and non-commercial No..................... No................ Yes (first 100 pages, or
scientific institutions. equivalent volume, without
charge).
Representative of news media No..................... No................ Yes (first 100 pages, or
requester. equivalent volume, without
charge).
All other requesters................. Yes (first 2 hours No................ Yes (first 100 pages, or
without charge). equivalent volume, without
charge).
----------------------------------------------------------------------------------------------------------------

[[Page 9439]]

(c) The FOIA provides for three categories of requesters. However,
for clarity purposes, NASA has broken them down to four for the
purposes of determining fees. These four categories of FOIA requesters
are: 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, which is indicated in the FOIA fee table above.
(1) Commercial use requesters. When NASA receives a request for
documents appearing to be for commercial use, meaning a request from or
on behalf of one whom seeks information for a use or purpose that
furthers the commercial, trade, or profit interests of either the
requester or the person on whose behalf the request is made, it will
assess charges to recover the full direct costs of searching for,
reviewing for release, and duplicating the records sought. NASA will
not consider a commercial-use request for a waiver or reduction of fees
based upon an assertion that disclosure would be in the public
interest. A request from a corporation (not a news media corporation)
may be presumed to be for commercial use unless the requester
demonstrates that it qualifies for a different fee category. Commercial
use requesters are not entitled to two (2) hours of search time or to
100 pages of duplication of documents without charge.
(2) Education and non-commercial scientific institution requesters.
To be eligible for inclusion in 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 (not operated for commerce, trade or profit), but are
being sought in furtherance of scholarly (if the request is from an
educational institution) or scientific (if the request is from a
noncommercial scientific institution) research. A request for
educational purposes must be sent on the Institution's letterhead and
signed by the Dean of the School or Department. Records requested for
the intention of fulfilling credit requirements are not considered to
be sought for a scholarly purpose.
For the purposes of a non-commercial scientific institution, it
must be solely for the purpose of conducting scientific research, the
results of which are not intended to promote any particular product or
industry. Requests must be sent on the letterhead of the scientific
institution and signed by the responsible official in charge of the
project/program associated with the subject of the documents that are
being requested.
(3) Representative of the news media. NASA shall provide documents
to requesters in this category for the cost of duplication alone,
excluding charges for the first 100 pages when the requester
demonstrates the following:
(a) The requester's intended dissemination,
(b) Whether the information is current news and/or of public
interest, and
(c) Whether the information sought will shed new light on agency
statutory operations.
A representative of the news media is any person or entity
organized and operated to publish or broadcast news to the public that
actively 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. Examples of
news media entities include television or radio stations that broadcast
``news'' to the public at large and publishers of periodicals that
disseminate ``news'' and make their products available through a
variety of means to the general public. A request for records that
supports the news-dissemination function of the requester shall not be
considered to be for a commercial use. ``Freelance'' journalists who
demonstrate a solid basis for expecting publication through a news
media entity shall be considered as working for that entity. A
publishing contract would provide the clearest evidence that
publication is expected; however, NASA shall also consider a
requester's past publication record in making this determination.
NASA's decision to grant a requester news media status for the purposes
of assessing fees will be made on a case-by-case basis based upon the
requesters intended use.
Requesters seeking this fee category who do not articulate
sufficient information to support their request will not be included in
this fee category. Additionally, FOIA staff may grant a partial fee
waiver if the requester can articulate the information above for some
of the documents.
(4) All other requesters. NASA shall charge requesters who do not
fit into any of the categories mentioned in this section fees in
accordance with the fee table above.

Sec. 1206.508 Aggregation of requests.

(a) 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.
(b) When NASA has reason to believe that a requester or a group of
requesters acting in concert is attempting to divide a request into a
series of requests on a single subject or related subjects for the
purpose of avoiding the assessment of fees, NASA will aggregate any
such requests and charge accordingly.
(c) NASA will consider that multiple requests made within a 30-day
period were so intended submitted as such to avoid fees, unless there
is evidence to the contrary.
(d) NASA will aggregate requests separated by a longer period of
time only when there is a reasonable basis for determining that
aggregation is warranted in view of all the circumstances involved.
(e) NASA will not aggregate multiple requests on unrelated subjects
from one requester or organization.

Sec. 1206.509 Form of payment.

Payment shall be made by check or money order payable to the
``Treasury of the United States,'' or by credit card per instructions
in the initial determination or billing invoice and sent to NASA.

Sec. 1206.510 Nonpayment of fees.

(a) 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 Sec. 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.

Sec. 1206.511 Other rights and services.

Nothing in this subpart shall be construed to entitle any person to
any service or to the disclosure of any record that is not required
under the FOIA.

Subpart 6--Commercial Information

Sec. 1206.600 General policy.

(a) Notice shall be given to a submitter whenever the information
requested is commercial information and 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. For the purpose of applying the notice requirements, commercial
information is information

[[Page 9440]]

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.
(b) A submitter is a person or entity outside the Federal
Government from whom the Agency directly or indirectly obtains
commercial or financial information. The term submitter includes, but
is not limited to corporations, state governments, individuals, and
foreign governments.
(c) The notice requirements of Sec. 1206.601 of this subpart will
not apply if:
(1) The information has been lawfully published or officially made
available to the public; or
(2) Disclosure of the information is required by a statute (other
than this part); or
(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.
(d) An additional limited exception to the notice requirements of
Sec. 1206.601 of this subpart, to be used only when all of the
following exceptional circumstances are found to be present, authorizes
the Agency to withhold information that is the subject of a FOIA
request, based on Exemption 4 (5 U.S.C. 552(b)(4)), without providing
the submitter individual notice when:
(1) 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.
(2) Absent any response to the published notice, the Agency
determines that if it provided notice as is otherwise required by Sec.
1206.601 of this subpart, it is reasonable to assume that the submitter
would object to disclosure of the information based on Exemption 4;
and,
(3) If the submitter expressed the anticipated objections, the
Agency would uphold those objections.
(e) The exception shall be used only with the approval of the Chief
Counsel of the Center, the Counsel 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.

Sec. 1206.601 Notice to submitters.

(a) Except as provided in Sec. 1206.603(b) and Sec. 1206.603(c)
of this subpart, the Agency shall provide a submitter with prompt
written notice of a FOIA request that seeks its commercial information
whenever required under Sec. 1206.600(a) of this subpart.
(b) A notice to a submitter must include:
(1) The exact language of the request or an accurate description of
the request;
(2) Access to or a description of the responsive records or
portions thereof containing the commercial information to the
submitter;
(3) A description of the procedures for objecting to the release of
the possibly confidential information under Sec. 1206.602 of this
subpart;
(4) A time limit for responding to the Agency that shall not exceed
10 working days from receipt or publication of the notice (as set forth
in Sec. 1206.603(b) of this subpart) to object to the release and to
explain the basis for the objection;
(5) Notice that the information contained in the submitter's
objections may itself be subject to disclosure under the FOIA;
(6) Notice that the Agency, not the submitter, is responsible for
deciding whether the information shall be released or withheld;
(7) Notice that failing to respond within the timeframe specified
under Sec. 1206.601(b)(4) of this subpart will create a presumption
that the submitter has no objection to the disclosure of the
information in question.
(c) 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.

Sec. 1206.602 Opportunity to object to disclosure.

(a) If a submitter has any objections to the disclosure of
commercial information, the submitter must provide a detailed written
statement to the FOIA office that specifies all factual and/or legal
grounds for withholding the particular information under any FOIA
exemptions.
(b) The submitter must include a daytime telephone number, an email
and mailing address and a fax number if available on a response to the
FOIA office.
(c) A submitter who does not respond within the time period
specified under this subpart will be considered to have no objection to
disclosure of the information.
(d) Responses received by the FOIA office after this time period
will not be considered by the FOIA office unless the submitter provides
an explanation justifying additional time to respond, which the FOIA
office determines to be reasonable, before the end of the 10 working
day notification.

Sec. 1206.603 Notice of intent to disclose.

(a) The Agency shall carefully consider any objections of the
submitter in the course of determining whether to disclose commercial
information. The Agency, not the submitter, is responsible for deciding
whether the information will be released or withheld.
(b) 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 information to the submitter; and
(3) A date after which disclosure is expected, no less than 10
working days after notification to the submitter.
(c) The FOIA office will provide notification regarding a FOIA
lawsuit:
(1) To a submitter, when a requester brings suit seeking to compel
disclosure of commercial information; or
(2) To a requester, when a submitter brings suit against the Agency
in order to prevent disclosure of commercial information.

Subpart 7--Appeals

Sec. 1206.700 How to submit an appeal.

(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. 1206.805, to the Inspector
General under the procedures of this section for reversal of any
adverse initial determination received in response to the request for
an Agency record within 30 days from the date of the initial
determination letter.
(b) The Appeal must:
(1) Be in writing;
(2) Be addressed to the Administrator, NASA Headquarters, Executive

[[Page 9441]]

Secretariat, Washington, DC 20546, or, for records as specified in
Sec. 1206.805, 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 initial request for the Agency record and
a copy of the adverse initial determination along with any other
correspondence with the FOIA office;
(5) To the extent possible, state the reasons the adverse initial
determination should be reversed; and
(6) Be sent to the Administrator or the Inspector General, as
appropriate, within 30 days of the date 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. 1206.701 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. 1206.805, the
Inspector General or designee, shall make a final determination on an
appeal and notify the appellant thereof, within 20 working days after
the receipt of the appeal by the Administrator's Office.
(b) In ``unusual circumstances'' as defined in Sec. 1206.403, the
time limit for a final determination may be extended, but not to exceed
a total of 10 working days in the aggregate in the processing of any
specific appeal for an Agency record. The extension must be taken
before the expiration of the 20 working day time limit. The appellant
will be notified in writing in accordance with Sec. 1206.403.
(c) If processing time will exceed or is expected to exceed 30
working days, the appellant will be notified of the delay in processing
and the reason for the delay.
(d) 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.
(e) If a reversal in whole or in part of the initial determination
requires additional document search or production, associated fees will
be applicable in accordance with fee guidance in this regulation.
(f) 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).
(g) Before seeking a review by a court of a FOIA office's adverse
initial determination, a requester must generally submit a timely
administrative appeal in accordance with this regulation.

Sec. 1206.702 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 with a report on the details and
status of the request. In such a case, if a determination with respect
to the initial FOIA request has not been made, an initial determination
shall be made as soon as possible by the FOIA office processing the
request after coordinating a release strategy with the General Counsel
in each case.

Subpart 8--Responsibilities

Sec. 1206.800 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.

Sec. 1206.801 Chief FOIA Officer.

(a) The Associate Administrator, Office of Communications, is
designated as the Chief FOIA Officer for the Agency. The Chief FOIA
Officer is delegated authority for administering the FOIA and all
related laws and regulations within the Agency. The Associate
Administrator has delegated the day-to-day oversight of the Agency FOIA
Program to the Deputy Associate Administrator for Communications.
(b) The Deputy Associate Administrator for Communications has
delegated the overall responsibility for developing and administering
the FOIA program within NASA to the Principal Agency FOIA Officer,
located in the Office of Communications. This includes:
(1) Developing regulations, guidelines, procedures, and standards
for the Agency's FOIA program;
(2) Oversight of all FOIA offices and programs and ensuring they
are in compliance with FOIA laws and regulations;
(3) Ensuring implementation of the FOIA Programs throughout the
Agency and keeping the Chief FOIA Officer and the Deputy Associate
Administrator for Communications informed of the Agency's FOIA
performance;
(4) Providing program oversight, technical assistance, and training
to employees to ensure compliance with the Act;
(5) Preparing the Agency's FOIA Annual Report to the Department of
Justice and Congress, as well as the Chief FOIA Officer's Report;
(6) Preparing all other reports as required to DOJ/Congress or
within the Agency;
(7) The Principal Agency FOIA Officer has primary responsibility
for developing, conducting and reviewing all internal Agency FOIA
training for NASA FOIA staff;
(8) Direct supervision of the Headquarters FOIA Office.

Sec. 1206.802 General Counsel.

The General Counsel is responsible for the interpretation of 5
U.S.C. 552 and of this part, as well as providing legal guidance with
regard to disclosure of Agency records. The General Counsel is also
responsible for the handling of appeals and litigation in connection
with a request for an Agency record under this part.

Sec. 1206.803 NASA Headquarters.

Except as otherwise provided under this subpart, the Deputy
Associate Administrator for Communications is responsible for the
following:
(a) Delegating the authority for direct oversight of the
Headquarters FOIA Office to the Principal Agency FOIA Officer.
(b) When denying records in whole or in part, ensuring the
Headquarters FOIA Office consults with the General Counsel charged with
providing legal advice to Headquarters before releasing an initial
determination under Sec. 1206.308.

Sec. 1206.804 NASA Centers and Components.

Except as otherwise provided in this subpart, in coordination with
the Deputy Associate Administrator for Communications, the Director of
each NASA Center or the Official-in-Charge of each Center, is
responsible for ensuring the following:
(a) The Director of Public Affairs or the Head of the Public
Affairs Office at the Center has delegated authority to process all
FOIA requests at their respective Center.
(b) This delegated authority has further been delegated to the FOIA
Officer at their Center or in the absence of a FOIA Officer, the FOIA
Specialist,

[[Page 9442]]

who must report to and be supervised by their Director of Public
Affairs or the Head of the Public Affairs Office.
(c) When denying records in whole or in part, the FOIA Officer at
the Center will consult with the Chief Counsel or the Counsel charged
with providing legal advice to that FOIA office before releasing an
initial determination under Sec. 1206.308.

Sec. 1206.805 Inspector General.

(a) The Inspector General or designee is responsible for making
final determinations under Sec. 1206.701, within the time limits
specified in Subpart 7 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 Subpart 4
concerning Office of Inspector General records originating in the
Office of the Inspector General, records from outside the Government
related to Office of Inspector General 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 Counsel 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 4 of this part.
(d) The Inspector General or designee is responsible for
determining whether unusual circumstances exist under Sec. 1206.403
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.

Subpart 9--Location for Inspection and Request of Agency Records

Sec. 1206.900 FOIA offices and electronic libraries.

(a) NASA Headquarters and each NASA Center have a FOIA Electronic
Library on the Internet. The Electronic library addresses are located
on the NASA FOIA homepage http://www.hq.nasa.gov/office/pao/FOIA/agency/
(b) In addition a requester may submit a FOIA request
electronically. The addresses are located on the NASA FOIA homepage
under each Center link.

Appendix A

NASA FOIA Requester Service Center Addresses

NASA Ames Research Center, FOIA Requester Service Center, Mail Stop
943-4, Moffett Field, CA 94035
NASA Dryden Flight Research Center, FOIA Requester Service Center,
Post Office Box 273, Edwards, CA 93523
NASA Glenn Research Center, FOIA Requester Service Center, 21000
Brookpark Road, Cleveland, OH 44135
NASA Goddard Space Flight Center, FOIA Requester Service Center,
Greenbelt, MD 20771
NASA Headquarters, FOIA Requester Service Center, Mail Stop 5-L19,
300 E Street SW., Washington, DC 20546
NASA Office of the Inspector General, FOIA Requester Service Center,
Mail Stop, 300 E Street SW., Washington, DC 20546
NASA Management Office--Jet Propulsion Laboratory, FOIA Requester
Service Center, 4800 Oak Grove Drive, Pasadena, CA 91109
NASA Johnson Space Center, FOIA Requester Service Center, Houston,
TX 77058
NASA Kennedy Space Center, FOIA Requester Service Center, Kennedy
Space Center, FL 32899
NASA Langley Research Center, FOIA Requester Service Center,
Hampton, VA 23681
NASA Marshall Space Flight Center, FOIA Requester Service Center,
Huntsville, AL 35812
NASA Stennis Space Center, FOIA Requester Service Center, Stennis
Space Center, MS 39529
NASA Shared Services Center, FOIA Requester Service Center, Bldg
5100, Stennis Space Center, MS 39529

Charles F. Bolden, Jr.,
Administrator.
[FR Doc. 2014-03450 Filed 2-18-14; 8:45 am]
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