[Federal Register Volume 80, Number 64 (Friday, April 3, 2015)]
[Proposed Rules]
[Pages 18160-18167]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-07376]


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OFFICE OF GOVERNMENT ETHICS

5 CFR Part 2600, 2601, 2604

RIN 3209-AA40, 3209-AA41, 3209-AA39


Organization and Functions; Implementation of Statutory Gift 
Acceptance Authority; Freedom of Information Act

AGENCY: Office of Government Ethics (OGE).

ACTION: Proposed rule.

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SUMMARY: The U.S. Office of Government Ethics is updating and 
streamlining its organization and functions regulation and its 
statutory gift acceptance authority implementation. OGE is also 
updating and streamlining its Freedom of Information Act (FOIA) 
regulation to reflect OGE's existing policy and practice and to 
implement changes to the FOIA. Finally, the proposed revisions make 
administrative changes and update cost figures for calculating and 
charging fees.

DATES: Written comments are invited and must be received on or before 
June 2, 2015.

ADDRESSES: You may submit written comments to OGE on the proposed rule 
by any of the following methods:
     Email: [email protected]. Include the appropriate Regulation 
Identifier Number in the subject line of the message.
     Fax: (202) 482-9237.
     Mail/Hand Delivery/Courier: U.S. Office of Government 
Ethics, Suite 500, 1201 New York Avenue NW., Washington, DC 20005-3917, 
Attention: Jennifer Matis, Assistant Counsel.
    Instructions: All submissions must include OGE's agency name and 
the appropriate Regulation Identifier Number. Use RIN 3209-AA40 to 
submit comments on the proposed changes to 5 CFR part 2600; RIN 3209-
AA41 to submit comments on the proposed changes to 5 CFR part 2600; and 
RIN 3209-AA39 to submit comments on the proposed changes to 5 CFR part 
2604. OGE will post all comments on its Web site (www.oge.gov). All 
comments received will be posted without change; OGE generally does not 
edit a commenter's personal identifying information from submissions. 
You should submit only information that you wish to make available 
publicly.

FOR FURTHER INFORMATION CONTACT: Jennifer Matis, Assistant Counsel, 
202-482-9216.

SUPPLEMENTARY INFORMATION:

A. Substantive Discussion

    The rule proposes revisions to standardize, update, and streamline 
the language of 5 CFR parts 2600, 2601, and 2604. In addition, the 
proposed revisions to 5 CFR part 2600 remove out-of-date information 
regarding OGE's organizational structure and instead refer individuals 
to its Web site for current information. Likewise, the proposed 
revisions to 5 CFR part 2601 reflect changes to OGE's organizational 
structure.
    The primary purpose of the proposed revisions to 5 CFR part 2604 is 
to reflect changes to the FOIA under the Openness Promotes 
Effectiveness in our National (OPEN) Government Act of 2007, Public Law 
110-175, and to incorporate principles established by the 2009 FOIA 
memorandum. OGE is committed to operating transparently and has been 
administratively adhering to the developments in FOIA law and to the 
President's directive. Except as noted below, the proposed revisions 
reflect OGE's existing policies and practices.
    The following is a subpart-by-subpart analysis of the proposed 
changes to 5 CFR part 2604:
    Subpart A--General Provisions. The definition of ``duplication'' 
has been updated in accordance with changes in technology. The 
definition of ``representative of the news media'' has been revised to 
incorporate amendments to the FOIA under the OPEN Government Act. 
Section 2604.104 has been added to inform FOIA requesters about OGE's 
obligations regarding the preservation of records. Section 2604.105 has 
been added to clarify that OGE's FOIA regulation does not create an 
entitlement to additional rights or services beyond those conferred by 
the FOIA.
    Subpart B--FOIA Public Reading Room Facility and Web site; Index 
Indentifying Information for the Public. Section 2604.201(a)(2) was 
revised to reflect OGE's existing practice of proactively identifying 
and posting on its Web site records of interest to the public, in 
accordance with the principles set forth by the 2009 FOIA memorandum. 
Section 2604.201(b)(5) was revised to parallel the language of the 
FOIA. After consideration, OGE decided not to revise Sec.  2604.202(b), 
which contains a notice that the Director of OGE has determined that it 
is unnecessary and impracticable to publish and distribute a quarterly 
index of materials available under 5 U.S.C. 552(a)(2). However, OGE 
will consider whether it would be feasible to publish

[[Page 18161]]

and update such an index on its Web site.
    Subpart C--Production and Disclosure of Records Under FOIA. Section 
2604.301 was revised to remove the option of submitting a request in 
person or by telephone. This change promotes efficiency in the receipt 
and tracking of requests, particularly in light of the fact that OGE 
has received few, if any, requests in person or by telephone. Section 
2604.304 was revised to clarify the requirements for submitting an 
appeal and to correctly reflect the official delegated authority by 
OGE's Director to make a determination with respect to appeals.
    Several revisions were made to this subpart to incorporate changes 
to the FOIA under the OPEN Government Act. The new Sec.  2604.302(a) 
was added to reflect OGE's practice of acknowledging requests when the 
FOIA Officer determines that they will take longer than 10 working days 
to process. The redesignated Sec.  2604.302(c) was revised to clarify 
OGE's practice of referring requests only to agencies subject to the 
FOIA and providing requesters with a point of contact within the 
receiving agency. Section 2604.304(e) was added to reflect OGE's 
practice of notifying requesters of the dispute resolution services of 
the Office of Government Information Services when a denial of a 
request for records is upheld in whole or in part on appeal. The new 
Sec.  2604.305(a)(2) was added to notify requesters regarding the 
tolling of time limits. The extension of time limits provision in Sec.  
2604.305(c) was revised to more closely parallel the current language 
of the FOIA, including a notification that OGE will make available its 
Public Liaison to assist in the resolution of disputes.
    Subpart D--Exemptions Under FOIA. Section 2604.401 was revised to 
reflect OGE's existing policy regarding discretionary disclosures of 
exempt records, as well as to incorporate the principles set forth in 
the 2009 FOIA memorandum. Section 2604.402 was revised to give a 
submitter of business information a reasonable time, up to 10 working 
days, to provide a written statement of objection to a disclosure, 
rather than restricting the submitter to five working days in all 
circumstances.
    Subpart E--Schedule of Fees. Proposed changes to OGE's FOIA fee 
schedule are found at Sec.  2604.501. Document search and review 
charges will increase slightly to $16 and $28 per hour for clerical and 
professional time, respectively. This increase is reasonable in light 
of the base salaries of OGE employees and is expected to have little 
impact on requesters. The duplication charge will remain the same at 15 
cents per page. Section 2604.503(d) was added to incorporate an 
amendment to the FOIA under the OPEN Government Act, which limits an 
agency's authority to assess certain fees if the agency fails to comply 
with statutory time limits, unless unusual or exceptional circumstances 
apply.
    Subpart F--Annual OGE FOIA Report. Section 2604.601 was revised to 
incorporate by reference the provisions of 5 U.S.C. 552(e) rather than 
provide a detailed description of the contents of OGE's annual FOIA 
report. In light of the changes in annual FOIA reporting requirements 
made by the OPEN Government Act and the possibility of additional 
changes, this revision helps to ensure that the public is provided with 
updated information on OGE's reporting obligations both now and in the 
future.
    Subpart G--Fees for the Reproduction and Mailing of Public 
Financial Disclosure Reports. Copies of public financial disclosure 
reports are requested and provided pursuant to section 105 of the 
Ethics in Government Act of 1978, as amended, and Sec.  2634.603 of 
this chapter, not pursuant to the FOIA. Section 2604.702 was revised to 
increase the duplication charge for the reproduction of public 
financial reports to 15 cents per page, the same charge assessed to 
FOIA requesters under Sec.  2604.501(b)(2). The documents are also 
available electronically through OGE's Web site at no charge.

B. Statutory Authority

    OGE is proposing this rulemaking under the authority of 5 U.S.C. 
301, 552 (as amended), and 553 and 5 U.S.C. app 105(b).

C. Matters of Regulatory Procedure

Regulatory Planning and Review (Executive Orders 12866 and 13563)

    In promulgating this rulemaking, OGE has adhered to the regulatory 
philosophy and the applicable principals of regulation set forth in 
Executive Orders 12866 and 13563. The proposed rule has not been 
reviewed by the Office of Management and Budget because it is not a 
significant regulatory action for the purposes of Executive Order 
12866.

Congressional Review Act

    The proposed rule is not a major rule as defined in 5 U.S.C. 
Chapter 8, Congressional Review of Agency Rulemaking.

Paperwork Reduction Act

    The proposed rule is not subject to section 3504(h) of the 
Paperwork Reduction Act, 44 U.S.C. 3501, because it does not contain 
any information collection requirements subject to approval by the 
Office of Management and Budget.

Federalism (Executive Order 13132)

    The proposed rule 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, OGE has determined that this proposed rule does not have 
sufficient federalism implications to warrant the preparation of a 
federalism summary impact statement.

Unfunded Mandates Reform Act

    The proposed rule neither imposes an unfunded mandate of more than 
$100 million per year nor imposes a significant or unique effect on 
State, local or tribal governments, or the private sector.

Regulatory Flexibility Act

    As required by the Regulatory Flexibility Act, it is hereby 
certified that this proposed rule will not have a significant impact on 
a substantial number of small entities because this regulation will 
affect only people and organizations who file FOIA requests with OGE.

Civil Justice Reform (Executive Order 12988)

    It is hereby certified that this proposed rule does not unduly 
burden the judicial system and meets the requirements of Executive 
Order 12988.

List of Subjects

5 CFR Parts 2600 and 2601

    Administrative practice and procedure, Organization and functions 
(Government agencies).

5 CFR Part 2604

    Administrative practice and procedure, Archives and records, 
Confidential business information, Freedom of information, Reporting 
and recordkeeping requirements.

    Approved: March 25, 2015.
Walter M. Shaub, Jr.,
Director, Office of Government Ethics.

    For the reasons set out above, OGE proposes to amend 5 CFR parts 
2600, 2601, and 2604 as follows:

[[Page 18162]]

PART 2600--ORGANIZATION AND FUNCTIONS OF THE OFFICE OF GOVERNMENT 
ETHICS

0
1. The authority citation for part 2600 continues to read as follows:

    Authority: 5 U.S.C. App. (Ethics in Government Act of 1978); 
E.O. 12674, 54 FR 15159, 3 CFR, 1989 Comp., p. 215, as modified by 
E.O. 12731, 55 FR 42547, 3 CFR, 1990 Comp., p. 306.

0
2. Amend Sec.  2600.101 by revising the first sentence of paragraph (a) 
to read as follows:


Sec.  2600.101  Mission and history.

    (a) The U.S. Office of Government Ethics (OGE) was established by 
the Ethics in Government Act of 1978, Public Law 95-521, 92 Stat. 1824 
(1978). * * *
* * * * *
0
3. Amend Sec.  2600.102 by revising paragraphs (a) and (b) to read as 
follows:


Sec.  2600.102  Contact information.

    (a) Address. OGE is located at 1201 New York Avenue NW., Suite 500, 
Washington, DC 20005-3917. OGE does not have any regional offices. 
OGE's general email address is [email protected].
    (b) Web site. Information about OGE and its role in the executive 
branch ethics program as well as copies of publications that have been 
developed for training, educational and reference purposes are 
available electronically on OGE's Web site (www.oge.gov). OGE has 
posted on its Web site various Executive Orders, statutes, and 
regulations that together form the basis for the executive branch 
ethics program. The site also contains ethics advisory opinions and 
letters published by OGE, as well as other pertinent information.
* * * * *
0
4. Revise Sec.  2600.103 to read as follows:


Sec.  2600.103  Office of Government Ethics organization and functions.

    OGE's Director is appointed by the President and confirmed by the 
Senate for a five-year term. Additional information regarding OGE's 
organization and functions is available on its Web site at www.oge.gov.

PART 2601--IMPLEMENTATION OF OFFICE OF GOVERNMENT ETHICS STATUTORY 
GIFT ACCEPTANCE AUTHORITY

0
5. The authority citation for part 2601 continues to read as follows:

    Authority: 5 U.S.C. App. (Ethics in Government Act of 1978).

0
6. Amend Sec.  2601.103 by revising the first sentence of paragraph (a) 
and the first sentence of paragraph (d) to read as follows:


Sec.  2601.103  Policy.

    (a) Scope. OGE may use its statutory authority to solicit, accept 
and utilize gifts to the agency that aid or facilitate the agency's 
work. * * *
* * * * *
    (d) Endorsement. Acceptance of a gift pursuant to this part will 
not in any way be deemed to be an endorsement of the donor, or the 
donor's products, services, activities, or policies. * * *
* * * * *
0
7. Amend Sec.  2601.105 by revising the introductory text, removing the 
definition of ``Administrative Division'' and revising the definitions 
of ``Agency,'' ``Authorized agency official,'' ``Director,'' and 
``Employee'' to read as follows:


Sec.  2601.105  Definitions.

    As used in this part:
    Agency means the U.S. Office of Government Ethics (OGE).
    Authorized agency official means the Director of OGE or the 
Director's delegee.
    Director means the Director of OGE.
    Employee means an employee of OGE.
* * * * *
0
8. Amend Sec.  2601.202 by revising paragraphs (a), (b), (d), and (f) 
to read as follows:


Sec.  2601.202  Procedure.

    (a) The authorized agency official will have the authority to 
solicit, accept, refuse, return, or negotiate the terms of acceptance 
of a gift.
    (b) An employee, other than an authorized agency official, will 
immediately forward all offers of gifts covered by this part regardless 
of value to an authorized agency official for consideration and will 
provide a description of the gift offered. An employee will also inform 
an authorized agency official of all discussions of the possibility of 
a gift. An employee will not provide a donor with any commitment, 
privilege, concession or other present or future benefit (other than an 
appropriate acknowledgment) in return for a gift.
* * * * *
    (d) Gifts may be acknowledged in writing in the form of a letter of 
acceptance to the donor. The amount of a monetary gift will be 
specified. In the case of nonmonetary gifts, the letter will not make 
reference to the value of the gift. Valuation of nonmonetary gifts is 
the responsibility of the donor. Letters of acceptance will not include 
any statement regarding the tax implications of a gift, which remain 
the responsibility of the donor. No statement of endorsement should 
appear in a letter of acceptance to the donor.
* * * * *
    (f) A gift of money or the proceeds of a gift will be deposited in 
an appropriately documented agency fund. A check or money order should 
be made payable to the ``U.S. Office of Government Ethics.''
0
9. Amend Sec.  2601.203 by revising paragraph (a) to read as follows:


Sec.  2601.203  Conflict of interest analysis.

    (a) A gift will not be solicited or accepted if the authorized 
agency official determines that such solicitation or acceptance of the 
gift would reflect unfavorably upon the ability of the agency, or any 
employee of the agency, to carry out OGE responsibilities or official 
duties in a fair and objective manner, or would compromise the 
integrity or the appearance of the integrity of its programs or any 
official involved in those programs.
* * * * *
0
10. Amend Sec.  2601.204 by revising the Note to Sec.  2601.204 to read 
as follows:


Sec.  2601.204  Conditions for acceptance.

* * * * *

    Note to Sec.  2601.204: Nothing in this part will prohibit the 
agency from offering or providing the donor an appropriate 
acknowledgment of its gift in a publication, speech or other medium.

0
11. Amend Sec.  2601.301 by revising paragraphs (a) and (b) and the 
introductory text of paragraph (c) to read as follows:


Sec.  2601.301  Accounting of gifts.

    (a) OGE's Designated Agency Ethics Official (DAEO) will ensure that 
gifts are properly accounted for by following appropriate internal 
controls and accounting procedures.
    (b) The DAEO will maintain an inventory of donated personal 
property valued at over $500. The inventory will be updated each time 
an item is sold, excessed, destroyed or otherwise disposed of or 
discarded.
    (c) The DAEO will maintain a log of all gifts valued at over $500 
accepted pursuant to this part. The log will include, to the extent 
known:
* * * * *

PART 2604--FREEDOM OF INFORMATION ACT RULES AND SCHEDULE OF FEES 
FOR THE PRODUCTION OF PUBLIC FINANCIAL DISCLOSURE REPORTS

0
12. The authority citation for part 2604 continues to read as follows:


[[Page 18163]]


    Authority:  5 U.S.C. 552; 5 U.S.C. App. (Ethics in Government 
Act of 1978); E.O. 12600, 52 FR 23781, 3 CFR, 1987 Comp., p. 235; 
E.O. 13392, 70 FR 75373, 3 CFR, 2005 Comp., p. 216.

0
13. Revise Sec.  2604.101 to read as follows:


Sec.  2604.101  Purpose.

    This part contains the regulations of the U.S. Office of Government 
Ethics (OGE) implementing the Freedom of Information Act (FOIA), as 
amended. It describes how any person may obtain records from OGE under 
the FOIA. It also implements section 105(b)(1) of the Ethics in 
Government Act of 1978 (Ethics Act), as amended, which authorizes an 
agency to charge reasonable fees to cover the cost of reproduction and 
mailing of public financial disclosure reports requested by any person.
0
14. Amend Sec.  2604.102 by revising the first sentence of paragraph 
(c) to read as follows:


Sec.  2604.102  Applicability.

* * * * *
    (c) Records available through routine distribution procedures. When 
the record requested includes material published and offered for sale 
(e.g., by the Government Publishing Office) or which is available to 
the public through an established distribution system (such as that of 
the National Technical Information Service of the Department of 
Commerce), OGE will explain how the record may be obtained through 
those channels. * * *
0
15. Amend Sec.  2604.103 by:
0
a. Revising the definitions of ``Business information,'' ``Business 
submitter,'' ``Chief FOIA Officer,'' ``Duplication,'' ``FOIA Public 
Liaison,'' ``FOIA Requester Service Center'';
0
b. Removing the definition of ``He, his and him''; and
0
c. Revising the definitions of ``Office or OGE,'' ``Records,'' and 
``Representative of the news media.''
    The revisions read as follows:


Sec.  2604.103  Definitions.

* * * * *
    Business information means trade secrets or other commercial or 
financial information, provided to OGE by a submitter, which arguably 
is protected from disclosure under Exemption 4 of the Freedom of 
Information Act.
    Business submitter means any person who provides business 
information, directly or indirectly, to OGE and who has a proprietary 
interest in the information.
    Chief FOIA Officer means the OGE official designated under E.O. 
13392 to provide oversight of all of OGE's FOIA program operations.
* * * * *
    Duplication means the process of making a copy of a record. Such 
copies include photocopies, flash drives, and optical discs.
* * * * *
    FOIA Public Liaison means the OGE official designated under E.O. 
13392 to review upon request any concerns of FOIA requesters about the 
service received from OGE's FOIA Requester Service Center and to 
address any other FOIA-related inquiries.
    FOIA Requester Service Center means the OGE unit designated under 
E.O. 13392 to answer any questions requesters have about the status of 
OGE's processing of their FOIA requests.
* * * * *
    Office or OGE means the United States Office of Government Ethics.
* * * * *
    Records means any handwritten, typed, or printed documents (such as 
memoranda, books, brochures, studies, writings, drafts, letters, 
transcripts, and minutes) and documentary material in other forms (such 
as electronic documents, electronic mail, magnetic tapes, cards or 
discs, paper tapes, audio or video recordings, maps, photographs, 
slides, microfilm and motion pictures) that are either created or 
obtained by OGE and are under its control. It does not include objects 
or articles such as exhibits, models, equipment, and duplication 
machines or audiovisual processing materials.
    Representative of the news media means a person or entity that 
gathers information of potential interest to a segment of the public, 
uses 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 
include 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 distribute their products to the 
general public or who make their products available for purchase or 
subscription by the general public, and entities that may disseminate 
news through other media, such as electronic dissemination of text. 
Freelance journalists will be considered as representatives of a news 
media entity if they can show a solid basis for expecting publication 
through such an entity. A publication contract is such a basis, and the 
requester's past publication record may show such a basis.
* * * * *
0
16. Add Sec.  2604.104 to subpart A to read as follows:


Sec.  2604.104  Preservation of records.

    OGE will preserve all correspondence pertaining to the requests 
that it receives under this part, as well as copies of all responsive 
records, until disposition or destruction is authorized by title 44 of 
the United States Code or the National Archives and Records 
Administration's General Records Schedule. Records will not be disposed 
of while they are the subject of a pending request, appeal, or lawsuit.
0
17. Add Sec.  2604.105 to subpart A to read as follows:


Sec.  2604.105  Other rights and services.

    Nothing in this part will be construed to entitle any person, as of 
right, to any service or to the disclosure of any record to which such 
person is not entitled under the FOIA.
0
18. Revise the heading of Subpart B to read as follows:

Subpart B--FOIA Public Reading Room Facility and Web Site; Index 
Identifying Information for the Public

0
19. Amend Sec.  2604.201 by revising the heading, paragraph (a), 
paragraph (b) introductory text, and paragraphs (b)(2), (b)(5), and (c) 
to read as follows:


Sec.  2604.201  Public reading room facility and Web site.

    (a)(1) Location of public reading room facility. OGE maintains a 
public reading room facility at its offices located at 1201 New York 
Avenue NW., Suite 500, Washington, DC 20005-3917. Persons desiring to 
utilize the reading room facility should contact OGE, in writing or by 
telephone: 202-482-9300, TDD: 202-482-9293, or FAX: 202-482-9237, to 
arrange a time to inspect the materials available there.
    (2) Web site. The records listed in paragraph (b) of this section 
that were created on or after November 1, 1996, or which OGE is 
otherwise able to make electronically available, along with the OGE 
FOIA and Public Records Guide and OGE's annual FOIA reports, are also 
available via OGE's Web site (www.oge.gov). OGE will proactively 
identify additional records of interest to the public and will post 
such records on its Web site when practicable.
    (b) Records available. The OGE public reading room facility 
contains OGE records which are required by 5 U.S.C. 552(a)(2) to be 
made available for public inspection and copying, including.:
* * * * *

[[Page 18164]]

    (2) Any statements of policy and interpretation which have been 
adopted by OGE and are not published in the Federal Register;
* * * * *
    (5) A general index of the records referred to under Sec.  
2604.201(b)(4).
    (c) Copying. The cost of copying information available in OGE's 
public reading room facility will be imposed on a requester in 
accordance with the provisions of subpart E of this part.
* * * * *
0
20. Amend Sec.  2604.202 by revising paragraph (a) to read as follows:


Sec.  2604.202  Index identifying information for the public.

    (a) OGE will maintain and make available for public inspection and 
copying a current index of the materials available at its public 
reading room facility which are required to be indexed under 5 U.S.C. 
552(a)(2).
* * * * *
0
21. Amend Sec.  2604.301 by revising paragraph (a), paragraph (b) 
introductory text, and paragraphs (b)(2) and (d) to read as follows:


Sec.  2604.301  Requests for records.

    (a) Addressing requests. Requests for copies of records may be made 
by mail or email. Requests sent by mail should be addressed to the FOIA 
Officer, U.S. Office of Government Ethics, 1201 New York Avenue NW., 
Suite 500, Washington, DC 20005-3917. The envelope containing the 
request and the letter itself should both clearly indicate that the 
subject is a Freedom of Information Act request. Email requests should 
be sent to [email protected] and should indicate in the subject line that 
the message contains a Freedom of Information Act request.
    (b) Description of records. Each request must reasonably describe 
the desired records in sufficient detail to enable OGE personnel to 
locate the records with a reasonable amount of effort. A request for a 
specific category of records will be regarded as fulfilling this 
requirement if it enables responsive records to be identified by a 
technique or process that is not unreasonably burdensome or disruptive 
of OGE operations.
* * * * *
    (2) If the FOIA Officer determines that a request does not 
reasonably describe the records sought, the FOIA Officer will either 
advise the requester what additional information is needed to locate 
the record, or otherwise state why the request is insufficient. The 
FOIA Officer will also extend to the requester an opportunity to confer 
with OGE personnel with the objective of reformulating the request in a 
manner which will meet the requirements of this section.
* * * * *
    (d) Requests for records relating to corrective actions. No record 
developed pursuant to the authority of 5 U.S.C. app. 402(f)(2) 
concerning the investigation of an employee for a possible violation of 
any provision relating to a conflict of interest will be made available 
pursuant to this part unless the request for such information 
identifies the employee to whom the records relate and the subject 
matter of any alleged violation to which the records relate. Nothing in 
this subsection will affect the application of subpart D of this part 
to any record so identified.
* * * * *
0
22. Amend Sec.  2604.302 by redesignating paragraphs (a) through (d) as 
(b) through (e), respectively; adding new paragraph (a); and revising 
redesignated paragraph (c) to read as follows:
    (a) Acknowledgement of requests. If the FOIA Officer determines 
that a request will take longer than 10 working days to process, OGE 
will send a written acknowledgment that includes the request's 
individualized tracking number.
* * * * *
    (c) Referral to, or consultation with, another agency. When a 
requester seeks access to records that originated in another Government 
agency subject to the FOIA, OGE will normally refer the request to the 
other agency for response; alternatively, OGE may consult with the 
other agency in the course of deciding itself whether to grant or deny 
a request for access to such records. If OGE refers the request to 
another agency, it will notify the requester of the referral and 
provide a point of contact within the receiving agency. If release of 
certain records may adversely affect United States relations with 
foreign governments, OGE will usually consult with the Department of 
State. A request for any records classified by some other agency will 
be referred to that agency for response.
* * * * *
0
23. Amend Sec.  2604.303 by revising paragraph (a) and the introductory 
text to paragraph (b) to read as follows:


Sec.  2604.303  Form and content of responses.

    (a) Form of notice granting a request. After the FOIA Officer has 
made a determination to grant a request in whole or in part, the 
requester will be notified in writing. The notice will describe the 
manner in which the record will be disclosed, whether by providing a 
copy of the record with the response or at a later date, or by making a 
copy of the record available to the requester for inspection at a 
reasonable time and place. The procedure for such an inspection may not 
unreasonably disrupt OGE operations. The response letter will also 
inform the requester in the response of any fees to be charged in 
accordance with the provisions of subpart E of this part.
    (b) Form of notice denying a request. When the FOIA Officer denies 
a request in whole or in part, the FOIA Officer will so notify the 
requester in writing. The response will be signed by the FOIA Officer 
and will include:
* * * * *
0
24. Revise Sec.  2604.304 to read as follows:


Sec.  2604.304  Appeal of denials.

    (a) Right of appeal. If a request has been denied in whole or in 
part, the requester may appeal the denial by mail or email to the 
Program Counsel of the U.S. Office of Government Ethics. Requests sent 
by mail should be addressed to 1201 New York Avenue NW., Suite 500, 
Washington, DC 20005-3917. The envelope containing the request and the 
letter itself should both clearly indicate that the subject is a 
Freedom of Information Act appeal. Email requests should be sent to 
[email protected] and should indicate in the subject line that the message 
contains a Freedom of Information Act appeal.
    (b) Letter of appeal. The appeal must be in writing and must be 
sent within 30 calendar days of receipt of the denial letter. An appeal 
should include a copy of the initial request, a copy of the letter 
denying the request in whole or in part, and a statement of the 
circumstances, reasons or arguments advanced in support of disclosure 
of the request for the record.
    (c) Action on appeal. The disposition of an appeal will be in 
writing and will constitute the final action of OGE on a request. A 
decision affirming in whole or in part the denial of a request will 
include a brief statement of the reason or reasons for affirmance, 
including each FOIA exemption relied on. If the denial of a request is 
reversed in whole or in part on appeal, the request will be processed 
promptly in accordance with the decision on appeal.
    (d) Judicial review. If the denial of the request for records is 
upheld in whole or in part, OGE will notify the person making the 
request of the right to seek judicial review under 5 U.S.C. 552(a)(4).

[[Page 18165]]

    (e) Dispute Resolution Services. If the denial of the request for 
records is upheld in whole or in part, OGE will notify the requester 
about the dispute resolution services offered by the Office of 
Government Information Services (OGIS) and provide contact information 
for that office.
0
25. Amend Sec.  2604.305 by redesignating paragraph (a)(2) as (a)(3), 
adding new paragraph (a)(2), and revising paragraphs (a)(1) and (c) to 
read as follows:


Sec.  2604.305  Time limits.

    (a)(1) Initial request. Following receipt of a request for records, 
the FOIA Officer will determine whether to comply with the request and 
will notify the requester in writing of the determination within 20 
working days.
    (2) Tolling. OGE may toll the 20-working day period once while 
awaiting a response to information reasonably requested from the 
requester. OGE may also toll the 20-working day period while awaiting a 
response to a request for clarification regarding fees. There is no 
limit on the number of times OGE may toll the statutory time period to 
request clarification regarding fees. In either case, the tolling 
period ends upon receipt of the requester's response to the request for 
information or clarification. If OGE does not receive a response to a 
request for clarification regarding fees within 30 calendar days, it 
will consider the request ``closed.''
* * * * *
    (c) Extension of time limits. When additional time is required for 
one of the reasons stated in paragraph (d) of this section, OGE will, 
within the statutory 20-working day period, issue written notice to the 
requester setting forth the reasons for the extension and the date on 
which a determination is expected to be made. If more than 10 
additional working days are needed, the requester will be notified and 
provided an opportunity to limit the scope of the request or to arrange 
for an alternative time frame for processing the request or a modified 
request. To aid the requester, OGE will make available its FOIA Public 
Liaison to assist in the resolution of any disputes.
* * * * *
0
26. Amend Sec.  2604.401 by revising paragraphs (a), (b), and the 
introductory text to paragraph (c) to read as follows:


Sec.  2604.401  Policy.

    (a) Policy on application of exemptions. A requested record will 
not be withheld from inspection or copying unless it comes within one 
of the classes of records exempted by 5 U.S.C. 552. In making its 
determination on withholding, OGE will consider making discretionary 
disclosures of records exempt under the FOIA whenever disclosure is not 
prohibited by statute, Executive Order, or regulation and would not 
foreseeably harm an interest protected by a FOIA exemption.
    (b) Pledge of confidentiality. Information obtained from any 
individual or organization, furnished in reliance on a provision for 
confidentiality authorized by applicable statute, Executive Order or 
regulation, will not be disclosed to the extent it can be withheld 
under one of the exemptions. However, this paragraph does not itself 
authorize the giving of any pledge of confidentiality by any officer or 
employee of OGE.
    (c) Exception for law enforcement information. OGE may treat 
records compiled for law enforcement purposes as not subject to the 
requirements of the Freedom of Information Act when:
* * * * *
0
27. Amend Sec.  2604.402 by revising paragraphs (a), (c)(2), (d), 
paragraph (e) introductory text, and paragraphs (e)(3) and (f) to read 
as follows:


Sec.  2604.402  Business information.

    (a) In general. Business information provided to OGE by a submitter 
will not be disclosed pursuant to a Freedom of Information Act request 
except in accordance with this section.
* * * * *
    (c) * * *
* * * * *
    (2) The FOIA Officer has reason to believe that the information may 
be protected from disclosure under Exemption 4 of the FOIA. Such 
written notice will either describe the exact nature of the business 
information requested or provide copies of the records containing the 
business information. The requester also will be notified that notice 
and an opportunity to object are being provided to a submitter.
    (d) Opportunity to object to disclosure. OGE will give a submitter 
a reasonable time, up to 10 working days, from receipt of the 
predisclosure notification to provide a written statement of any 
objection to disclosure. Such statement will specify all the grounds 
for withholding any of the information under any exemption of the FOIA 
and, in the case of Exemption 4, will demonstrate why the information 
is deemed to be a trade secret or commercial or financial information 
that is privileged or confidential. Information provided by a submitter 
pursuant to this paragraph may itself be subject to disclosure under 
the FOIA.
    (e) Notice of intent to disclose. The FOIA Officer will consider 
all objections raised by a submitter and specific grounds for 
nondisclosure prior to determining whether to disclose business 
information. Whenever the FOIA Officer decides to disclose business 
information over the objection of a submitter, the FOIA Officer will 
send the submitter a written notice at least 10 working days before the 
date of disclosure containing:
* * * * *
    (3) A specified disclosure date. The requester will also be 
notified of the FOIA Officer's determination to disclose records over a 
submitter's objections.
    (f) Notice of FOIA lawsuit. Whenever a requester brings suit 
seeking to compel disclosure of business information, the FOIA Officer 
will promptly notify the submitter.
* * * * *
0
28. Amend Sec.  2604.501 by revising paragraphs (a), (b)(1), (b)(2), 
and (b)(4) to read as follows:


Sec.  2604.501  Fees to be charged--general.

    (a) Policy. Fees will be assessed according to the schedule 
contained in paragraph (b) of this section and the category of 
requesters described in Sec.  2604.502 for services rendered in 
responding to and processing requests for records under subpart C of 
this part. All fees will be charged to the requester, except where the 
charging of fees is limited under Sec.  2604.503(a) and (b) or where a 
waiver or reduction of fees is granted under Sec.  2604.503(c). 
Requesters will pay fees by check or money order made payable to the 
Treasury of the United States.
    (b) * * *
    (1) Searches--(i) Manual searches for records. Whenever feasible, 
OGE will charge at the salary rate (i.e., basic pay plus 16%) of the 
employee making the search. However, where a homogeneous class of 
personnel is used exclusively in a search (e.g., all clerical time or 
all professional time) OGE will charge $16.00 per hour for clerical 
time and $28.00 per hour for professional time. Charges for search time 
will be billed by 15 minute segments.
    (ii) Computer searches for records. Requesters will be charged the 
actual direct cost of conducting a search using existing programming. 
These direct costs will include the cost of operating a central 
processing unit for that portion of operating time that is directly 
attributable to searching for records responsive to a request, as well 
as the cost of operator/programmer salary apportionable to the search. 
OGE will not alter or develop programming to conduct a search.

[[Page 18166]]

    (iii) Unproductive searches. OGE will charge search fees even if no 
records are found which are responsive to the request, or if the 
records found are exempt from disclosure.
    (2) Duplication. The standard copying charge for documents in paper 
copy is $0.15 per page. When responsive information is provided in a 
format other than paper copy, such as in the form of computer tapes, 
flash drives, and discs, the requester may be charged the direct costs 
of the medium used to produce the information, as well as any related 
reproduction costs.
* * * * *
    (4) Other services and materials. Where OGE elects, as a matter of 
administrative discretion, to comply with a request for a special 
service or materials, such as certifying that records are true copies 
or sending records by special methods, the actual direct costs of 
providing the service or materials will be charged.
0
29. Revise Sec.  2604.502 to read as follows:


Sec.  2604.502  Fees to be charged--categories of requesters.

    (a) Fees for various requester categories. The paragraphs below 
state, for each category of requester, the type of fees generally 
charged by OGE. However, for each of these categories, the fees may be 
limited, waived or reduced in accordance with the provisions set forth 
in Sec.  2604.503. In determining whether a requester belongs in any of 
the following categories, OGE will determine the use to which the 
requester will put the documents requested. If OGE has reasonable cause 
to doubt the use to which the requester will put the records sought, or 
where the use is not clear from the request itself, OGE will seek 
clarification before assigning the request to a specific category.
    (b) Commercial use requester. OGE will charge the full costs of 
search, review, and duplication. Commercial use requesters are not 
entitled to two hours of free search time or 100 free pages of 
reproduction as described in Sec.  2604.503(a); however, the minimum 
fees provision of Sec.  2604.503(b) does apply to such requesters.
    (c) Educational and noncommercial scientific institutions and news 
media. If the request is from an educational institution or a 
noncommercial scientific institution, operated for scholarly or 
scientific research, or a representative of the news media, and the 
request is not for a commercial use, OGE will charge only for 
duplication of documents, excluding charges for the first 100 pages.
    (d) All other requesters. If the request is not one described in 
paragraph (b) or (c) of this section, OGE will charge the full and 
direct costs of searching for and reproducing records that are 
responsive to the request, excluding the first 100 pages of duplication 
and the first two hours of search time.
0
30. Amend Sec.  2604.503 by revising paragraphs (a), (b), (c) 
introductory text, (c)(1) introductory text, (c)(2), and (c)(3), and 
adding paragraph (d) to read as follows:


Sec.  2604.503  Limitations on charging fees.

    (a) In general. Except for requesters seeking records for a 
commercial use as described in Sec.  2604.502(b), OGE will provide, 
without charge, the first 100 pages of duplication and the first two 
hours of search time, or their cost equivalent.
    (b) Minimum fees. OGE will not assess fees for individual requests 
if the total charge would be $10.00 or less.
    (c) Waiver or reduction of fees. Records responsive to a request 
under 5 U.S.C. 552 will be furnished without charge or at a reduced 
charge where OGE determines, based upon information provided by a 
requester in support of a fee waiver request, that disclosure of the 
requested 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 is not primarily in the commercial 
interest of the requester. Requests for a waiver or reduction of fees 
will be considered on a case-by-case basis.
    (1) In determining whether disclosure is in the public interest 
because it is likely to contribute significantly to public 
understanding of the operations or activities of the Government, OGE 
will consider the following factors:
* * * * *
    (2) In determining whether disclosure of the requested information 
is not primarily in the commercial interest of the requester, OGE will 
consider the following factors:
    (i) The existence and magnitude of a commercial interest: Whether 
the requester has a commercial interest that would be furthered by the 
requested disclosure. OGE will consider all commercial interests of the 
requester, or any person on whose behalf the requester may be acting, 
which would be furthered by the requested disclosure. In assessing the 
magnitude of identified commercial interests, consideration will be 
given to the effect that the information disclosed would have on those 
commercial interests; and
    (ii) The primary interest in disclosure: Whether the magnitude of 
the identified commercial interest of the requester is sufficiently 
large, in comparison with the public interest in disclosure, that 
disclosure is primarily in the commercial interest of the requester. A 
fee waiver or reduction is warranted only where the public interest can 
fairly be regarded as greater in magnitude than the requester's 
commercial interest in disclosure. OGE will ordinarily presume that, 
where a news media requester has satisfied the public interest 
standard, the public interest will be served primarily by disclosure to 
that requester. Disclosure to data brokers and others who compile and 
market Government information for direct economic return will not be 
presumed to primarily serve the public interest.
    (3) Where only a portion of the requested record satisfies the 
requirements for a waiver or reduction of fees under this paragraph, a 
waiver or reduction will be granted only as to that portion.
* * * * *
    (d) If OGE does not comply with one of the time limits under Sec.  
2604.305, it will not assess search fees (or, in the case of a 
requester described under Sec.  2604.502(c), duplication fees), unless 
unusual or exceptional circumstances apply, as defined in 5 U.S.C. 
552(a)(6)(B) and (C).
0
31. Amend Sec.  2604.504 by revising paragraphs (a), (b), (c)(1) 
through (3), (d), and (e) to read as follows:


Sec.  2604.504  Miscellaneous fee provisions.

    (a) Notice of anticipated fees in excess of $25.00. Where OGE 
determines or estimates that the fees to be assessed under this section 
may amount to more than $25.00, it will notify the requester as soon as 
practicable of the actual or estimated amount of fees, unless the 
requester has indicated in advance the willingness to pay fees as high 
as those anticipated. Where a requester has been notified that the 
actual or estimated fees may exceed $25.00, the request will be deemed 
not to have been received until the requester has agreed to pay the 
anticipated total fee. A notice to the requester pursuant to this 
paragraph will include the opportunity to confer with OGE personnel in 
order to reformulate the request to meet the requester's needs at a 
lower cost.
    (b) Aggregating requests. A requester may not file multiple 
requests, each seeking portions of a document or documents in order to 
avoid the payment of fees. Where there is reason to believe that a 
requester, or group of requesters acting in concert, is attempting to 
divide a request into a series of requests for the purpose of evading 
the assessment of fees, OGE

[[Page 18167]]

may aggregate the requests and charge accordingly. OGE will presume 
that multiple requests of this type made within a 30-calendar day 
period have been made in order to evade fees. Multiple requests 
regarding unrelated matters will not be aggregated.
    (c) * * *
    (1) OGE estimates or determines that the total fee to be assessed 
under this section is likely to exceed $250.00. When a determination is 
made that the allowable charges are likely to exceed $250.00, the 
requester will be notified of the likely cost and will be required to 
provide satisfactory assurance of full payment where the requester has 
a history of prompt payment of FOIA fees, or will be required to submit 
an advance payment of an amount up to the full estimated charges in the 
case of requesters with no history of payment; or
    (2) A requester has previously failed to pay a fee charged in a 
timely fashion (i.e., within 30 calendar days of the date of the 
billing). In such cases the requester may be required to pay the full 
amount owed plus any applicable interest as provided by paragraph (e) 
of this section, and to make an advance payment of the full amount of 
the estimated fee before OGE begins to process a new request.
    (3) When OGE requests an advance payment of fees, the 
administrative time limits described in subsection (a)(6) of the FOIA 
will begin to run only after OGE has received the advance payment.
    (d) Billing and payment. Normally OGE will require a requester to 
pay all fees before furnishing the requested records. However, OGE may 
send a bill along with, or following the furnishing of records, in 
cases where the requester has a history of prompt payment.
    (e) Interest charges. Interest charges on an unpaid bill may be 
assessed starting on the 31st calendar day following the day on which 
the billing was sent. Interest will be at the rate prescribed in 31 
U.S.C. 3717 and will accrue from the date of billing. To collect unpaid 
bills, OGE will follow the provisions of the Debt Collection Act of 
1982, as amended (96 Stat. 1749 et seq.) including the use of consumer 
reporting agencies, collection agencies, and offset.
0
32. Revise Sec.  2604.601 to read as follows:


Sec.  2604.601  Electronic posting and submission of annual OGE FOIA 
report.

    On or before February 1 of each year, OGE will electronically post 
on its Web site and submit to the Office of Information and Privacy at 
the United States Department of Justice a report of its activities 
relating to the Freedom of Information Act (FOIA) during the preceding 
fiscal year. The report will include the information required by 5 
U.S.C. 552(e).


Sec.  2604.602  [Removed]

0
33. Remove Sec.  2604.602.
0
34. Revise Sec.  2604.701 to read as follows:


Sec.  2604.701  Policy.

    Fees for the reproduction and mailing of public financial 
disclosure reports (SF 278s) requested pursuant to section 105 of the 
Ethics in Government Act of 1978, as amended, and Sec.  2634.603 of 
this chapter will be assessed according to the schedule contained in 
Sec.  2604.702. Requesters will pay fees by check or money order made 
payable to the Treasury of the United States. Except as provided in 
Sec.  2604.702(d), nothing concerning fees in subpart E of this part 
supersedes the charges set forth in this subpart for records covered in 
this subpart.
0
35. Amend Sec.  2604.702 by revising paragraphs (a), (b), and (c) to 
read as follows:


Sec.  2604.702  Charges.

    (a) Duplication. Except as provided in paragraph (c) of this 
section, copies of public financial disclosure reports (SF 278s) 
requested pursuant to section 105 of the Ethics in Government Act of 
1978, as amended, and Sec.  2634.603 of this chapter will be provided 
upon payment of $0.15 per page furnished.
    (b) Mailing. Except as provided in paragraph (c) of this section, 
the actual direct cost of mailing public financial disclosure reports 
will be charged for all forms requested. Where OGE elects to comply, as 
a matter of administrative discretion, with a request for special 
mailing services, the actual direct cost of such service will be 
charged.
    (c) Minimum fees. OGE will not assess fees for individual requests 
if the total charge would be $10.00 or less.
* * * * *
[FR Doc. 2015-07376 Filed 4-2-15; 8:45 am]
 BILLING CODE 6345-03-P