[Federal Register Volume 81, Number 241 (Thursday, December 15, 2016)]
[Rules and Regulations]
[Pages 90715-90722]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-29985]


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OFFICE OF THE UNITED STATES TRADE REPRESENTATIVE

15 CFR Part 2004

[Docket Number USTR-2016-0015]
RIN 0350-AA08


Freedom of Information Act Policies and Procedures

AGENCY: Office of the United States Trade Representative.

ACTION: Final rule.

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SUMMARY: This rule amends the Office of the United States Trade 
Representative's (USTR) regulations under the Freedom of Information 
Act (FOIA). The final rule is a comprehensive update of the prior USTR 
implementing rule and describes in plain language how to make a FOIA 
request to USTR and how the FOIA Office processes requests for records. 
The FOIA rule appears in subpart B to part 2004.

DATES: The final rule will become effective December 15, 2016.

FOR FURTHER INFORMATION CONTACT: Janice Kaye, Monique Ricker or Melissa 
Keppel, Office of General Counsel, United States Trade Representative, 
Anacostia Naval Annex, Building 410/Door 123, 250 Murray Lane SW., 
Washington DC 20509, [email protected]; [email protected]; 
[email protected], or the USTR FOIA Public Liaison at 
[email protected] or 202-395-3419.

SUPPLEMENTARY INFORMATION:

I. Background

    On September 23, 2016, USTR published a proposed rule to revise its 
existing regulations under the FOIA. See 81 FR 65586. The 60-day 
comment period ended on November 22, 2016. USTR received two 
submissions, one public comment and feedback from the U.S. Department 
of Justice (DoJ). The USTR rule is modeled after a template provided by 
DoJ. We have carefully considered both submissions and, in response, we 
have made several modifications to the rule, described in more detail 
in part II. The rule is effective upon publication to meet the 
requirement that we update our FOIA implementing regulation by December 
30, 2016, found in section 3 of the FOIA Improvement Act of 2016. See 
Public Law 114-185, 130 Stat. 544 (June 30, 2016). For convenience, the 
entire text of the final rule is set out below.

II. Section-by-Section Analysis

    Section 2004.1: In response to suggestions from DoJ, we have 
retained only the first sentence in subsection (c) to avoid 
inconsistencies with the foreseeable harm standard in the FOIA statute, 
5 U.S.C. 552(a)(8).
    Section 2004.2: In response to suggestions from DoJ, we added ``in 
an electronic format'' after ``for public inspection and copying'' for 
consistency with the language of the FOIA statute.
    Section 2004.3: In subsection (a)(3), we combined paragraphs (i) 
and (ii) and eliminated the requirement for notarization to verify 
identity and renumbered paragraph (iii) as paragraph (ii). In 
subsection (b) in response to suggestions from DoJ, we eliminated 
paragraph (3) and clarified our suggestions for submitting a carefully 
tailored FOIA request so USTR can identify the records sought and 
expeditiously process the request.
    Section 2004.5: In response to suggestions from DoJ, we made 
clarifying changes in subsection (a) and eliminated the language about 
discretionary releases in subsection (b) to avoid any inconsistences 
with the statutory foreseeable harm standard, 5 U.S.C. 552(a)(8).
    Section 2004.6: In response to suggestions from DoJ, we added a 
reminder in subsection (a) that the response time to a FOIA request is 
measured in working days, not calendar

[[Page 90716]]

days. In subsection (c) we deleted ``such as'' since unusual 
circumstances are defined by statute, 5 U.S.C. 552(a)(6)(B). We also 
added that when we need additional processing time, we will notify a 
requester of the services of our FOIA Public Liaison and the Office of 
Government Information Services of the National Archives and Records 
Administration (OGIS). We added a definition of the term ``OGIS'' to 
subpart A of part 2004.
    Section 2004.7: In response to suggestions from DoJ, we added 
references to the services of our FOIA Public Liaison and OGIS in 
subsections (c) and (d). In subsection (b), we indicated that we might 
ask for clarification of a FOIA request. The public comment, which 
suggested that we include information about the subject of the request 
in our response, already is included in subsection (b).
    Section 2004.9: We made several clarifying changes to the section 
on fees. In response to a 2016 decision (Sack v. U.S. Department of 
Defense, 823 F.3d 687 (D.C. Cir. 2016)), we revised the definition of 
``education institution'' in subsection (b)(4) to include students and 
made conforming changes to Example 3. With respect to search fees 
((paragraph (c)(1)(ii)), to provide certainty we replaced a variable 
fee for a set amount--$76/hour--that is a blended hourly rate for all 
personnel in the FOIA Office, plus 16 percent of that rate to cover 
benefits. In response to the public comment, we reduced the per page 
cost we will charge for duplicating records from 15 to 10 cents. We 
believe subsection (e) on aggregating requests is accurate as proposed 
and have made no changes. In subsection (f), we believe the $25 
threshold is appropriate. When we notify a requester that fees will 
exceed $25, we will provide a breakdown of the fees and advise if we 
can readily estimate only a portion of the fee. In subsection (f)(3), 
we have deleted language that would have placed reformulated requests 
at the back of the processing queue. In response to a 2015 decision 
(Cause of Action v. Federal Trade Commission, 799 F.3d 1108 (D.C. Cir. 
2015)), we clarified in subsection (h)(ii), that disclosure must 
contribute to the understanding of a reasonably broad audience of 
persons interested in the subject and not the public-at-large.

III. Regulatory Flexibility Act

    USTR has considered the impact of the final rule and determined 
that it is not likely to have a significant economic impact on a 
substantial number of small business entities because it is applicable 
only to USTR's internal operations and legal obligations. See 5 U.S.C. 
601 et seq.

IV. Paperwork Reduction Act

    The final rule does not contain any information collection 
requirement that requires the approval of the Office of Management and 
Budget under the Paperwork Reduction Act (44 U.S.C. 3501 et seq.).

List of Subjects in 15 CFR Part 2004

    Administrative practice and procedure, Courts, Disclosure, 
Exemptions, Freedom of information, Government employees, Privacy, 
Records, Subpoenas, Testimony.

    For the reasons stated in the preamble, the Office of the United 
States Trade Representative is amending chapter XX of title 15 of the 
Code of Federal Regulations as follows:

PART 2004--DISCLOSURE OF RECORDS AND INFORMATION

Subpart B--Freedom of Information Act Policies and Procedures

0
1. Add the subpart B authority citation to read as follows:

     Authority:  5 U.S.C. 552; 19 U.S.C. 2171(e)(3); Uniform Freedom 
of Information Act Fee Schedule and Guidelines, 52 FR 10012, Mar. 
27, 1987.

0
2. Add Sec. Sec.  2004.1 through 2004.9 to subpart B to read as 
follows:

Sec.
2004.1 Purpose and scope.
2004.2 Proactive disclosures.
2004.3 How do I make a request for records under the FOIA?
2004.4 How will we handle confidential commercial information?
2004.5 Who is responsible for responding to your FOIA request?
2004.6 When will we respond to your FOIA request?
2004.7 What will our response to your FOIA request include?
2004.8 What can I do if I am dissatisfied with USTR's response to my 
FOIA request?
2004.9 Fees.


Sec.  2004.1  Purpose and scope.

    (a) This subpart contains the rules we follow when processing 
requests for records under the FOIA, a Federal law that provides a 
right of access to certain records and information Federal agencies 
maintain and control. You should read this subpart in conjunction with 
the text of the FOIA and the Uniform Freedom of Information Act Fee 
Schedule and Guidelines published by the Office of Management and 
Budget (OMB Guidelines). Additionally, our FOIA Reference Guide, which 
is available on our Web site at http://www.ustr.gov, contains 
information about the specific procedures for making FOIA requests and 
descriptions of the types of records we maintain.
    (b) To maximize the amount of information we can provide to you, we 
may process requests you make for records about yourself under both 
this subpart and subpart C to part 2004, our rules implementing the 
Privacy Act.
    (c) We administer the FOIA with a presumption of openness.


Sec.  2004.2  Proactive disclosures.

    You can access records that the FOIA requires us to make available 
for public inspection and copying in an electronic format through our 
Web site: http://www.ustr.gov. You also can find press releases, links 
to Federal Register notices and comments, fact sheets, speeches and 
remarks, reports, information about current initiatives, and historical 
information about U.S. trade issues. If you need assistance to locate a 
particular record, you can contact the Office of Public and Media 
Affairs at [email protected] or the FOIA Office at [email protected].


Sec.  2004.3  How do I make a request for records under the FOIA?

    (a) General information--(1) Where do I send my written request? To 
make a request for records, you should write directly to the FOIA 
Office. Heightened security delays mail delivery. To avoid mail 
delivery delays, we strongly suggest that you email your request to 
[email protected]. Our mailing address is: FOIA Office, Office of the 
United States Trade Representative, Anacostia Naval Annex, Building 
410/Door 123, 250 Murray Lane SW., Washington, DC 20509. To ensure that 
the FOIA Office receives your request without delay, you should include 
the notation ``FOIA Request'' in the subject line of your email or on 
the front of your envelope and also at the beginning of your request.
    (2) Security concerns. To protect our computer systems, we will not 
open attachments to emailed requests--you must include your request 
within the body of the email. We will not process email attachments.
    (3) Verifying your identity. (i) If you are making a request for 
records about yourself or about another individual, you may receive 
greater access by verifying your identity if the records are about you, 
or the other individual's identity if the records are about them. To 
verify identity, you must provide an unsworn declaration under 28 
U.S.C. 1746, a law that permits statements to be made under penalty of 
perjury. To fulfill this requirement, you must include the following 
statement just

[[Page 90717]]

before the signature on your request letter:
    ``I declare under penalty of perjury that the foregoing is true and 
correct. Executed on [date].''
    (ii) If the other individual is deceased, you should submit proof 
of death such as a copy of a death certificate or an obituary. As an 
exercise of administrative discretion, we may require that you provide 
additional information if necessary in order to verify that a 
particular individual has consented to disclosure.
    (b) How do I describe the records I want? (1) You must describe the 
records you seek in sufficient detail to enable USTR personnel to 
locate them with a reasonable amount of effort. To satisfy this 
requirement, you should be as detailed as possible when describing the 
records you seek. To the extent possible, you should include specific 
information that may help us identify the requested records, such as 
the date, title or name, author, recipient, subject matter of the 
record, case number, file designation, or reference number. For 
example, we generally will ask you to clarify a request for all records 
related to a particular trade negotiation or agreement or a request for 
all communications between USTR and a particular third party. We 
suggest that you include a date limitation, particular topics, and if 
asking for correspondence, the subject matter and the relevant parties 
with contact information such as their email addresses.
    (2) If a request does not provide sufficient specific descriptive 
information for the FOIA Office reasonably to ascertain exactly which 
records you are requesting and to locate them, our response may be 
delayed. Please note that in response to a FOIA request, we are not 
required to create records, conduct research for you, analyze data, 
answer written questions, or parse your narrative to try and determine 
the specific records you are seeking. You can contact the FOIA Office 
before you submit your request for assistance in describing the records 
you are seeking. If we determine that your request does not reasonably 
describe the records sought, we will explain why we cannot process your 
request and ask for additional information. For example, we might ask 
you to clarify your request if you ask for all documents in a certain 
date range but do not include a specific subject matter, topic or 
personnel. We can help you reformulate or modify your request.
    (c) Form or format of responsive records. You can specify the 
preferred form or format (including electronic formats) for the records 
you seek. We will try to accommodate your request if the record is 
readily reproducible in that form or format.
    (d) Contact information. You must provide contact information, such 
as your phone number, email address, and mailing address, so we will be 
able to communicate with you about your request and provide released 
records. If we cannot contact you, or you do not respond within thirty 
calendar days to our requests for clarification, we will close your 
request.


Sec.  2004.4  How will we handle confidential commercial information?

    (a) Definitions. For purposes of this section:
    (1) Confidential commercial information means commercial or 
financial information that we obtain from a submitter that may be 
protected from disclosure under exemption 4 of the FOIA, 5 U.S.C. 
552(b)(4).
    (2) Submitter means any person or entity, including a corporation 
or a State or foreign government, but not including another Federal 
Government entity, which provides information, either directly or 
indirectly to the Federal Government.
    (b) How does a submitter designate confidential commercial 
information? At the time of submission, the submitter of confidential 
commercial information must use good faith efforts to designate by 
appropriate markings any portion of its submission that it considers to 
be protected from disclosure under exemption 4 of the FOIA, 5 U.S.C. 
552(b)(4). These designations expire ten years after the date of the 
submission unless the submitter requests and provides justification for 
a longer designation period.
    (c) When will we notify a submitter? (1) We promptly will notify 
the submitter of confidential commercial information in writing 
whenever we receive a FOIA request or appeal for records containing 
such information if we determine that we may have to disclose the 
records, provided:
    (i) The requested information has been designated in good faith by 
the submitter as information considered protected from disclosure under 
exemption 4 of the FOIA, 5 U.S.C. 552(b)(4); or
    (ii) We have reason to believe that the requested information may 
be protected from disclosure exemption 4 of the FOIA, 5 U.S.C. 
552(b)(4), but have not yet determined whether the information is 
protected from disclosure under that exemption or any other applicable 
FOIA exemption.
    (2) Our notice either will describe the commercial information 
requested or include a copy of the requested records or portions of 
records containing the information. In cases involving a voluminous 
number of submitters, we may post or publish a notice in a place or 
manner reasonably likely to inform the submitters of the proposed 
disclosure without publicly disclosing the records, instead of sending 
individual notifications.
    (3) We promptly will notify the submitter whenever a requester 
files a lawsuit seeking to compel the disclosure of the submitter's 
confidential commercial information.
    (d) Exceptions to submitter notice requirements. The notice 
requirements of this section do not apply if:
    (1) We determine that the information is exempt under the FOIA, and 
therefore will not be disclosed;
    (2) The information has been lawfully published or has officially 
been made available to the public;
    (3) Disclosure of the information is required by a statute other 
than the FOIA or by a regulation issued in accordance with the 
requirements of Executive Order 12600 of June 23, 1987, Predisclosure 
notification procedures for confidential commercial information; or
    (4) The designation made by the submitter under paragraph (b) of 
this section appears obviously frivolous. In such case, we will give 
the submitter written notice of any final decision to disclose the 
information and a reasonable time period within which to object to 
disclosure under paragraph (e) of this section.
    (e) How can a submitter object to disclosure? (1) If a submitter 
has any objections to disclosure, it should provide to us within the 
period listed in the notice a detailed written statement that specifies 
all grounds for withholding the particular information under any FOIA 
exemption. In order to rely on exemption 4 as a basis for 
nondisclosure, the submitter must explain why the information 
constitutes a trade secret or commercial or financial information that 
is confidential.
    (2) A submitter who does not respond within the time period 
specified in the notice will be considered to have no objection to 
disclosure of the information. We will not consider any information we 
receive after the date of any disclosure decision. Any information 
provided by the submitter under this section may itself be subject to 
disclosure under the FOIA.
    (f) Analysis of objections. We will consider the submitter's 
objections and specific grounds for nondisclosure in deciding whether 
to disclose the requested information.

[[Page 90718]]

    (g) Notice of intent to disclose. We will notify the submitter 
whenever we decide to disclose information over the submitter's 
objection. Our written notice will include:
    (1) A statement of the reasons why we did not sustain each of the 
submitter's disclosure objections;
    (2) A description of the information to be disclosed or copies of 
the records as we intend to release them; and
    (3) A specified disclosure date, which will be a reasonable time 
after the notice.
    (h) When will we notify a requester? We will notify the requester 
whenever we provide the submitter with notice and an opportunity to 
object to disclosure; whenever we notify the submitter of our intent to 
disclose the requested information; and whenever the submitter files a 
lawsuit to prevent the disclosure of the information.


Sec.  2004.5  Who is responsible for responding to your FOIA request?

    (a) In general. The FOIA Office is authorized to grant or to deny 
any requests for agency records that USTR maintains. In determining 
which records are responsive to a request, we ordinarily will include 
only the agency records in our possession as of the date that we begin 
our search. We will notify you if we use any other date.
    (b) Consultation, referral and coordination. If we believe that 
another Federal agency is better able to determine whether a record we 
locate in response to your request is exempt from disclosure under the 
FOIA, then we will proceed in one of the following ways:
    (1) Consultation. When records originated with USTR but contain 
within them information of significance to another Federal agency or 
office, we typically consult with that other entity prior to making a 
release determination.
    (2) Referral. If we believe that a different Federal agency is best 
able to determine whether to disclose the record, we typically refer 
responsibility for responding to the request regarding that record to 
that agency. Ordinarily, the agency that originated the record is 
presumed to be the best agency to make the disclosure determination. 
Whenever we refer any part of the responsibility for responding to a 
request to another agency, we will notify you of the referral, 
including the name of the agency and that agency's FOIA contact 
information.
    (3) Coordination. The standard referral procedure is not 
appropriate where disclosure of the identity of the Federal agency to 
which the referral would be made could harm an interest protected by an 
applicable exemption, such as the exemptions that protect personal 
privacy or national security interests. For example, if a non-law 
enforcement agency responding to a request for records on a living 
third party locates within its files records originating with a law 
enforcement agency, and if the existence of that law enforcement 
interest in the third party was not publicly known, then to disclose 
that law enforcement interest could cause an unwarranted invasion of 
the personal privacy of the third party. Similarly, if an agency 
locates within its files material originating with an Intelligence 
Community agency, and the involvement of that agency in the matter is 
classified and not publicly acknowledged, then to disclose or give 
attribution to the involvement of that Intelligence Community agency 
could cause national security harms. In such instances, in order to 
avoid harm to an interest protected by an applicable exemption, we will 
coordinate with the originating agency to seek its views on disclosure 
of the record. We then will notify you of the release determination for 
the record that is the subject of the coordination.
    (c) Classified information. On receipt of any request involving 
classified information, we will determine whether the information is 
currently and properly classified. Whenever a request involves a record 
containing information that has been classified or may be appropriate 
for classification by another Federal agency, we will refer 
responsibility for responding to the request regarding that information 
to the agency that classified the information, or that should consider 
the information for classification. Whenever an agency's record 
contains information that has been derivatively classified (for 
example, when it contains information classified by another agency), we 
will refer responsibility for responding to that portion of the request 
to the agency that classified the underlying information.
    (d) Timing of responses to consultations and referrals. We will 
handle all consultations and referrals we receive according to the date 
that the first agency received the perfected FOIA request.
    (e) Agreements regarding consultations and referrals. We may 
establish agreements with other agencies to eliminate the need for 
consultations or referrals with respect to particular types of records.


Sec.  2004.6  When will we respond to your FOIA request?

    (a) In general. We ordinarily will respond to a request within 
twenty working days based on the order in which we receive the request. 
We may toll the twenty-day period if we need additional information 
from you in order to process the request or need to clarify fee 
assessment issues.
    (b) Multitrack processing. We use a multitrack processing system 
that distinguishes between simple and more complex requests based on 
the estimated amount of work or time we need to process the request. 
Among the factors we consider are the number of records requested, the 
number of pages involved in processing the request, and the need for 
consultations or referrals. We will tell you if we place your request 
into other than the simple track, and if appropriate, we will offer you 
an opportunity to narrow or modify your request so that it can be 
placed in a different processing track.
    (c) Unusual circumstances--(1) What is an unusual circumstance? We 
will notify you if we extend the twenty-day period for processing your 
request. The notice will include the unusual circumstances--the need to 
search for and collect the requested records from separate offices or 
facilities, a request that involves a voluminous amount of separate and 
distinct records, or the need for consultation, and the date by which 
we estimate we will complete processing your request. If the extension 
exceeds ten days, we will give you the opportunity to modify your 
request or arrange an alternative time period for processing the 
original or modified request. If you need assistance, you can contact 
our FOIA Public Liaison at [email protected], or OGIS at [email protected].
    (2) Aggregating requests. We may aggregate requests if it 
reasonably appears that multiple requests submitted either by a single 
requester or by a group of requesters acting in concert, involve 
related matters and constitute a single request that otherwise would 
involve unusual circumstances. For example, we may aggregate multiple 
requests for similar information filed within a short period of time.
    (d) Expedited processing--(1) How do I request expedited 
processing? When you submit your request or appeal, you can ask us to 
expedite processing. If you seek expedited processing, you must submit 
a statement, certified to be true and correct, explaining in detail the 
basis for your expedited processing request.
    (2) When will we grant expedited processing? We will process 
requests and appeals on an expedited basis if we determine that:

[[Page 90719]]

    (i) Failure to obtain the records on an expedited basis could 
reasonably be expected to pose an imminent threat to the life or 
physical safety of an individual;
    (ii) With respect to a request made by a person primarily engaged 
in disseminating information, there is an urgency to inform the public 
about the specific government activity that is the subject of the 
request or appeal that extends beyond the public's right to know about 
government activity generally;
    (iii) An individual will suffer the loss of substantial due process 
rights; or
    (iv) the subject is of widespread and exceptional media interest 
and the information sought involves possible questions about the 
government's integrity that affect public confidence.
    (3) When will we respond to your request for expedited processing? 
We will notify you within ten calendar days of the receipt of a request 
for expedited processing of our decision whether to grant or deny 
expedited processing. If we grant your request, we will give your 
request or appeal priority, place it in the processing track for 
expedited requests, and process it as soon as practicable. If we deny 
your request, we will process any appeal of that decision 
expeditiously.


Sec.  2004.7  What will our response to your FOIA request include?

    (a) In general. We will notify you in writing of our determination 
regarding your request. To the extent practicable, we will communicate 
with you electronically.
    (b) Acknowledgement of requests. We will acknowledge your request 
in writing, including a brief description of the records you are 
seeking, and assign an individualized tracking number. If we think that 
we will be unable to make a determination on your request within twenty 
days, we will send an acknowledgment within ten days and we may ask you 
to clarify your request or arrange for a longer period for processing.
    (c) Granting requests. If we decide to grant your request in full 
or in part, our response will include the records we are disclosing 
unless we have assessed fees under Sec.  2004.9. If your request 
involves a voluminous amount of material or searches in multiple 
locations, we may provide interim responses, releasing the records on a 
rolling basis. If we assessed fees, we will disclose the records 
promptly upon payment. If you need assistance, you can contact our FOIA 
Public Liaison at [email protected], or OGIS at [email protected].
    (d) Adverse determinations of requests--(1) What is an adverse 
determination? Adverse determinations, or denials of requests, include 
decisions that: the requested record is exempt in whole or in part; the 
request does not reasonably describe the records sought; the 
information requested is not a record subject to the FOIA; the 
requested record does not exist, cannot be located, or has been 
destroyed; or the requested record is not readily reproducible in the 
form or format sought by the requester. Adverse determinations also 
include denials involving fees or fee waiver matters or denials of 
requests for expedited processing.
    (2) Our response. If we make an adverse determination denying your 
request in any respect, our response will include:
    (i) The name and title or position of the person responsible for 
the determination;
    (ii) A brief statement of the reasons for the denial, including any 
FOIA exemption(s) we applied;
    (iii) An estimate of the volume of any records or information we 
withheld, such as the number of pages or some other reasonable form of 
estimation, although such an estimate is not required if the volume is 
otherwise indicated by deletions marked on records that are disclosed 
in part or if providing an estimate would harm an interest protected by 
an applicable exemption;
    (iv) Information about our FOIA Public Liaison and the mediation 
services provided by OGIS; and
    (iv) Your right to appeal our decision under Sec.  2004.8.
    (3) Markings on released documents. If technically feasible, we 
will clearly mark records that we are disclosing in part to indicate 
the location and show the amount of information deleted and the 
exemption under which the deletion was made unless doing so would harm 
an interest protected by an applicable exemption.


Sec.  2004.8  What can I do if I am dissatisfied with USTR's response 
to my FOIA request?

    (a) How do I make an appeal?--(1) What can I appeal? You can appeal 
any adverse determination in writing to our FOIA Appeals Committee 
within ninety calendar days after the date of our response. Examples of 
adverse determinations are provided in Sec.  2004.7(d). You should 
specify the records that are the subject of your appeal and explain why 
the Committee should sustain the appeal.
    (2) Where do I send my appeal? To avoid mail delivery delays caused 
by heighted security, we strongly suggest that you email any appeal to 
[email protected]. Our mailing address is: FOIA Office, Office of the 
United States Trade Representative, Anacostia Naval Annex, Building 
410/Door 123, 250 Murray Lane SW., Washington DC 20509. To make sure 
that the FOIA Office receives your appeal without delay, you should 
include the notation ``Freedom of Information Act Appeal'' and the 
individualized tracking number in the subject line of your email or on 
the front of your envelope and also at the beginning of your appeal.
    (b) Who will decide your appeal? (1) The FOIA Appeals Committee or 
designee will act on all appeals under this section.
    (2) We ordinarily will not adjudicate an appeal if the request 
becomes a matter of FOIA litigation.
    (3) On receipt of any appeal involving classified information, the 
FOIA Appeals Committee must take appropriate action to ensure 
compliance with applicable classification rules.
    (c) Decisions on appeals. The FOIA Appeals Committee will notify 
you of its appeal decision in writing within twenty days from the date 
it receives the appeal. A decision that upholds the FOIA Office's 
determination in whole or in part will identify the reasons for the 
affirmance, including any FOIA exemptions applied, and notify you of 
your statutory right to seek judicial review. The notice also will 
inform you of the mediation services offered by OGIS as a non-exclusive 
alternative to litigation. If the FOIA Appeals Committee remands or 
modifies the original response, the FOIA Office will further process 
the request in accordance with the appeal determination and will 
respond directly to you.
    (d) When appeal is required. Before seeking review by a court of an 
adverse determination, you generally first must submit a timely 
administrative appeal under this section.


Sec.  2004.9  Fees.

    (a) In general. We will assess a fee to process your FOIA request 
in accordance with the provisions of this section and the OMB 
Guidelines. For purposes of assessing fees, the FOIA establishes three 
categories of requesters: Commercial use requesters, non-commercial 
scientific or educational institutions or news media requesters, and 
all other requesters. Different fees are assessed depending on the 
category. You can seek a fee waiver, which we will consider in 
accordance with the requirements in paragraph (h) of this section. We 
will contact you to

[[Page 90720]]

resolve any fee issues that arise under this section. We will conduct 
searches, review and duplication in the most efficient and least 
expensive manner. We ordinarily will collect all applicable fees before 
sending copies of records to you. You must pay fees by check or money 
order made payable to the Treasury of the United States.
    (b) Definitions. For purposes of this section:
    (1) Commercial use request is a request that asks for information 
for a use or a purpose that furthers a commercial, trade or profit 
interest, which can include furthering those interests through 
litigation. Our decision to place you in the commercial use category 
will be made on a case-by-case basis based on your intended use of the 
information. We will notify you of your placement in this category.
    (2) Direct costs are the expenses we incur in searching for and 
duplicating (and, in the case of commercial use requests, reviewing) 
records in order to respond to your FOIA request. For example, direct 
costs include the salary of the employee performing the work (i.e., the 
basic rate of pay for the employee plus 16 percent of that rate to 
cover benefits) and the cost of operating computers and other 
electronic equipment, such as photocopiers and scanners. Direct costs 
do not include overhead expenses such as the costs of space and of 
heating or lighting a facility.
    (3) Duplication is reproducing a copy of a record, or 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.
    (4) Educational institution is any school that operates a program 
of scholarly research. You must show that your FOIA request is made in 
connection with your role at the educational institution. We may seek 
verification that you are seeking the records to further scholarly 
research and not for a commercial use. To fall within this fee 
category, your request must serve the scholarly research goals of the 
institution rather than an individual research goal. We will advise you 
of your placement in this category.

    Example 1.  We would presume that a request from a professor of 
economics for records relating to the economic effects of a trade 
agreement, written on letterhead of the university's department of 
economics, is a request from an educational institution.
    Example 2. We would not presume that a request from the same 
professor of economics seeking drug information from the Food and 
Drug Administration in furtherance of a murder mystery he is writing 
is a request from an educational institution, regardless of whether 
it was written on institutional stationery.
    Example 3. We would presume that a request from a student in 
furtherance of their coursework or other school-sponsored activities 
evidenced by a course syllabus or other reasonable documentation 
indicating the research purpose for the request would qualify as 
part of this fee category.

    (5) Noncommercial scientific institution is an institution that is 
operated solely for the purpose of conducting scientific research the 
results of which are not intended to promote any particular product or 
industry and not on a commercial basis, as defined in paragraph (b)(1) 
of this section. To fall within this fee category, you must show that 
the request is authorized by and is made under the auspices of a 
qualifying institution and that the records you seek are to further 
scientific research and not for a commercial use. We will advise you of 
your placement in this category.
    (6) Representative of the news media is any person or entity that 
gathers information of potential interest to a segment of the public, 
uses its editorial skills to turn the raw materials into a distinct 
work, and distributes that work to an audience. 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 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, 
including news organizations that disseminate solely on the Internet. 
We will not consider a request for records supporting a news-
dissemination function to be for a commercial use. We will consider 
freelance journalists who demonstrate a solid basis for expecting 
publication through a news media entity as a representative of the news 
media. A publishing contract would provide the clearest evidence that 
publication is expected; however, we also may consider your past 
publication record in making this determination. We will advise you of 
your placement in this category.
    (7) Review is the examination of a record located in response to a 
request in order to determine if any portion of it is exempt from 
disclosure. Review time includes processing any record for disclosure, 
such as doing all that is necessary to prepare the record for 
disclosure, including redacting the record and marking the appropriate 
exemptions. Review costs are properly charged even if we ultimately do 
not disclose a record. Review time also includes time spent both 
obtaining and considering any formal objection to disclosure a 
confidential commercial information submitter makes under Sec.  2004.4, 
but it does not include time spent resolving general legal or policy 
issues regarding the application of exemptions.
    (8) Search is the process of looking for and retrieving records or 
information responsive to a request. Search time includes page-by-page 
or line-by-line identification of information within records and the 
reasonable efforts we expend to locate and retrieve information from 
electronic records.
    (c) Charging fees. In responding to FOIA requests, we will charge 
the following fees unless we granted a waiver or reduction of fees 
under paragraph (h) of this section, or the total fee to be charged is 
less than $25. If we do not meet the time limits for responding to your 
request, and if no unusual circumstance described in Sec.  2004.6(c) 
applies, we will not assess fees.
    (1) Search. (i) We will not assess any search fees for processing 
requests made by educational institutions, noncommercial scientific 
institutions, or representatives of the news media. For all other 
requesters, we will charge for time spent searching even if we do not 
locate any responsive records or if we determine that the records are 
entirely exempt from disclosure. We will provide two hours of free 
search time except for requesters seeking records for a commercial use.
    (ii) For each quarter hour spent by personnel searching for 
requested records, including electronic searches that do not require 
new programming, we will charge $76/hour, which is a blended hourly 
rate for all personnel in the FOIA Office, plus 16 percent of that rate 
to cover benefits.
    (iii) We will charge the direct costs if it is necessary to create 
a new computer program to locate the requested records. We will notify 
you of the costs associated with creating such a program, and you must 
agree to pay the associated costs before we build the program.
    (iv) If your request requires the retrieval of records stored at a 
Federal records center, we will charge additional costs in accordance 
with the Transactional Billing Rate Schedule established by the 
National Archives and Records Administration.
    (2) Duplication. We will charge duplication fees to all requesters. 
We will honor your preference for receiving a record in a particular 
form or format if we can readily reproduce it in the

[[Page 90721]]

form or format requested. If we provide photocopies, we will make one 
copy per request at the cost of $.10 per page. For copies of records 
produced on tapes, disks or other media, we will charge the direct 
costs of producing the copy, including operator time. Where we must 
scan paper documents in order to comply with your preference to receive 
the records in an electronic format, we will charge you the direct 
costs associated with scanning those materials. For other forms of 
duplication, we will charge the direct costs. We will provide the first 
100 pages of duplication (or the cost equivalent for other media) 
without charge except for requesters seeking records for a commercial 
use.
    (3) Review. We will charge review fees to requesters who make 
commercial use requests. We will assess review fees in connection with 
the initial review of the record, i.e., the review we conduct to 
determine if an exemption applies to a particular record or portion of 
a record. We will not charge for review at the administrative appeal 
stage of exemptions applied at the initial review stage. However, if a 
particular exemption is deemed no longer to apply, any costs associated 
with re-review of the records in order to consider the use of other 
exemptions may be assessed as review fees. We will charge review fees 
at the same rates as those charged for a search under paragraph 
(c)(1)(ii) of this section.
    (d) Other charges--(1) Special services. We will charge you the 
direct cost of providing any special services you request, such as 
sending records by express mail, certifying that records are true 
copies, or providing multiple copies of the same document.
    (2) Interest. We may assess interest charges on any unpaid fees 
starting on the 31st day following the day on which we sent the bill to 
you at the rate prescribed in Interest and Penalty on Claims, 31 U.S.C. 
3717.
    (e) Aggregating requests. We may aggregate separate FOIA requests 
for the purpose of assessing fees when we reasonably believe that a 
requester or a group of requesters acting in concert, is dividing a 
request into a series of requests for the purpose of avoiding or 
minimizing fees. For example, we may aggregate multiple requests for 
similar information filed within a short period of time.
    (f) If we anticipate fees will exceed $25. Unless you have 
indicated in advance a willingness to pay fees as high as anticipated, 
we will notify you if we estimate that charges will exceed $25 
including a breakdown of the fees for search, review or duplication and 
whether applicable entitlements to duplication and search at no charge 
have been provided. We will advise you if we can readily estimate only 
a portion of the fee.
    (1) We will not process your request until you either commit in 
writing to pay the actual or estimated total fee, or designate some 
amount of fees you are willing to pay. If you are a noncommercial use 
requester and we have not yet provided your statutory entitlements 
(i.e., two hours of search time and 100 free pages), you can tell us to 
stop when we exhaust the statutory entitlements. We will start the 
twenty-day response clock when we receive your written reply.
    (2) If you agree to pay some designated amount of fees, but we 
estimate that the total fee will exceed that amount, we will toll 
processing when we notify you of the estimated fees in excess of the 
amount you had indicated a willingness to pay. When we receive your 
written commitment to pay the actual or estimated total fee, or 
designate an additional amount of fees you are willing to pay, we will 
restart the processing clock.
    (3) If you decide to reformulate your request to reduce costs, you 
can contact USTR's FOIA Public Liaison at [email protected] for 
assistance.
    (4) We will close your request if you do not respond in writing 
within thirty calendar days after the date we notify you of the fee 
estimate.
    (g) Advance payments. (1) If we determine or estimate that the 
total fee will exceed $250, we may require you to make an advance 
payment up to the amount of the entire anticipated fee before we begin 
to process your request.
    (2) If you previously failed to pay a properly charged FOIA fee to 
any Federal agency within thirty calendar days of the billing date, we 
may require proof that you paid the full amount due, plus any 
applicable interest on that prior request, and that you make an advance 
payment to us of the full amount of any anticipated fee before we begin 
to process a new request or continue to process a pending request or 
any pending appeal. If we have a reasonable basis to believe that you 
have misrepresented your identity in order to avoid paying outstanding 
fees, we may require you to provide proof of identity.
    (3) If we require advance payment, we will not consider your 
request received and will not do any additional work until we receive 
the required payment. We will close your request if you do not pay the 
advance payment within thirty calendar days after the date of our fee 
determination.
    (h) Requirements for waiver or reduction of fees. (1) You can seek 
a fee waiver or reduction by explaining in writing how 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 your 
commercial interest. In determining whether to waive or reduce a fee we 
will consider whether disclosure of the requested information would:
    (i) Shed light on the operations or activities of the government. 
The subject of the request must specifically concern identifiable 
operations or activities of the Federal government with a connection 
that is direct and clear, not remote or attenuated.
    (ii) Likely contribute significantly to public understanding of 
those operations or activities. Disclosure of the requested records 
must be meaningfully informative about government operations or 
activities. The disclosure of information that already is in the public 
domain, in either the same or a substantially identical form, would not 
be meaningfully informative if nothing new would be added to the 
public's understanding. The disclosure must contribute to the 
understanding of a reasonably broad audience interested in the subject. 
We will consider your expertise in the subject area as well as your 
ability and intention to effectively convey information to the public.
    (iii) Primarily advance your commercial interests. For example, we 
ordinarily presume that the public's interest is greater than the 
requester's commercial interest when we receive a request from a 
representative of the news media. We will not presume that disclosure 
to data brokers or others who merely compile and market government 
information for direct economic return primarily serves the public 
interest.
    (2) We will grant a partial waiver when only some of the records to 
be released satisfy the requirements in this section.
    (3) You should include your fee waiver or reduction request when 
you first submit your FOIA request to us. You can submit a fee waiver 
or reduction request at a later time so long as the underlying record 
request is pending or on administrative appeal. If you already 
committed to pay fees and subsequently request a waiver of those fees 
that we deny, you must pay any

[[Page 90722]]

costs incurred up to the date the fee waiver request was received.

Janice Kaye,
Chief Counsel for Administrative Law, Office of the U.S. Trade 
Representative.
[FR Doc. 2016-29985 Filed 12-14-16; 8:45 am]
BILLING CODE 3290-F7-P