[Federal Register Volume 81, Number 246 (Thursday, December 22, 2016)]
[Proposed Rules]
[Pages 93864-93872]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-30661]
=======================================================================
-----------------------------------------------------------------------
OVERSEAS PRIVATE INVESTMENT CORPORATION
22 CFR Part 706
[No. FOIA-2016]
RIN 3420-AA02
Freedom of Information
AGENCY: Overseas Private Investment Corporation.
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: This rule proposes revisions to the Overseas Private
Investment Corporation's (``OPIC'') Freedom of Information Act (FOIA)
regulations by making substantive and administrative changes. These
revisions are intended to supersede OPIC's current FOIA regulations,
located at this Part. The proposed rule incorporates the FOIA revisions
contained in the FOIA Improvement Act of 2016, makes administrative
changes to reflect OPIC's costs, and conforms more closely to the
language recommended by the Department of Justice, Office of
Information Policy.
DATES: Written comments must be postmarked and electronic comments
must be submitted on or before January 23, 2017.
ADDRESSES: You may submit comments, identified by Docket Number FOIA-
2016, by one of the following methods:
Email: [email protected]. Include docket number FOIA-2016 in
the subject line of the message.
Mail: Nichole Skoyles, Administrative Counsel, Overseas
Private Investment Corporation, 1100 New York Avenue NW., Washington,
DC 20527. Include docket number FOIA-2016 on both the envelope and the
letter.
FOR FURTHER INFORMATION CONTACT: Nichole Skoyles, Administrative
Counsel, (202) 336-8400, or [email protected].
SUPPLEMENTARY INFORMATION: The revision of Part 706 incorporates
changes to the language and structure of the regulations and adds new
provisions to implement the FOIA Improvement Act of 2016. OPIC is
already complying with these changes and this proposed revision serves
as OPIC's formal codification of the applicable law and its practice.
OPIC has also updated its regulations to incorporate much of the
suggested language provided by the Department of Justice, Office of
Information Policy. Adopting this language allows OPIC to adopt many of
the recommended best practices in FOIA administration. This update also
assists requesters as much of OPIC's regulations are now similar to
those of other agencies.
In general, comments received, including attachments and other
supporting materials, are part of the public record and are available
to the public. Do not submit any information in your comment or
supporting materials that you consider confidential or inappropriate
for public disclosure.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Pursuant to the Regulatory Flexibility Act, 5 U.S.C. 601 et seq.,
the head of OPIC has certified that this proposed rule, as promulgated,
will not have a significant economic impact on a substantial number of
small entities. The proposed rule implements the FOIA, a statute
concerning the release of federal records, and does not economically
impact Federal Government relations with the private sector. Further,
under the FOIA, agencies may recover only the direct costs of searching
for, reviewing, and duplicating the records processes for requesters.
Based on OPIC's experience, these fees are nominal.
Executive Order 12866
OPIC is exempted from the requirements of this Executive Order per
the Office of Management and Budget's October 12, 1993 memorandum.
Accordingly, OMB did not review this proposed rule. However this rule
was generally composed with the principles stated in section 1(b) of
the Executive Order in mind.
Unfunded Mandates Reform Act of 1995 (2 U.S.C. 202-05)
This proposed rule will not result in the expenditure by State,
local, and tribal governments in the aggregate, or by the private
sector, of $100,000,000 or more in any one year, and it will not
significantly or uniquely affect small governments. Therefore, no
actions were deemed necessary under the provisions of the Unfunded
Mandates Reform Act of 1995.
Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C.
801 et seq.)
This proposed rule is not a major rule as defined by section 804 of
the Small Business Regulatory Enforcement Fairness Act of 1996. This
regulation will not result in an annual effect on the economy of
$100,000,000 or more; a major increase in costs or prices; or
significant adverse effects on competition, employment, investment,
productivity, innovation, or on the ability of United State based
companies to compete with foreign-based companies in domestic and
export markets.
List of Subjects in 22 CFR Part 706
Administrative practice and procedure, Freedom of Information,
Privacy.
For the reasons stated in the preamble the Overseas Private
Investment Corporation proposes to revise 22 CFR part 706 as follows:
PART 706--INFORMATION DISCLOSURE UNDER THE FREEDOM OF INFORMATION
ACT
Sec.
Subpart A--General
706.1 Description.
706.2 Policy.
706.3 Scope.
706.4 Preservation and transfer of records.
706.5 Other rights and services.
Subpart B--Obtaining OPIC Records
706.10 Publically available records.
706.11 Requesting non-public records.
Subpart C--Fees for Requests for Non-Public Records
706.20 In general.
706.21 Types of fees.
706.22 Requester categories.
706.23 Fees charged.
[[Page 93865]]
706.24 Requirements for waiver or reduction of fees.
Subpart D--Processing of Requests for Non-Public Records
706.30 Responsibility for responding to requests.
706.31 Timing of responses to requests.
706.32 Responses to requests.
706.33 Confidential commercial information.
706.34 Administrative appeals.
Authority: 5 U.S.C. 552, Public Law 114-185
Subpart A--General
Sec. 706.1 Description.
This part contains the rules that the Overseas Private Investment
Corporation (``OPIC'') follows in processing requests for records under
the Freedom of Information Act (``FOIA''), 5 U.S.C. 552 as amended.
These rules should be read together with the FOIA and the Uniform
Freedom of Information Fee Schedule and Guidelines published by the
Office of Management and Budget at 52 FR 10012 (Mar. 27, 1987) (``OMB
Guidelines''). Requests made by individuals for records about
themselves under the Privacy Act of 1974, 5 U.S.C. 552a, are processed
in accordance with OPIC's Privacy Act regulations at 22 CFR 707 as well
as under this subpart.
Sec. 706.2 Policy.
It is OPIC's policy to make its records available to the public to
the greatest extent possible, in keeping with the spirit of the FOIA.
This policy includes providing reasonably segregable information from
records that also contain information that may be withheld under the
FOIA. However, implementation of this policy also reflects OPIC's view
that the soundness and viability of many of its programs depend in
large measure upon full and reliable commercial, financial, technical
and business information received from applicants for OPIC assistance
and that the willingness of those applicants to provide such
information depends on OPIC's ability to hold it in confidence.
Consequently, except as provided by law and in this part, information
provided to OPIC in confidence will not be disclosed without the
submitter's consent.
Sec. 706.3 Scope.
This part applies to all agency records in OPIC's possession and
control. This part does not compel OPIC to create records or to ask
outside parties to provide documents in order to satisfy a FOIA
request. OPIC may, however, in its discretion and in consultation with
a FOIA requester, create a new record as a partial or complete response
to a FOIA request. In responding to requests for information, OPIC will
ordinarily consider only those records within its possession and
control as of the date of OPIC's search. If any other date is used,
OPIC will inform the requester of that date. A record that is excluded
from the requirements of the FOIA pursuant to 5 U.S.C. 552(c), is not
considered responsive to a request.
Sec. 706.4 Preservation and transfer of records.
(a) Preservation of records. OPIC preserves all correspondence
pertaining to the requests that it receives under this part, as well as
copies of all requested records, until disposition or destruction is
authorized pursuant to title 44 of the United States Code or the
General Records Schedule 14 of the National Archives and Records
Administration. Records that are identified as responsive to a request
will not be disposed of or destroyed while they are the subject of a
pending request, appeal, or lawsuit under the FOIA.
(b) Transfer of records to the National Archives. Under the Records
Disposal Act, 44 U.S.C. Chapter 33, OPIC is required to transfer legal
custody and control of records with permanent historical value to the
National Archives. OPIC's Finance Project and Insurance Contract Case
files generally do not qualify as records with permanent historical
value. OPIC will not transfer these files except when the National
Archives determines that an individual project or case is especially
significant or unique. If the National Archives receives a FOIA request
for records that have been transferred it will respond to the request
in accordance with its own FOIA regulations.
Sec. 706.5 Other rights and services.
Nothing in this subpart shall 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.
Subpart B--Obtaining OPIC Records
Sec. 706.10 Publically available records.
Records that the FOIA requires agencies to make available for
public inspection in an electronic format may be accessed through
OPIC's FOIA Web site at www.opic.gov/foia. Records identified as of
interest to the public and appropriate for public disclosure are also
available, along with an index. These include annual reports and
financial statements, program handbooks, press releases, application
forms, claims information, and annual FOIA reports. OPIC will review
and update its Web site of posted records on an ongoing basis. Persons
seeking information are encouraged to visit OPIC's Web site to see what
information is already available before submitting a request; OPIC's
FOIA Office and FOIA Public Liaison are available to assist individuals
in locating records.
Sec. 706.11 Requesting non-public records.
(a) General information. (1) How to submit. To make a request for
records a requester must submit a written request to OPIC's FOIA Office
either by mail to Overseas Private Investment Corporation, 1100 New
York Avenue NW., Washington, DC 20527 or electronic mail to
[email protected]. The envelope or subject line should read ``Freedom of
Information Request'' to ensure proper routing. The request is
considered received by OPIC upon actual receipt by OPIC's FOIA Office.
(2) Records about oneself. A requester who is making a request for
records about himself or herself must verify his or her identity by
providing a notarized statement or a statement under 28 U.S.C. 1746, a
law that permits statements to be made under penalty of perjury as a
substitute for notarization, stating that the requester is the person
he or she claims to be.
(3) Records about a third party. Where a request for records
pertains to a third party, a requester may receive greater access by
submitting a notarized authorization signed by that individual, a
declaration by that individual made in compliance with the requirements
set forth in 28 U.S.C. 1746 authorizing disclosure of the records to
the requester, proof of guardianship, or proof that the individual is
deceased (e.g., a copy of a death certificate or an obituary). OPIC may
require a requester to supply additional information if necessary in
order to verify that a particular individual has consented to
disclosure.
(b) Description of records sought. Requesters must describe the
records sought in sufficient detail to enable OPIC personnel to locate
them with a reasonable amount of effort. To the extent possible,
requesters should include specific information that may assist OPIC in
identifying the requested records, such as the project name, contract
number, date or date range, country, title, name, author, recipient,
subject matter of the record, or reference number. In general,
requesters should include as much detail as possible about the specific
records or the types of records sought. Before submitting their
requests, requesters may contact OPIC's FOIA Office or FOIA Public
Liaison to
[[Page 93866]]
discuss the records they seek and to receive assistance in describing
the records. If a requester fails to reasonably describe the records
sought, OPIC will inform the requester what additional information is
needed or why the request is otherwise insufficient. Requesters who are
attempting to reformulate or modify such a request may discuss their
request with the FOIA Office or FOIA Public Liaison. If a request does
not reasonably describe the records sought, OPIC's response to the
request may be delayed.
(c) Format. Requests may state a preferred format for released
records including electronic formats. The records will be provided in
the preferred format if the record is readily reproducible in that
format. If you do not state a preference, you will receive any released
records in the format most convenient to OPIC.
(d) Requester information. Requests must include the requester's
name and contact information, such as phone number, email address, or
mailing address, to assist OPIC in communicating with them and
providing the released records.
(e) Fees. You should state your willingness to pay fees under these
regulations or, alternately, your willingness to pay up to a specified
limit. If you believe that you qualify for a partial or total fee
waiver under 706.24 you should request a waiver and provide
justification as required by 706.24. If your request does not contain a
statement of your willingness to pay fees or a request for a fee
waiver, OPIC will consider your request an agreement to pay up to
$25.00 in fees.
Subpart C--Fees for Requests of Non-Public Records.
Sec. 706.20 In general.
OPIC will charge for processing requests under the FOIA in
accordance with the provisions of this section and with the OMB
Guidelines. For purposes of assessing fees, the FOIA establishes three
categories of requests, commercial use requests, non-commercial
scientific or educational institutions or news media requests, and all
other requests. OPIC will inform requesters as to which category their
request has been placed into. Different fees are assessed depending on
the category. Requesters may seek a fee waiver. OPIC will consider
requests for fee waiver in accordance with the requirements in Section
706.24. To resolve any fee issues that arise under this section, OPIC
may contact a requester for additional information. OPIC will ensure
that searches, review, and duplication are conducted in the most
efficient and the least expensive manner. OPIC ordinarily will collect
all applicable fees before sending copies of records to a requester.
Requesters must pay fees by check or money order made payable to the
Treasury of the United States.
Sec. 706.21 Types of fees.
(a) Direct costs are those expenses that OPIC expends in searching
for and duplicating (and, in the case of commercial-use requests,
reviewing) records in order to respond to a 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. Direct costs do not include overhead expenses
such as the costs of space, and of heating or lighting a facility.
(b) Duplication is reproducing a copy of a record or of the
information contained in it, necessary to respond to a FOIA request.
Copies can take the form of paper, audiovisual materials, or electronic
records, among others.
(c) Review is the examination of a record located in response to a
request in order to determine whether 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 the process of redacting the record and marking
the appropriate exemptions. Review costs are properly charged even if a
record ultimately is not disclosed. Review time also includes time
spent both obtaining and considering any formal objection to disclosure
made by a confidential commercial information submitter under Section
706.33(c) of this subpart, but it does not include time spent resolving
general legal or policy issues regarding the application of exemptions.
(d) 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 expended to locate and retrieve information from
electronic records.
Sec. 706.22 Request categories.
(a) A 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. OPIC's decision to place a requester in the commercial use
category will be made on a case-by-case basis based on the requester's
intended use of the information.
(b) An Educational Use request is one made on behalf of an
educational institution, defined as any school that operates a program
of scholarly research. A requester in this category must show that the
request is made in connection with his or her role at the educational
institution. OPIC may request verification from the requester that the
request is in furtherance of scholarly research.
(1) Example 1. A request from a professor of geology at a
university for records relating to soil erosion, written on
letterhead of the Department of Geology, would be presumed to be
from an educational institution.
(2) Example 2. A request from the same professor of geology
seeking drug information from the Food and Drug Administration in
furtherance of a murder mystery he is writing would not be presumed
to be an institutional request, regardless of whether it was written
on institutional stationery.
(3) Example 3. A student who makes a request in furtherance of
their coursework or other school-sponsored activities and provides a
copy of a course syllabus or other reasonable documentation to
indicate the research purpose for the request, would qualify as part
of this fee category.
(c) A Noncommercial Scientific Institution Use request is a request
made on behalf of a noncommercial scientific institution, defined as an
institution that is not operated on a ``commercial'' basis, as defined
in paragraph (a) of this section, and that is operated solely for the
purpose of conducting scientific research, the results of which are not
intended to promote any particular product or industry. A requester in
this category must show that the request is authorized by and is made
under the auspices of a qualifying institution and that the records are
sought to further scientific research and not for a commercial use.
(d) A News Media Request is a request made by a representative of
the news media in that capacity. A representative of the news media is
defined as 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. A request for records that supports the
[[Page 93867]]
news-dissemination function of the requester shall not be considered to
be for a commercial use. ``Freelance'' journalists who demonstrate a
solid basis for expecting publication through a news media entity shall
be considered as a representative of the news media. A publishing
contract would provide the clearest evidence that publication is
expected; however, OPIC shall also consider a requester's past
publication record in making this determination.
(e) All other requests include any requests that do not qualify
under one of the above categories.
Sec. 706.23 Fees charged.
(a) In responding to FOIA requests, OPIC will charge the following
fees unless a waiver or reduction of fees has been granted under
section 706.24 of this section. Because the fee amounts provided below
already account for the direct costs associated with a given fee type,
OPIC should not add any additional costs to charges calculated under
this section. (1) Search.
(i) Requests made by educational institutions, noncommercial
scientific institutions, or representatives of the news media are not
subject to search fees. Search fees will be charged to all other
requests, subject to the restrictions of paragraph (b) of this section.
Fees for time spent searching is properly charged even if no responsive
records are located or if all responsive records are determined to be
entirely exempt from disclosure.
(ii) For each quarter hour spent by personnel searching for
requested records, including electronic searches that do not require
new programming, the fees will be as follows: Professional--$13.75; and
administrative--$7.50.
(iii) Requesters will be charged the direct costs associated with
conducting any search that requires the creation of a new program to
locate the requested records. Before incurring such costs, OPIC will
notify the requester and the requester must agree to pay.
(iv) For requests that require the retrieval of records stored at a
Federal Records Center operated by the National Archives and Records
Administration (NARA), additional costs shall be charged in accordance
with the Transactional Billing Rate Schedule established by NARA.
(2) Duplication. Duplication fees will be charged to all
requesters, subject to the restrictions of paragraph (b) of this
section. OPIC will honor a requester's preference for receiving a
record in a particular form or format where it is readily reproducible
in the form or format requested. Where photocopies are supplied, OPIC
will provide one copy per request at a cost of $0.10 per page. For
copies of records produced on tapes, disks, or other electronic media,
OPIC will charge the direct costs of producing the copy, including
operator time. Where paper documents must be scanned in order to comply
with a requester's preference to receive the records in an electronic
format, the requester must also pay the direct costs associated with
scanning those materials. For other forms of duplication, OPIC will
charge the direct costs.
(3) Review. Review fees will be charged to requesters who make
commercial use requests. Review fees will be assessed in connection
with the initial review of the record, i.e., the review conducted by
OPIC to determine whether an exemption applies to a particular record
or portion of a record. No charge will be made for review at the
administrative appeal stage of exemptions applied at the initial review
stage. However, if the appellate authority determines that a particular
exemption no longer applies, any costs associated with the re-review of
the records in order to consider the use of other exemptions may be
assessed as review fees. Review fees will be charged at the same rates
as those charged for a search under paragraph (a)(1)(ii) of this
section.
(b) Restrictions on charging fees. (1) No search fees will be
charged for educational use requests, noncommercial scientific use
requests, or news media requests as defined in Section 706.22.
(2) Fees charged when OPIC exceeds time limits.
(i) When OPIC fails to comply with the time limits in which to
respond to a request, it may not charge search fees, or, in the
instances of requests from requesters described in paragraph (b)(1) of
this section, may not charge duplication fees, except as described in
(b)(2)(ii)-(iv).
(ii) If OPIC has determined that unusual circumstances as defined
by the FOIA apply and OPIC provided timely written notice to the
requester in accordance with the FOIA, a failure to comply with the
time limit shall be excused for an additional ten days.
(iii) If OPIC has determined that unusual circumstances, as defined
by the FOIA, apply and more than 5,000 pages are necessary to respond
to the request, OPIC may charge all applicable fees incurred in
processing the request if the following steps are taken:
(A) OPIC has provided timely written notice of unusual
circumstances to the requester in accordance with the FOIA; and
(B) OPIC has discussed with the requester via written mail, email,
or telephone (or made not less than three good-faith attempts to do so)
how the requester could effectively limit the scope of the request in
accordance with 5 U.S.C. 552(a)(6)(B)(ii).
(iv) If a court has determined that exceptional circumstances
exist, as defined by the FOIA, a failure to comply with the time limits
shall be excused for the length of time provided by the court order.
(3) No search or review fees will be charged for a quarter-hour
period unless more than half of that period is required for search or
review.
(4) Except for requesters seeking records for a commercial use,
OPIC will provide without charge:
(i) The first 100 pages of duplication (or the cost equivalent for
other media); and
(ii) The first two hours of search.
(5) If, after deducting free entitlements, the total fee calculated
under this section is $25.00 or less, no fee will be charged.
(c) Notice of anticipated fees in excess of $25.00. (1) When OPIC
determines or estimates that the fees to be assessed in accordance with
this section will exceed $25.00, OPIC will notify the requester of the
actual or estimated amount of the fees, including a breakdown of fees
for search, review, and duplication, unless the requester has indicated
a willingness to pay fees as high as those anticipated. If only a
portion of the fee can be estimated readily, OPIC will advise the
requester accordingly. If the request is for noncommercial use, the
notice will specify that the requester is entitled to the statutory
entitlements of 100 pages of duplication at no charge, and if the
requester is charged search fees, two hours of search time at no
charge, and will advise the requester whether those entitlements have
been provided.
(2) If OPIC notifies the requester that the actual or estimated
fees are in excess of $25.00, the request will not be considered
received and further work will not be completed until the requester
commits in writing to pay the actual or estimated total fee, or
designates some amount of fees the requester is willing to pay, or in
the case of a noncommercial use requester who has not yet been provided
with the requester's statutory entitlements, designates that the
requester seeks only that which can be provided by the statutory
entitlements. The requester must provide the commitment or designation
in writing, and must, when
[[Page 93868]]
applicable, designate an exact dollar amount the requester is willing
to pay. OPIC is not required to accept payments in installments.
(3) If the requester has indicated a willingness to pay some
designated amount of fees, but OPIC estimates that the total fee will
exceed that amount, the processing of the request will be tolled when
OPIC notifies the requester of the estimated fees in excess of the
amount the requester has indicated a willingness to pay. OPIC will
inquire whether the requester wishes to revise the amount of fees the
requester is willing to pay or modify the request. Once the requester
responds, OPIC's time to respond will resume from where it was at the
date of the notification.
(4) OPIC's FOIA Office or FOIA Public Liaison is available to
assist any requester in reformulating a request to meet the requester's
needs at a lower cost.
(d) Charges for other services. Although not required to provide
special services, if OPIC chooses to do so as a matter of
administrative discretion, the direct costs of providing the service
will be charged. Examples of such services include certifying that
records are true copies, providing multiple copies of the same
document, or sending records by means other than first class mail.
(e) Charging interest. OPIC may charge interest on any unpaid bill
starting on the thirty-first day following the billing date. Interest
charges will be assessed at the rate provided in 31 U.S.C. 3717 and
will accrue from the billing date until payment is received by OPIC.
OPIC will follow the provisions of the Debt Collection Act of 1982
(Pub. L. 97-365, 96 Stat. 1749), as amended, and its administrative
procedures, including the use of consumer reporting agencies,
collection agencies, and offset.
(f) Aggregating requests. If OPIC reasonably believes that a
requester or a group of requesters acting in concert is attempting to
divide a single request into a series of requests for the purpose of
avoiding fees, OPIC may aggregate those requests and charge
accordingly. OPIC may presume that multiple requests of this type made
within a 30-day period have been made in order to avoid fees. For
requests separated by a longer period, OPIC will aggregate them only
where there is a reasonable basis for determining that aggregation is
warranted in view of all the circumstances involved. Multiple requests
involving unrelated matters will not be aggregated.
(g) Advance payments. (1) For requests other than those described
in paragraphs (g)(2) and (g)(3) of this section OPIC will not require
the requester to make an advance payment before work is commenced or
continued on a request. Payment owed for work already completed (i.e.,
payment before copies are sent to a requester) is not an advance
payment.
(2) When OPIC determines or estimates that a total fee to be
charged under this section will exceed $250.00, it may require that the
requester make an advance payment up to the amount of the entire
anticipated fee before beginning to process the request. OPIC may elect
to process the request prior to collecting fees when it receives a
satisfactory assurance of full payment from a requester with a history
of prompt payment.
(3) Where a requester has previously failed to pay a properly
charged FOIA fee to any agency within thirty calendar days of the
billing date, OPIC may require that the requester pay the full amount
due, plus any applicable interest on that prior request. OPIC may also
require that the requester make an advance payment of the full amount
of any anticipated fee before OPIC begins to process a new request or
continues to process a pending request or any pending appeal. Where
OPIC has a reasonable basis to believe that a requester has
misrepresented his or her identity in order to avoid paying outstanding
fees, it may require that the requester provide proof of identity.
(4) In cases in which OPIC requires advance payment, OPIC's
response time will be tolled and further work will not be completed
until the required payment is received. If the requester does not pay
the advance payment within thirty calendar days after the date of
OPIC's fee letter, OPIC may administratively close the request.
(h) Other statutes specifically providing for fees. The fee
schedule of this section does not apply to fees charged under any
statute that specifically requires an agency to set and collect fees
for particular types of records. In instances where records responsive
to a request are subject to a statutorily-based fee schedule program,
OPIC will inform the requester of the contact information for that
program.
Sec. 706.24 Requirements for waiver or reduction of fees.
(a) Requesters may seek a waiver of fees by submitting a written
application demonstrating how disclosure of the requested information
is in the public interest because it is likely to contribute
significantly to public understanding of the operations and activities
of the government and is not primarily in the interest of the
requester.
(b) OPIC will furnish records responsive to a request without
charge or at a reduced rate when it determines, based on all available
information, that the factors described in paragraphs (b)(1)-(3) are
satisfied. (1) Disclosure of the requested information would shed light
on the operations or activities of the government. The subject of the
request must concern identifiable operations or activities of the
Federal government, with a connection that is direct and clear, not
remote or attenuated.
(2) Disclosure of the requested information is likely to contribute
significantly to public understanding of those operations or
activities. This factor is satisfied when the following criteria are
met:
(i) 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.
(ii) The disclosure must contribute to the understanding of a
reasonably broad audience of persons interested in the subject, as
opposed to the individual understanding of the requester. A requester's
expertise in the subject area as well as his or her ability and
intention to effectively convey information to the public shall be
considered. It shall ordinarily be presumed that a representative of
the news media satisfies this consideration.
(3) The disclosure must not be primarily in the commercial interest
of the requester. To determine whether disclosure of the requested
information is primarily in the commercial interest of the requester,
OPIC will consider the following factors:
(i) OPIC shall identify whether the requester has any commercial
interest that would be furthered by the requested disclosure. A
commercial interest includes any commercial, trade, or profit interest.
Requesters shall be given an opportunity to provide explanatory
information regarding this consideration.
(ii) If there is a commercial interest, OPIC will determine whether
that is the primary interest furthered by the request. A waiver or
reduction of fees is justified when the requirements of paragraphs
(b)(1) and (2) are satisfied and any commercial interest is not the
primary interest furthered by the request. OPIC will ordinarily presume
that when a news media requester has satisfied factors b(1) and (2)
above, the request is not primarily in the
[[Page 93869]]
commercial interest of the requester. Disclosure to data brokers or
others who merely compile and market government information for direct
economic return will not be presumed to primarily serve the public
interest.
(c) Where only some of the records to be released satisfy the
requirements for a waiver of fees, a waiver shall be granted for those
records.
(d) Requests for a waiver or reduction of fees should be made when
the request is first submitted to OPIC and should address the criteria
referenced above. A requester may submit a fee waiver request at a
later time so long as the underlying record request is pending or on
administrative appeal. When a requester who has committed to pay fees
subsequently asks for a waiver of those fees and that waiver is denied,
the requester will be required to pay any costs incurred up to the date
the fee waiver request was received.
Subpart D--Processing of Requests for Non-Public Records
Sec. 706.30 Responsibility for responding to requests.
(a) Authority to grant or deny requests. The OPIC President and CEO
or designee is authorized to grant or to deny any requests for records.
(b) Consultation, referral, and coordination. When reviewing
records responsive to a request, OPIC will determine whether another
agency of the Federal Government is better able to determine whether
the record is exempt from disclosure under the FOIA. As to any such
record, OPIC will proceed in one of the following ways:
(1) Consultation. When records originated with OPIC, but contain
within them information of interest to another agency or other Federal
Government office, OPIC will typically consult with that other entity
prior to making a release determination.
(2) Referral.
(i) When OPIC believes that a different agency is best able to
determine whether to disclose the record, OPIC will typically refer the
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.
However, if OPIC and the originating agency jointly agree that OPIC is
in the best position to respond regarding the record, then the record
may be handled as a consultation.
(ii) Whenever OPIC refers any part of the responsibility for
responding to a request to another agency, it will document the
referral, maintain a copy of the record that it refers, and notify the
requester of the referral, informing the requester of the name(s) of
the agency to which the record was referred, including that agency's
FOIA contact information.
(3) Coordination. The standard referral procedure is not
appropriate where disclosure of the identity of the 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 in responding
to a request for records on a living third party, OPIC 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 OPIC 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, OPIC should coordinate with the originating
agency to seek its views on the disclosability of the record. The
release determination for the record that is the subject of the
coordination should then be conveyed to the requester by OPIC.
(c) Classified information. On receipt of any request involving a
record containing information that has been classified or may be
appropriate for classification by another agency under any applicable
executive order concerning the classification of records, OPIC must
refer the responsibility for responding to the request to the agency
that classified the information, or that should consider the
information for classification. Whenever OPIC's record contains
information that has been derivatively classified (for example, when it
contains information classified by another agency), OPIC must refer the
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. All
consultations and referrals will be handled according to the date that
the first agency received the perfected FOIA request.
(e) Agreements regarding consultations and referrals. OPIC may
establish agreements with other agencies to eliminate the need for
consultations or referrals with respect to particular types of records.
Sec. 706.31 Timing of responses to requests.
(a) In general. OPIC ordinarily will process requests according to
their order of receipt within their appropriate track under subpart (b)
of this section. The response time will commence on the date that the
request is received by the FOIA Office, but in any event not later than
ten working days after the request is first received by OPIC. Any time
tolled under subparagraph (c) of this section does not count against
OPIC's response time.
(b) Multitrack processing. OPIC has a track for requests that are
granted expedited processing, in accordance with the standards set
forth in paragraph (f) of this section. Non-expedited requests will be
placed into a ``simple'' or ``complex'' track based on the estimated
amount of work or time needed to process the request. OPIC will
consider the number of records requested, the number of pages involved
in processing the request, and the need for consultations or referrals.
OPIC will advise the requester into which track the request falls and,
when appropriate, will offer requesters the opportunity to narrow or
modify the request so that it can be placed in a different track.
(c) Tolling of response time. OPIC may toll its response time once
to seek clarification of a request in accordance with Section 706.11(b)
or as needed to resolve fee issues in accordance with Sections
706.22(c) and 706.23(d). The response time will resume upon OPIC's
receipt of the requester's clarification or upon resolution of the fee
issue.
(d) Unusual circumstances. Whenever the statutory time limits for
processing cannot be met because of ``unusual circumstances'' as
defined in the FOIA, and OPIC extends the time limits on that basis,
OPIC will notify the requester in writing of the unusual circumstances
involved and of the date by which OPIC estimates processing of the
request will be completed. Where the extension exceeds ten working
days, the requester will be provided an opportunity to modify the
request or agree to an alternative time period for processing the
original or modified request. OPIC will make its FOIA Office and its
FOIA Public Liaison available for this purpose and will notify the
requester of the availability of the Office of Government Services
(OGIS) dispute resolution services.
(e) Aggregating requests. For the purposes of satisfying unusual
circumstances under the FOIA, OPIC
[[Page 93870]]
may aggregate requests in cases where it reasonably appears that
multiple requests, submitted either by a requester or by a group of
requesters acting in concert, constitute a single request that would
otherwise involve unusual circumstances. OPIC will not aggregate
multiple requests that involve unrelated matters.
(f) Expedited processing.
(1) Requests and appeals will be processed on an expedited basis
whenever it is determined that they involve:
(i) Circumstances in which the lack of expedited processing could
reasonably be expected to pose an imminent threat to the life or
physical safety of an individual;
(ii) An urgency to inform the public about an actual or alleged
Federal government activity, if made by a person who is primarily
engaged in disseminating information;
(2) A request for expedited processing may be made at any time.
(3) A requester who seeks expedited processing must submit a
statement, certified to be true and correct, explaining in detail the
basis for making the request for expedited processing. For example,
under paragraph (f)(1)(ii) of this section, a requester who is not a
full-time member of the news media must establish that the requester is
a person whose primary professional activity or occupation is
information dissemination, though it need not be the requester's sole
occupation. Such a requester also must establish a particular urgency
to inform the public about the government activity involved in the
request--one that extends beyond the public's right to know about
government activity generally. The existence of numerous articles
published on a given subject can be helpful in establishing the
requirement that there be an ``urgency to inform'' the public on the
topic. OPIC may waive the formal certification requirement in its
administrative discretion.
(4) OPIC shall notify the requester within ten calendar days of the
receipt of a request for expedited processing of its decision whether
to grant or deny expedited processing. If expedited processing is
granted, the request shall be given priority, placed in the processing
track for expedited requests, and shall be processed as soon as
practicable. If OPIC denies expedited processing, any appeal of that
decision which complies with the procedures set forth in Section 706.34
of this subpart shall be acted on expeditiously.
Sec. 706.32 Responses to requests.
(a) In general. To the extent practicable, OPIC will communicate
electronically with requesters who have access to the internet.
(b) Acknowledgments of requests. If a request will take longer than
ten days to process, OPIC will send the requester an acknowledgment
letter that assigns the request an individualized tracking number. The
letter will include a brief description of the records sought to allow
requesters to more easily keep track of requests.
(c) Grants of requests. OPIC will notify the requester in writing
if it makes a determination to grant a request in full or in part. The
notice will inform the requester of any fees charged under Section
706.22 of this part and of the availability of the FOIA Public Liaison
to offer assistance. OPIC will disclose the requested records to the
requester promptly upon payment of any applicable fees.
(d) Adverse determinations of requests. OPIC will notify the
requester in writing if it makes an adverse determination denying a
request in any respect. 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.
(e) Content of denial letter. The denial letter will be signed by
the person responsible for the denial, and will include:
(1) The name and title or position of the person responsible for
the denial;
(2) A brief statement of the reasons for the denial, including any
FOIA exemptions applied;
(3) An estimate of the volume of any records or information
withheld, for example, by providing the number of pages or some other
reasonable form of estimation. This estimation 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;
(4) A brief description of the types of information withheld and
the reasons for doing so. A description and explanation are not
required if providing it would harm an interest protected by an
applicable exemption;
(5) A statement that the denial may be appealed under Section
706.34(a) of this subpart, and a description of the appeal
requirements;
(6) A statement notifying the requester of the assistance available
from OPIC's FOIA Public Liaison and dispute resolution services offered
by OGIS; and
(7) Notice of any fees charged under Section 706.23 of this part.
(f) Markings on released documents. Records disclosed in part must
be marked clearly to 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. If technically
feasible, the location of the information deleted will be indicated on
the record.
(g) Notice of record exclusions. (1) In the event that OPIC
identifies records that may be subject to exclusion from the
requirements of the FOIA pursuant to 5 U.S.C. 552(c), the agency will
confer with the Department of Justice, Office of Information Policy, to
obtain approval to apply the exclusion.
(2) OPIC will maintain an administrative record of the process of
invocation and approval of the exclusion by OIP.
Sec. 706.33 Confidential commercial information.
(a) Definitions.
(1) Confidential commercial information means commercial or
financial information obtained by the agency from a submitter that may
be protected from disclosure under Exemption 4 of the FOIA. Exemption 4
protects:
(i) Trade secrets; or
(ii) Commercial or financial information that is privileged or
confidential where either: Disclosure of the information would cause
substantial competitive harm to the submitter, or the information is
voluntarily submitted and would not customarily be publicly released by
the submitter. Information which is required to apply for OPIC support
is not considered to be voluntarily submitted.
(2) Submitter means any person or entity, including a corporation,
State, or foreign government, but not including another Federal
Government entity, that provides confidential commercial information to
the Federal government, directly or indirectly.
(b) Designation of confidential commercial information. All
submitters may designate, by appropriate markings, any portions of
their submissions that they consider to be protected from
[[Page 93871]]
disclosure under the FOIA. These markings will be considered by OPIC in
responding to a FOIA request but such markings (or the absence of such
markings) will not be dispositive as to whether the marked information
is ultimately released. Unless otherwise requested and approved these
markings will be considered no longer applicable ten years after
submission or five years after the close of the associated project,
whichever is later.
(c) When notice to submitters is required. (1) Except as provided
in paragraph (d) of this section, OPIC's FOIA Office will use
reasonable efforts to notify a submitter in writing whenever:
(i) The requested information has been designated in good faith by
the submitter as confidential commercial information protected from
disclosure under Exemption 4; or
(ii) OPIC has reason to believe that the requested information may
be protected from disclosure under Exemption 4, but has not yet
determined whether the information is protected from disclosure.
(2) This notification will describe the nature and scope of the
request, advise the submitter of its right to submit written objections
in response to the request, and provide a reasonable time for response.
The notice will either describe the commercial information requested or
include copies of the requested records or portions of records
containing the information. In cases involving a voluminous number of
submitters, notice may be made by posting or publishing the notice in a
place or manner reasonably likely to inform the submitters of the
proposed disclosure, instead of sending individual notifications.
(d) Exceptions to submitter notice requirements. The notice
requirements of this section shall not apply if:
(1) OPIC determines that the information is exempt under the FOIA,
and therefore will not be disclosed;
(2) The information has been lawfully published or has been
officially 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; or
(4) The designation made by the submitter under paragraph (b) of
this section appears obviously frivolous. In such case, OPIC will give
the submitter written notice of any final decision to disclose the
information within a reasonable number of days prior to a specified
disclosure date.
(e) Opportunity to object to disclosure. (1) OPIC will specify a
reasonable time period within which the submitter must respond to the
notice referenced above.
(2) If a submitter has any objections to disclosure, it should
provide OPIC with a detailed written statement that specifies all
grounds for withholding the particular information under any exemption
of the FOIA. In setting forth such grounds, the submitter should
explain the basis of its belief that the nondisclosure of any item of
information requested is mandated or permitted by law. In order to rely
on Exemption 4 as a basis for nondisclosure, the submitter shall
explain why the information is considered a trade secret or commercial
or financial information that is privileged or confidential and either:
How disclosure of the information would cause substantial competitive
harm to the submitter, or why the information should be considered
voluntarily submitted and why it is information that would not
customarily be publicly released by the submitter.
(3) A submitter who fails to respond within the time period
specified in the notice shall be considered to have no objection to
disclosure of the information. OPIC is not required to consider any
information received after the date of any disclosure decision. Any
information provided by a submitter under this subpart may itself be
subject to disclosure under the FOIA.
(4) The period for providing OPIC with objections to disclosure of
information may be extended by OPIC upon receipt of a written request
for an extension from the submitter. Such written request shall set
forth the date upon which any objections are expected to be completed
and shall provide reasonable justification for the extension. In its
discretion, OPIC may permit more than one extension.
(f) Analysis of objections. OPIC will consider a submitter's
objections and specific grounds for nondislosure in deciding whether to
disclose the requested information.
(g) Notice of intent to disclose. If OPIC decides to disclosure
information over the objection of a submitter, OPIC will notify the
submitter of its determination at least five working days prior to
release of the information. The notification will include:
(1) A statement of the reasons why each of the submitter's
disclosure objections was not sustained;
(2) A description of the information to be disclosed, or a copy
thereof; and
(3) A specified disclosure date, which shall be a reasonable time
subsequent to the notice.
(h) Notice of FOIA lawsuit. Whenever a requester files a FOIA
lawsuit seeking to compel the disclosure of confidential commercial
information, OPIC will promptly notify the submitter.
(i) Requester notification. OPIC will notify a requester whenever
it provides the submitter with notice and an opportunity to object to
disclosure; whenever it notifies the submitter of its intent to
disclose the requested information; and whenever a submitter files a
lawsuit to prevent the disclosure of the information.
Sec. 706.34 Administrative appeals.
(a) Requirements for making an appeal. A requester may appeal any
adverse determinations to OPIC's Vice President and General Counsel at
[email protected] or 1100 New York Avenue NW., Washington, DC 20527.
Examples of adverse determinations are provided in Section 706.06(c) of
this subpart. The requester must make the appeal in writing and it must
be postmarked, or in the case of electronic submissions, transmitted,
within ninety calendar days after the date of the response. The appeal
should clearly identify OPIC's determination that is being appealed and
the assigned request number. The requester should mark both the appeal
letter and envelope, or subject line of the electronic transmission,
``Freedom of Information Act Appeal.''
(b) Adjudication of appeals. OPIC's Vice President and General
Counsel or his/her designee will render a written decision within
twenty working days after the date of OPIC's receipt of the appeal,
unless an extension of up to ten working days is deemed necessary due
to unusual circumstances. The requester will be notified in writing of
any extension.
(c) Decisions on appeals. A decision that upholds the initial
determination will contain a written statement that identifies the
reasons for the affirmance, including any FOIA exemptions applied, and
will provide the requester with notification of the statutory right to
file a lawsuit and the ability to request mediation from the Office of
Government Information Services. If an initial determination is
remanded or modified on appeal the requester will be notified in
writing. OPIC's FOIA Office will then process the request in accordance
with that appeal determination and respond directly to the requester.
If an appeal is granted in whole or in part, the information will be
made available promptly, provided the requirements of Section 706.23
regarding payment of fees are satisfied.
[[Page 93872]]
(d) Engaging in dispute resolution services provided by OGIS.
Mediation is a voluntary process. If OPIC agrees to participate in the
mediation services provided by OGIS, it will actively engage as a
partner to the process in an attempt to resolve the dispute.
(e) When appeal is required. Before seeking court review, a
requester generally must first submit a timely administrative appeal.
Dated: December 15, 2016.
Nichole Skoyles,
Administrative Counsel, Department of Legal Affairs.
[FR Doc. 2016-30661 Filed 12-21-16; 8:45 am]
BILLING CODE P