[Federal Register Volume 82, Number 110 (Friday, June 9, 2017)]
[Proposed Rules]
[Pages 26763-26771]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-11459]


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NATIONAL FOUNDATION FOR THE ARTS AND HUMANITIES

National Endowment for the Arts

45 CFR Part 1148

RIN 3135-AA27


Implementing the Freedom of Information Act

AGENCY: National Endowment for the Arts, National Foundation for the 
Arts and Humanities.

ACTION: Notice of proposed rulemaking.

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SUMMARY: This proposed rule would amend the National Endowment for the 
Arts' (NEA) regulations implementing the Freedom of Information Act 
(FOIA). The NEA proposes these amendments to update the NEA's current 
FOIA regulation. This proposed rule updates the NEA's regulations to 
reflect statutory changes to FOIA, current NEA organizational 
structure, and current NEA policies and practices with respect to FOIA. 
Finally, the rule uses current cost figures in calculating and charging 
fees.

DATES: Submit comments on or before July 10, 2017.

ADDRESSES: You may submit comments, identified by RIN 3135-AA27, by any 
of the following methods:
    (a) Federal eRulemaking Portal: https://www.regulations.gov. Follow 
the instructions for submitting comments.
    (b) Email: [email protected]. Include RIN 3135-AA27 in the 
subject line of the message.
    (c) Mail: National Endowment for the Arts, Office of the General 
Counsel, 400 7th Street SW., Second Floor, Washington, DC 20506.
    (d) Hand Delivery/Courier: National Endowment for the Arts, Office 
of the General Counsel, 400 7th Street SW., Second Floor, Washington, 
DC 20506.
    Instructions: All submissions received must include the agency name 
and docket number or Regulatory Information Number (3135-AA27) for this 
rulemaking.
    Docket: For access to the docket to read background documents or 
comments received, go to 400 7th Street SW., Washington, DC.

FOR FURTHER INFORMATION CONTACT: Sarah Weingast, Assistant General 
Counsel, National Endowment for the Arts, 400 7th St. SW., Washington, 
DC 20506, Telephone: 202-682-5418.

SUPPLEMENTARY INFORMATION: 

1. Background

    The NEA operates as part of the National Foundation on the Arts and 
the Humanities (Foundation) under the National Foundation on the Arts 
and the Humanities Act of 1965, as amended (20 U.S.C. 951 et seq.). The 
corresponding regulations published at 45 CFR chapter XI, subchapter A, 
apply to the entire Foundation, while the regulations published at 45 
CFR chapter XI, subchapter B, apply only to the NEA.
    This proposed rule implements the NEA's FOIA regulations in 
subchapter B and adds a new NEA-specific regulation at 45 CFR part 
1148, which replaces the existing regulations in subchapter A (45 CFR 
part 1100) as applicable to the NEA. The proposed rule adds significant 
detail concerning several provisions of FOIA, and is intended to 
increase understanding of the NEA's FOIA policies and procedures. The 
NEA's new regulations at 45 CFR part 1148 will contain the policies and 
procedures governing public access to NEA records under FOIA (5 U.S.C. 
552).
    FOIA requires Federal agencies to make official documents and other 
records available to the public upon request, unless the material 
requested falls under one of the several statutorily prescribed 
exemptions. FOIA also requires agencies to publish rules stating the 
time, place, fees, and procedures to apply in making such records 
available. Further, section 1803 of the Freedom of Information Act of 
1986 requires each agency to establish a system for recovering costs 
associated with responding to requests for information under FOIA.
    The FOIA Improvement Act of 2016 (Pub. L. 114-185), enacted on June 
30, 2016, addressed a range of procedural issues and codified guidance 
and best practices from the Department of Justice and the National 
Archives and Records Administration. The FOIA Improvement Act also 
changed the amount of time agencies are required to provide for appeals 
to ninety (90) days. Consistent with this law and guidance, the NEA 
undertook a comprehensive review of its FOIA regulation. As a result of 
this review, the NEA proposes to revise its FOIA regulation to 
incorporate changes enacted by the recent policy directives, reflect 
developments in the case law, and include current cost figures for 
calculating and charging fees. These procedural changes are intended to 
enhance the administration and operation of the NEA's FOIA program by 
increasing the transparency and clarity of the NEA's FOIA procedures.

2. Compliance

Regulatory Planning and Review (Executive Order 12866)

    Executive Order 12866 (E.O. 12866) established a process for review 
of rules by the Office of Information and Regulatory Affairs, which is 
within the Office of Management and Budget (OMB). Only ``significant'' 
proposed and final rules are subject to review under this Executive 
Order. ``Significant,'' as used in E.O. 12866, means ``economically 
significant.'' It refers to rules with (1) an impact on the economy of 
$100 million; or that (2) were inconsistent or interfered with an 
action taken or planned by another agency; (3) materially altered the 
budgetary impact of entitlements, grants, user fees, or loan programs; 
or (4) raised novel legal or policy issues.
    This proposed rule would not be a significant policy change and OMB 
has not reviewed this proposed rule under E.O. 12866. We have made the 
assessments required by E.O. 12866 and determined that this rulemaking: 
(1) Will not have an effect of $100 million or more on the economy; (2) 
will not adversely affect in a material way the economy, productivity, 
competition, jobs, the environment, public health or safety, or State, 
local, or Tribal governments or communities; (3) will not create a 
serious inconsistency or otherwise interfere with an action taken or 
planned by another agency; (4) does not alter the budgetary effects of 
entitlements, grants, user fees, or loan programs or the rights or 
obligations of their recipients; and (5) does not raise novel legal or 
policy issues.

Federalism (Executive Order 13132)

    This rulemaking does not have Federalism implications, as set forth 
in E.O. 13132. As used in this order, Federalism implications mean 
``substantial direct effects on the States, on the relationship between 
the national government and the States, or on the

[[Page 26764]]

distribution of power and responsibilities among the various levels of 
government.'' The NEA has determined that this rulemaking will not have 
Federalism implications within the meaning of E.O. 13132.

Civil Justice Reform (Executive Order 12988)

    This Directive meets the applicable standards set forth in section 
3(a) and 3(b)(2) of E.O. 12988. Specifically, this proposed rule is 
written in clear language designed to help reduce litigation.

Indian Tribal Governments (Executive Order 13175)

    Under the criteria in E.O. 13175, we have evaluated this proposed 
rule and determined that it would have no potential effects on 
Federally recognized Indian Tribes.

Takings (Executive Order 12630)

    Under the criteria in E.O. 12630, this rulemaking does not have 
significant takings implications. Therefore, a takings implication 
assessment is not required.

Regulatory Flexibility Act of 1980 (5 U.S.C. 605(b))

    This rulemaking will not have a significant adverse impact on a 
substantial number of small entities, including small businesses, small 
governmental jurisdictions, or certain small not-for-profit 
organizations.

Paperwork Reduction Act of 1995 (44 U.S.C., Chapter 35)

    This rulemaking will not impose any ``information collection'' 
requirements under the Paperwork Reduction Act. Under the act, 
information collection means the obtaining or disclosure of facts or 
opinions by or for an agency by 10 or more nonfederal persons.

Unfunded Mandates Act of 1995 (Section 202, Pub. L. 104-4)

    This rulemaking does not contain a Federal mandate that will result 
in the expenditure by State, local, and tribal governments, in the 
aggregate, or by the private sector of $100 million or more in any one 
year.

National Environmental Policy Act of 1969 (5 U.S.C. 804)

    The proposed rule will not have significant effect on the human 
environment.

Small Business Regulatory Enforcement Fairness Act of 1996 (Sec. 804, 
Pub. L. 104-121)

    This proposed rule would not be a major rule as defined in section 
804 of the Small Business Regulatory Enforcement Fairness Act of 1996. 
This proposed rule will not result in an annual effect on the economy 
of $100,000,000 or more, a major increase in costs or prices, 
significant adverse effects on competition, employment, investment, 
productivity, innovation, or on the ability of United States-based 
companies to compete with foreign based companies in domestic and 
export markets.

E-Government Act of 2002 (44 U.S.C. 3504)

    Section 206 of the E-Government Act requires agencies, to the 
extent practicable, to ensure that all information about that agency 
required to be published in the Federal Register is also published on a 
publicly accessible Web site. All information about the NEA required to 
be published in the Federal Register may be accessed at www.arts.gov. 
This Act also requires agencies to accept public comments on their 
proposed rules ``by electronic means.'' See heading ``Public 
Participation'' for directions on electronic submission of public 
comments on this proposed rule.
    Finally, the E-Government Act requires, to the extent practicable, 
that agencies ensure that a publicly accessible Federal Government Web 
site contains electronic dockets for rulemakings under the 
Administrative Procedure Act of 1946 (5 U.S.C. 551 et seq.). Under this 
Act, an electronic docket consists of all submissions under section 
553(c) of title 5, United States Code; and all other materials that by 
agency rule or practice are included in the rulemaking docket under 
section 553(c) of title 5, United States Code, whether or not submitted 
electronically. The Web site https://www.regulations.gov contains 
electronic dockets for the NEA's rulemakings under the Administrative 
Procedure Act of 1946.

Plain Writing Act of 2010 (5 U.S.C. 301)

    Under this Act, the term ``plain writing'' means writing that is 
clear, concise, well-organized, and follows other best practices 
appropriate to the subject or field and intended audience. To ensure 
that this rulemaking has been written in plain and clear language so 
that it can be used and understood by the public, the NEA has modeled 
the language of this proposed rule on the Federal Plain Language 
Guidelines.

Public Participation

    The NEA has written this proposed rule in compliance with E.O. 
13563 by ensuring its accessibility, consistency, simplicity of 
language, and overall comprehensibility. In addition, the public 
participation goals of this order are also satisfied by the NEA's 
participation in a process in which its views and information are made 
public to the extent feasible, and before any decisions are actually 
made. This will allow the public the opportunity to react to the 
comments, arguments, and information of others during the rulemaking 
process. The NEA initiates its participation in an open exchange by 
posting the proposed regulation and its rulemaking docket on https://www.regulations.gov.
    Finally, Section 2 of E.O. 13563 directs agencies, where feasible 
and appropriate, to seek the views of those who are likely to be 
affected by rulemaking, even before issuing a notice of proposed 
rulemaking. This provision emphasizes the importance of prior 
consultation with ``those who are likely to benefit from and those who 
are potentially subject to such rulemaking.'' One goal is to solicit 
ideas about alternatives, relevant costs and benefits (both 
quantitative and qualitative), and potential flexibilities. The NEA 
reaches out to interested and affected parties by soliciting comments.

List of Subjects in 45 CFR Part 1148

    Administrative practice and procedure, Archives and records, 
Freedom of information.

    For the reasons stated in the preamble, the NEA proposes to amend 
45 CFR chapter XI, subchapter B, by adding part 1148 to read as 
follows:

PART 1148--PROCEDURES FOR DISCLOSURE OF RECORDS UNDER THE FREEDOM 
OF INFORMATION ACT (FOIA)

Sec.
1148.1 What is the purpose and scope of these regulations?
1148.2 How will the NEA make proactive disclosures?
1148.3 How can I make a FOIA request?
1148.4 How will the NEA respond to my request?
1148.5 When will the NEA respond to my request?
1148.6 How will I receive responses to my requests?
1148.7 How does the NEA handle confidential commercial information?
1148.8 How can I appeal a denial of my request?
1148.9 What are the NEA's policies regarding preservation of 
records?
1148.10 How will fees be charged?
1148.11 What other rules apply to NEA FOIA requests?

    Authority:  5 U.S.C. 552; 28 U.S.C. 1746; 31 U.S.C. 3717; E.O. 
12600, 52 FR 23781, 3 CFR, 1987 Comp.

[[Page 26765]]

Sec.  1148.1  What is the purpose and scope of these regulations?

    This part contains the rules that the NEA follows in processing 
requests for records under the Freedom of Information Act (FOIA), 5 
U.S.C. 552. These rules should be read in conjunction with the text of 
the FOIA and the Uniform Freedom of Information Fee Schedule and 
Guidelines published by the Office of Management and Budget (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 the NEA's Privacy Act regulations as well as under this 
part.


Sec.  1148.2  How will the NEA make proactive disclosures?

    Records that the NEA makes available for public inspection in an 
electronic format may be accessed through the NEA's open government 
page, available at https://www.arts.gov/open. The NEA will determine 
which of its records should be made publicly available, identify 
additional records of interest to the public that are appropriate for 
public disclosure, and post and index such records. The NEA will ensure 
that its Web site of posted records and indices is reviewed and updated 
on an ongoing basis.


Sec.  1148.3  How can I make a FOIA request?

    (a) General information. To make a request for records, a requester 
should write directly to the NEA at National Endowment for the Arts, 
Office of General Counsel, 400 7th St. SW., Second Floor, Washington, 
DC 20506. Requests may also be sent by facsimile to the General 
Counsel's office at (202) 682-5572, or by email to [email protected].
    (b) Identity requirements. Depending on the type of document you 
ask for, the NEA may require verification of your identity or the 
identity of a third party.
    (1) A requester who is making a request for records about himself 
or herself must comply with the NEA's verification requirements as set 
forth in Sec.  1159.9 of this chapter.
    (2) Where a request for records pertains to another individual, a 
requester may receive greater access by submitting either a notarized 
authorization signed by that individual or a declaration made in 
compliance with the requirements set forth in 28 U.S.C. 1746 by that 
individual authorizing disclosure of the records to the requester, or 
by submitting proof that the individual is deceased (e.g., a copy of a 
death certificate or an obituary). As an exercise of administrative 
discretion, the NEA may require a requester to supply additional 
information if necessary in order to verify that a particular 
individual has consented to disclosure.
    (c) Description of records sought. Requesters must describe the 
records sought in sufficient detail to enable NEA personnel to locate 
them with a reasonable amount of effort. To the extent possible, 
requesters should include specific information that may help the NEA 
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. Before submitting their requests, 
requesters may contact the NEA's designated FOIA contact or FOIA Public 
Liaison to discuss the records they seek and to receive assistance in 
describing the records. Contact information for the NEA's designated 
FOIA contact and FOIA Public Liaison is available on the NEA's FOIA Web 
site (https://www.arts.gov/freedom-information-act-guide), or can be 
obtained by calling (202) 682-5514. If after receiving a request, the 
NEA determines that it does not reasonably describe the records sought, 
the NEA 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 NEA's designated FOIA contact or FOIA Public Liaison. 
If a request does not reasonably describe the records sought, the NEA's 
response to the request may be delayed.
    (d) Format specifications. Requests may specify the preferred form 
or format (including electronic formats) for the records you seek. The 
NEA will accommodate your request if the record is readily reproducible 
in that form or format.
    (e) Contact information requirements. Requesters must provide 
contact information, such as their phone number, email address, and/or 
mailing address, to assist the NEA in communicating with them and 
providing released records.


Sec.  1148.4  How will the NEA respond to my request?

    (a) In general. In determining which records are responsive to a 
request, the NEA ordinarily will include only records in its possession 
as of the date that it begins its search. If any other date is used, 
the NEA 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.
    (b) Authority to grant or deny requests. The NEA Chairperson or 
his/her designee is authorized to grant or to deny any requests for 
records that are maintained by the NEA.
    (c) Consultation and referral. When reviewing records located by 
the NEA in response to a request, the NEA 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, the NEA will proceed in one of the following ways:
    (1) Consultation. When records originated with the NEA, but contain 
within them information of interest to another agency or other Federal 
Government office, the NEA will typically consult with that other 
entity prior to making a release determination.
    (2) Referral. (i) When the NEA believes that a different agency is 
best able to determine whether to disclose the record, the NEA 
typically should 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 the NEA and the originating 
agency jointly agree that the NEA is in the best position to respond 
regarding the record, then the record may be handled as a consultation.
    (ii) Whenever the NEA 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.
    (d) Timing of responses to consultations and referrals. The NEA 
will consider a FOIA request to be a perfected FOIA request if it 
complies with this section. All consultations and referrals received by 
the NEA will be handled in the order of the date that the first agency 
received the perfected FOIA request.
    (e) Agreements regarding consultations and referrals. The NEA may 
establish agreements with other agencies to eliminate the need for 
consultations or referrals with respect to particular types of records.


Sec.  1148.5  When will the NEA respond to my request?

    (a) In general. The NEA ordinarily will respond to requests 
according to their order of receipt.
    (b) Multitrack processing. The NEA will designate a specific track 
for

[[Page 26766]]

requests that are granted expedited processing, in accordance with the 
standards set forth in paragraph (e) of this section. The NEA may also 
designate additional processing tracks that distinguish between simple 
and more complex requests based on the estimated amount of work or time 
needed to process the request. Among the factors the NEA may consider 
are the number of records requested, the number of pages involved in 
processing the request and the need for consultations or referrals. The 
NEA will advise requesters of the track into which their request falls 
and, when appropriate, will offer the requesters an opportunity to 
narrow or modify their request so that it can be placed in a different 
processing track.
    (c) Unusual circumstances. Whenever the NEA cannot meet the 
statutory time limit for processing a request because of ``unusual 
circumstances,'' as defined in the FOIA, and the NEA extends the time 
limit on that basis, the NEA will, before expiration of the 20-day 
period to respond, notify the requester in writing of the unusual 
circumstances involved and of the date by which the NEA estimates 
processing of the request will be completed. Where the extension 
exceeds 10 working days, the NEA will, as described by the FOIA, 
provide the requester with an opportunity to modify the request or 
arrange an alternative time period for processing the original or 
modified request. The NEA will make available its designated FOIA 
contact or FOIA Public Liaison for this purpose. The NEA will also 
alert requesters to the availability of the Office of Government 
Information Services (OGIS) to provide dispute resolution services.
    (d) Aggregating requests. To satisfy unusual circumstances under 
the FOIA, the NEA 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. The NEA will not 
aggregate multiple requests that involve unrelated matters.
    (e) Expedited processing. Consistent with 5 U.S.C. 552(a)(6)(E)(i), 
the NEA may grant expedited processing under certain circumstances:
    (1) The NEA will process requests and appeals 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; or
    (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. 
Requests based on paragraphs (e)(1)(i) and (ii) of this section must be 
submitted to the NEA Office of General Counsel. When making a request 
for expedited processing of an administrative appeal, the request 
should be submitted to the NEA's FOIA Appeals Office per Sec.  
1148.8(a).
    (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 (e)(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. As a matter of administrative discretion, the NEA may waive the 
formal certification requirement.
    (4) The NEA will notify the requester within 10 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 must be given priority, placed in the 
processing track for expedited requests, and must be processed as soon 
as practicable. If a request for expedited processing is denied, the 
NEA will act on any appeal of that decision expeditiously.


Sec.  1148.6  How will I receive responses to my requests?

    (a) In general. The NEA, to the extent practicable, will 
communicate with requesters having access to the Internet 
electronically, such as email or Web portal.
    (b) Acknowledgments of requests. The NEA will acknowledge the 
request in writing and assign it an individualized tracking number if 
it will take longer than 10 working days to process. The NEA will 
include in the acknowledgment a brief description of the records sought 
to allow requesters to more easily keep track of their requests.
    (c) Estimated dates of completion and interim responses. Upon 
request, the NEA will provide an estimated date by which the NEA 
expects to provide a response to the requester. If a request involves a 
voluminous amount of material, or searches in multiple locations, the 
NEA may provide interim responses, releasing the records on a rolling 
basis.
    (d) Grants of requests. Once the NEA determines it will grant a 
request in full or in part, it will notify the requester in writing. 
The NEA will also inform the requester of any fees charged under Sec.  
1148.10 and will disclose the requested records to the requester 
promptly upon payment of any applicable fees. The NEA will inform the 
requester of the availability of its FOIA Public Liaison to offer 
assistance.
    (e) Adverse determinations of requests. If the NEA makes an adverse 
determination denying a request in any respect, it will notify the 
requester of that determination in writing. 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.
    (f) Content of denial. The denial will be signed by the NEA's 
General Counsel or designee 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 exemption applied by the NEA in denying the request;
    (3) An estimate of the volume of any records or information 
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;
    (4) A statement that the denial may be appealed under Sec.  
1148.8(a), and a description of the appeal requirements; and
    (5) A statement notifying the requester of the assistance available 
from the NEA's FOIA Public Liaison and the

[[Page 26767]]

dispute resolution services offered by OGIS.
    (g) Use of record exclusions. In the event that the NEA identifies 
records that may be subject to exclusion from the requirements of the 
FOIA pursuant to 5 U.S.C. 552(c), the NEA will confer with Department 
of Justice, Office of Information Policy, to obtain approval to apply 
the exclusion. The NEA, when invoking an exclusion will maintain an 
administrative record of the process of invocation and approval of the 
exclusion by OIP.


Sec.  1148.7  How does the NEA handle confidential commercial 
information?

    (a) Definitions. The following definitions apply to this section.
    (1) Confidential commercial information means commercial or 
financial information obtained by the NEA 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, 
State, or foreign government, but not including another Federal 
Government entity, that provides confidential commercial information, 
either directly or indirectly to the Federal Government.
    (b) Designation of confidential commercial information. A submitter 
of confidential commercial information must use good faith efforts to 
designate by appropriate markings, at the time of submission, any 
portion of its submission that it considers to be protected from 
disclosure under Exemption 4. These designations expire 10 years after 
the date of the submission unless the submitter requests and provides 
justification for a longer designation period.
    (c) When notice to submitters is required. The following rules and 
procedures determine when the NEA will provide written notice to 
submitters of confidential commercial information that their 
information may be disclosed under FOIA.
    (1) The NEA will promptly provide written notice to the submitter 
of confidential commercial information whenever records containing such 
information are requested under the FOIA if the NEA determines that it 
may be required 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; or
    (ii) The NEA has a 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) The notice will either 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, the NEA may post or publish a 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 do not apply if:
    (1) The NEA 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 12,600 of June 23, 1987; or
    (4) The designation made by the submitter under paragraph (b) of 
this section appears obviously frivolous. In such case, the NEA 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. A submitter will have the 
opportunity to object to disclosure of information under FOIA.
    (1) The NEA will specify a reasonable time period within which the 
submitter must respond to the notice referenced in paragraph (c) of 
this section.
    (2) If a submitter has any objections to disclosure, it must 
provide the NEA a detailed written statement that specifies all grounds 
for withholding the particular information under any exemption of the 
FOIA. In order to rely on Exemption 4 as basis for nondisclosure, the 
submitter must explain why the information constitutes a trade secret 
or commercial or financial information that is confidential.
    (3) A submitter who fails to respond within the time period 
specified in the notice will be considered to have no objection to 
disclosure of the information. The NEA 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.
    (f) Analysis of objections. The NEA must consider a submitter's 
objections and specific grounds for nondisclosure in deciding whether 
to disclose the requested information.
    (g) Notice of intent to disclose. Whenever the NEA decides to 
disclose information over the objection of a submitter, the NEA will 
provide the submitter written notice, which 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 copies of 
the records as the NEA intends to release them; and
    (3) A specified disclosure date, which will be a reasonable time 
after the notice.
    (h) Notice of FOIA lawsuit. Whenever a requester files a lawsuit 
seeking to compel the disclosure of confidential commercial 
information, the NEA will promptly notify the submitter.
    (i) Requester notification. The NEA will notify the 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.  1148.8  How can I appeal a denial of my request?

    (a) Requirements for making an appeal. A requester may appeal any 
adverse determinations to the NEA's office designated to receive FOIA 
appeals (``FOIA Appeals Office''). Examples of adverse determinations 
are provided in Sec.  1148.6(e). Requesters can submit appeals by mail 
by writing to NEA Chairman, c/o Office of General Counsel, National 
Endowment for the Arts, 400 7th Street SW., Washington, DC 20506, or 
online in accordance with instructions on the NEA's Web site (https://www.arts.gov/freedom-information-act-guide). The requester must make 
the appeal in writing and to be considered timely it must be 
postmarked, or in the case of electronic submissions, transmitted, 
within 90 calendar days after the date of the response. The appeal 
should clearly identify the NEA's determination that is being appealed 
and the assigned request number. To facilitate handling, 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. (1) The NEA Chairperson or his/her 
designee will act on behalf of the NEA's Chief FOIA Officer on all 
appeals under this section.

[[Page 26768]]

    (2) An appeal ordinarily will not be adjudicated if the request 
becomes a matter of FOIA litigation.
    (c) Decisions on appeals. The NEA will provide its decision on an 
appeal in writing. A decision that upholds the NEA's determination in 
whole or in part will contain a statement that identifies the reasons 
for its decision, including any FOIA exemptions applied. The decision 
will provide the requester with notification of the statutory right to 
file a lawsuit and will inform the requester of the dispute resolution 
services offered by the Office of Government Information Services 
(OGIS) of the National Archives and Records Administration as a non-
exclusive alternative to litigation. If the NEA's decision is remanded 
or modified on appeal, the NEA will notify the requester of that 
determination in writing. The NEA will then further process the request 
in accordance with that appeal determination and will respond directly 
to the requester.
    (d) Engaging in dispute resolution services provided by OGIS. 
Dispute resolution is a voluntary process. If the NEA agrees to 
participate in the dispute resolution 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 review by a court of 
the NEA's adverse determination, a requester generally must first 
submit a timely administrative appeal.
    (f) Timing of appeal. After receiving the NEA's adverse 
determination, a requester has 90 days to file an appeal in order for 
it to be considered timely. The NEA will not process or consider 
appeals that were not filed within 90 days of the receipt of an adverse 
determination.


Sec.  1148.9  What are the NEA's policies regarding preservation of 
records?

    The NEA will preserve 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 4.2 
of the National Archives and Records Administration. The NEA will not 
dispose of or destroy records while they are the subject of a pending 
request, appeal, or lawsuit under the FOIA.


Sec.  1148.10  How will fees be charged?

    (a) In general. (1) The NEA 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 requesters:
    (i) Commercial use requesters;
    (ii) Non-commercial scientific or educational institutions or news 
media requesters; and
    (ii) All other requesters.
    (2) Different fees are assessed depending on the category. 
Requesters may seek a fee waiver. The NEA will consider requests for 
fee waiver in accordance with the requirements in paragraph (k) of this 
section. To resolve any fee issues that arise under this section, the 
NEA may contact a requester for additional information. The NEA will 
ensure that searches, review, and duplication are conducted in the most 
efficient and the least expensive manner. The NEA 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, or by another method as 
determined by the NEA.
    (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. The NEA'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. The NEA will notify 
requesters of their placement in this category.
    (2) Direct costs are those expenses that the NEA incurs 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, 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 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.
    (4) Educational institution is any school that operates a program 
of scholarly research. A requester in this fee category must show that 
the request is made in connection with his or her role at the 
educational institution. The NEA may seek verification from the 
requester that the request is in furtherance of scholarly research and 
the NEA will advise requesters of their placement in this category.
    Example 1 to Sec.  1148.10(b)(4). 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.
    Example 2 to Sec.  1148.10(b)(4). 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.
    Example 3 to Sec.  1148.10(b)(4). 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.
    (5) Noncommercial scientific institution is an institution that is 
not operated on a ``commercial'' basis, as defined in paragraph (b)(1) 
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 are not for a commercial use. 
The NEA will advise requesters of their 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. A request for records supporting the news-dissemination

[[Page 26769]]

function of the requester will not be considered to be for a commercial 
use. ``Freelance'' journalists who demonstrate a solid basis for 
expecting publication through a news media entity will be considered as 
a representative of the news media. A publishing contract would provide 
the clearest evidence that publication is expected; however, the NEA 
may also consider a requester's past publication record in making this 
determination. The NEA will advise requesters of their placement in 
this category.
    (7) 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 Sec.  
1148.7, 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 expended to locate and retrieve information from 
electronic records.
    (c) Charging fees. In responding to FOIA requests, the NEA will 
charge the following fees unless a waiver or reduction of fees has been 
granted under paragraph (k) of this section. Because the fee amounts 
provided in paragraphs (c)(1) through (3) of this section already 
account for the direct costs associated with a given fee type, the NEA 
will not add any additional costs to charges calculated under this 
section.
    (1) Searches. The following fee policies apply to searches:
    (i) Requests made by educational institutions, noncommercial 
scientific institutions, or representatives of the news media are not 
subject to search fees. The NEA will charge search fees for all other 
requesters, subject to the restrictions of paragraph (d) of this 
section. The NEA may properly charge for time spent searching even if 
the NEA does not locate any responsive records or if the NEA determines 
that the records are entirely exempt from disclosure.
    (ii) For manual searches, the fee charged will be the salary rate 
or rates of the employee or employees conducting the search. For 
computer searches, the fee charged will be the actual direct cost of 
providing the service, including the salary rate or rates of the 
operator(s) or programmer(s) conducting the search. The salary rate is 
calculated as the particular employee's basic pay plus 16.1 percent. 
The NEA may charge fees even if the documents are determined to be 
exempt from disclosure or cannot be located.
    (iii) The NEA will charge the direct costs associated with 
conducting any search that requires the creation of a new computer 
program to locate the requested records. The NEA will notify the 
requester of the costs associated with creating such a program, and the 
requester must agree to pay the associated costs before the costs may 
be incurred.
    (iv) For requests that require the retrieval of records stored by 
the NEA at a Federal records center operated by the National Archives 
and Records Administration (NARA), the NEA will charge additional costs 
in accordance with the Transactional Billing Rate Schedule established 
by NARA.
    (2) Duplication. The NEA will charge duplication fees to all 
requesters, subject to the restrictions of paragraph (d) of this 
section. The NEA will honor a requester's preference for receiving a 
record in a particular form or format where the NEA can readily 
reproduce it in the form or format requested. Where photocopies are 
supplied, the NEA will provide one copy per request at the cost of $.10 
per single sided page, and $.20 per double sided page. For copies of 
records produced on tapes, disks, or other media, the NEA 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, the NEA will charge the 
direct costs.
    (3) Review. The NEA will charge review fees 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 
the NEA 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 a particular exemption is deemed to no longer apply, 
any costs associated with the NEA's 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 (c)(1)(ii) of this section.
    (d) Restrictions on charging fees. The NEA will adhere to the 
following restrictions regarding fees it charges:
    (1) When the NEA determines that a requester is an educational 
institution, non-commercial scientific institution, or representative 
of the news media, and the records are not sought for commercial use, 
it will not charge search fees.
    (2) If the NEA fails to comply with the FOIA's time limits in which 
to respond to a request, it will not charge search fees, or, in the 
instances of requests from requesters described in paragraph (d)(1) of 
this section, may not charge duplication fees, except as described in 
paragraphs (d)(3) through (5) of this section.
    (3) If the NEA has determined that unusual circumstances as defined 
by the FOIA apply and the NEA 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 10 days.
    (4) If the NEA has determined that unusual circumstances, as 
defined by the FOIA, apply and more than 5,000 pages are necessary to 
respond to the request, the NEA may charge search fees, or, in the case 
of requesters described in paragraph (d)(1) of this section, may charge 
duplication fees, if the following steps are taken:
    (i) The NEA provided timely written notice of unusual circumstances 
to the requester in accordance with the FOIA; and
    (ii) The NEA 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). If this exception is 
satisfied, the NEA may charge all applicable fees incurred in the 
processing of the request.
    (5) 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.
    (6) 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.
    (7) Except for requesters seeking records for a commercial use, the 
NEA will provide without charge:

[[Page 26770]]

    (i) The first 100 pages of duplication (or the cost equivalent for 
other media); and
    (ii) The first two hours of search.
    (8) No fee will be charged when the total fee, after deducting the 
100 free pages (or its cost equivalent) and the first two hours of 
search, is equal to or less than $25.
    (e) Notice of anticipated fees in excess of $25.00. The following 
procedures apply when the NEA anticipates fees to be in excess of 
$25.00.
    (1) When the NEA determines or estimates that the fees to be 
assessed in accordance with this section will exceed $25.00, the NEA 
will notify the requester of the actual or estimated amount of the 
fees, including a breakdown of the fees for search, review or 
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, the NEA will advise the requester accordingly. If 
the request is not 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 the NEA 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 applicable, designate an exact dollar amount 
the requester is willing to pay. The NEA is not required to accept 
payments in installments.
    (3) If the requester has indicated a willingness to pay some 
designated amount of fees, but the NEA estimates that the total fee 
will exceed that amount, the NEA will toll the processing of the 
request when it notifies the requester of the estimated fees in excess 
of the amount the requester has indicated a willingness to pay. The NEA 
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, the time to respond will resume from where it was 
at the date of the notification.
    (4) The NEA will make available its FOIA Public Liaison or other 
designated FOIA contact to assist any requester in reformulating a 
request to meet the requester's needs at a lower cost.
    (f) Charges for other services. Although not required to provide 
special services, if the NEA 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.
    (g) Charging interest. The NEA may charge interest on any unpaid 
bill starting on the 31st day following the date of billing the 
requester. Interest charges will be assessed at the rate provided in 31 
U.S.C. 3717 and will accrue from the billing date until payment is 
received by the NEA. The NEA 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.
    (h) Aggregating requests. When the NEA 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, the NEA may aggregate those requests and charge 
accordingly. The NEA 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, the NEA 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 cannot be aggregated.
    (i) Advance payments. The following policies and procedures apply 
to advanced payments of fees:
    (1) For requests other than those described in paragraph (i)(2) or 
(3) of this section, the NEA 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 the NEA 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. The NEA 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 30 calendar days of the billing 
date, the NEA may require that the requester pay the full amount due, 
plus any applicable interest on that prior request, and the NEA may 
require that the requester make an advance payment of the full amount 
of any anticipated fee before the NEA begins to process a new request 
or continues to process a pending request or any pending appeal. Where 
the NEA has a reasonable basis to believe that a requester has 
misrepresented the requester's identity in order to avoid paying 
outstanding fees, it may require that the requester provide proof of 
identity.
    (4) In cases in which the NEA requires advance payment, the request 
will not be considered received and further work will not be completed 
until the required payment is received. If the requester does not pay 
the advance payment within 30 calendar days after the date of the NEA's 
fee determination, the request will be closed.
    (j) Other statutes specifically providing for fees. The fee 
schedule of this section does not apply to fees charged under any 
statute that specifically requires the NEA to set and collect fees for 
particular types of records. In instances where records responsive to a 
request are subject to a statutorily-based fee schedule program, the 
NEA will inform the requester of the contact information for that 
program.
    (k) Requirements for waiver or reduction of fees. The following 
policies and procedures apply to fee waivers or reductions of fees.
    (1) 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 or activities 
of the government and is not primarily in the commercial interest of 
the requester.
    (2) The NEA 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 (k)(2)(i) through 
(iii) of this section are satisfied:
    (i) Disclosure of the requested information would shed light on the 
operations or activities of the government. The subject of the request

[[Page 26771]]

must concern identifiable operations or activities of the Federal 
Government with a connection that is direct and clear, not remote or 
attenuated.
    (ii) 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:
    (A) 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.
    (B) 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 the requester's ability and 
intention to effectively convey information to the public must be 
considered. The NEA will presume that a representative of the news 
media will satisfy this consideration.
    (iii) 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, the NEA will consider the following criteria:
    (A) The NEA will 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 will be given an opportunity to provide explanatory 
information regarding this consideration.
    (B) If there is an identified commercial interest, the NEA 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 (k)(2)(i) and (ii) of this section are 
satisfied and any commercial interest is not the primary interest 
furthered by the request. The NEA ordinarily will presume that when a 
news media requester has satisfied the factors in paragraphs (k)(2)(i) 
and (ii) of this section, the request is not primarily in the 
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.
    (3) Where only some of the records to be released satisfy the 
requirements for a waiver of fees, a waiver will be granted for those 
records.
    (4) Requests for a waiver or reduction of fees should be made when 
the request is first submitted to the NEA and should address the 
criteria referenced in paragraphs (k)(1) through (3) of this section. 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 must pay 
any costs incurred up to the date the fee waiver request was received.


Sec.  1148.11  What other rules apply to NEA FOIA requests?

    Nothing in this part 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.

    Dated: May 30, 2017.
Kathy N. Daum,
Director, Administrative Services Office.
[FR Doc. 2017-11459 Filed 6-8-17; 8:45 am]
 BILLING CODE 7537-01-P