[Federal Register Volume 84, Number 39 (Wednesday, February 27, 2019)]
[Rules and Regulations]
[Pages 6344-6352]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-03387]


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NATIONAL FOUNDATION ON THE ARTS AND THE HUMANITIES

National Endowment for the Arts

45 CFR Part 1148

RIN 3135-AA27


Procedures for Disclosure of Records Under the Freedom of 
Information Act

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

ACTION: Final regulations.

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SUMMARY: This rule amends the National Endowment for the Arts' (Arts 
Endowment) regulations implementing the Freedom of Information Act 
(FOIA). The new regulations are updated to reflect statutory changes to 
FOIA, the current organizational structure of the Arts Endowment, and 
current Arts Endowment policies and practices with respect to FOIA. 
Finally, the regulations use current cost figures in calculating and 
charging fees.

DATES: These regulations are effective February 27, 2019.

FOR FURTHER INFORMATION CONTACT: Daniel Fishman, Attorney Advisor, 
National Endowment for the Arts, 400 7th St. SW, Washington, DC 20506, 
Telephone: 202-682-5514.

SUPPLEMENTARY INFORMATION: 

1. Background

    On June 9, 2017 the Arts Endowment published a notice of proposed 
rulemaking (NPRM) for certain amendments to its FOIA Regulations (82 FR 
26763). In the preamble of the NPRM, the Arts Endowment discussed on 
pages 26763 and 26764 the major changes proposed in that document to 
the FOIA regulations. These included the following:
     The addition of Arts Endowment-specific FOIA regulations 
at 45 CFR part 1148.
     The requirements of the FOIA Improvement Act of 2016 (Pub. 
L. 114-185).
    Due to delays in issuing the final regulation, on November 6, 2018 
the Arts Endowment reopened comments on its draft for an additional 30 
days to ensure public input on the proposed rule (83 FR 55504).
    Public Comment: Edits made during the first comment period were 
considered and commented on by the agency in the NPRM announcing the 
second comment period. Those changes accepted by the agency were noted 
in the second NPRM. No comments were received during the second comment 
period.

[[Page 6345]]

    Technical and Other Minor Changes: These final regulations include 
technical and other minor changes, mainly to address incorrect or 
outdated phone numbers or website addresses that appeared in the second 
NPRM. In addition, the agency's acronym (NEA) has been removed and 
replaced with Arts Endowment where applicable.
    The Arts Endowment now publishes its final regulations.

2. Compliance

Regulatory Planning and Review (Executive Order 12866)

    Executive Order (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 final rule would not be a significant policy change and OMB 
has not reviewed this rule under E.O. 12866. We have made the 
assessments required by E.O. 12866 and determined that this final rule: 
(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 final rule does not have federalism implications, as set forth 
in E.O. 13132. As used in this E.O., federalism implications mean 
``substantial direct effects on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government.'' The Arts 
Endowment has determined that this final rule will not have federalism 
implications within the meaning of E.O. 13132.

Civil Justice Reform (Executive Order 12988)

    This final rule meets the applicable standards set forth in section 
3(a) and 3(b)(2) of E.O. 12988. Specifically, this final 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 final 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 final rule 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 final rule 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.

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

    This final rule 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 final 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 final rule would not be a major rule as defined in section 804 
of the Small Business Regulatory Enforcement Fairness Act of 1996. This 
final 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.

Executive Order 13771

    Executive Order 13771 Sec.  5 requires that agencies, in most 
circumstances, remove or rescind two regulations for every regulation 
promulgated unless they request and are specifically exempted from that 
order's requirements by the Director of the Office of Management and 
Budget.
    This final rule is not subject to the requirements of Executive 
Order 13771 because this final rule is not significant under Executive 
Order 12866. Furthermore, the Arts Endowment has requested and has 
received an exemption from the Director of the Office of Management and 
Budget from the requirement that the agency rescind two regulations for 
every regulation it promulgates.

List of Subjects in 45 CFR Part 1148

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

0
For the reasons stated in the preamble, the Arts Endowment amends 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 Arts Endowment make proactive disclosures?
1148.3 How can I make a FOIA request?
1148.4 How will the Arts Endowment respond to my request?
1148.5 When will the Arts Endowment respond to my request?
1148.6 How will I receive responses to my requests?
1148.7 How does the Arts Endowment handle confidential commercial 
information?
1148.8 How can I appeal a denial of my request?
1148.9 What are the Arts Endowment policies regarding preservation 
of records?
1148.10 How will fees be charged?
1148.11 What other rules apply to Arts Endowment 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.


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

    This part contains the rules that the Arts Endowment 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

[[Page 6346]]

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 Arts Endowment's Privacy Act 
regulations as well as under this part.


Sec.  1148.2  How will the Arts Endowment make proactive disclosures?

    Records that the Arts Endowment makes available for public 
inspection in an electronic format may be accessed through the Arts 
Endowment's open government page, available at https://www.arts.gov/open. The Arts Endowment 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 Arts Endowment will ensure that its website 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 Arts Endowment 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 Arts Endowment 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 Arts Endowment'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 Arts Endowment 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 Arts Endowment personnel 
to locate them with a reasonable amount of effort. To the extent 
possible, requesters should include specific information that may help 
the Arts Endowment 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 Arts Endowment'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 Arts Endowment's designated FOIA contact and FOIA Public Liaison is 
available on the Arts Endowment's FOIA website (https://www.arts.gov/foia-contacts), or can be obtained by calling (202) 682-54184. If after 
receiving a request, the Arts Endowment determines that it does not 
reasonably describe the records sought, the Arts Endowment 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 Arts 
Endowment's designated FOIA contact or FOIA Public Liaison. If a 
request does not reasonably describe the records sought, the Arts 
Endowment'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 
Arts Endowment 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 Arts Endowment in communicating with 
them and providing released records.


Sec.  1148.4  How will the Arts Endowment respond to my request?

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

    (a) In general. The Arts Endowment ordinarily will respond to 
requests according to their order of receipt.

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    (b) Multitrack processing. The Arts Endowment will designate a 
specific track for requests that are granted expedited processing, in 
accordance with the standards set forth in paragraph (e) of this 
section. The Arts Endowment 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 Arts Endowment 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 Arts Endowment 
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 Arts Endowment cannot meet 
the statutory time limit for processing a request because of ``unusual 
circumstances,'' as defined in the FOIA, and the Arts Endowment extends 
the time limit on that basis, the Arts Endowment will, before 
expiration of the 20 business day period to respond, notify the 
requester in writing of the unusual circumstances involved and of the 
date by which the Arts Endowment estimates processing of the request 
will be completed. Where the extension exceeds 10 working days, the 
Arts Endowment 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 Arts 
Endowment will make available its designated FOIA contact or FOIA 
Public Liaison for this purpose. The Arts Endowment 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 Arts Endowment 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 
Arts Endowment will not aggregate multiple requests that involve 
unrelated matters.
    (e) Expedited processing. Consistent with 5 U.S.C. 552(a)(6)(E)(i), 
the Arts Endowment may grant expedited processing under certain 
circumstances:
    (1) The Arts Endowment 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 Arts Endowment's Office of General Counsel. When 
making a request for expedited processing of an administrative appeal, 
the request should be submitted to the Arts Endowment'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 Arts Endowment may 
waive the formal certification requirement.
    (4) The Arts Endowment 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 Arts Endowment will act on any appeal of that decision 
expeditiously.


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

    (a) In general. The Arts Endowment, 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 Arts Endowment 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 Arts Endowment 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 Arts Endowment will provide an estimated date by which the 
Arts Endowment expects to provide a response to the requester. If a 
request involves a voluminous amount of material, or searches in 
multiple locations, the Arts Endowment may provide interim responses, 
releasing the records on a rolling basis.
    (d) Grants of requests. Once the Arts Endowment determines it will 
grant a request in full or in part, it will notify the requester in 
writing. The Arts Endowment 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 Arts 
Endowment will inform the requester of the availability of its FOIA 
Public Liaison to offer assistance.
    (e) Adverse determinations of requests. If the Arts Endowment 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 Arts 
Endowment'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 Arts Endowment in denying the request;
    (3) An estimate of the volume of any records or information 
withheld, such

[[Page 6348]]

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:
    (i) The denial may be appealed under Sec.  1148.8(a);
    (ii) That the requester has 90 days to file an appeal in order for 
it to be considered timely, and that the Arts Endowment will not 
process or consider appeals that were not filed within 90 days of the 
receipt of an adverse determination; and
    (iii) A description of the appeal requirements; and
    (5) A statement notifying the requester of the assistance available 
from the Arts Endowment's FOIA Public Liaison and the dispute 
resolution services offered by OGIS.
    (g) Use of record exclusions. In the event that the Arts Endowment 
identifies records that may be subject to exclusion from the 
requirements of the FOIA pursuant to 5 U.S.C. 552(c), the Arts 
Endowment will confer with Department of Justice, Office of Information 
Policy (OIP), to obtain approval to apply the exclusion. The Arts 
Endowment, 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 Arts Endowment 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 Arts Endowment 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 Arts Endowment will provide written 
notice to submitters of confidential commercial information that their 
information may be disclosed under FOIA.
    (1) The Arts Endowment will promptly provide written notice to the 
submitter of confidential commercial information whenever records 
containing such information are requested under the FOIA if the Arts 
Endowment 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 Arts Endowment 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 Arts Endowment 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 Arts Endowment 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, the Arts 
Endowment 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 Arts Endowment 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 Arts Endowment 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 paragraph (e)(1) of this section will be considered to 
have no objection to disclosure of the information. The Arts Endowment 
is not required to consider any information received after the date of 
any disclosure decision. Any information provided by a submitter under 
this part may itself be subject to disclosure under the FOIA.
    (f) Analysis of objections. The Arts Endowment 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 Arts Endowment 
decides to disclose information over the objection of a submitter, the 
Arts Endowment 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 Arts Endowment 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 Arts Endowment will promptly notify the submitter.
    (i) Requester notification. The Arts Endowment 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.

[[Page 6349]]

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 Arts Endowment'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 Arts Endowment 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 
Arts Endowment's website (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 
adverse determination. The appeal should clearly identify the Arts 
Endowment'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 Arts Endowment's Chairperson 
or his/her designee will act on behalf of the Arts Endowment's Chief 
FOIA Officer on all appeals under this section.
    (2) An appeal ordinarily will not be adjudicated if the request 
becomes a matter of FOIA litigation.
    (c) Decisions on appeals. The Arts Endowment will provide its 
decision on an appeal in writing. A decision that upholds the Arts 
Endowment'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 Arts Endowment's decision is remanded or modified on appeal, the 
Arts Endowment will notify the requester of that determination in 
writing. The Arts Endowment 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 Arts Endowment 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 Arts Endowment's adverse determination, a requester generally must 
first submit a timely administrative appeal.
    (f) Timing of appeal. After receiving the Arts Endowment's adverse 
determination, a requester has 90 calendar days to file an appeal in 
order for it to be considered timely. The Arts Endowment will not 
process or consider appeals that were not filed within 90 calendar days 
of the date of an adverse determination.


Sec.  1148.9  What are the Arts Endowment policies regarding 
preservation of records?

    The Arts Endowment 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 
Arts Endowment 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 Arts Endowment 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 Arts Endowment 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 Arts Endowment may contact a requester for 
additional information. The Arts Endowment will ensure that searches, 
review, and duplication are conducted in the most efficient and the 
least expensive manner. The Arts Endowment 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 Arts Endowment.
    (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 Arts Endowment'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 Arts Endowment 
will notify requesters of their placement in this category.
    (2) Direct costs are those expenses that the Arts Endowment 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 Arts Endowment may seek verification from 
the requester that the request is in furtherance of scholarly research 
and the Arts Endowment will advise requesters of their placement in 
this category.

    (i) Example 1. A request from a professor of architecture at a 
university for records relating to Arts Endowment grants related to 
architecture, written on letterhead of the Department of Geology, 
would be presumed to be from an educational institution.
    (ii) Example 2. A request from the same professor of 
architecture seeking translation grant information from the Arts 
Endowment 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.
    (iii) 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.


[[Page 6350]]


    (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 Arts Endowment 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 
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 Arts 
Endowment may also consider a requester's past publication record in 
making this determination. The Arts Endowment 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 Arts 
Endowment 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 Arts Endowment 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 Arts Endowment will charge search fees for 
all other requesters, subject to the restrictions of paragraph (d) of 
this section. The Arts Endowment may properly charge for time spent 
searching even if the Arts Endowment does not locate any responsive 
records or if the Arts Endowment 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 Arts Endowment may charge fees even if the documents are determined 
to be exempt from disclosure or cannot be located.
    (iii) The Arts Endowment 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 Arts Endowment 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 Arts Endowment at a Federal records center operated by the National 
Archives and Records Administration (NARA), the Arts Endowment will 
charge additional costs in accordance with the Transactional Billing 
Rate Schedule established by NARA.
    (2) Duplication. The Arts Endowment will charge duplication fees to 
all requesters, subject to the restrictions of paragraph (d) of this 
section. The Arts Endowment will honor a requester's preference for 
receiving a record in a particular form or format where the Arts 
Endowment can readily reproduce it in the form or format requested. 
Where photocopies are supplied, the Arts Endowment 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 Arts Endowment 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 Arts Endowment will charge the direct costs.
    (3) Review. The Arts Endowment 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 Arts Endowment 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 Arts Endowment'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 Arts Endowment will adhere 
to the following restrictions regarding fees it charges:
    (1) When the Arts Endowment 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 Arts Endowment 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.

[[Page 6351]]

    (3) If the Arts Endowment has determined that unusual circumstances 
as defined by the FOIA apply and the Arts Endowment 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 
working days.
    (4) If the Arts Endowment 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 Arts Endowment 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 Arts Endowment provided timely written notice of unusual 
circumstances to the requester in accordance with the FOIA; and
    (ii) The Arts Endowment 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 Arts Endowment 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 
Arts Endowment 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.
    (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 Arts Endowment anticipates fees to be in 
excess of $25.00.
    (1) When the Arts Endowment determines or estimates that the fees 
to be assessed in accordance with this section will exceed $25.00, the 
Arts Endowment 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 Arts Endowment 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 Arts Endowment 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 Arts Endowment 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 Arts Endowment estimates that the 
total fee will exceed that amount, the Arts Endowment 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 Arts Endowment 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 Arts Endowment 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 Arts Endowment 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 Arts Endowment 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 Arts Endowment. The Arts Endowment 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 Arts Endowment 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 Arts Endowment may aggregate those 
requests and charge accordingly. The Arts Endowment may presume that 
multiple requests of this type made within a 30 calendar day period 
have been made in order to avoid fees. For requests separated by a 
longer period, the Arts Endowment 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 Arts Endowment 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 Arts Endowment 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 
Arts Endowment 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 Arts Endowment may require that the requester pay the full 
amount due, plus any applicable interest on that prior request, and the 
Arts Endowment may

[[Page 6352]]

require that the requester make an advance payment of the full amount 
of any anticipated fee before the Arts Endowment begins to process a 
new request or continues to process a pending request or any pending 
appeal. Where the Arts Endowment 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 Arts Endowment 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 Arts Endowment'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 Arts Endowment 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 Arts Endowment 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 Arts Endowment 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 
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 Arts Endowment 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 Arts Endowment will consider the following criteria:
    (A) The Arts Endowment 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 Arts 
Endowment 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 Arts Endowment 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 Arts Endowment 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 Arts Endowment 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: February 22, 2019.
Gregory Gendron,
Director of Administrative Services, National Endowment for the Arts.
[FR Doc. 2019-03387 Filed 2-26-19; 8:45 am]
 BILLING CODE 7537-01-P