[Federal Register Volume 84, Number 73 (Tuesday, April 16, 2019)]
[Rules and Regulations]
[Pages 15512-15525]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-06919]


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COMMISSION OF FINE ARTS

45 CFR Part 2105


Freedom of Information Act Regulations

AGENCY: Commission of Fine Arts.

ACTION: Interim final rule; request for comments.

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SUMMARY: This rule replaces the Commission of Fine Arts (CFA) Freedom 
of Information Act (FOIA) regulations, last updated in 1986, with 
regulations that incorporate FOIA-related mandates since the last 
update, including the FOIA Improvement Act of 2016

DATES: This rule is effective June 1, 2019. Comments are due by May 20, 
2019.

ADDRESSES: Please address comments concerning this interim rule to 
[email protected].

FOR FURTHER INFORMATION CONTACT: Thomas Luebke, Secretary, (202) 504-
2200.

SUPPLEMENTARY INFORMATION: As established by Congress in 1910, the 
Commission of Fine Arts (CFA) is a small independent advisory body made 
up of seven presidentially appointed ``well qualified judges of the 
arts'' whose primary role is architectural review of designs for 
buildings, parks, monuments and memorials erected by the Federal or 
District of Columbia governments in Washington, DC. In addition to 
architectural review, the Commission considers and advises on the 
designs for coins, medals, and U.S. memorials on foreign soil. The 
Commission also advises the District of Columbia government on private 
building projects within the Georgetown Historic District, the Rock 
Creek Park perimeter, and the Monumental Core area. The Commission 
advises Congress, the President, Federal agencies, and the District of 
Columbia government on the general subjects of design, historic 
preservation, and on orderly planning on matters within its 
jurisdiction.
    The Commission of Fine Arts routinely and promptly responds to 
requests from concerned citizens and interested parties to review a 
wide variety of agency documents. To this end, the staff regularly 
posts agendas for upcoming meetings and draft documents relevant to 
those meetings to the agency website (https://www.cfa.gov/). Agendas, 
meeting minutes, recommendation letters, and actions taken under the 
Shipstead-Luce and Old Georgetown Acts are posted on the website in a 
timely manner. In that same spirit of openness and transparency, the 
CFA strives to organize and fulfill Freedom of Information Act (FOIA) 
requests efficiently and expediently, within the perimeters of current 
legislation. Therefore, the CFA revises regulations to replace those 
published in 1986 and invites public commentary.

List of Subjects 45 CFR Part 2105

    Administrative practice and procedure, Freedom of information.

0
For reasons stated in the preamble, the Commission of Fine Arts revises 
45 CFR part 2105 to read as follows:

PART 2105--REQUIREMENTS FOR COMPLIANCE WITH THE FREEDOM OF 
INFORMATION ACT

Sec.
Subpart A--Introduction
2105.1 What should you know up front?
2105.2 What kinds of records are not covered by the regulations in 
this part?
Subpart B--How To Make a Request
2105.3 Where should you send a FOIA request?
2105.4 How should you describe the records you seek?
2105.5 How will fee information affect the processing of your 
request?
2105.6 What information should you include about your fee category?
2105.7 Can you ask for records to be disclosed in a particular form 
or format?
2105.8 What if your request seeks records about another person?
2105.9 May you ask for the processing of your request to be 
expedited?
2105.10 What contact information should your request include?
Subpart C--Processing Requests
2105.11 What should you know about how the Agency processes 
requests?
2105.12 How do consultations and referrals work?
Subpart D--Timing of Responses to Requests
2105.13 In what order are responses usually made?
2105.14 What is multitrack processing and how does it affect your 
request?
2105.15 What is the basic time limit for responding to a request?
2105.16 When can the Agency suspend the basic time limit?
2105.17 When may the Agency extend the basic time limit?
2105.18 When will expedited processing be provided and how will it 
affect your request?
Subpart E--Responses to Requests
2105.19 How will the Agency respond to requests?
2105.20 How will the Agency grant requests?
2105.21 When will the Agency deny a request or procedural benefits?

[[Page 15513]]

2105.22 How will the Agency deny requests?
2105.23 What if the requested records contain both exempt and 
nonexempt material?
Subpart F--Handling Confidential Information
2105.24 May submitters of possibly confidential information 
designate information as confidential when making submissions?
2105.25 When will the Agency notify a submitter of a request for 
their possibly confidential information?
2105.26 What information will the Agency include when it notifies a 
submitter of a request for their possibly confidential information?
2105.27 When will the Agency not notify a submitter of a request for 
their possibly confidential information?
2105.28 How and when may a submitter object to the disclosure of 
confidential information?
2105.29 What must a submitter include in a detailed Exemption 4 
objection statement?
2105.30 How will the Agency consider the submitter's objections?
2105.31 What if the Agency determines it will disclose information 
over the submitter's objections?
2105.32 Will a submitter be notified of a FOIA lawsuit?
2105.33 Will you receive notification of activities involving the 
submitter?
2105.34 Can an Agency release information protected by Exemption 4?
Subpart G--Fees
2105.35 What general principles govern fees?
2105.36 What are the requester fee categories?
2105.37 How does your requester category affect the fees you are 
charged?
2105.38 How will fee amounts be determined?
2105.39 What search fees will you have to pay?
2105.40 What duplication fees will you have to pay?
2105.41 What review fees will you have to pay?
2105.42 What fees for other services will you have to pay?
2105.43 When will the Agency waive fees?
2105.44 When may you ask the Agency for a fee waiver?
2105.45 How will the Agency notify you if it denies your fee waiver 
request?
2105.46 How will the Agency evaluate your fee waiver request?
2105.47 When will you be notified of anticipated fees?
2105.48 When will the Agency require advance payment?
2105.49 What if the Agency needs clarification about fee issues?
2105.50 How will you be billed?
2105.51 How will the Agency collect fees owed?
2105.52 When will the Agency combine or aggregate requests?
2105.53 What if other statutes require the Agency to charge fees?
2105.54 May the Agency waive or reduce your fees at its discretion?
Subpart H--Administrative Appeals
2105.55 When may you file an appeal?
2105.56 How long do you have to file an appeal?
2105.57 How do you file an appeal?
2105.58 Who makes decisions on appeals?
2105.59 How are decisions on appeals issued?
2105.60 When can you expect a decision on your appeal?
2105.61 Can you receive expedited processing of appeals?
2105.62 Must you submit an appeal before seeking judicial review?
Subpart I--General Information
2105.63 Where are records made available?
2105.64 What are public liaisons?
2105.65 When will the Agency make records available without a FOIA 
request?
2105.66 How will FOIA materials be preserved?
2105.67 How will an Agency handle a request for federally-funded 
research data?
2105.68 What definitions apply to this part?

    Authority: 5 U.S.C. 552, as amended by Public Law 110-175, 121 
Stat. 2524 and Pub. L. 114-185, 130 Stat. 538.

Subpart A--Introduction


Sec.  2105.1   What should you know up front?

    (a) This part contains the rules that the Agency follows in 
processing records under the Freedom of Information Act (FOIA), 5 
U.S.C. 552.
    (b) Definitions of terms used in this part are found at Sec.  
2105.68.
    (c) This part should be read in conjunction with the text of the 
FOIA and the OMB Fee Guidelines.
    (d) This part does not entitle any person to any service or to the 
disclosure of any record that is not required under the FOIA.


Sec.  2105.2   What kinds of records are not covered by the regulations 
in this part?

    This part does not apply to records that fall under the law 
enforcement exclusions in 5 U.S.C. 552(c)(1)-(3). These exclusions may 
be used only in the limited circumstances delineated by the statute and 
require both prior approval from legal counsel and the recording of 
their use and approval process.

Subpart B--How To Make a Request


Sec.  2105.3   Where should you send a FOIA request?

    (a) To make a request for Agency records, you must contact the 
Agency directly.
    (b) Address requests to the FOIA Officer found in the Agency 
contacts at https://www.cfa.gov/foia.


Sec.  2105.4   How should you describe the records you seek?

    (a) You must reasonably describe the records sought. A reasonable 
description contains sufficient detail to enable Agency personnel 
familiar with the subject matter of the request to locate the records 
with a reasonable amount of effort.
    (b) You should include as much detail as possible about the 
specific records or types of records that you are seeking. This will 
assist the Agency in identifying the requested records (for example, 
time frames involved or specific personnel who may have the requested 
records). For example, whenever possible, identify:
    (1) The date, title or name, author, recipient, and subject of any 
particular records you seek;
    (2) The office that created the records you seek;
    (3) The timeframe for which you are seeking records; and
    (4) Any other information that will assist the Agency in locating 
the records.
    (c) The Agency's FOIA Officer or Public Liaison can assist you in 
formulating or reformulating a request in an effort to better identify 
the records you seek.
    (d) If the Agency determines that your request does not reasonably 
describe the records sought, the Agency will inform you what additional 
information you need to provide in order to reasonably describe the 
records that you seek so the requested records can be located with a 
reasonable amount of effort. The Agency will also notify you that it 
will not be able to comply with your request unless the additional 
information it has requested is received from you in writing within 20 
workdays after the Agency has requested it and that you may appeal its 
determination. If you receive this type of notification, you may wish 
to discuss it with the Agency's designated FOIA contact or the FOIA 
Public Liaison (see Sec.  2105.64). If the Agency does not receive your 
written response containing the additional information within 20 
workdays after the Agency has requested it, the Agency will presume 
that you are no longer interested in the records and will close the 
file on the request.


Sec.  2105.5  How will fee information affect the processing of your 
request?

    (a) Your request must explicitly state that you will pay all fees 
associated with processing the request, that you will pay fees up to a 
specified amount, and/or that you are seeking a fee waiver.

[[Page 15514]]

    (b) If the Agency anticipates that the fees for processing the 
request will exceed the amount you have agreed to pay, or if you did 
not agree in writing to pay processing fees or request a fee waiver and 
the Agency anticipates the processing costs will exceed $50 (see Sec.  
2105.35(g)) or will exceed your entitlements (see Sec.  2105.37), the 
Agency will notify you:
    (1) Of the estimated processing fees;
    (2) Of its need for either an advance payment (see Sec.  2105.48) 
or your written assurance that you will pay the anticipated fees (or 
fees up to a specified amount); and
    (3) That it will not be able to fully comply with your request 
unless you provide a fee waiver request and/or the requested written 
assurance or advance payment.
    (c) If the Agency does not receive a written response from you 
within 20 workdays after requesting the information in paragraph (b) of 
this section, it will presume that you are no longer interested in the 
records and will close the file on the request.
    (d) If you are seeking a fee waiver, your request must include a 
justification that addresses and meets the criteria in Sec. Sec.  
2105.43 and 2105.46. Failure to provide sufficient justification will 
result in a denial of the fee waiver request. If you are seeking a fee 
waiver, you may also indicate the amount you are willing to pay if the 
fee waiver is denied. This allows the Agency to process the request for 
records while it considers your fee waiver request. You may also inform 
the Agency of why you believe your request meets one or more of the 
criteria for a discretionary fee waiver under Sec.  2105.54.
    (e) The Agency will begin processing your request only after all 
issues regarding fees are resolved.
    (f) If you are required to pay a fee and it is later determined on 
appeal that you were entitled to a full or partial fee waiver, you will 
receive an appropriate refund.


Sec.  2105.6  What information should you include about your fee 
category?

    (a) A request should indicate your fee category (that is, whether 
you are a commercial-use requester, news media, educational or 
noncommercial scientific institution, or other requester as described 
in Sec. Sec.  2105.36 and 2105.37).
    (b) If you submit a FOIA request on behalf of another person or 
organization (for example, if you are an attorney submitting a request 
on behalf of a client), the Agency will determine the fee category by 
considering the underlying requester's identity and intended use of the 
information.
    (c) If your fee category is unclear, the Agency may ask you for 
additional information (see Sec.  2105.49).


Sec.  2105.7  Can you ask for records to be disclosed in a particular 
form or format?

    (a) Generally, you may choose the form or format of disclosure for 
records requested. The Agency must provide the records in the requested 
form or format if the Agency can readily reproduce the record in that 
form or format. If the Agency cannot readily reproduce the record in 
that form or format, it must explain why it cannot.
    (b) The Agency may charge you the direct costs involved in 
converting records to the requested format if the Agency does not 
normally maintain the records in that format (see Sec.  2105.42).


Sec.  2105.8  What if your request seeks records about another person?

    (a) When a request seeks records about another person, you may 
receive greater access by submitting proof that the person either:
    (1) Consents to the release of the records to you (for example, a 
notarized authorization signed by that person); or
    (2) Is deceased (for example, a copy of a death certificate or an 
obituary).
    (b) The Agency can require you to supply additional information if 
necessary to verify that a particular person has consented to 
disclosure or is deceased.


Sec.  2105.9   May you ask for the processing of your request to be 
expedited?

    You may ask for the processing of your request to be expedited. If 
you are seeking expedited processing, your request must include a 
justification that addresses and meets the criteria in Sec.  2105.18 
and includes the certification required at Sec.  2105.18(b)(2). Failure 
to provide sufficient justification or the required certification will 
result in a denial of the expedited processing request.


Sec.  2105.10  What contact information should your request include?

    A request should include your name and a way (such as a mailing or 
email address) for the Agency to send responsive records to you and/or 
to request additional information or clarification of your request. You 
may also wish to include a daytime telephone number (or the name and 
telephone number of an appropriate contact).

Subpart C--Processing Requests


Sec.  2105.11  What should you know about how the Agency processes 
requests?

    (a) Except as described in Sec.  2105.12, the Agency is responsible 
for responding to the request and for making a reasonable effort to 
search for responsive records.
    (b) In determining which records are responsive to a request, the 
Agency will include only records in its possession and control on the 
date that it begins its search.
    (c) The Agency will make reasonable efforts to search for the 
requested records. As part of its reasonable efforts, the Agency will 
search paper and/or electronic records (for example, emails), as 
appropriate. The Agency will not search for records in an electronic 
form or format if these efforts would significantly interfere with the 
operation of the Agency's automated information system.
    (d) If the Agency receives a request for records in its possession 
that it did not create or that another Federal agency is substantially 
concerned with, it may undertake consultations and/or referrals as 
described in Sec.  2105.12.


Sec.  2105.12   How do consultations and referrals work?

    (a) Consultations and referrals generally occur outside the Agency.
    (1) Paragraphs (b) through (e) of this section address 
consultations and referrals that occur outside the Agency when the 
Agency has responsive records.
    (2) Paragraph (f) of this section addresses what happens when the 
Agency has no responsive records but believes responsive records may be 
in the possession of a Federal agency outside the Agency.
    (b) If, while responding to a request, the Agency locates records 
that originated with another Federal agency, it usually will refer the 
request and any responsive records to that other agency for a release 
determination and direct response.
    (c) If the Agency refers records to another agency, it will 
document the referral and maintain a copy of the records that it refers 
and notify you of the referral in writing, unless the notification will 
itself disclose a sensitive, exempt fact. When the Agency notifies you 
of the referral, it will tell you whether the referral was for part or 
all of your request and provide the name and contact information for 
the other agency. You may treat such a response as a denial of records 
and file an appeal, in accordance with the procedures in Sec.  2105.57.
    (d) If the Agency locates records that originated with another 
Federal agency while responding to a request, the Agency will make the 
release determination itself (after consulting with the originating 
agency) when:

[[Page 15515]]

    (1) The record is of primary interest to the Agency (for example, a 
record may be of primary interest to the Agency if it was developed or 
prepared according to the Agency's regulations or directives, or in 
response to an Agency request);
    (2) The Agency is in a better position than the originating agency 
to assess whether the record is exempt from disclosure;
    (3) The originating agency is not subject to the FOIA; or
    (4) It is more efficient or practical depending on the 
circumstances.
    (e) If the Agency receives a request for records that another 
Federal agency has classified under any applicable Executive order 
concerning record classification, it must refer the request to that 
agency for response.
    (f) If the Agency receives a request for records not in its 
possession, but that the Agency believes may be in the possession of a 
Federal agency outside the Agency, the Agency will return the request 
to you, may advise you to submit it directly to the other agency, will 
notify you that the Agency cannot comply with the request, and will 
close the request. If you believe this response was in error, you may 
file an appeal in accordance with the procedures in Sec.  2105.57.

Subpart D--Timing of Responses to Requests


Sec.  2105.13   In what order are responses usually made?

    The Agency ordinarily will respond to requests according to their 
order of receipt within their processing track.


Sec.  2105.14   What is multitrack processing and how does it affect 
your request?

    (a) Processing tracks are used to distinguish simple requests from 
more complex ones on the basis of the estimated number of workdays 
needed to process the request.
    (b) In determining the number of workdays needed to process the 
request, the Agency considers factors such as the number of pages 
involved in processing the request or the need for consultations.
    (c) The basic processing tracks are designated as follows:
    (1) Simple: Requests in this track will take between one to five 
workdays to process;
    (2) Normal: Requests in this track will take between six to twenty 
workdays to process;
    (3) Complex: Requests in this track will take between twenty-one 
workdays and sixty workdays to process; or
    (4) Exceptional/Voluminous: Requests in this track involve very 
complex processing challenges, which may include a large number of 
potentially responsive records, and will take over sixty workdays to 
process.
    (d) The Agency also has a specific processing track for requests 
that are granted expedited processing under the standards in Sec.  
2105.18. These requests will be processed as soon as practicable.
    (e) The Agency must advise you of the track into which your request 
falls and, when appropriate, will offer you an opportunity to narrow 
your request so that it can be placed in a different processing track. 
If you request placement in a particular processing track but the 
Agency places you in a different processing track, the Agency will 
provide you with an explanation of why you were not placed in the 
processing track you requested.
    (f) The use of multitrack processing does not alter the statutory 
deadline for an Agency to determine whether to comply with your FOIA 
request (see Sec.  2105.15).
    (g) You may inquire about the status of your request, including its 
estimated processing completion date, by contacting the FOIA Public 
Liaison, whose contact information may be found at https://www.cfa.gov/foia.


Sec.  2105.15   What is the basic time limit for responding to a 
request?

    (a) Ordinarily, the Agency has 20 workdays (including the date of 
receipt) to determine whether to comply with a request, but unusual 
circumstances may allow the Agency to take longer than 20 workdays (see 
Sec.  2105.17).
    (b) A consultation or referral under Sec.  2105.12 does not restart 
the statutory time limit for responding to a request.


Sec.  2105.16   When can the Agency suspend the basic time limit?

    (a) The basic time limit in Sec.  2105.15 may be temporarily 
suspended for the time it takes you to respond to one written 
communication from the Agency reasonably asking for clarifying 
information.
    (b) The basic time limit in Sec.  2105.15 may also repeatedly be 
temporarily suspended for the time it takes you to respond to written 
communications from the Agency that are necessary to clarify issues 
regarding fee assessment (see Sec.  2105.49).


Sec.  2105.17   When may the Agency extend the basic time limit?

    (a) The Agency may extend the basic time limit, if unusual 
circumstances exist, by notifying you in writing of:
    (1) The unusual circumstances involved; and
    (2) The date by which it expects to complete processing the 
request.
    (b) If the processing time will extend beyond a total of 30 
workdays, the Agency will:
    (1) Give you an opportunity to limit the scope of the request or 
agree to an alternative time period for processing; and
    (2) Make available its FOIA Public Liaison (see Sec.  2105.64) to 
assist in resolving any disputes between you and the Agency, and notify 
you of your right to seek dispute resolution from the Office of 
Government Information Services (OGIS).
    (c) If the Agency extends the time limit under this section and you 
do not receive a response in accordance with Sec.  2105.15(a) in that 
time period, you may consider the request denied and file an appeal in 
accordance with the procedures in Sec.  2105.57.
    (d) Your refusal to reasonably modify the scope of a request or 
arrange an alternative time frame for processing a request after being 
given the opportunity to do so may be considered for litigation 
purposes as a factor when determining whether exceptional circumstances 
exist.


Sec.  2105.18   When will expedited processing be provided and how will 
it affect your request?

    (a) The Agency will provide expedited processing upon request if 
you demonstrate to the satisfaction of the Agency that there is a 
compelling need for the records. The following circumstances 
demonstrate a compelling need:
    (1) Where failure to expedite the request could reasonably be 
expected to pose an imminent threat to the life or physical safety of 
an individual; or
    (2) Where there is an urgency to inform the public about an actual 
or alleged Federal Government activity and the request is made by a 
person primarily engaged in disseminating information.
    (i) In most situations, a person primarily engaged in disseminating 
information will be a representative of the news media.
    (ii) If you are not a full time member of the news media, to 
qualify for expedited processing here, you must establish that your 
main professional activity or occupation is information dissemination, 
although it need not be your sole occupation.
    (iii) The requested information must be the type of information 
which has particular value that will be lost if not disseminated 
quickly; this ordinarily refers to a breaking news story of general 
public interest.
    (iv) Information of historical interest only or information sought 
for litigation

[[Page 15516]]

or commercial activities would not qualify, nor would a news media 
deadline unrelated to breaking news.
    (b) If you seek expedited processing, you must submit a statement 
that:
    (1) Explains in detail how your request meets one or both of the 
criteria in paragraph (a) of this section; and
    (2) Certifies that your explanation is true and correct to the best 
of your knowledge and belief.
    (c) You may ask for expedited processing of your request by writing 
to the appropriate FOIA contact in the Agency that maintains the 
records requested any time before the Agency issues its final response 
to your request. When making a request for expedited processing of an 
administrative appeal, submit the request to the appropriate deciding 
official for FOIA appeals.
    (d) The Agency must notify you of its decision to grant or deny 
expedited processing within 10 calendar days of receiving an expedited 
processing request.
    (e) If expedited processing is granted, the request will be given 
priority, placed in the processing track for expedited requests, and be 
processed as soon as practicable.
    (f) If expedited processing is denied, the Agency will:
    (1) Inform you of the basis for the denial, including an 
explanation of why the expedited processing request does not meet the 
Agency's expedited processing criteria under this section; and
    (2) Notify you of the right to appeal the decision on expedited 
processing in accordance with the procedures in subpart H of this part.
    (g) If you appeal the Agency's expedited processing decision, that 
portion of your appeal (if it is properly formatted under Sec.  
2105.57) will be processed before appeals that do not challenge 
expedited processing decisions.
    (h) If the Agency has not responded to the request for expedited 
processing within 10 calendar days, you may file an appeal (for 
nonresponse in accordance with Sec.  2105.55(a)(8)).

Subpart E--Responses to Requests


Sec.  2105.19   How will the Agency respond to requests?

    (a) When the Agency informs you of its decision to comply with a 
request by granting, partially granting, or denying the request, it 
will do so in writing and in accordance with the deadlines in subpart D 
of this part. The Agency's written response will include a statement 
about the services offered by its FOIA Public Liaison. The Agency's 
written response will also include a statement about the services 
offered by the Office of Government Information Services (OGIS).
    (b) If the Agency determines that your request will take longer 
than 10 workdays to process, the Agency immediately will send you a 
written acknowledgment that includes the request's individualized 
tracking number and processing track (see Sec.  2105.14(e)). The 
acknowledgement may also include a brief description of the subject of 
your request.


Sec.  2105.20   How will the Agency grant requests?

    (a) Once the Agency makes a determination to grant a request in 
full or in part, it must notify you in writing.
    (b) The notification will inform you of any fees charged under 
subpart G of this part.
    (c) The Agency will release records (or portions of records) to you 
promptly upon payment of any applicable fees (or before then, at its 
discretion).
    (d) If the records (or portions of records) are not included with 
the Agency's notification, the Agency will advise you how, when, and 
where the records will be released or made available.


Sec.  2105.21  When will the Agency deny a request or procedural 
benefits?

    (a) The Agency denies a request when it makes a decision that:
    (1) A requested record is exempt, in full or in part;
    (2) The request does not reasonably describe the records sought;
    (3) A requested record does not exist, cannot be located, or is not 
in the Agency's possession and/or control; or
    (4) A requested record is not readily reproducible in the form or 
format you seek.
    (b) The Agency denies a procedural benefit only, and not access to 
the underlying records, when it makes a decision that:
    (1) A fee waiver, or another fee-related issue, will not be 
granted; or
    (2) Expedited processing will not be provided.
    (c) The Agency must consult with legal counsel before it denies a 
fee waiver request or withholds all or part of a requested record.


Sec.  2105.22   How will the Agency deny requests?

    (a)The Agency must notify you in writing of any denial of your 
request.
    (b) The denial notification must include:
    (1) The name and title or position of the person responsible for 
the denial, along with an office phone number or email address;
    (2) A statement of the reasons for the denial;
    (3) A reference to any FOIA exemption applied by the Agency to 
withhold records in full or in part, along with a statement that the 
Agency reasonably foresees that disclosure would harm an interest 
protected by the applied exemption(s) or disclosure is prohibited by 
law;
    (4) An estimate of the volume of any records withheld in full or in 
part (for example, by providing the number of pages or some other 
reasonable form of estimation), unless including an estimate would harm 
an interest protected by an exemption used to withhold the records and 
the Agency explains this harm to you;
    (5) The name and title of legal counsel consulted (if the Agency is 
denying a fee waiver request or withholding all or part of a requested 
record); and
    (6) A statement that the denial may be appealed under subpart H of 
this part and a description of the procedures in subpart H of this 
part.


Sec.  2105.23   What if the requested records contain both exempt and 
nonexempt material?

    If responsive records contain both exempt and nonexempt material, 
the Agency will consult with legal counsel, as discussed in Sec.  
2105.21(c). After consultation, the Agency will partially grant and 
partially deny the request by:
    (a) Segregating and releasing the nonexempt information, unless the 
nonexempt material is so intertwined with the exempt material that 
disclosure of it would leave only meaningless words and phrases;
    (b) Indicating on the released portion of the record the amount of 
information deleted and the FOIA exemption under which the deletion was 
made, unless doing so would harm an interest protected by the FOIA 
exemption used to withhold the information; and
    (c) If technically feasible, indicating the amount of information 
deleted and the FOIA exemption under which the deletion was made at the 
place in the record where the deletion was made.

Subpart F--Handling Confidential Information


Sec.  2105.24   May submitters of possibly confidential information 
designate information as confidential when making submissions?

    (a) The Agency encourages, but does not require, submitters to 
designate confidential information in good faith (in other words, to 
identify specific information as information the

[[Page 15517]]

submitter considers protected from disclosure under Exemption 4 of the 
FOIA, found at 5 U.S.C. 552(b)(4)), at the time of submission or 
reasonably soon thereafter.
    (b) The designations discussed in paragraph (a) of this section 
assist the Agency in identifying what information obtained from the 
submitter is possibly confidential and triggers the requirement for 
Agency-provided notifications under Sec.  2105.25(a)(1).


Sec.  2105.25   When will the Agency notify a submitter of a request 
for their possibly confidential information?

    (a) Except as outlined in Sec.  2105.27, an Agency must promptly 
notify a submitter in writing when it receives a FOIA request if:
    (1) The requested information has been designated by the submitter 
as confidential information under Sec.  2105.24(a); or
    (2) The requested information has not been designated as 
confidential information by the submitter under Sec.  2105.24(a), but 
the Agency identifies it as possibly confidential information.
    (b) If a voluminous number of submitters are involved, the Agency 
may publish a notice in a manner reasonably calculated to reach the 
attention of the submitters (for example, in newspapers or newsletters, 
the Agency's website, or the Federal Register) instead of providing a 
written notice to each submitter.


Sec.  2105.26   What information will the Agency include when it 
notifies a submitter of a request for their possibly confidential 
information?

    A notice to a submitter must include:
    (a) Either a copy of the request, the exact language of the 
request, or (for notices published under Sec.  2105.25(b)) a general 
description of the request;
    (b) Either a description of the possibly confidential information 
located in response to the request or a copy of the responsive records, 
or portions of records, containing the information;
    (c) A description of the procedures for objecting to the release of 
the possibly confidential information under Sec. Sec.  2105.28 and 
2105.29;
    (d) A time limit for responding to the Agency--no less than 10 
workdays from receipt or publication of the notice (as set forth in 
Sec.  2105.25(b))--to object to the release and to explain the basis 
for the objection;
    (e) Notice that information contained in the submitter's objections 
may itself be subject to disclosure under the FOIA;
    (f) Notice that the Agency, not the submitter, is responsible for 
deciding whether the information will be released or withheld;
    (g) A request for the submitter's views on whether they still 
consider the information to be confidential if the submitter designated 
the material as confidential commercial or financial information 10 or 
more years before the request; and
    (h) Notice that failing to respond within the time frame specified 
under paragraph (d) of this section will create a presumption that the 
submitter has no objection to the disclosure of the information in 
question.
    (i) Except as outlined in Sec.  2105.27, an Agency must promptly 
notify a submitter in writing when it receives a FOIA request if:
    (1) The requested information has been designated by the submitter 
as confidential information under Sec.  2105.24(a); or
    (2) The requested information has not been designated as 
confidential information by the submitter under Sec.  2105.24(a), but 
the Agency identifies it as possibly confidential information.


Sec.  2105.27  When will the Agency not notify a submitter of a request 
for their possibly confidential information?

    The notice requirements of Sec.  2105.26 will not apply if:
    (a) The information has been lawfully published or officially made 
available to the public; or
    (b) Disclosure of the information is required by a statute other 
than the FOIA or by a regulation (other than this part) issued in 
accordance with the requirements of Executive Order 12600.


Sec.  2105.28   How and when may a submitter object to the disclosure 
of confidential information?

    (a) If a submitter has any objections to the disclosure of 
confidential information, the submitter should provide a detailed 
written statement to the Agency that specifies all grounds for 
withholding the particular information under any FOIA exemption (see 
Sec.  2105.29 for further discussion of Exemption 4 objection 
statements).
    (b) A submitter who does not respond within the time period 
specified under Sec.  2105.26(d) will be considered to have no 
objection to disclosure of the information. Responses received by the 
Agency after this time period will not be considered by the Agency 
unless the appropriate Agency FOIA contact determines, in his or her 
sole discretion, that good cause exists to accept the late response.


Sec.  2105.29  What must a submitter include in a detailed Exemption 4 
objection statement?

    (a) To rely on Exemption 4 as basis for nondisclosure, the 
submitter must explain why the information is confidential information. 
To do this, the submitter must give the Agency a detailed written 
statement. This statement must include a specific and detailed 
discussion of why the information is a trade secret or, if the 
information is not a trade secret, the following three categories must 
be addressed (unless the Agency informs the submitter that a response 
to one of the first two categories will not be necessary):
    (1) Whether the submitter provided the information voluntarily and, 
if so, how disclosure will impair the Government's ability to obtain 
similar information in the future and/or how the information fits into 
a category of information that the submitter does not customarily 
release to the public;
    (2) Whether the Government required the information to be 
submitted, and if so, how disclosure will impair the Government's 
ability to obtain similar information in the future and/or how 
substantial competitive or other business harm would likely result from 
disclosure; and
    (3) A certification that the information is confidential, has not 
been disclosed to the public by the submitter, and is not routinely 
available to the public from other sources.
    (b) If not already provided, the submitter must include a daytime 
telephone number, an email and mailing address, and a fax number (if 
available).


Sec.  2105.30   How will the Agency consider the submitter's 
objections?

    (a) The Agency must carefully consider a submitter's objections and 
specific grounds for nondisclosure in deciding whether to disclose the 
requested information.
    (b) The Agency, not the submitter, is responsible for deciding 
whether the information will be released or withheld.


Sec.  2105.31  What if the Agency determines it will disclose 
information over the submitter's objections?

    If the Agency decides to disclose information over the objection of 
a submitter, the Agency must notify the submitter by certified mail or 
other traceable mail, return receipt requested. The notification must 
be sent to the submitter's last known address and must include:
    (a) The specific reasons why the Agency determined that the 
submitter's disclosure objections do not support withholding the 
information;
    (b) Copies of the records or information the Agency intends to 
release; and

[[Page 15518]]

    (c) Notice that the Agency intends to release the records or 
information no less than 10 workdays after receipt of the notice by the 
submitter.


Sec.  2105.32   Will a submitter be notified of a FOIA lawsuit?

    If you file a lawsuit seeking to compel the disclosure of 
confidential information, the Agency must promptly notify the 
submitter.


Sec.  2105.33   Will you receive notification of activities involving 
the submitter?

    If any of the following occur, the Agency will notify you:
    (a) The Agency provides the submitter with notice and an 
opportunity to object to disclosure;
    (b) The Agency notifies the submitter of its intent to disclose the 
requested information; or
    (c) A submitter files a lawsuit to prevent the disclosure of the 
information.


Sec.  2105.34   Can an Agency release information protected by 
Exemption 4?

    If an Agency determines that the requested information is protected 
from release by Exemption 4 of the FOIA, the Agency has no discretion 
to release the information. Release of information protected from 
release by Exemption 4 is prohibited by the Trade Secrets Act, a 
criminal provision found at 18 U.S.C. 1905.

Subpart G--Fees


Sec.  2105.35   What general principles govern fees?

    (a) The Agency will charge for processing requests under the FOIA 
in accordance with this subpart and with the OMB Fee Guidelines.
    (b) The Agency may contact you for additional information to 
resolve fee issues.
    (c) The Agency ordinarily will collect all applicable fees before 
sending copies of records to you.
    (d) You may usually pay fees by check, certified check, or money 
order made payable to the ``Commission of Fine Arts.''
    (1) Where appropriate, the Agency may require that your payment be 
made in the form of a certified check.
    (e) The Agency should ensure that it conducts searches, review, and 
duplication in the most efficient and the least expensive manner so as 
to minimize costs for both you and the Agency.
    (f) If the Agency does not comply with any of the FOIA's statutory 
time limits:
    (1) Except as provided in paragraph (f)(2) of this section, the 
Agency cannot assess any search fees (or, if you are in the fee 
category of a representative of the news media or an educational and 
noncommercial scientific institution, duplication fees).
    (2)(i) If the Agency has determined that unusual circumstances 
apply (as the term is defined in Sec.  2105.68) and the Agency provided 
you a timely written notice to extend the basic time limit in 
accordance with Sec.  2105.17, the noncompliance is excused for an 
additional 10 workdays.
    (ii) If the Agency has determined that unusual circumstances apply 
and more than 5,000 pages are necessary to respond to the request, the 
noncompliance is excused if the Agency has provided you a timely 
written notice in accordance with Sec.  2105.17 and has discussed with 
you via written mail, email, or telephone (or made not less than 3 
good-faith attempts to do so) how you could effectively limit the scope 
of the request.
    (iii) If a court has determined that exceptional circumstances 
exist (as that term is defined in Sec.  2105.68), the noncompliance is 
excused for the length of time provided by the court order.
    (g) If the fee for processing your request is less than $50, you 
will not be charged unless multiple requests are aggregated under Sec.  
2105.52 to an amount that is $50 or more.
    (h) If you fail to pay any FOIA-related fee within 30 calendar days 
of the date of billing, the processing of any new or ongoing requests 
and/or appeals from you shall ordinarily be suspended.
    (i) If you would like to reformulate your request so it will meet 
your needs at a lower cost, you may wish to seek assistance from the 
Agency's designated FOIA contact or its FOIA Public Liaison (see Sec.  
2105.64).


Sec.  2105.36   What are the requester fee categories?

    (a) There are four categories of requesters for the purposes of 
determining fees--commercial-use, educational and noncommercial 
scientific institutions, representatives of news media, and all others.
    (b) The Agency's decision to place you in a particular fee category 
will be made on a case-by-case basis based on your intended use of the 
information and, in most cases, your identity. If you do not submit 
sufficient information in your FOIA request for the Agency to determine 
your proper fee category, the Agency may ask you to provide additional 
information (see Sec.  2105.49). If you request placement in a 
particular fee category but the Agency places you in a different fee 
category, the Agency will provide you with an explanation of why you 
were not placed in the fee category you requested (for example, if you 
were placed in the commercial use requester category rather than the 
category you requested, the Agency will describe how the records would 
further your commercial, trade, or profit interests).
    (c) See Sec.  2105.68 for the definitions of each of these fee 
categories.


Sec.  2105.37   How does your requester category affect the fees you 
are charged?

    You will be charged as shown in the following table:

                                            Table 1 to Sec.   2105.37
----------------------------------------------------------------------------------------------------------------
          Requester category                 Search fees              Review fees            Duplication fees
----------------------------------------------------------------------------------------------------------------
Commercial use requester.............  Yes....................  Yes....................  Yes.
Educational and noncommercial          No.....................  No.....................  Yes (first 100 pages,
 scientific institutions.                                                                 or equivalent volume,
                                                                                          free).
Representative of news media           No.....................  No.....................  Yes (first 100 pages,
 requester.                                                                               or equivalent volume,
                                                                                          free).
All other requesters.................  Yes (first two hours     No.....................  Yes (first 100 pages,
                                        free).                                            or equivalent volume,
                                                                                          free).
----------------------------------------------------------------------------------------------------------------

Sec.  2105.38   How will fee amounts be determined?

    (a) The Agency will charge the types of fees discussed in this 
subpart unless a waiver of fees is required under Sec.  2105.37 or has 
been granted under Sec.  2105.43 or Sec.  2105.54.
    (b) Because the types of fees discussed in this subpart already 
account for the overhead costs associated with a given

[[Page 15519]]

fee type, the Agency should not add any additional costs to those 
charges.


Sec.  2105.39   What search fees will you have to pay?

    (a) The Agency will charge search fees for all requests, subject to 
the restrictions of Sec. Sec.  2105.35(f), 2105.37, and 2105.38(a). The 
Agency may charge you for time spent searching even if it does not 
locate any responsive records or if it determines that the records are 
entirely exempt from disclosure.
    (b) For each quarter hour spent by personnel searching for 
requested records, including electronic searches that do not require 
new programming, the fees will be the average hourly General Schedule 
(GS) base salary, plus the District of Columbia locality payment, plus 
16 percent for benefits, of employees in the following three 
categories, as applicable:
    (1) Clerical--Based on GS-6, Step 5, pay (all employees at GS-7 and 
below are classified as clerical for this purpose);
    (2) Professional--Based on GS-11, Step 7, pay (all employees at GS-
8 through GS-12 are classified as professional for this purpose); and
    (3) Managerial--Based on GS-14, Step 2, pay (all employees at GS-13 
and above are classified as managerial for this purpose).
    (c) You can review the current fee schedule for the categories 
discussed above in paragraph (b) of this section at https://www.cfa.gov/foia.
    (d) Some requests may require retrieval of records stored at a 
Federal records center operated by the National Archives and Records 
Administration. For these requests, the Agency will charge additional 
costs in accordance with the Transactional Billing Rate Schedule 
established by the National Archives and Records Administration.


Sec.  2105.40  What duplication fees will you have to pay?

    (a) The Agency will charge duplication fees, subject to the 
restrictions of Sec. Sec.  2105.35(f), 2105.37, and 2105.38(a).
    (b) If photocopies or scans are supplied, the Agency will provide 
one copy per request at the cost determined by the table in appendix A 
to this part.
    (c) For other forms of duplication, the Agency will charge the 
actual costs of producing the copy, including the time spent by 
personnel duplicating the requested records. For each quarter hour 
spent by personnel duplicating the requested records, the fees will be 
the same as those charged for a search under Sec.  2105.39(b).
    (d) If the Agency must scan paper records to accommodate your 
preference to receive records in an electronic format or print 
electronic records to accommodate your preference to receive records in 
a paper format, you will pay both the per page amount noted in appendix 
A to this part and the time spent by personnel scanning or printing the 
requested records. For each quarter hour spent by personnel scanning or 
printing the requested records, the fees will be the same as those 
charged for a search under Sec.  2105.39(b).


Sec.  2105.41   What review fees will you have to pay?

    (a) The Agency will charge review fees if you make a commercial-use 
request, subject to the restrictions of Sec. Sec.  2105.35(f), 2105.37, 
and 2105.38(a).
    (b) The Agency will assess review fees in connection with the 
initial review of the record (the review conducted by the Agency to 
determine whether an exemption applies to a particular record or 
portion of a record).
    (c) The Agency will not charge for reviews at the administrative 
appeal stage of exemptions applied at the initial review stage. 
However, if the appellate authority determines that an exemption no 
longer applies, any costs associated with the Agency's re-review of the 
records to consider the use of other exemptions may be assessed as 
review fees.
    (d) The Agency will charge review fees at the same rates as those 
charged for a search under Sec.  2105.39(b).
    (e) The Agency can charge review fees even if the record(s) 
reviewed ultimately is not disclosed.


Sec.  2105.42   What fees for other services will you have to pay?

    (a) Although not required to provide special services, if the 
Agency chooses to do so as a matter of administrative discretion, it 
will charge you the direct costs of providing the service.
    (b) Examples of these services include providing multiple copies of 
the same record, converting records that are not already maintained in 
a requested format to the requested format, obtaining research data 
under Sec.  2105.67, sending records by means other than first class 
mail, and conducting a search that requires the creation of a new 
computer search program to locate the requested records.
    (c) The Agency will notify you of these fees before they accrue and 
will obtain your written assurance of payment or an advance payment 
before proceeding. See Sec. Sec.  2105.47 and 2105.48.


Sec.  2105.43   When will the Agency waive fees?

    (a) The Agency will release records responsive to a request without 
charge (in other words, it will give you a full fee waiver) or at a 
reduced charge (in other words, it will give you a partial fee waiver, 
as discussed further in paragraph (b) of this section) if the Agency 
determines, based on all available information, that you have 
demonstrated (by addressing and meeting each of the criteria listed in 
Sec.  2105.46) that disclosing the information is:
    (1) In the public interest because it is likely to contribute 
significantly to public understanding of Government operations or 
activities, and
    (2) Not primarily in your commercial interest.
    (b) A partial fee waiver may be appropriate if some but not all of 
the requested records are likely to contribute significantly to public 
understanding of the operations and activities of the Government.
    (c) When deciding whether to waive or reduce fees, the Agency will 
rely on the fee waiver justification submitted in your request letter. 
If the letter does not include sufficient justification, the Agency 
will deny the fee waiver request. The Agency may, at its discretion, 
request additional information from you (see Sec.  2105.49).
    (d) The burden is on you to justify entitlement to a fee waiver. 
Requests for fee waivers are decided on a case-by-case basis under the 
criteria discussed in paragraph (a) of this section and Sec.  2105.46. 
If you have received a fee waiver in the past, that does not mean you 
are automatically entitled to a fee waiver for every request submitted.
    (e) Discretionary fee waivers are addressed in Sec.  2105.54.
    (f) The Agency must not make value judgments about whether the 
information at issue is ``important'' enough to be made public; it is 
not the Agency's role to attempt to determine the level of public 
interest in requested information.


Sec.  2105.44  When may you ask the Agency for a fee waiver?

    (a) You should request a fee waiver when your request is first 
submitted to the Agency (see Sec.  2105.5).
    (b) You may submit a fee waiver request at a later time if the 
Agency has not yet completed processing your request.


Sec.  2105.45  How will the Agency notify you if it denies your fee 
waiver request?

    If the Agency denies your request for a fee waiver, it will notify 
you, in writing, of the following:
    (a) The basis for the denial, including a full explanation of why 
the fee waiver request does not meet the Agency's fee waiver criteria 
in Sec.  2105.46;

[[Page 15520]]

    (b) The name and title or position of each person responsible for 
the denial;
    (c) The name and title of legal counsel consulted;
    (d) Your right to appeal the denial under subpart H of this part 
and a description of the requirements set forth therein, within 30 
workdays from the date of the fee waiver denial letter; and
    (e) Your anticipated fees, in accordance with Sec.  2105.47.


Sec.  2105.46   How will the Agency evaluate your fee waiver request?

    (a) In deciding whether your fee waiver request meets the 
requirements of Sec.  2105.43(a)(1), the Agency will consider the 
criteria listed in paragraphs (a)(1) through (4) of this section. You 
must address and meet each of these criteria in order to demonstrate 
that you are entitled to a fee waiver.
    (1) How the records concern the operations or activities of the 
Federal Government.
    (2) How disclosure is likely to contribute to public understanding 
of those operations or activities, including:
    (i) How the contents of the records are meaningfully informative;
    (ii) The logical connection between the content of the records and 
the operations or activities;
    (iii) How disclosure will contribute to the understanding of a 
reasonably broad audience of persons interested in the subject, as 
opposed to your individual understanding;
    (iv) Your identity, vocation, qualifications, and expertise 
regarding the requested information and information that explains how 
you plan to disclose the information in a manner that will be 
informative to the understanding of a reasonably broad audience of 
persons interested in the subject, as opposed to your individual 
understanding; and
    (v) Your ability and intent to disseminate the information to a 
reasonably broad audience of persons interested in the subject (for 
example, how and to whom do you intend to disseminate the information). 
If we have categorized you as a representative of the news media under 
Sec.  2105.36, we will presume you have this ability and intent.
    (3) How disclosure is likely to significantly contribute to the 
understanding of a reasonably broad audience of persons interested in 
the subject, as opposed to your individual understanding, including:
    (i) Whether the information being requested is new;
    (ii) Whether the information would confirm or clarify data that has 
been released previously;
    (iii) How disclosure will increase the level of public 
understanding of the operations or activities of the Agency that 
existed prior to disclosure; and
    (iv) Whether the information is already publicly available. If the 
Government previously has published the information you are seeking or 
it is routinely available to the public in a library, reading room, 
through the internet, or as part of the administrative record for a 
particular issue, it is less likely that there will be a significant 
contribution from release.
    (4) How the public's understanding of the subject in question will 
be enhanced to a significant extent by the disclosure.
    (b) In deciding whether the fee waiver meets the requirements in 
Sec.  2105.43(a)(2), the Agency will consider any commercial interest 
of yours that would be furthered by the requested disclosure.
    (1) You are encouraged to provide explanatory information regarding 
this consideration.
    (2) The Agency will not find that disclosing the requested 
information will be primarily in your commercial interest where the 
public interest is greater than any identified commercial interest in 
disclosure.
    (3) If you do have a commercial interest that would be furthered by 
disclosure, explain how the public interest in disclosure would be 
greater than any commercial interest you or your organization may have 
in the documents.
    (i) Your identity, vocation, and intended use of the requested 
records are all factors to be considered in determining whether 
disclosure would be primarily in your commercial interest.
    (ii) If you are a representative of a news media organization 
seeking information as part of the news gathering process, we will 
presume that the public interest outweighs your commercial interest.
    (iii) If you represent a business/corporation/association or you 
are an attorney representing such an organization, we will presume that 
your commercial interest outweighs the public interest unless you 
demonstrate otherwise.


Sec.  2105.47   When will you be notified of anticipated fees?

    (a) The Agency will notify you under this section unless:
    (1) The anticipated fee is less than $50 (see Sec.  2105.35(g));
    (2) You have been granted a full fee waiver; or
    (3) You have previously agreed to pay all the fees associated with 
the request.
    (b) If none of the exceptions in paragraph (a) of this section 
apply, the Agency will:
    (1) Promptly notify you of the estimated costs for search, review, 
and/or duplication;
    (2) Ask you to provide written assurance within 20 workdays that 
you will pay all fees or fees up to a designated amount;
    (3) Notify you that it will not be able to comply with your FOIA 
request unless you provide the written assurance requested; and
    (4) Give you an opportunity to reduce the fee by modifying the 
request.
    (c) If the Agency does not receive your written response containing 
the additional information that resolves any fee issues, in accordance 
with paragraphs (b)(2) and/or (4) of this section, within 20 workdays 
after the Agency has requested it, the Agency will presume that you are 
no longer interested in the records and will close the file on the 
request.
    (d) After the Agency begins processing a request, if it finds that 
the actual cost will exceed the amount you previously agreed to pay, 
the Agency will:
    (1) Stop processing the request;
    (2) Promptly notify you of the higher amount and ask you to provide 
written assurance of payment; and
    (3) Notify you that it will not be able to fully comply with your 
FOIA request unless you provide the written assurance requested; and
    (4) Give you an opportunity to reduce the fee by modifying the 
request.
    (e) If you wish to modify your request in an effort to reduce fees, 
the Agency's FOIA Officer or Public Liaison can assist you.


Sec.  2105.48   When will the Agency require advance payment?

    (a) The Agency will require advance payment before starting further 
work when it finds the estimated fee is over $250 and:
    (1) You have never made a FOIA request to the Agency requiring the 
payment of fees; or
    (2) You did not pay a previous FOIA fee within 30 calendar days of 
the date of billing.
    (b) If the Agency believes that you did not pay a previous FOIA fee 
within 30 calendar days of the date of billing, the Agency will require 
you to either:
    (1) Demonstrate you paid prior fee within 30 calendar days of the 
date of billing; or
    (2) Pay any unpaid amount of the previous fee, plus any applicable 
interest penalties (see Sec.  2105.51), and pay in advance the 
estimated fee for the new request.

[[Page 15521]]

    (c) When the Agency notifies you that an advance payment is due 
under paragraph (a) of this section, it will give you an opportunity to 
reduce the fee by modifying the request.
    (d) Your payment of the funds you owe the Agency for work it has 
already completed before records are sent to you is not an advance 
payment under paragraph (a) of this section.
    (e) If the Agency requires advance payment, it will start further 
work only after receiving the advance payment. It will also notify you 
that it will not be able to comply with your FOIA request unless you 
provide the advance payment. Unless you pay the advance payment within 
20 workdays after the date of the Agency's fee letter, the Agency will 
presume that you are no longer interested and will close the file on 
the request.


Sec.  2105.49   What if the Agency needs clarification about fee 
issues?

    (a) If your FOIA request does not contain sufficient information 
for the Agency to determine your proper fee category or leaves another 
fee issue unclear, the Agency may ask you to provide additional 
clarification. If it does so, the Agency will notify you that it will 
not be able to comply with your FOIA request unless you provide the 
clarification requested.
    (b) If the Agency asks you to provide clarification, the 20-workday 
statutory time limit for the Agency to respond to the request is 
temporarily suspended.
    (1) If the Agency receives a written response within 20 workdays 
after the Agency has requested the additional clarification, the 20-
workday statutory time limit for processing the request will resume 
(see Sec.  2105.15).
    (2) If you still have not provided sufficient information to 
resolve the fee issue, the Agency may ask you again to provide 
additional clarification and notify you that it will not be able to 
comply with your FOIA request unless you provide the additional 
information requested within 20 workdays after the Agency has requested 
the additional clarification.
    (3) If the Agency asks you again for additional clarification, the 
statutory time limit for response will be temporarily suspended again 
and will resume again if the Agency receives a written response from 
you within 20 workdays after the Agency has requested the additional 
clarification.
    (c) If the Agency asks for clarification about a fee issue and does 
not receive a written response from you within 20 workdays after the 
Agency has requested the additional clarification, it will presume that 
you are no longer interested and will close the file on the request.


Sec.  2105.50   How will you be billed?

    If you are required to pay a fee associated with a FOIA request, 
the Agency will send a bill for collection.


Sec.  2105.51   How will the Agency collect fees owed?

    (a) The Agency may charge interest on any unpaid bill starting on 
the 31st day following the billing date.
    (b) The Agency will assess interest charges at the rate provided in 
31 U.S.C. 3717 and interest will accrue from the billing date until the 
Agency receives payment.
    (c) The Agency 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 to collect overdue amounts 
and interest.
    (d) This section does not apply if you are a state, local, or 
tribal government.


Sec.  2105.52   When will the Agency combine or aggregate requests?

    (a) The Agency may aggregate requests and charge accordingly when 
it reasonably believes that you, or a group of requesters acting in 
concert with you, are attempting to avoid fees by dividing a single 
request into a series of requests on a single subject or related 
subjects.
    (1) The Agency may presume that multiple requests of this type made 
within a 30-day period have been made to avoid fees.
    (2) The Agency may aggregate requests separated by a longer period 
only where there is a reasonable basis for determining that aggregation 
is warranted in view of all the circumstances involved.
    (b) The Agency will not aggregate multiple requests involving 
unrelated matters.


Sec.  2105.53   What if other statutes require the Agency to charge 
fees?

    (a) The fee schedule in appendix A to this part does not apply to 
fees charged under any statute that specifically requires the Agency to 
set and collect fees for particular types of records.
    (b) If records otherwise responsive to a request are subject to a 
statutorily-based fee schedule, the Agency will inform you whom to 
contact to obtain the records.


Sec.  2105.54  May the Agency waive or reduce your fees at its 
discretion?

    (a) The Agency may waive or reduce fees at its discretion if a 
request involves furnishing:
    (1) A copy of a record that the Agency has reproduced for free 
distribution;
    (2) One copy of a personal document (for example, a birth 
certificate) to a person who has been required to furnish it for 
retention by the Agency;
    (3) One copy of the transcript of a hearing before a hearing 
officer in a grievance or similar proceeding to the employee for whom 
the hearing was held;
    (4) Records to donors with respect to their gifts;
    (5) Records to individuals or private nonprofit organizations 
having an official, voluntary, or cooperative relationship with the 
Agency if it will assist their work with the Agency;
    (6) A reasonable number of records to members of the U.S. Congress; 
state, local, and foreign governments; public international 
organizations; or Indian tribes, when to do so is an appropriate 
courtesy, or when the recipient is carrying on a function related to an 
Agency function and the waiver will help accomplish the Agency's work;
    (7) Records in conformance with generally established business 
custom (for example, furnishing personal reference data to prospective 
employers of current or former Agency employees); or
    (8) One copy of a single record to assist you in obtaining 
financial benefits to which you may be entitled (for example, veterans 
or their dependents, employees with Government employee compensation 
claims).
    (b) You cannot appeal the denial of a discretionary fee waiver or 
reduction.

Subpart H--Administrative Appeals


Sec.  2105.55   When may you file an appeal?

    (a) You may file an appeal when:
    (1) The Agency withholds records, or parts of records;
    (2) The Agency informs you that your request has not adequately 
described the records sought;
    (3) The Agency informs you that it does not possess or cannot 
locate responsive records and you have reason to believe this is 
incorrect or that the search was inadequate;
    (4) The Agency did not address all aspects of the request for 
records;
    (5) You believe there is a procedural deficiency (for example, fees 
are improperly calculated or you have been placed in the wrong fee 
category);
    (6) The Agency denied your request for a fee waiver;
    (7) The Agency did not make a decision within the time limits in 
Sec.  2105.15 or, if applicable, Sec.  2105.16; or
    (8) The Agency denied, or was late in responding to, a request for 
expedited

[[Page 15522]]

processing filed under the procedures in Sec.  2105.18.
    (b) An appeal under paragraph (a)(8) of this section relates only 
to the request for expedited processing and does not constitute an 
appeal of the underlying request for records. Special procedures apply 
to requests for expedited processing of an appeal (see Sec.  2105.61).
    (c) Before filing an appeal, you may wish to communicate with the 
contact person listed in the FOIA response, the Agency's FOIA Officer, 
and/or the FOIA Public Liaison to see if the issue can be resolved 
informally. However, appeals must be received by the FOIA Appeals 
Officer within the time limits in Sec.  2105.56 or they will not be 
processed.


Sec.  2105.56   How long do you have to file an appeal?

    (a) Appeals covered by Sec.  2105.55(a)(1) through (5) must be 
received by the FOIA Appeals Officer no later than 90 workdays from the 
date of the final response.
    (b) Appeals covered by Sec.  2105.55(a)(6) must be received by the 
FOIA Appeals Officer no later than 90 workdays from the date of the 
letter denying the fee waiver.
    (c) Appeals covered by Sec.  2105.55(a)(7) may be filed any time 
after the time limit for responding to the request has passed.
    (d) Appeals covered by Sec.  2105.55(a)(8) should be filed as soon 
as possible.
    (e) Appeals arriving or delivered after 5 p.m. Eastern Time, Monday 
through Friday, will be deemed received on the next workday.


Sec.  2105.57  How do you file an appeal?

    (a) You must submit the appeal in writing by mail, fax or email to 
the FOIA Appeals Officer (using the address available at https://www.cfa.gov/foia/). Your failure to send an appeal directly to the FOIA 
Appeals Officer may delay processing.
    (b) The appeal must include:
    (1) Copies of all correspondence between you and the Agency 
concerning the FOIA request, including the request and the Agency's 
response (if there is one); and
    (2) An explanation of why you believe the Agency's response was in 
error.
    (c) The appeal should include your name, mailing address, daytime 
telephone number (or the name and telephone number of an appropriate 
contact), email address, and fax number (if available) in case the 
Agency needs additional information or clarification.
    (d) An appeal concerning a denial of expedited processing or a fee 
waiver denial should also demonstrate fully how the criteria in Sec.  
2105.18 or Sec. Sec.  2105.43 and 2105.46 are met.
    (e) All communications concerning an appeal should be clearly 
marked with the words: ``FREEDOM OF INFORMATION APPEAL.''
    (f) The Agency will reject an appeal that does not attach all 
correspondence required by paragraph (b)(1) of this section, unless the 
FOIA Appeals Officer determines, in his or her sole discretion, that 
good cause exists to accept the defective appeal. The time limits for 
responding to an appeal will not begin to run until the correspondence 
is received.


Sec.  2105.58  Who makes decisions on appeals?

    (a) The FOIA Appeals Officer is the deciding official for FOIA 
appeals.
    (b) When necessary, the appropriate deciding official for FOIA 
appeals will consult other appropriate offices, including legal 
counsel, for denials of records and fee waivers.
    (c) The deciding official for FOIA appeals normally will not make a 
decision on an appeal if the request becomes a matter of FOIA 
litigation.


Sec.  2105.59   How are decisions on appeals issued?

    (a) A decision on an appeal must be made in writing.
    (b) A decision that upholds the Agency's determination will notify 
you of the decision and your statutory right to file a lawsuit.
    (c) A decision that overturns, remands, or modifies the Agency's 
determination will notify you of the decision. The Agency then must 
further process the request in accordance with the appeal 
determination.


Sec.  2105.60  When can you expect a decision on your appeal?

    (a) The basic time limit for responding to an appeal is 20 workdays 
after receipt of an appeal meeting the requirements of Sec.  2105.57.
    (b) If the Agency is unable to reach a decision on your appeal 
within the given time limit for response, the appropriate deciding 
official for FOIA appeals will notify you of your statutory right to 
seek review in a United States District Court.


Sec.  2105.61  Can you receive expedited processing of appeals?

    (a) To receive expedited processing of an appeal, you must 
demonstrate to the Agency's satisfaction that the appeal meets one of 
the criteria under Sec.  2105.18 and include a statement that the need 
for expedited processing is true and correct to the best of your 
knowledge and belief.
    (b) The appropriate deciding official for FOIA appeals will advise 
you whether the Agency will grant expedited processing within 10 
calendar days of receiving the appeal.
    (c) If the appropriate deciding official for FOIA appeals decides 
to grant expedited processing, he or she will give the appeal priority 
over other pending appeals and process it as soon as practicable.


Sec.  2105.62  Must you submit an appeal before seeking judicial 
review?

    Before seeking review by a court of the Agency's adverse 
determination, you generally must first submit a timely administrative 
appeal.

Subpart I--General Information


Sec.  2105.63  Where are records made available?

    Records that are required by the FOIA to be made proactively 
available for public inspection and copying are accessible on the 
Agency's website. They may also be available at the Agency's office 
location.


Sec.  2105.64  What are public liaisons?

    (a) The Agency has a FOIA Officer or Public Liaison who can assist 
requesters who have concerns about the service they received when 
seeking records or who are seeking assistance under Sec.  2105.3 or 
Sec.  2105.35(i).
    (b) FOIA Public Liaisons report to the Agency's Chief FOIA Officer 
and you can raise concerns to them about the service you have received.
    (c) FOIA Public Liaisons are responsible for assisting in reducing 
delays, increasing transparency and understanding of the status of 
requests, and assisting in resolving disputes.
    (d) A list of the Agency's FOIA Public Liaisons is available at 
https://www.cfa.gov/foia.


Sec.  2105.65  When will the Agency make records available without a 
FOIA request?

    (a) Each Agency must:
    (1) Determine which of its records must be made publicly available 
under the FOIA (for example, certain frequently requested records);
    (2) Identify additional records of interest to the public that are 
appropriate for public disclosure; and
    (3) Post those records in FOIA libraries.
    (b) Because of these proactive disclosures, you are encouraged to 
review the Agency's FOIA libraries before filing a FOIA request. The 
material you seek may be immediately available electronically at no 
cost.


Sec.  2105.66  How will FOIA materials be preserved?

    (a) Each Agency must preserve all correspondence pertaining to the

[[Page 15523]]

requests that it receives under subpart B of this part, as well as 
copies of all requested records, until disposition or destruction is 
authorized by the General Records Schedule 4.2 of the National Archives 
and Records Administration (NARA) or another NARA-approved records 
schedule.
    (b) Materials that are identified as responsive to a FOIA request 
will not be disposed of or destroyed while the request or a related 
appeal or lawsuit is pending. This is true even if they would otherwise 
be authorized for disposition or destruction under the General Records 
Schedule 4.2 of NARA or another NARA-approved records schedule.


Sec.  2105.67  How will an Agency handle a request for federally-funded 
research data?

    (a) If you request research data that were used by the Federal 
Government in developing certain kinds of agency actions, and the 
research data relate to published research findings produced under an 
award, in accordance with OMB Circular A-110:
    (1) If the Agency was the awarding agency, it will request the 
research data from the recipient;
    (2) The recipient must provide the research data within a 
reasonable time; and
    (3) The Agency will review the research data to see if it can be 
released under the FOIA.
    (b) If the Agency obtains the research data solely in response to 
your FOIA request, the Agency may charge you a reasonable fee equaling 
the full incremental cost of obtaining the research data.
    (1) This fee should reflect costs incurred by the Agency, the 
recipient, and applicable subrecipients.
    (2) This fee is in addition to any fees the Agency may assess under 
the FOIA.
    (c) The Agency will forward a copy of the request to the recipient, 
who is responsible for searching for and reviewing the requested 
information in accordance with these FOIA regulations. The recipient 
will forward a copy of any responsive records that are located, along 
with any recommendations concerning the releasability of the data, and 
the total cost incurred in searching for, reviewing, and providing the 
data.
    (d) The Agency will review and consider the recommendations of the 
recipient regarding the releasability of the requested research data. 
However, the Agency, not the recipient, is responsible for deciding 
whether the research data will be released or withheld.


Sec.  2105.68  What definitions apply to this part?

    For the purposes of this part, the following definitions apply:
    Agency means the Commission of Fine Arts.
    Commercial interest means a commercial, trade, or profit interest 
as these terms are commonly understood. Your status as profitmaking or 
non-profitmaking is not the deciding factor in determining whether you 
have a commercial interest.
    Commercial use means a use that furthers your commercial, trade or 
profit interests or that of the person on whose behalf the request is 
made.
    Confidential information means trade secrets or commercial or 
financial information (that is privileged or confidential and obtained 
by the Agency from a person) that may be protected from disclosure 
under Exemption 4 of the FOIA.
    Direct costs means those resources that the Agency expends in 
searching for and duplicating (and, in the case of commercial-use 
requests, reviewing) records to respond to a FOIA request. For example, 
direct costs include the salary of the employee performing the work 
(the basic rate of pay for the employee plus 16 percent of that rate to 
cover benefits) and the cost of operating duplicating machinery, 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.
    Duplication means 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.
    Educational institution means any school that operates a program of 
scholarly research. In order to fall within this category, you must 
show that the request is authorized by and made under the auspices of, 
a qualifying institution and that the records are not sought for a 
commercial use, but rather are sought to further scholarly research.
    Exceptional circumstances means a delay that does not result from a 
predictable workload of requests (unless the Agency demonstrates 
reasonable progress in reducing its backlog of pending requests).
    Exempt means the record in question, or a portion thereof, is not 
subject to disclosure due to one or more of the FOIA's nine statutory 
exemptions, found at 5 U.S.C. 552(b)(1)-(9).
    Exemption means one or more of the FOIA's nine statutory 
exemptions, found at 5 U.S.C. 552(b)(1)-(9).
    Expedited processing means giving a FOIA request priority and 
processing it ahead of other requests pending in the Agency because you 
have shown a compelling need for the records.
    Fee category means one of the four categories, discussed in 
Sec. Sec.  2105.36 and 2105.37, that agencies place you in for the 
purpose of determining whether you will be charged fees for search, 
review, and duplication.
    FOIA means the Freedom of Information Act, 5 U.S.C. 552, as 
amended.
    FOIA libraries means a physical or electronic compilation of 
records required to be made available to the public for inspection and 
copying under 5 U.S.C. 552(a)(2). It also includes a physical or 
electronic compilation of records that the Agency, at its discretion, 
makes available to the public for inspection and copying.
    Frequently requested records means records that have been released 
to any person in response to a FOIA request and that have been 
requested, or that the Agency anticipates will be requested, at least 
two more times under the FOIA.
    Multitrack processing means placing simple requests, requiring 
relatively minimal review, in one processing track and more voluminous 
and complex requests in one or more other tracks. Requests in each 
track are ordinarily processed on a first-in/first-out basis.
    Noncommercial scientific institution means an institution that is 
not operated for commerce, trade or profit, 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. To be 
in this category, you must show that the request is authorized by and 
is made under the auspices of a qualifying institution and that the 
records are not sought for a commercial use but are sought to further 
scientific research.
    OMB Fee Guidelines means the Uniform Freedom of Information Fee 
Schedule and Guidelines published by the Office of Management and 
Budget on March 27, 1987.
    Published means, for the purposes of Sec.  2105.67 only, when:
    (1) Research findings are published in a peer-reviewed scientific 
or technical journal; or
    (2) A Federal agency publicly and officially cites the research 
findings in support of an agency action that has the force and effect 
of law.
    Recipient means, for the purposes of Sec.  2105.67 only, an 
organization receiving financial assistance directly from Federal 
awarding agencies to carry out a project or program. The term

[[Page 15524]]

includes public and private institutions of higher education, public 
and private hospitals, and other quasi-public and private non-profit 
organizations. The term may include commercial organizations, foreign 
or international organizations (such as agencies of the United Nations) 
which are recipients, subrecipients, or contractors or subcontractors 
of recipients or subrecipients at the discretion of the Federal 
awarding agency. The term does not include Government-owned contractor-
operated facilities or research centers providing continued support for 
mission-oriented, large-scale programs that are Government-owned or 
controlled, or are designated as federally-funded research and 
development centers.
    Record means an agency record that is either created or obtained by 
an agency and is under agency possession and control at the time of the 
FOIA request, or is maintained by an entity under Government contract 
for the purposes of records management.
    Representative of the news media means 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 as used 
in this definition means information that is about current events or 
that would be of current interest to the public. Examples of news media 
entities are newspapers, television, websites, or radio stations 
broadcasting to the public at large, and publishers of periodicals (but 
only if such entities qualify as disseminators of news) who make their 
products available for purchase by or subscription by or free 
distribution to the general public. These examples are not all 
inclusive. As methods of news delivery evolve, alternative 
representatives of news media may come into being. A freelance 
journalist will qualify as a news-media entity if he or she can 
demonstrate a solid basis for expecting publication through that 
entity, whether or not the journalist is actually employed by that 
entity (for example, a publication contract would present a solid basis 
for such an expectation).
    Research data means, for the purposes of Sec.  2105.67 only, the 
recorded factual material commonly accepted in the historic and/or 
architectural communities as necessary to validate research findings, 
but not any of the following: preliminary analyses, drafts of 
scientific papers, plans for future research, peer reviews, or 
communications with colleagues. The term recorded as used in this 
definition excludes physical objects (e.g., laboratory samples). 
Research data also do not include:
    (1) Trade secrets, commercial information, materials necessary to 
be held confidential by a researcher until they are published, or 
similar information which is protected under law; and
    (2) Personnel and medical information and similar information the 
disclosure of which would constitute a clearly unwarranted invasion of 
personal privacy, such as information that could be used to identify a 
particular person in a research study.
    Review means the examination of a record located in response to a 
request 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 time also includes time spent both 
obtaining and considering any formal objection to disclosure made by a 
confidential information submitter under subpart G of this part, but it 
excludes time spent resolving general legal or policy issues regarding 
the application of FOIA exemptions.
    Search means the process of looking for and retrieving records 
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 electronic records.
    Submitter means any person or entity outside the Federal Government 
from whom the Agency obtains confidential information, directly or 
indirectly. The term includes, but is not limited to individuals, 
corporations, and state, local, tribal, and foreign governments.
    Unusual circumstances means the need to search for and collect 
requested records from field facilities or other establishments that 
are separate from the office processing the request; the need to search 
for, collect, and examine a voluminous amount of separate and distinct 
records which are demanded in a single request; or the need for 
consultation, which shall be conducted with all practicable speed, with 
another agency, or among two or more components of the Agency, having a 
substantial interest in the determination of the request.
    Workday means a regular Federal workday. It excludes Saturdays, 
Sundays, or Federal legal public holidays. Items arriving or delivered 
after 5 p.m. Eastern Time will be deemed received on the next workday.
    You means a person requesting records, or filing an appeal, under 
the FOIA.

Appendix A to Part 2105--Fee Schedule

------------------------------------------------------------------------
               Types of records                           Fee
------------------------------------------------------------------------
(1) Physical records:
Pages no larger than 8.5 x 14 inches, when     $.15 per page ($.30 for
 reproduced by standard office copying          double-sided copying).
 machines or scanned into an electronic
 format.
Color copies of pages no larger than 8.5 x 11  $.90 per page.
 inches.
Pages larger than 8.5 x 14 inches............  Direct cost to CFA.
Color copies of pages no larger than 11 x 17   $1.50 per page.
 inches.
Photographs and records requiring special      Direct cost to CFA.
 handling (for example, because of age, size,
 or format).
(2) Electronic records:
Charges for services related to processing     Direct cost to CFA.
 requests for electronic records.
Certification
Each certificate of verification attached to   $.25.
 authenticate copies of records.
(4) Postage:
Charges that exceed the cost of first class    Postage or delivery
 postage, such as express mail or overnight     charge.
 delivery.
(5) Other Services:
Cost of special services or materials, other   Direct cost to CFA.
 than those provided for by this fee
 schedule, when requester is notified of such
 costs in advance and agrees to pay them.
------------------------------------------------------------------------



[[Page 15525]]

    Dated: April 3, 2019.
Thomas Luebke,
Secretary.

[FR Doc. 2019-06919 Filed 4-15-19; 8:45 am]
BILLING CODE 6330-01-P