[Federal Register Volume 84, Number 98 (Tuesday, May 21, 2019)]
[Proposed Rules]
[Pages 23005-23014]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-08336]
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COMMITTEE FOR PURCHASE FROM PEOPLE WHO ARE BLIND OR SEVERELY DISABLED
41 CFR Parts 51-8
RIN 3037-AA10
Proposed Public Availability of Agency Materials
AGENCY: Committee for Purchase From People Who Are Blind or Severely
Disabled.
[[Page 23006]]
ACTION: Proposed rule with request for comments.
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SUMMARY: This document amends the Committee for Purchase From People
Who Are Blind or Severely Disabled's (Committee) regulations in their
entirety under the Freedom of Information Act (FOIA) to incorporate
changes made to the FOIA by the FOIA Improvement Act of 2016. In
addition, this document amends provisions in the fee section to reflect
developments in the case law and to streamline the description of the
factors to be considered when making fee waiver determinations.
DATES: Comment Date: Comments should be submitted on or before June 10,
2019 to be considered in the formulation of the final rule.
ADDRESSES: You may submit your comments, identified by ``RIN 3037-
AA10'' by any of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Comments received will be posted without change to
www.regulations.gov including any personal information provided. To
confirm receipt of your comment(s), please check www.regulations.gov
approximately two to three days after submission to verify posting
(except allow for 30 days for posting of comments submitted by mail).
FOR FURTHER INFORMATION CONTACT: Timi Nickerson Kenealy, 703-603-2121.
SUPPLEMENTARY INFORMATION:
I. Background
The Committee's last rule amending its FOIA policies was published
in the Federal Register on April 3, 1998, Volume 63, No. 64, pages
16439-16440.
The Freedom of Information Act (FOIA) at 5 U.S.C. 552, requires
agencies to ``promulgate regulations, pursuant to notice and receipt of
public comment, specifying the schedule of fees applicable to the
processing of requests [the FOIA] and establishing procedures and
guidelines for determining when such fees should be waived or
reduced.'' Additionally, an agency may, in its regulation, designate
those components that can receive FOIA requests, provide for the
aggregation of certain requests, and provide for multitrack processing
of requests. Finally, the FOIA requires agencies to ``promulgate
regulations . . . providing for expedited processing of requests for
records.''
On June 30, 2016, the FOIA Improvement Act of 2016 (Act) was
signed. The Act requires agencies to notify requesters for engaging in
dispute resolution through the FOIA Public Liaison and the Office of
Government Information Services. It also requires that agencies
(i) make records that have been both released previously and
requested three or more times available to the public in electronic
format,
(ii) establish a minimum of ninety days for requesters to appeal an
adverse determination, and
(iii) provide, or direct requesters to, dispute resolution services
at various times throughout the FOIA process.
The FOIA Improvement Act also adds restrictions to when agencies
can charge certain fees if they are not able to meet FOIA's time
limits.
This document replaces and renumbers in its entirety the
Committee's regulations in 41 CFR part 51-8 to reflect those statutory
changes.
II. Changes Proposed by the Committee in This Rulemaking
This rule amends the Committee's regulations under the FOIA
consistent with Department of Justice's Guidance for Agency FOIA
Regulations issued September 8, 2016, and adopts both the format and
suggested language of the accompanying Template for Agency FOIA
Regulations. Revised provisions include the following:
Sec. 51-8.1 (General) that replaces 51-8.1 Purpose and 8.2 Scope,
Sec. 51-8.2 (Proactive disclosure of Committee records) (new),
replaces 51-8.4 Availability of materials requiring agencies to make
records available in electronic format rather than making them
available for public inspection and copying,
Sec. 51-8.3 (Requirements for making requests, replaces old 51-8.5
Requests for records (old 8.3 Definitions is repealed (definitions are
incorporated in each section where included)),
Sec. 51-8.4 (Responsibility for responding to requests), replaces
old 51-8.4 Availability of materials (allowing for review of records at
the agency's physical location--repealed) and 51-8.9 Records of other
agencies now at 51-8.4(c)(2)
Sec. 51-8.5 (Timing of responses to requests), replaces old 51.8-7
Committee response to requests for records and 51-8.11 Extensions of
time,
Sec. 51-8.6 (Response to requests), replaces old 51-8.6
Aggregating requests and 8.7 Committee response to requests for
records,
Sec. 51-8.7 (Confidential commercial information), replaces old
51-8.8 Business information,
Sec. 51-8.8 (Administrative appeals) replaces 51-8.10 Appeals,
Sec. 51-8.9 (Preservation of records), replaces 51-8.16
Preservation of records,
Sec. 51-8.10 (Fees) replaces 51-8.7(f) notice of fees or to modify
request and (g) notice requirements for fees, 8.12 Fee schedule, 8.13
Fees charged by category of requester, 8.14 Fee waivers and reductions,
and 8.15 Collection of fees and charges, and
Sec. 51-8.11 (Other rights and services) (new).
Section 51-8.1 (General) is revised to delete the reference to the
Department's policy regarding discretionary release of information
whenever disclosure would not foreseeably harm an interest protected by
a FOIA exemption, because that foreseeable harm standard is now part of
the FOIA statute itself as a result of the FOIA Improvement Act of
2016.
Section 51-8.2 (Proactive disclosure of Department records) is
revised to more clearly reflect the FOIA Improvement Act of 2016's
requirement that records the FOIA requires agencies to make available
for public inspection must be in an electronic format, rather than
simply made available for public inspection and copying.
As explained below, this document amends the provisions in 51-8.12
through 51-8.15 by incorporating all fee-related provisions provisions
in Sec. [thinsp]51-8.10 (Fees) to incorporate the new statutory
restrictions on charging fees in certain circumstances, to reflect
developments in the case law, and to streamline the description of the
factors to be considered when making fee waiver determinations.
Paragraph (b) of Sec. [thinsp]51-8.10 (Fees) conforms to recent
decisions of the D.C. Circuit Court of Appeals addressing two FOIA fee
categories: ``representative of the news media'' and ``educational
institution.'' See Cause of Action v. FTC, 799 F.3d 1108 (D.C. Cir.
2015); Sack v. DOD, 823 F.3d 687 (D.C. Cir. 2016). The Committee's
existing FOIA regulations state that a representative of the news media
is ``any person actively gathering news for an entity that is organized
and operated to publish or broadcast news to the public.'' In Cause of
Action, 799 F.3d at 1125, the court held that a representative of the
news media need not work for an entity that is ``organized and
operated'' to publish or broadcast news. Therefore, the definition of
``representative of the news media'' is revised to remove the
``organized and operated'' requirement. The definition of ``educational
institution'' is revised to reflect the holding in Sack, 823 F.3d at
688, that students who make FOIA requests in furtherance of their
coursework or other school-sponsored activities may qualify under this
requester category.
Paragraph (d)(2) of Sec. [thinsp]51-8.10, which addresses
restrictions on charging fees
[[Page 23007]]
when the FOIA's time limits are not met, is revised to reflect changes
made to those restrictions by the FOIA Improvement Act of 2016.
Specifically, these changes reflect that agencies may not charge search
fees (or duplication fees for representatives of the news media and
educational/non-commercial scientific institution requesters) when the
agency fails to comply with the FOIA's time limits. The restriction on
charging fees is excused and the agency may charge fees as usual when
it satisfies one of three exceptions detailed at 5 U.S.C.
552(a)(4)(A)(viii)(II).
Lastly, this rule revises paragraph (k) of Sec. [thinsp]51-8.10,
which addresses the requirements for a waiver or reduction of fees, to
specify that requesters may seek a waiver of fees and to streamline and
simplify the description of the factors to be considered by components
when making fee waiver determinations. These updates do not
substantively change the analysis, but instead present the factors in a
way that is clearer to both the Committee and requesters. Rather than
six factors, the amended section provides for three overall factors.
Specifically, a requester should be granted a fee waiver if the
requested information (1) sheds light on the activities and operations
of the government; (2) is likely to contribute significantly to public
understanding of those operations and activities; and (3) is not
primarily in the commercial interest of the requester. This streamlined
description facilitates easier understanding and application of the
statutory standard.
Section 51-8.1 (General) is revised to delete the reference to the
Department's policy regarding discretionary release of information
whenever disclosure would not foreseeably harm an interest protected by
a FOIA exemption, because that foreseeable harm standard is now part of
the FOIA statute itself as a result of the FOIA Improvement Act of
2016.
Section 51-8.2 (Proactive disclosure of Department records) is
revised to more clearly reflect the FOIA Improvement Act of 2016's
requirement that records the FOIA requires agencies to make available
for public inspection must be in an electronic format, rather than
simply made available for public inspection and copying.
Additional information about the Committee's FOIA program--
including how to submit a FOIA request to the Committee can be found at
https://www.abilityone.gov/laws,_regulations_and_policy/foia.html.
III. Expected Impact of the Proposed Rule
The Committee actively works to make certain its FOIA system
operates as efficiently as possible. The website provides explicit
instructions for those who wish to submit a FOIA request. The
Committee's requesters are a diverse community, including lawyers,
industry professionals, reporters, and members of the public. Costs for
these requestors can include the time required to research the current
FOIA rule and the time and preparation required to respond to a
request/appeal.
The Agency receives about an average of 15 FOIA requests per year.
The majority of the FOIA requests, include request for information on
the number of disabled personnel working on individual projects, hourly
wages of personnel with disabilities working individual projects. These
proposed revisions will make it easier to research and review the
Committee's FOIA rule before submitting a request. Many of the measures
discussed in Section II of this document should facilitate FOIA
requests and production. Although the Committee is unable to quantify
these savings, the Committee does believe it is deregulatory in nature
in that it provides relief to requestors.
IV. Regulatory Procedures
Executive Order 12866--Regulatory Planning and Review and Executive
Order 13563--Improving Regulation and Regulatory Review
Executive Orders 12866 and 13563 direct agencies to assess all
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). Executive
Order 13563 emphasizes the importance of quantifying both costs and
benefits, reducing costs, harmonizing rules, and promoting flexibility.
This document is not a significant regulatory action, under E.O. 12866.
Executive Order 13771--Reducing Regulations and Controlling Regulatory
Costs
This proposed rule is expected to be an E.O. 13771 deregulatory
action. Details can be found in Section III--Expected Impact of the
Proposed Rule.
Regulatory Flexibility Act
It has been certified that this rule is not subject to the
Regulatory Flexibility Act (5 U.S.C. 601) because it would not, if
promulgated, have a significant economic impact on a substantial number
of small entities.
Paperwork Reduction Act
This rule does not contain an information collection requirement
subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et
seq.).
Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by State, local, and
Tribal governments, in the aggregate, or by the private sector, of
$100,000,000 or more in any one year, and it will not significantly or
uniquely affect small governments.
List of Subjects in 41 CFR Part 51-8
Administrative practice and procedure, Freedom of Information Act,
Privacy Act.
For reasons set forth in the preamble, the Committee proposes to
amend 41 CFR part 51-8 to read as follows:
PART 51-8--PUBLIC AVAILABILTY OF AGENCY MATERIALS
Sec.
51-8.1. General.
51-8.2. Proactive Disclosures.
51-8.3. Requirements for Making Requests.
51-8.4. Responsibility for Responding to Requests.
51-8.5. Timing of Responses to Requests.
51-8.6. Responses to Requests.
51-8.7. Confidential Commercial Information.
51-8.8. Administrative Appeals.
51-8.9. Preservation of Records.
51-8.10. Fees.
51-8.11. Other Rights and Services.
Authority: 5 U.S.C. 552
PART 51-8--PUBLIC AVAILABILTY OF AGENCY MATERIALS
Sec. 51-8.1 General.
(a) This part contains the rules that the Committee for Purchase
From People Who Are Blind or Severely Disabled (Committee) follows in
processing requests for records under the Freedom of Information Act
(``FOIA''), 5 U.S.C. 552. The rules in this part should be read in
conjunction with the text of the FOIA and the Uniform Freedom of
Information Fee Schedule and Guidelines published by the Office of
Management and Budget (``OMB Guidelines''). Requests made by
individuals for records about themselves under the Privacy Act of 1974,
5 U.S.C. 552a, are processed under part 51-9 as well as under this
part. As a matter of policy, the Committee makes discretionary
disclosures of records or information exempt from disclosure under the
FOIA
[[Page 23008]]
whenever disclosure would not foreseeably harm an interest protected by
a FOIA exemption, but this policy does not create any right enforceable
in court.
(b) The Committee has a centralized system for processing requests,
all requests are handled by the FOIA Officer.
Sec. 51-8.2 Proactive Disclosures.
Records that the Committee is required to make available for public
inspection in an electronic format may be accessed through the
Committee's public website: www.abilityone.gov. The Committee is
responsible for determining which of its records must be made publicly
available, for identifying additional records of interest to the public
that are appropriate for public disclosure, and for posting and
indexing such records. The Committee shall ensure that its website of
posted records and indices is reviewed and updated on an ongoing basis.
The Committee's FOIA Public Liaison contact information is available at
http://www.abilityone.gov/laws,_regulations_and_policy/foia.html.
Sec. 51-8.3 Requirements for Making Requests.
(a) General Information.
(1) The Committee has designated a FOIA office to process and
respond to all FOIA requests. All Committee departments have the
capability to receive requests electronically either through email or a
web portal. A request will receive the quickest possible response if it
is addressed to the FOIA office. To make a request for records, a
requester should write directly to the FOIA office.
(2) A requester may submit a request for records to the Executive
Director at the Committee's offices, 1401 S. Clark Street, Suite 715,
Arlington, Virginia 22202-3259, or via email to [email protected], or
via facsimile to (703) 603-0655. The request must be in writing and
should indicate that it is being made under the FOIA. Failure to submit
a request in accordance with these procedures may delay the processing
of the request.
(3) A requester who is making a request for records about himself
or herself must comply with the verification of identity provision set
forth in part 51-9.
(4) Where a request for records pertains to a third party, 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 has deceased (e.g., a copy of a
death certificate or an obituary). As an exercise of administrative
discretion, the Committee can require a requester to supply additional
information if necessary in order to verify that a particular
individual has consented to disclosure.
(b) Description of records sought. Requesters must describe records
sought in sufficient detail to enable Committee personnel to locate
them with a reasonable amount of effort. To the extent possible,
requesters should include specific information that may assist in
identifying the requested records, such as the date, title or name,
author, recipient, subject matter of the record, case number, file
designation, or reference number. In general, requesters should include
as much detail as possible about the specific records or the types of
records that they are seeking. Before submitting their requests,
requesters may contact the FOIA office or FOIA Public Liaison to
discuss the records they are seeking and to receive assistance in
describing the records. If after receiving a request the FOIA office
determines that it does not reasonably describe the records sought, the
FOIA office shall inform the requester what additional information is
needed or why the request is otherwise insufficient. Requesters who are
attempting to reformulate or modify such a request may discuss their
request with the FOIA office or FOIA Public Liaison, each of whom is
available to assist the requester in reasonably describing the records
sought. If a request does not reasonably describe the records sought,
the agency's response to the request may be delayed.
(c) If the Committee determines that a request does not reasonably
describe the records, it shall inform the requester of this fact and
extend to the requester an opportunity to clarify the request or to
confer promptly with knowledgeable Committee personnel to attempt to
identify the records being sought or to reformulate a request. The
Committee may offer assistance in identifying records and reformulating
a request where: the description is deemed insufficient, the production
of voluminous records is required, or a considerable number of work
hours would be required to complete the request that would interfere
with the business of the Committee.
Sec. 51-8.4 Responsibility for Responding to Requests.
(a) In general. Except in the instances described in paragraphs (c)
of this section, the Committee is responsible for responding to a
record request it received. In determining which records are responsive
to a request, the Committee ordinarily will include only records in its
possession as of the date that it begins its search. If any other date
is used, the Committee shall 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. The Committee
has no obligation to create a record solely for the purpose of making
it available under the FOIA.
(b) Authority to grant or deny requests. The Executive Director, or
designee, is authorized to grant or deny any request for records that
are maintained by the Committee.
(c) Consultation, referral, and coordination. When reviewing
records located by the Committee in response to a request, the
Committee shall 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 Committee
shall proceed in one of the following ways:
(1) Consultation. When records originated with the Committee
processing the request, but contain information of interest to another
agency, or other Federal Government office, the Committee should
typically consult with that other agency prior to making a release
determination.
(2) Referral.
(i) When upon the receipt of the request the Committee determines
that a different agency, or other Federal Government office is best
able to determine whether to disclose the record, the Committee should
refer the responsibility for responding to the request to the other
agency, as long as that agency is subject to the FOIA. Ordinarily, the
agency that originated the record will be presumed to be best able to
make the disclosure determination. However, if the Committee processing
the request and the originating agency jointly agree that the former is
in the best position to respond regarding the record, then the record
may be handled as a consultation.
(ii) Whenever the Committee refers any part of the responsibility
for responding to a request to another agency, it shall document the
referral, maintain a copy of the record that it refers, and notify the
requester of the referral and inform the requester of the
[[Page 23009]]
name(s) of the agency to which the record was referred, including that
agency's FOIA contact information.
(3) Coordination. The standard referral procedure is not
appropriate where disclosure of the identity of the agency to which the
referral would be made could harm an interest protected by an
applicable exemption, such as the exemptions that protect personal
privacy or national security interests. For example, if the Committee
responding to a request for records on a living third party locates
within its files records originating with a law enforcement agency, and
if the existence of that law enforcement interest in the third party
was not publically known, then to disclose that law enforcement
interest could cause an unwarranted invasion of the personal privacy of
the third party. Similarly, if the Committee locates within its files
material originating with an Intelligence Community agency, and the
involvement of that agency in the matter is classified and not publicly
acknowledged, then to disclose or give attribution to the involvement
of that Intelligence Community agency could cause national security
harms. In such instances, in order to avoid harm to an interest
protected by an applicable exemption, the Committee, upon receipt of
the request, should coordinate with the originating component or agency
to seek its views on the disclosability of the record. The release
determination for the record that is the subject of the coordination
should then be conveyed to the requester by the Committee.
(d) Classified information. Whenever a request involves a record
containing information that has been classified or may be appropriate
for classification by another agency under any applicable executive
order concerning the classification of records, the Committee shall
refer the responsibility for responding to the request regarding that
information to the agency that classified the information, or that
should consider the information for classification. Whenever a
component's record contains information that has been derivatively
classified (e.g., when it contains information classified by another
agency), the Committee shall refer the responsibility for responding to
that portion of the request to the agency that classified the
underlying information.
(e) Timing of responses to consultations and referrals. All
consultations and referrals received by the Committee will be handled
according to the date that the FOIA request was received by the first
agency.
(f) Agreements regarding consultations and referrals. The Committee
may establish agreements with other agencies to eliminate the need for
consultations or referrals with respect to particular types of records.
Sec. 51-8.5 Timing of Responses to Requests.
(a) In general.
(1) The Committee ordinarily will respond to requests according to
their order of receipt. The time limits prescribed in the FOIA will
begin only after the Committee identifies a request as being made under
the FOIA and deemed received by the Committee.
(2) An initial determination whether, and to what extent, to grant
each request for records or a fee waiver shall be made within 10
business days after receipt of that request. The requester shall be
notified as soon as the determination is made.
(3) When a requester complies with the procedures established in
this part for obtaining records under the FOIA, the request shall
receive prompt attention, and a response will be made within 20
business days.
(b) Unusual circumstances. Whenever the Committee cannot meet the
statutory time limit for processing a request because of ``unusual
circumstances,'' as defined in the FOIA, and the Committee extends the
time limit on that basis, the Committee shall, before expiration of the
20-day period to respond, notify the requester in writing of the
unusual circumstances involved and of the date by which processing of
the request can be expected to be completed. Where the extension
exceeds 10 working days, the Committee 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 Committee shall make available its FOIA office
and its FOIA Public Liaison for this purpose. The agency must also
alert requesters to the availability of the Office of Government
Information Services to provide dispute resolution services.
(c) Aggregating requests. For the purposes of satisfying unusual
circumstances under the FOIA, the Committee 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 Committee shall not aggregate multiple requests that
involve unrelated matters.
(d) Multitrack processing. (1) The Committee may use two or more
processing tracks by distinguishing between simple, complex, and
expedited requests based on the amount of work and/or time needed to
process a request or the number of pages involved. Expedited processing
shall be in accordance with the standards set forth in paragraph (g) of
this section. Among the factors a component may consider are the number
of pages involved in processing the request and the need for
consultations or referrals. The Committee shall advise requesters of
the track into which their request falls and, when appropriate, shall
offer the requesters an opportunity to narrow their request so that it
can be placed in a different processing track.
(e) Expedited processing. (1) Requests and appeals may be taken out
of order and given expedited treatment whenever it is determined that
they involve:
(i) Circumstances in which the lack of expedited processing could
reasonably be expected to pose an imminent threat to the life or
physical safety of an individual;
(ii) An urgency to inform the public about an actual or alleged
Federal Government activity, if made by a person who is primarily
engaged in disseminating information;
(iii) The loss of substantial due process rights; or
(iv) A matter of widespread and exceptional media interest in which
there exist possible questions about the government's integrity that
affect public confidence.
(2) A request for expedited processing may be made at any time.
Requests based on paragraphs (e)(1)(i) through (iv) of this section
must be submitted to the Committee's FOIA office.
(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
[[Page 23010]]
administrative discretion, the Committee may waive the formal
certification requirement.
(4) The Committee shall 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 will be given priority and processed
as soon as practicable. If a request for expedited processing is
denied, any appeal of that decision shall be acted on expeditiously.
Sec. 51-8.6 Responses to Requests.
(a) In general. The Committee should, to the extent practicable,
communicate with requesters having access to the internet using
electronic means, such as email or web portal.
(b) Acknowledgment of requests. The Committee shall acknowledge the
request and assign it an individualized tracking number if it will take
longer than 10 working days to process. The Committee shall include in
the acknowledgement a brief description of the records sought to allow
requesters to more easily keep track of their requests.
(c) Grants of requests. When the Committee makes a determination to
grant a request in full or in part, it shall notify the requester in
writing. The Committee shall inform the requester of any fees charged
under subpart 51-8.10 of this part and shall disclose the requested
records to the requester promptly upon payment of any applicable fees.
The Committee must inform the requester of the availability of the FOIA
Public Liaison to offer assistance.
(d) Adverse determinations of requests. If the Committee makes an
adverse determination denying a request in any respect, the requester
will be notified 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.
(e) Content of denial. The denial will be signed by the Executive
Director or designee and 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 in denying the request;
(3) An estimate of the volume of any records or information
withheld, such as the number of pages or some other reasonable form of
estimation, although such an estimate is not required if the volume is
otherwise indicated by deletions marked on records that are disclosed
in part or if providing an estimate would harm an interest protected by
an applicable exemption;
(4) A statement that the denial may be appealed under subpart 51-
8.8 of this part, and a description of the appeal requirements set
forth therein; and
(5) A statement notifying the requester of the assistance available
from the Committee's FOIA Public Liaison and the dispute resolution
services offered by Office of Government Information Services (OGIS).
Sec. 51-8.7 Confidential Commercial Information.
(a) Definitions.
(1) Confidential commercial information means commercial or
financial information obtained by the Committee 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, either at the time of submission or
within a reasonable time thereafter, 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. (1) The Committee will
promptly provide written notice to the submitter of confidential
commercial information whenever records containing such information are
requested under the FOIA if, after reviewing the request, the
responsive records, and any appeal by the requester, the Committee
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 Committee 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
under that exemption or any other applicable exemption.
(2) The notice must 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, notice may be made by posting or publishing the
notice in a place or manner reasonably likely to accomplish
notification.
(d) Exceptions to submitter notice requirements. The notice
requirements of this section do not apply if:
(1) The Committee determines that the information is exempt under
the FOIA;
(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, except that, in such a case,
the Committee shall give the submitter written notice of any final
decision to disclose the information and shall provide that notice
within a reasonable number of days prior to a specified disclosure
date.
(e) Opportunity to object to disclosure.
(1) The Committee will specify a reasonable time period within
which the submitter must respond to the notice referenced above. If a
submitter has any objections to disclosure, it should provide the
Committee 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 privileged or
confidential.
(2) A submitter who fails to respond within the time period
specified in the notice shall be considered to have no objection to
disclosure of the information. Information received by
[[Page 23011]]
the Committee after the date of any disclosure decision shall not be
considered by the Committee. Any information provided by a submitter
under this subpart may itself be subject to disclosure under the FOIA.
(f) Analysis of objections. The Committee will consider a
submitter's objections and specific grounds for nondisclosure in
deciding whether to disclose the requested information.
(g) Notice of intent to disclose.
(1) Whenever the Committee decides to disclose information over the
objection of a submitter, the Committee will provide the submitter
written notice, which will include:
(i) A statement of the reasons why each of the submitter's
disclosure objections was not sustained;
(ii) A description of the information to be disclosed; and
(iii) A specified disclosure date, which must be a reasonable time
after the notice, and not less than 10 business days after the date of
the notice submission.
(iv) A statement that the submitter must notify the Committee
immediately if the submitter intends to seek injunctive relief.
(2) Notwithstanding paragraph (e)(2) of this section, even if the
submitter fails to respond to Committee's notice specified in paragraph
(c) of this section, whenever the Committee decides to disclose the
commercial information, the Committee will provide the submitter
written notice of disclosure, as specified in paragraph (g)(1) of this
section.
(h) Notice of FOIA lawsuit. Whenever a requester files a lawsuit
seeking to compel the disclosure of confidential commercial
information, the Committee will promptly notify the submitter.
(i) Requester notification. The Committee will notify the requester
whenever it provides the submitter with notice and an opportunity to
object to disclosure; whenever it notifies the submitter of its intent
to disclose the requested information; and whenever a submitter files a
lawsuit to prevent the disclosure of the information.
Sec. 51-8.8 Administrative Appeals.
(a) Requirements for making an appeal. A requester may appeal any
adverse determinations to the Committee's Chief FOIA Officer. The
contact information for the FOIA Officer is available at the
Committee's website, at http://www.abilityone.gov/laws,_regulations_and_policy/foia.html. Appeals can be submitted
through email or the web portal accessible on the FOIA web page.
Examples of adverse determinations are provided in Sec. 51-8.6(d). The
requester must make the appeal in writing and to be considered timely
it must be postmarked, or in the case of electronic submissions,
transmitted, within 90 calendar days after the date of the response.
The appeal should clearly identify the Committee'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 Committee Executive Director or designee will act on behalf
of the Committee on all appeals under this section.
(2) An appeal ordinarily will not be adjudicated if the request
becomes a matter of FOIA litigation.
(3) On receipt of any appeal involving classified information, the
Committee's Chief FOIA Officer shall take appropriate action to ensure
compliance with
(c) Decisions on appeals. A decision on an appeal must be made in
writing. A decision that upholds a Committee determination will contain
a statement that identifies the reasons for the affirmance, 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 mediation 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
a Committee's decision is remanded or modified on appeal, the requester
will be notified of that determination in writing. The Committee will
thereafter further process the request in accordance with that appeal
determination and respond directly to the requester.
(d) Engaging in dispute resolution services provided by OGIS.
Mediation is a voluntary process. If the Committee agrees to
participate in the mediation services provided by the Office of
Government Information Services, 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 a
Committee's adverse determination, a requester generally must first
submit a timely administrative appeal.
Sec. 51-8.9 Preservation of Records.
The Committee will preserve all correspondence pertaining to the
requests it receives under this subpart, 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.
Records will not be destroyed while they are the subject of a pending
request, appeal, or lawsuit under the Act.
Sec. 51-8.10 Fees.
(a) In general. The Committee will charge for processing requests
under the FOIA in accordance with the provisions of this section and
with the OMB Guidelines. In order to resolve any fee issues that arise
under this section, the Committee may contact a requester for
additional information. The Committee shall ensure that searches,
review, and duplication are conducted in the most efficient and the
least expensive manner. The Committee will ordinarily collect all
applicable fees before sending copies of records to a requester.
Requesters must pay fees by check or money order payable to the United
States Department of Treasury.
(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 Committee'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.
(2) Direct costs are those expenses that an agency 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 the
[[Page 23012]]
requester's role at the educational institution. The Committee may seek
assurance from the requester that the request is in furtherance of
scholarly research and agencies will advise requesters of their
placement in this category.
Example 1. A request from a professor of geology at a university
for records relating to soil erosion, written on letterhead of the
Department of Geology, would be presumed to be from an educational
institution.
Example 2. A request from the same professor of geology seeking
drug information from the Food and Drug Administration in furtherance
of a murder mystery he is writing would not be presumed to be an
institutional request, regardless of whether it was written on
institutional stationary.
Example 3. A student who makes a request in furtherance of the
student's coursework or other school-sponsored activities and provides
a copy of a course syllabus or other reasonable documentation to
indicate the research purpose for the request, would qualify as part of
this fee category.
(5) Noncommercial scientific institution is an institution that is
not operated on a ``commercial'' basis, as defined in paragraph (b)(1)
of this section and that is operated solely for the purpose of
conducting scientific research the results of which are not intended to
promote any particular product or industry. A requester in this
category must show that the request is authorized by and is made under
the auspices of a qualifying institution and that the records are
sought to further scientific research and are not for a commercial use.
(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 shall not be considered to be for a
commercial use. ``Freelance'' journalists who demonstrate a solid basis
for expecting publication through a news media entity shall be
considered as a representative of the news media. A publishing contract
would provide the clearest evidence that publication is expected;
however, the Committee shall also consider a requester's past
publication record in making this determination.
(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. 51-
8.7 of this subpart, 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 Committee
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 below already account for the direct costs associated
with a given fee type, the Committee should not add any additional
costs to charges calculated under this section.
(1) Search.
(i) Requests made by educational institutions, noncommercial
scientific institutions, or representatives of the news media are not
subject to search fees. The Committee will charge search fees for all
other requesters, subject to the restrictions of paragraph (d) of this
section. The Committee may properly charge for time spent searching
even if responsive records are not located or if the Committee
determines that the records are entirely exempt from disclosure.
(ii) For each quarter hour spent by personnel searching for
requested records, including electronic searches that do not require
new programming, the fees shall be as follows: Professional--$10.00;
and clerical/administrative--$4.75.
(iii) Requesters shall be charged the direct costs associated with
conducting any search that requires the creation of a new computer
program to locate the requested records. Requesters shall be notified
of the costs associated with creating such a program and must agree to
pay the associated costs before the costs may be incurred.
(iv) For requests that require the retrieval of records stored by
an agency at a Federal records center operated by the National Archives
and Records Administration (NARA), additional costs shall be charged in
accordance with the Transactional Billing Rate Schedule established by
NARA.
(2) Duplication. Duplication fees shall be charged to all
requesters, subject to the restrictions of paragraph (d) of this
section. The Committee shall honor a requester's preference for
receiving a record in a particular form or format where it is readily
reproducible by the Committee in the form or format requested. Where
photocopies are supplied, agencies will provide one copy per request at
the cost of 25[cent] per page. For copies of records produced on tapes,
disks, or other media, the Committee 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 shall also pay the
direct costs associated with scanning those materials. For other forms
of duplication, agencies will charge the direct costs.
(3) Review. The Committee 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 Committee 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 Committee'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.
(1) No search fees will be charged for requests by educational
institutions (unless the records are sought for a commercial use),
noncommercial scientific institutions, or representatives of the news
media.
(2)(i) If the Committee fails to comply with the FOIA's time limits
in which to respond to a request, it may not charge
[[Page 23013]]
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)(2)(ii) through (iv) of this
section.
(ii) If the Committee has determined that unusual circumstances, as
defined by the FOIA, apply and the Committee provided timely written
notice to the requester in accordance with the FOIA, a failure to
comply with the time limit shall be excused for an additional 10 days.
(iii) If the Committee 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 Committee 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. The
Committee must have provided timely written notice of unusual
circumstances to the requester in accordance with the FOIA and the
Committee must have 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 Committee may charge all applicable fees
incurred in the processing of the request.
(iv) If a court has determined that exceptional circumstances
exist, as defined by the FOIA, a failure to comply with the time limits
shall be excused for the length of time provided by the court order.
(3) No search or review fees will be charged for a quarter-hour
period unless more than half of that period is required for search or
review.
(4) Except for requesters seeking records for a commercial use,
Committee shall provide without charge:
(i) The first 100 pages of duplication (or the cost equivalent for
other media); and
(ii) The first two hours of search.
(5) 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.
(1) When the Committee determines or estimates that the fees to be
assessed in accordance with this section will exceed $25.00, the
requesting party will be notified of the actual or estimated amount of
the fees, including a breakdown of the fees for search, review or
duplication, unless a written statement from the requester has been
received indicating a willingness to pay fees as high as those
anticipated. If only a portion of the fee can be readily estimated, the
Committee shall advise the requester accordingly. If the requester is a
noncommercial use requester, the notice shall 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 shall advise the requester
whether those entitlements have been provided.
(2) If the Committee 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 Committee 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 Committee estimates that the total
fee will exceed that amount, the Committee 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 Committee 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 Committee will make available the FOIA Public Liaison or
other personnel 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 Committee 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 Committee may charge interest on any
unpaid bill for processing FOIA requests starting on the 31st day
following the date of billing the requester. Interest rates 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 Committee.
(h) Aggregating requests. When the Committee 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 Committee may aggregate those requests
and charge accordingly. The Committee may presume that multiple
requests of this type made within a 30-day period have been made in
order to avoid fees. For requests separated by a longer period, the
Committee will aggregate them only where there is a reasonable basis
for determining that aggregating the requests is warranted in view of
all the circumstances involved. Multiple requests involving unrelated
matters shall not be aggregated.
(i) Advance payments.
(1) For requests other than those described in paragraphs (i)(2) or
(i)(3) of this section, the Committee shall 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 Committee 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 Committee
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 within 30 calendar days of the billing date, the
Committee may require that the requester pay the full amount due, plus
any applicable interest on that prior request, and the Committee may
require that the requester make an advance payment of the full amount
of any anticipated fee before the Committee begins to process a new
request or continues to process a pending request or any pending
appeal. Where the Committee has a reasonable basis to believe that a
requester has misrepresented the requester's identity in order to avoid
paying outstanding
[[Page 23014]]
fees, it may require that the requester provide proof of identity.
(4) In cases in which the Committee 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 Committee'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 an agency to set and collect fees
for particular types of records. In instances where records responsive
to a request are subject to a statutorily-based fee schedule program,
the Committee shall inform the requester of the contact information for
that program.
(k) Requirements for waiver or reduction 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 Committee 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 (ii) 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 the Committee 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 Committee ordinarily 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 Committee will consider the following criteria:
(A) The Committee must identify whether the requester has any
commercial interest that would be furthered by the requested
disclosure. A commercial interest includes any commercial, trade, or
for profit interest. Requesters must be given an opportunity to provide
explanatory information regarding this consideration.
(B) If there is an identified commercial interest, the Committee
must 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) through (ii) of this section are
satisfied and any commercial interest is not the primary interest
furthered by the request. The Committee ordinarily will presume that
when a news media requester has satisfied the requirements of
paragraphs (k)(2)(i) through (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 shall 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 Committee and should address the
criteria referenced above. A requester may submit a fee waiver request
at a later time as 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. 51-8.11 Other Rights and Services.
Nothing in this subpart shall be construed to entitle any person,
as of right, to any service or to the disclosure of any record to which
such person is not entitled under the FOIA.
Patricia Briscoe,
Deputy Director, Business Operations, (Pricing and Information
Management).
[FR Doc. 2019-08336 Filed 5-20-19; 8:45 am]
BILLING CODE 6353-01-P