[Federal Register Volume 85, Number 122 (Wednesday, June 24, 2020)]
[Rules and Regulations]
[Pages 37778-37785]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-12704]



[[Page 37778]]

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COMMITTEE FOR PURCHASE FROM PEOPLE WHO ARE BLIND OR SEVERELY DISABLED

41 CFR Part 51-8

RIN 3037-AA10


Access to Information Under the Freedom of Information Act

AGENCY: Committee for Purchase From People Who Are Blind or Severely 
Disabled.

ACTION: Final rule.

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SUMMARY: The Committee for Purchase From People Who Are Blind or 
Severely Disabled (Committee) amends it's 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: Effective July 31, 2020.

ADDRESSES: Committee for Purchase From People Who Are Blind or Severely 
Disabled, 1401 S Clark Street, Suite 715, Arlington, Virginia 22202-
4149.

FOR FURTHER INFORMATION CONTACT: For further information or to submit 
comments contact: Timi Nickerson Kenealy, General Counsel, 
[email protected], 703-603-2121.

SUPPLEMENTARY INFORMATION:

I. Background

    This final rule replaces and renumbers in its entirety the 
Committee's regulations in 41 CFR part 51-8 to reflect statutory 
changes associated with the Freedom of Information Act.
    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.
    The changes associated with this final rule are 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.
    The Committee for Purchase From People Who Are Blind or Severely 
Disabled published a proposed rule in the Federal Register at 84 FR 
23005, May 21, 2019. No comments were received.

II. Regulatory Procedures

Executive Order 12866--Regulatory Planning and Review and Executive 
Order 13563--Improving Regulation and Regulatory Review

    This rule is not a significant regulatory action under E.O. 12866 
and E.O. 13563.

Executive Order 13771--Reducing Regulations and Controlling Regulatory 
Costs

    The Committee believes this final rule is an E.O. 13771 
deregulatory action. Many of the measures included in this document 
should facilitate FOIA requests and production by making it easier for 
requesters to research and review the Committee's FOIA rule before 
submitting a request. It is deregulatory in nature in that it provides 
relief to requestors however the Committee is unable to quantify these 
savings.

III. 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.

IV. 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.).

V. 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.

    Dated: July 31, 2020.
Shelly Hammond,
Director, Contracting and Policy.


0
Therefore, the Committee revises 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.


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 whenever disclosure would not foreseeably harm an interest 
protected by a FOIA exemption, but this policy does not create any 
right enforceable in court.

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    (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 
https://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 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

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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 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

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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 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

[[Page 37782]]

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 https://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 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 to paragraph (b)(4). A request from a professor of 
geology at a university for records relating to soil erosion, written 
on letterhead of the

[[Page 37783]]

Department of Geology, would be presumed to be from an educational 
institution.
    Example 2 to paragraph (b)(4). A request from the same professor of 
geology seeking drug information from the Food and Drug Administration 
in furtherance of a murder mystery he is writing would not be presumed 
to be an institutional request, regardless of whether it was written on 
institutional stationary.
    Example 3 to paragraph (b)(4). 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, 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 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.

[[Page 37784]]

    (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 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

[[Page 37785]]

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 part shall be construed to entitle any person, as 
of right, to any service or to the disclosure of any record to which 
such person is not entitled under the FOIA.

Michael R. Jurkowski,

Deputy Director, Business & PL Operations.

[FR Doc. 2020-12704 Filed 6-23-20; 8:45 am]
BILLING CODE 6353-01-P