[Federal Register Volume 77, Number 90 (Wednesday, May 9, 2012)]
[Proposed Rules]
[Pages 27151-27156]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-10868]


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OFFICE OF SCIENCE AND TECHNOLOGY POLICY

32 CFR Part 2403


Implementing the Freedom of Information Act

AGENCY: Office of Science and Technology Policy.

ACTION: Notice of proposed rulemaking and request for public comment.

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SUMMARY: With this document, the White House Office of Science and 
Technology Policy (OSTP) is proposing to issue regulations implementing 
the Freedom of Information Act (FOIA). The proposed regulations contain 
provisions to comply with the President's January 21, 2009, Executive 
Memoranda on ``The Freedom of Information Act'' and ``Transparency and 
Open Government,'' as well as Attorney General Holder's March 19, 2009, 
Memorandum on ``The Freedom of Information Act (FOIA).'' In addition, 
the regulations reflect OSTP's policy and practices and reaffirm its 
commitment to provide the fullest possible disclosure of records to the 
public.

DATES: Comments will be received through June 11, 2012, 11:59 EST.

ADDRESSES: Comments of approximately one page or less in length (4000 
characters) are requested and may be submitted by any of the following 
methods:
     Email: ostpfoia@ostp.eop.gov. Include ``FOIA PROPOSED 
RULEMAKING'' in the subject line of the message.
     Mail: Office of Science and Technology Policy, Eisenhower 
Executive Office Building, 1650 Pennsylvania Ave NW., Washington, DC 
20504. Attention: ``FOIA PROPOSED RULEMAKING.''
     FAX: 202-395-1224.

All submissions must be in English and must include your name, return 
address and email address, if applicable. Please clearly label 
submissions as ``FOIA PROPOSED RULEMAKING.''

FOR FURTHER INFORMATION CONTACT: Jennifer Lee or Rachel Leonard, 202-
456-4444. Questions about the content of this notice should be sent to 
ostpfoia@ostp.eop.gov. Include ``FOIA PROPOSED RULEMAKING'' in the 
subject line of the message. Questions may also be sent by mail (please 
allow additional time for processing) to: Office of Science and 
Technology Policy, Eisenhower Executive Office Building, 1650 
Pennsylvania Ave NW., Washington, DC 20504. Attention: ``FOIA PROPOSED 
RULEMAKING.''

SUPPLEMENTARY INFORMATION: The Office of Science and Technology Policy 
(OSTP) is proposing regulations to govern its implementation of the 
Freedom of Information Act (FOIA), 5 U.S.C. 552, as amended. FOIA 
requires Federal agencies, as defined by the Act, to make official 
documents and other records available to the public upon request, 
unless the material requested falls under one of several statutorily 
prescribed exemptions. FOIA also requires agencies to publish rules 
stating the time, place, fees, and procedures to apply in making 
records available pursuant to a proper request. Further, Section 1803 
of the Freedom of Information Reform Act of 1986 requires each agency 
to establish a system for recovering costs associated with responding 
to requests for information under FOIA. The Office of Management and 
Budget (OMB) has issued guidelines that set standard government-wide 
definitions for assessing and collecting FOIA fees (OMB Fee 
Guidelines). These proposed rules describe the structure of OSTP's FOIA 
Requester Service Center, prescribe methods of requesting records, 
explain the manner in which OSTP responds to records requests, and 
describe policies governing applicable fees.
    The proposed regulations also incorporate the policies expressed in 
President Obama's January 21, 2009, Executive Memorandum on the Freedom 
of Information Act, Attorney General Holder's March 19, 2009, 
Memorandum for Heads of Executive Departments and Agencies, and OSTP's 
FOIA Improvement Plan, issued in response to these directives. As 
required by the President's January 2009 Executive Memorandum, 
agencies, including those entities within the Executive Office of the 
President that are subject to FOIA, must adopt a presumption in favor 
of disclosure (except where disclosure creates a ``foreseeable harm'' 
as described in the Department of Justice, Office of Information 
Policy's April 17, 2009, Guidance) and ensure that their FOIA 
operations treat requesters courteously and appropriately. In addition, 
each agency is required to provide FOIA requesters and the public in 
general with ``citizen-centered'' ways to learn about both the agency's 
FOIA

[[Page 27152]]

procedures and how to receive agency records that are publicly 
available.
    By implementing the provisions of the January 21, 2009, Executive 
Memorandum and Attorney General Holder's March 19, 2009, Memorandum to 
the Heads of Executive Departments and Agencies, these regulations will 
improve FOIA-related service and performance, thereby strengthening 
OSTP's compliance with FOIA. Accordingly, OSTP proposes these 
regulations implementing FOIA and submits them for public comment 
pursuant to 5 U.S.C. 552(a)(4)(A), (a)(6)(B)(iv), (a)(6)(D), (a)(6)(E), 
and 5 U.S.C. 553.

Statutory and Executive Order Reviews

Executive Order 12866

    These regulations have been drafted and reviewed in accordance with 
Executive Order 12866, Regulatory Planning and Review, Section 1(b), 
Principles of Regulation. These regulations are not a significant 
regulatory action under Section 3(f) of Executive Order 12866.

Paperwork Reduction Act

    OSTP has determined that the Paperwork Reduction Act, 44 U.S.C. 
3501 et seq., does not apply because these regulations do not contain 
any information collection requirements subject to approval by OMB.

Executive Order 12988

    These regulations meet the applicable standards set forth in 
Executive Order 12988, Civil Justice Reform.

Executive Order 13132

    These regulations will not have substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government. Therefore, in accordance with Executive 
Order 13132, OSTP has determined that these regulations do not have 
sufficient federalism implications to warrant the preparation of a 
federalism summary impact statement.

Regulatory Flexibility Act

    OSTP, in accordance with the Regulatory Flexibility Act, 5 U.S.C. 
605(b), has reviewed these proposed regulations and certifies that they 
will not have a significant economic impact on a substantial number of 
small entities because they pertain to administrative matters affecting 
the agency.

Unfunded Mandates Reform Act of 1995

    These regulations will not result in the expenditure by State, 
local, and tribal governments, in the aggregate, or by the private 
sector, of $100 million or more in any one year, and it will not 
significantly or uniquely affect small governments. Therefore, no 
actions are necessary under the provisions of the Unfunded Mandates 
Reform Act of 1995, 2 U.S.C. 1501, et seq.

Small Business Regulatory Enforcement Fairness Act of 1996

    These regulations are not major regulations as defined by section 
251 of the Small Business Regulatory Enforcement Fairness Act of 1996, 
5 U.S.C. 804. They will not result in an annual effect on the economy 
of $100 million or more, a major increase in costs or prices, or 
significant adverse effects on competition, employment, investment, 
productivity, innovation, or the ability of United States-based 
enterprises to compete with foreign-based enterprises in domestic and 
export markets.

National Environmental Policy Act of 1969

    OSTP has reviewed this action for purposes of the National 
Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321-4347, and has 
determined that this action will not have a significant effect on the 
human environment.

32 CFR Part 2402

    Classified information.

    Therefore, according to reasons stated in the preamble, the Office 
of Science and Technology Policy proposes to add 32 CFR part 2402 to 
read as follows:

PART 2402--REGULATIONS IMPLEMENTING THE FREEDOM OF INFORMATION ACT

Sec.
2402.1 Purpose and scope.
2402.2 Delegation of authority and responsibilities.
2402.3 General policy and definitions.
2402.4 Procedure for requesting records.
2402.5 Responses to requests.
2402.6 Business information.
2402.7 Appeal of denials.
2402.8 Fees.
2402.9 Waiver of fees.
2402.10 Maintenance of statistics.
2402.11 Disclaimer.

    Authority: 5 U.S.C. 552; E.O. 13392, 70 FR 75373 (Dec. 14, 
2005).


Sec.  2402.1  Purpose and scope.

    These regulations prescribe procedures to obtain information and 
records from the Office of Science and Technology Policy (OSTP) under 
the Freedom of Information Act (FOIA), 5 U.S.C. 552. The regulations 
apply only to records that are:
    (a) Either created or obtained by OSTP; and
    (b) Under OSTP control at the time of the FOIA request.


Sec.  2402.2  Delegation of authority and responsibilities.

    (a) The Director of the Office of Science and Technology Policy 
designates the OSTP General Counsel as the Chief FOIA Officer, and 
hereby delegates to the Chief FOIA Officer the authority to act upon 
all requests for agency records and to redelegate such authority at his 
or her discretion.
    (b) The Chief FOIA Officer shall designate a FOIA Public Liaison, 
who shall serve as the supervisory official to whom a FOIA requester 
can raise concerns about the service the FOIA requester has received 
following an initial response. The FOIA Public Liaison will be listed 
on the OSTP Web site and may redelegate the FOIA Public Liaison's 
authority at his or her discretion.
    (c) The Director establishes a FOIA Requester Service Center that 
shall be staffed by the Chief FOIA Officer and the FOIA Public Liaison. 
The contact information for the FOIA Requester Service Center is Office 
of Science and Technology Policy, Eisenhower Executive Office Building, 
1650 Pennsylvania Ave. NW., Washington, DC 20504; Telephone: (202) 456-
6125 Fax: (202) 456-6022; Email: ostpfoia@ostp.eop.gov.


Sec.  2402.3  General policy and definitions.

    (a) Non-exempt records available to public. Except for records 
exempt from disclosure by 5 U.S.C. 552(b) or published in the Federal 
Register under 5 U.S.C. 552(a)(1), agency records of OSTP subject to 
FOIA are available to any person who requests them in accordance with 
these regulations.
    (b) Record availability at the OSTP e-FOIA Reading Room. OSTP shall 
make records available on its Web site in accordance with 5 U.S.C. 
552(a)(2), as amended, and other documents that, because of the nature 
of their subject matter, are likely to be the subject of FOIA requests. 
To save both time and money, OSTP strongly urges requesters to review 
documents available at the OSTP e-FOIA Reading Room before submitting a 
request.
    (c) Definitions. For purposes of this part, all of the terms 
defined in the Freedom of Information Act, and the definitions included 
in the ``Uniform Freedom of Information Act Fee Schedule and 
Guidelines'' issued by the

[[Page 27153]]

Office of Management and Budget apply, unless otherwise defined in this 
subpart.
    Commercial use request means a request from or on behalf of a 
person who seeks information for a use or purpose that furthers his or 
her commercial, trade, or profit interests, which can include 
furthering those interests through litigation. OSTP shall determine, 
whenever reasonably possible, the use to which a requester will put the 
requested records. When it appears that the requester will put the 
records to a commercial use, either because of the nature of the 
request itself or because OSTP has reasonable cause to doubt a 
requester's stated use, OSTP shall provide the requester a reasonable 
opportunity to submit further clarification.
    Disclose or disclosure refer to making records available, upon 
request, for examination and copying, or furnishing a copy of records.
    Duplication means the making of 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, microform, audiovisual materials, or 
electronic records (for example, magnetic tape or disk), among others.
    Educational institution means a preschool, a public or private 
elementary or secondary school, an institution of undergraduate higher 
education, an institution of graduate higher education, an institution 
of professional education, or an institution of vocational education 
that operates a program of scholarly research. To be in this category, 
a requester must show that the request is authorized by and is made 
under the auspices of a qualifying institution and that the records are 
not sought for a commercial use but are sought to further scholarly 
research.
    Noncommercial scientific institution means an institution that is 
not operated on a ``commercial'' basis, as that term is defined in 
these regulations, and that is operated solely for the purpose of 
conducting scientific research, the results of which are not intended 
to promote any particular product or industry. To be in this category, 
a requester must show that the request is authorized by and is made 
under the auspices of a qualifying institution and that the records are 
not sought for a commercial use but are sought to further scientific 
research.
    Perfected request means a FOIA request for records that adequately 
describes the records sought, that has been received by OSTP, and for 
which there is no remaining question about the payment of applicable 
fees.
    Representative of the news media or news media requester mean any 
person actively gathering news for an entity that is organized and 
operated to publish or broadcast news to the public. For purposes of 
this definition, 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 
broadcasting to the public at large and publishers of periodicals (but 
only in those instances where they can qualify as disseminators of 
``news'') who make their products available for purchase or 
subscription by the general public. For ``freelance'' journalists to be 
regarded as working for a news organization, they must demonstrate a 
solid basis for expecting publication through that organization. A 
publication contract would be the clearest proof, but OSTP shall also 
look to the past publication record of a requester in making this 
determination. To be in this category, a requester must not be seeking 
the requested records for a commercial use. A request for records 
supporting the news-dissemination function of the requester shall not 
be considered to be for a commercial use.
    Search refers to the process of looking for and retrieving records 
or information responsive to a request. It includes page-by-page or 
line-by-line identification of information within records and also 
includes reasonable efforts to locate and retrieve information from 
records maintained in electronic form or format.
    Working day means a regular Federal working day. It does not 
include Saturdays, Sundays, or legal Federal holidays.


Sec.  2402.4  Procedure for requesting records.

    (a) Format of requests. (1) In general. Requests for information 
must be made in writing and may be delivered by mail, fax, or 
electronic mail, as specified in Sec.  2402.2(c). The words ``Freedom 
of Information Act Request'' must be printed on the face of the 
request's envelope, cover sheet, or subject line, as appropriate, and 
must appear in the request itself. All requests must be made in 
English. Requests for information must specify the preferred form or 
format (including electronic formats) of the response. When requesters 
do not specify the preferred form or format of the response, OSTP shall 
produce printed copies of responsive records.
    (2) Electronic format records. (i) OSTP shall provide the 
responsive record or records in the form or format requested if the 
record or records are readily reproducible by OSTP in that form or 
format. OSTP shall make reasonable efforts to maintain its records in 
forms or formats that are reproducible for the purpose of disclosure. 
For purposes of this paragraph, the term readily reproducible means, 
with respect to electronic format, a record or records that can be 
downloaded or transferred intact to a floppy disk, computer disk (CD), 
tape, or other electronic medium using equipment currently in use by 
the office or offices processing the request. Even though some records 
may initially be readily reproducible, the need to segregate exempt 
from nonexempt records may cause the releasable material to be not 
readily reproducible.
    (ii) In responding to a request for records, OSTP shall make 
reasonable efforts to search for the records in electronic form or 
format, except where such efforts would significantly interfere with 
the operation of the agency's automated information system(s). For 
purposes of this paragraph, the term search means to locate, manually 
or by automated means, agency records for the purpose of identifying 
those records which are responsive to a request.
    (iii) Searches for records maintained in electronic form or format 
may require the application of codes, queries, or other minor forms of 
programming to retrieve the requested records.
    (b) Contents. A request must describe the records sought in 
sufficient detail to enable OSTP personnel to locate the records with a 
reasonable amount of effort. OSTP will regard a request for a specific 
category of records as fulfilling the requirements of this paragraph if 
it enables responsive records to be identified by a technique or 
process that is not unreasonably burdensome or disruptive to OSTP 
operations. Whenever possible, a request should include specific 
information about each record sought, such as the date, number, title 
or name, author, recipient, and subject matter of the record. If OSTP 
determines that a request does not reasonably describe the records 
sought, it will either provide notice of any additional information 
needed or otherwise state why the request is insufficient. OSTP will 
offer a requester reasonable opportunity to reformulate the request so 
that it meets the requirements of this section.
    (c) Date of receipt. A request that complies with paragraphs (a) 
and (b) of this section is deemed a perfected request. A perfected 
request is deemed received on the actual date it is received by OSTP. A 
request that does not comply with paragraphs (a) and (b) of this 
section is deemed received when sufficient information to perfect the 
request is actually received by OSTP. For requests that are expected to 
result

[[Page 27154]]

in fees exceeding $250, the request shall not be deemed to have been 
received until OSTP has received full payment or satisfactory assurance 
of full payment as provided under Sec.  2402.7.


Sec.  2402.5  Responses to requests.

    (a) Responses within 20 working days. OSTP will exercise all 
reasonable efforts to acknowledge, grant, partially grant, or deny a 
request for records within 20 working days after receiving a perfected 
request.
    (b) Extensions of response time in ``unusual circumstances.'' In 
circumstances where a determination as provided in paragraph (a) of 
this section is not possible within 20 working days, OSTP may extend 
the time limit prescribed in paragraph (a) of this section as necessary 
to adequately respond to a request. OSTP shall notify the requester of 
the extension, the reasons for the extension, and the date on which a 
determination is expected. In such instances, the requester will be 
provided an opportunity to limit the scope of the request so that it 
may be processed within the time limit, or to agree to a reasonable 
alternative time frame for processing. Circumstances justifying a time 
limit extension as provided in this subsection include, but are not 
limited to, requests that require OSTP to:
    (1) Search for and collect the requested records from off-site 
storage facilities;
    (2) Search for, collect, and appropriately examine a voluminous 
amount of separate and distinct records that are demanded in a single 
request;
    (3) Consult, with all practicable speed, with another agency having 
a substantial interest in the determination of the request; or
    (4) Perform searches of records of former employees.
    (c) Two-track processing. To ensure the most equitable treatment 
possible for all requesters, OSTP will process requests on a first-in, 
first-out basis, using a two-track processing system based upon the 
estimated time it will take to process the request.
    (1) Simple requests. The first track is for requests of simple to 
moderate complexity that are expected to be completed within 20 working 
days. A requester whose request does not qualify as a simple request 
may be given an opportunity to limit the scope of his or her request in 
order to qualify for faster processing.
    (2) Complex requests. The second track is for requests involving 
``unusual circumstances,'' as described in paragraph (b) of this 
section, that are expected to take more than 20 working days to 
complete.
    (d) Expedited processing. (1) Expedited requests. OSTP may take 
requests out of order and expedite the processing of a request upon 
receipt of a written statement that clearly demonstrates a compelling 
need for expedited processing. Requesters must provide detailed 
explanations to support their expedited requests. For purposes of 
determining expedited processing, the term compelling need means:
    (i) That a failure to obtain requested records on an expedited 
basis could reasonably be expected to pose an imminent threat to the 
life or physical safety of any individual; or
    (ii) That a request is made by a person primarily engaged in 
disseminating information, and the person establishes that there is an 
urgency to inform the public concerning actual or alleged Federal 
Government activity.
    (2) Certification. A person requesting expedited processing must 
include a statement certifying that the compelling need provided is 
true to the best of the requester's knowledge and belief.
    (3) Expedited processing. OSTP may grant or deny a request for 
expedited processing as a matter of agency discretion. A determination 
of whether to provide expedited processing shall be made, and notice of 
the determination shall be provided to the person making the request, 
within 10 working days after receipt of the perfected request.
    (e) Content of denial. When OSTP denies a request for records, 
either in whole or in part, the written notice of the denial shall 
state the reason for denial, and cite the applicable statutory 
exemption(s), unless doing so would harm an interest protected by the 
exemption(s) under which the request was denied, and notify the 
requester of the right to appeal the determination as specified in 
Sec.  2402.7. The requester's failure to make advance payment or to 
give a satisfactory assurance of full payment required under Sec.  
2402.8 may be treated as a denial of the request and appealed under 
Sec.  2402.7.
    (f) Identifying responsive records. In determining which records 
are responsive to a request, OSTP ordinarily will include only records 
in its possession as of the date the component begins its search for 
them.
    (g) Consultations and referrals. When OSTP receives a request for a 
record in its possession, it shall determine whether another agency of 
the Federal Government is better able to determine whether the record 
is exempt from disclosure under FOIA and, if so, whether it should be 
disclosed as a matter of administrative discretion. If the receiving 
component determines that it is best able to process the record in 
response to the request, then it shall do so. If the receiving 
component determines that it is not best able to process the record, 
then it shall either:
    (1) Respond to the request regarding that record, after consulting 
with the agency best able to determine whether to disclose it and with 
any other agency that has a substantial interest in it; or
    (2) Refer the responsibility for responding to the request 
regarding that record to the agency best able to determine whether to 
disclose it, or to another agency that originated the record (but only 
if that agency is subject to the FOIA). Ordinarily, the agency that 
originated a record will be presumed to be best able to determine 
whether to disclose it.
    (h) Redactions. OSTP shall provide to a requester a citation to the 
relevant statutory exemption(s) for redactions within disclosed 
records.


Sec.  2402.6  Business information.

    (a) In general. Business information obtained by OSTP from a 
submitter will be disclosed under FOIA only under this section.
    (b) Definitions. For purposes of this section:
    (1) Business information means commercial or financial information 
obtained by OSTP from a submitter that may be protected from disclosure 
under Exemption 4 of FOIA.
    (2) Submitter means any person or entity from whom OSTP obtains 
business information, directly or indirectly. The term includes 
corporations; state, local, and tribal governments; and foreign 
governments.
    (c) Designation of business information. A submitter of business 
information will use good-faith efforts to designate, by appropriate 
markings, either at the time of submission or at a reasonable time 
thereafter, any portions of its submission that it considers to be 
protected from disclosure under Exemption 4. These designations will 
expire ten years after the date of the submission unless the submitter 
requests, and provides justification for, a longer designation period.
    (d) Notice to submitters. A component shall provide a submitter 
with prompt written notice of a FOIA request or administrative appeal 
that seeks its business information, in order to give the submitter an 
opportunity to object to disclosure of any specified portion of that 
information. The notice shall either describe the business information 
requested or include copies of the requested records or record portions

[[Page 27155]]

containing the information. When notification of a voluminous number of 
submitters is required, notification may be made by posting or 
publishing the notice in a place reasonably likely to accomplish it.
    (e) Where notice is required. Notice shall be given to a submitter 
wherever:
    (1) The information has been designated in good faith by the 
submitter as information considered protected from disclosure under 
Exemption 4; or
    (2) OSTP has reason to believe that the information may be 
protected from disclosure under Exemption 4.
    (f) Opportunity to object to disclosure. OSTP will allow a 
submitter a reasonable time to respond to the notice described in 
paragraph (d) of this section and will specify that time period within 
the notice. If a submitter has any objection to disclosure, it is 
required to submit a detailed written statement. The statement must 
specify all grounds for withholding any portion of the information 
under any exemption of FOIA and, in the case of Exemption 4, it must 
show why the information is a trade secret or commercial or financial 
information that is privileged or confidential. In the event that a 
submitter fails to respond to the notice within the time specified, the 
submitter will be considered to have no objection to disclosure of the 
information. Information provided by the submitter that is not received 
by OSTP until after its disclosure decision has been made shall not be 
considered by OSTP. Information provided by a submitter under this 
paragraph may itself be subject to disclosure under FOIA.
    (g) Notice of intent to disclose. OSTP shall consider a submitter's 
objections and specific grounds for nondisclosure in deciding whether 
to disclose business information. Whenever OSTP decides to disclose 
business information over the objection of a submitter, OSTP shall give 
the submitter written notice, which shall include:
    (1) A statement of the reason(s) why each of the submitter's 
disclosure objections was not sustained;
    (2) A description of the business information to be disclosed; and
    (3) A specified disclosure date, which shall be a reasonable time 
subsequent to the notice.
    (h) Exceptions to notice requirements. The notice requirements of 
paragraphs (d) and (g) of this section shall not apply if:
    (1) OSTP determines that the information should not be disclosed;
    (2) The information lawfully has been published or has been 
officially made available to the public;
    (3) Disclosure of the information is required by statute (other 
than FOIA) or by a regulation issued in accordance with the 
requirements of Executive Order 12600 (3 CFR, 1988 Comp., p. 235); or
    (4) The designation made by the submitter under paragraph
    (c) of this section appears obviously frivolous--except that, in 
such a case, the component shall, within a reasonable time prior to a 
specified disclosure date, give the submitter written notice of any 
final decision to disclose the information.
    (i) Notice of FOIA lawsuit. Whenever a requester files a lawsuit 
seeking to compel the disclosure of business information, OSTP shall 
promptly notify the submitter.
    (j) Corresponding notice to requesters. Whenever OSTP provides a 
submitter with notice and an opportunity to object to disclosure under 
paragraph (d) of this section, OSTP shall also notify the requester(s). 
Whenever OSTP notifies a submitter of its intent to disclose requested 
information under paragraph (g) of this section, OSTP shall also notify 
the requester(s). Whenever a submitter files a lawsuit seeking to 
prevent the disclosure of business information, OSTP shall notify the 
requester(s).


Sec.  2402.7  Appeal of denials.

    (a) A denial of a request for records, either in whole or in part, 
may be appealed in writing to the Chief FOIA Officer within 30 working 
days of the date of the letter denying an initial request.
    (b) Appeals may be sent via email to ostpfoia@ostp.eop.gov or by 
mail to: Chief FOIA Officer, Office of Science and Technology Policy, 
Eisenhower Executive Office Building, 1650 Pennsylvania Ave. NW., 
Washington, DC 20504. The appeal letter should specify the internal 
control number assigned to the FOIA request by OSTP in its response, 
the records requested, and the basis for the appeal.
    (c) The Chief FOIA Officer shall make a determination on the appeal 
under 5 U.S.C. 552(a)(6)(A)(ii) within 20 working days after the 
receipt of the appeal. If the denial is wholly or partially upheld, the 
Chief FOIA Officer shall notify the requester that judicial review is 
available pursuant to 5 U.S.C. 552(a)(4)(B)-(G).


Sec.  2402.8  Fees.

    (a) Fees generally required. OSTP shall use the most efficient and 
least costly methods to comply with requests for documents made under 
FOIA. OSTP shall charge fees in accordance with paragraph (b) of this 
section unless fees are waived in accordance with Sec.  2402.9.
    (b) Calculation of fees. In general, fees for searching, reviewing, 
and duplication will be based on the direct costs of these services, 
including the average hourly salary (base plus locality payment plus 16 
percent) for the employee(s) making the search.
    (1) Search fee. Search fees may be charged even if responsive 
documents are not located or if they are located but withheld on the 
basis of an exemption. However, search fees shall be limited or not 
charged as follows:
    (i) Easily identifiable records. Search fees shall not be charged 
for records that are identified by the requester by name and date.
    (ii) Educational, scientific or news media requests. No search fee 
shall be charged if the request is not sought for a commercial use and 
is made by an educational or scientific institution, whose purpose is 
scholarly or scientific research, or by a representative of the news 
media.
    (iii) Other non-commercial requests. No search fee shall be charged 
for the first two hours of searching if the request is not for a 
commercial use but is not by an educational or scientific institution, 
or a representative of the news media.
    (iv) Requests for records about self. No search fee shall be 
charged to search for records performed under the terms of the Privacy 
Act, 5 U.S.C. 552a(f)(5).
    (2) Review fee. A review fee shall be charged only for commercial 
requests. A review fee shall be charged for the initial examination of 
documents located in response to a request to determine the documents 
may be withheld from disclosure and for the redaction of document 
portions exempt from disclosure. Records or portions of records 
withheld in full under an exemption that is subsequently determined not 
to apply may be reviewed again to determine the applicability of other 
exemptions not previously considered. The costs for such a subsequent 
review are assessable.
    (3) Duplication fee. Records will be photocopied at a rate of $0.15 
per page. For other methods of reproduction or duplication, OSTP will 
charge the actual direct costs of producing the document(s). 
Duplication fees shall not be charged for the first 100 pages of copies 
unless the copies are requested for a commercial use.
    (c) Aggregation of requests. When OSTP determines that a requester, 
or a group of requesters acting in concert, is attempting to evade the 
assessment of fees by submitting multiple requests in the place of a 
single more complex

[[Page 27156]]

request, OSTP may aggregate any such requests and charge accordingly.
    (d) Fees likely to exceed $25. If the total fee charges are likely 
to exceed $25, OSTP shall notify the requester of the estimated amount 
of the charges. The notification shall offer the requester an 
opportunity to confer with the FOIA Public Liaison to reformulate the 
request to meet the requester's needs at a lower cost.
    (e) Advance payments. Advance payment of fees will generally not be 
required. If, however, charges are likely to exceed $250, OSTP shall 
notify the requester of the likely cost and:
    (1) Obtain satisfactory assurance of full payment; or
    (2) if the requester has no history of payment or has failed to pay 
a fee within 30 days of the date of billing, OSTP may require the 
requester to pay the full amount of any fees owed and/or to make an 
advance payment of the full amount of the estimated charges before OSTP 
begins to process the new request or a pending request from that 
requester.
    (f) Other charges. OSTP will recover the full costs of providing 
services such as those enumerated below when it elects to provide them:
    (1) Certifying that records are true copies;
    (2) Sending records by special methods such as express mail.
    (g) Remittances. Remittances shall be in the form either of a 
personal check or bank draft drawn on a bank in the United States, or a 
postal money order. Remittances shall be made payable to the order of 
the Treasury of the United States and mailed to the Chief FOIA Officer, 
Office of Science and Technology Policy, Eisenhower Executive Office 
Building, 1650 Pennsylvania Ave. NW., Washington, DC 20504.
    (h) Receipts and refunds. A receipt for fees paid will be given 
upon request. Refund of fees paid for services actually rendered will 
not be made.


Sec.  2402.9  Waiver of fees.

    (a) In general. OSTP shall waive part or all of the fees assessed 
under Sec.  8 if the following conditions are satisfied:
    (1) Disclosure of the 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
    (2) Disclosure is not primarily in the commercial interest of the 
requester.
    (b) Clarification. Where OSTP has reasonable cause to doubt the use 
to which a requester will put the records sought, or where that use is 
not clear from the request itself, OSTP may seek clarification from the 
requester before assigning the request to a specific category for fee 
assessment purposes.
    (c) Partial waiver of fees. If the two conditions stated in 
paragraph (a) of this section are met, OSTP will ordinarily waive all 
fees. In exceptional cases, however, a partial waiver may be granted if 
the request for records would impose an exceptional burden or require 
an exceptional expenditure of OSTP resources.
    (d) Failure to comply. OSTP will not assess fees under Sec.  2402.8 
if the Agency fails to comply with any time limit and no exceptional 
circumstances apply to processing the request.
    (e) Waivers. OSTP may waive fees in other circumstances solely at 
its discretion, consistent with 5 U.S.C. 552 and the Fee Waiver Policy 
Guidance issued by the Department of Justice.


Sec.  2402.10  Maintenance of statistics.

    (a) OSTP shall maintain records that are sufficient to allow 
accurate reporting of FOIA processing statistics, as required under 5 
U.S.C. 552 and all guidelines for the preparation of annual FOIA 
reports issued by the Department of Justice.
    (b) OSTP shall annually, on or before February 1 of each year, 
prepare and submit to the Attorney General an annual report compiling 
the statistics maintained in accordance with paragraph (a) of this 
section for the previous fiscal year. A copy of the report will be 
available for public inspection at the OSTP Web site.


Sec.  2402.11  Disclaimer.

    Nothing in this subpart shall be construed to entitle any person, 
as a right, to any service or to the disclosure of any record to which 
such person is not entitled under FOIA.

Ted Wackler,
Deputy Chief of Staff and Assistant Director.
[FR Doc. 2012-10868 Filed 5-8-12; 8:45 am]
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