[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
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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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