[Federal Register Volume 78, Number 73 (Tuesday, April 16, 2013)]
[Proposed Rules]
[Pages 22501-22506]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-08890]


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NATIONAL FOUNDATION ON THE ARTS AND THE HUMANITIES

Institute of Museum and Library Services

45 CFR Part 1184

RIN 3137-AA22


Implementing the Freedom of Information Act

AGENCY: Institute of Museum and Library Services (IMLS), NFAH.

ACTION: Proposed rule.

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SUMMARY: This rule proposes to implement IMLS's regulations under the 
Freedom of Information Act (FOIA). The regulations both describe how 
IMLS processes requests for records under FOIA and reaffirm the 
agency's commitment to providing the fullest possible disclosure of 
records to the

[[Page 22502]]

public. The agency is implementing the regulations to replace its 
existing joint regulations as part of the National Foundation on the 
Arts and the Humanities, and to update, clarify, and streamline the 
language of several procedural provisions, while incorporating changes 
brought about by amendments to the FOIA.

DATES: Comments are invited and must be received by no later than May 
16, 2013.

ADDRESSES: Address all comments concerning this proposed rule to Nancy 
E. Weiss, General Counsel, Institute of Museum and Library Services, 
1800 M Street NW., 9th Floor, Washington, DC 20036. Email: 
nweiss@imls.gov. Telephone: (202) 653-4787. Facsimile: (202) 653-4625.

FOR FURTHER INFORMATION CONTACT: Nancy E. Weiss, General Counsel, 
Institute of Museum and Library Services, 1800 M Street NW., 9th Floor, 
Washington, DC 20036. Email: nweiss@imls.gov. Telephone: (202) 653-
4787. Facsimile: (202) 653-4625.

SUPPLEMENTARY INFORMATION: IMLS operates as part of the National 
Foundation on the Arts and the Humanities under the National Foundation 
on the Arts and Humanities Act of 1965, as amended (20 U.S.C. 951 et 
seq.). The corresponding regulations published at 45 CFR Chapter XI, 
Subchapter A apply to the entire Foundation, while the regulations 
published at 45 CFR Chapter XI, Subchapter E apply only to the 
institute.
    This proposed rule implements IMLS' FOIA regulations in Subchapter 
E (45 CFR part 1184), replacing the existing regulations in Subchapter 
A (45 CFR part 1100) with regard to IMLS. The proposed rule provides 
additional detail concerning several provisions of the Freedom of 
Information Act, and is intended to increase understanding of IMLS' 
FOIA policies. IMLS is authorized to propose these regulations under 5 
U.S.C. 552.

I. Why We're Publishing This Rule and What It Does

    The Institute of Museum and Library Services (IMLS) is proposing 
regulations to implement the Freedom of Information Act (FOIA), 5 
U.S.C. 552, as amended. FOIA requires Federal agencies 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 such 
records available. 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 
regulations describe the ways in which records may be requested by the 
public, and explain how IMLS will respond to such requests and assess 
fees in connection with the agency's response.
    The proposed regulations also incorporate the policies expressed in 
the President's January 21, 2009, Executive Memorandum on the Freedom 
of Information Act, and the Attorney General's March 19, 2009, 
Memorandum for Heads of Executive Departments and Agencies. These 
policies, however, do not create any legally enforceable rights.
    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 IMLS's FOIA-related service and performance, thereby 
strengthening the agency's compliance with the law. Accordingly, IMLS 
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.

II. Compliance With Laws and Executive Orders

Regulatory Planning and Review (Executive Orders 12866 and 13563)

    Executive Order 12866 provides that the Office of Information and 
Regulatory Affairs will review all significant rules. The Office of 
Information and Regulatory Affairs has determined that this rule is not 
significant.
    Executive Order 13563 reaffirms the principles of E.O. 12866 while 
calling for improvements in the nation's regulatory system to promote 
predictability, to reduce uncertainty, and to use the best, most 
innovative, and least burdensome tools for achieving regulatory ends. 
The executive order directs agencies to consider regulatory approaches 
that reduce burdens and maintain flexibility and freedom of choice for 
the public where these approaches are relevant, feasible, and 
consistent with regulatory objectives. E.O. 13563 emphasizes further 
that regulations must be based on the best available science and that 
the rulemaking process must allow for public participation and an open 
exchange of ideas. We have developed this rule in a manner consistent 
with these requirements.

Paperwork Reduction Act

    IMLS 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.

Civil Justice Reform (Executive Order 12988)

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

Federalism (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, IMLS has determined that these regulations do not have 
sufficient federalism implications to warrant the preparation of a 
federalism summary impact statement.

Regulatory Flexibility Act

    IMLS, 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

[[Page 22503]]

the ability of United States-based enterprises to compete with foreign-
based enterprises in domestic and export markets.

National Environmental Policy Act of 1969

    IMLS 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.

Takings (E.O. 21630)

    In accordance with Executive Order 12630, the rule does not have 
significant takings implications. A takings implication assessment is 
not required.

Consultation With Indian Tribes (E.O. 13175)

    Under the criteria in Executive Order 13175, we have evaluated this 
proposed rule and determined that it has no potential effects on 
federally recognized Indian tribes. This proposed rule does not have 
tribal implications that impose substantial direct compliance costs on 
Indian Tribal governments.

Effects on the Energy Supply (E.O. 13211)

    This proposed rule is not a significant energy action under the 
definition in Executive Order 13211. A Statement of Energy Effects is 
not required. This proposed rule will not have a significant effect on 
the nation's energy supply, distribution, or use.

Clarity of This Regulation

    We are required by Executive Orders 12866 and 12988 and by the 
Presidential Memorandum of June 1, 1998, to write all rules in plain 
language. This means that each rule we publish must: (a) Be logically 
organized; (b) use the active voice to address readers directly; (c) 
use clear language rather than jargon; (d) be divided into short 
sections and sentences; and (e) use lists and tables wherever possible.
    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in the ADDRESSES section. To 
better help us revise the rule, your comments should be as specific as 
possible. For example, you should tell us the numbers of the sections 
or paragraphs that you find unclear, which sections or sentences are 
too long, the sections where you feel lists or tables would be useful, 
etc.

List of Subjects in 45 CFR Part 1184

    Administrative practice and procedure, Freedom of Information.

    For the reasons stated in the preamble, IMLS proposes to amend 45 
CFR Subchapter E to add part 1184 as follows:

PART 1184--IMPLEMENTATION OF THE FREEDOM OF INFORMATION ACT

Sec.
1184.1 What is the purpose and scope of these regulations?
1184.2 What are IMLS's general policies with respect to FOIA?
1184.3 How do I request records?
1184.4 When will I receive a response to my request?
1184.5 How will my request be processed?
1184.6 How can I appeal a denial of my request?
1184.7 How will fees be charged?
1184.8 What are IMLS' policies regarding disclosure of business 
information?
1184.9 Disclaimer

    Authority:  5 U.S.C. 552.


Sec.  1184.1  What is the purpose and scope of these regulations?

    These regulations describe how the Institute of Museum and Library 
Services (IMLS) processes requests for records under the Freedom of 
Information Act (FOIA), 5 U.S.C. 552 as amended. The regulations apply 
only to records that are both:
    (a) Created or obtained by IMLS; and
    (b) Under the agency's control at the time of the FOIA request.
    These rules should be read in conjunction with the text of the FOIA 
and the Uniform Freedom of Information Fee Act Schedule and Guidelines 
published by the Office of Management and Budget at 52 FR 10012 (Mar. 
27, 1987) (the ``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 1182 of 45 CFR as well as under this part.


Sec.  1184.2  What are IMLS's general policies with respect to FOIA?

    (a) Non-exempt records available to the public. Except for records 
exempt or excluded from disclosure by 5 U.S.C. 552 or published in the 
Federal Register under 5 U.S.C. 552(a)(1), IMLS records subject to the 
FOIA are available to any person who requests them in accordance with 
these regulations.
    (b) Records available at the IMLS FOIA Electronic Reading Room. 
IMLS makes 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 time and money, IMLS strongly urges you to review 
documents available at the IMLS FOIA Electronic Reading Room before 
submitting a FOIA request.
    (c) Definitions. For purposes of this part, all of the terms 
defined in the Freedom of Information Act, and the OMB Guidelines 
apply, unless otherwise defined in this part.
    (1) Commercial use request. A request by or on behalf of anyone 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.
    (2) Direct costs. Those expenses that IMLS actually incurs in 
searching for and duplicating (and, in the case of commercial use 
requests, reviewing) records in order to respond to a FOIA request. 
Direct costs include, for example, the salary of the employee 
performing the work (the basic rate of pay for the employee, plus 16.1 
percent of that rate to cover benefits) and the cost of operating 
duplication machinery. Not included in direct costs are overhead 
expenses such as the costs of space and heating or lighting of the 
facility in which the records are kept.
    (3) Duplication. 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, audiovisual materials, or electronic 
records (for example, magnetic tape or disk), among others.
    (4) Educational institution. Any school that operates a program of 
scholarly research. 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 not sought for a 
commercial use, but rather are sought to further scholarly research.
    (5) Non-commercial scientific institution. An institution that is 
not operated on a ``commercial'' basis, as defined in paragraph (c)(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 not for a commercial use.
    (6) Representative of news media. Any person or entity organized 
and operated to publish or broadcast news to the public that actively 
gathers information of potential interest to a segment of the public, 
uses its editorial skills to turn raw materials into a distinct work, 
and distributes that work to an audience. The term ``news'' means 
information

[[Page 22504]]

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. A request for records 
that supports the news-dissemination function of the requester will not 
be considered to be for a commercial use. ``Freelance'' journalists who 
demonstrate a solid basis for expecting publication through a news 
media entity will be considered as working for that entity. A 
publishing contract would provide the clearest evidence that 
publication is expected; however, IMLS will also consider a requester's 
past publication record in making this determination.
    (7) Review. 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 business information submitter under Sec.  1184.8 but it does 
not include time spent resolving general legal or policy issues 
regarding the application of exemptions.
    (8) Search. The process of looking for and retrieving records or 
information responsive to a FOIA 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.
    (9) Working day. A regular Federal working day. It does not include 
Saturdays, Sundays, or legal Federal holidays.


Sec.  1184.3  How do I request records?

    (a) Where to send a request. You may make a FOIA request for IMLS 
records by writing directly to the FOIA Officer, Institute of Museum 
and Library Services, 1800 M Street NW., 9th Floor, Washington, DC 
20036-5802. Requests may also be sent by facsimile to the FOIA Officer 
at (202) 653-4625 or by email to foia@imls.gov. You may also submit 
your FOIA request online through the IMLS FOIA Request Form located at: 
http://www.imls.gov/about/foia_request_form.aspx.
    (b) Form of request. Your FOIA request need not be in any 
particular format, but it must be in writing, include your name and 
mailing address, and be clearly identified as a Freedom of Information 
Act or ``FOIA'' request. You must describe the records sought with 
sufficient specificity to enable the agency to identify and locate the 
records, including, if possible, dates, subjects, titles, or authors of 
the records requested. If IMLS determines that your request does not 
reasonably describe the requested records, the agency will advise you 
what additional information is required to perfect your request, or why 
your request is otherwise insufficient. You should also indicate if you 
have a preferred form or format in which you would like to receive the 
requested records.
    (c) Electronic format records. IMLS will provide the responsive 
records in the form or format you request if the records are readily 
reproducible by IMLS in that form or format. IMLS will make reasonable 
efforts to maintain its records in forms or formats that are 
reproducible for the purpose of disclosure. IMLS may disclose records 
in electronic format if the records can be downloaded or transferred 
intact through electronic media currently in use by the agency. In 
responding to a request for records, IMLS will 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).
    (d) Date of receipt. IMLS considers a request that complies with 
paragraphs (a) and (b) of this section to be a perfected request. The 
agency considers a request to be received on the date that the request 
is perfected.


Sec.  1184.4  When will I receive a response to my request?

    (a) Responses within 20 working days. IMLS will ordinarily grant, 
partially grant, or deny your request for records within 20 working 
days after receiving a perfected request.
    (b) Extensions of response time in ``unusual circumstances''. (1) 
Where the time limits for processing a request cannot be met because of 
``unusual circumstances,'' as defined in the FOIA, the FOIA Officer 
will notify you as soon as practicable in writing of the unusual 
circumstances and may extend the response period for up to ten (10) 
working days. (2) Where the extension is for more than ten (10) working 
days, the FOIA Officer will provide you with an opportunity either to 
modify the request so that it may be processed within the time limits 
or to arrange an agreed upon alternative time period for processing the 
request or a modified request.


Sec.  1184.5  How will my request be processed?

    (a) Acknowledgment of requests. IMLS will assign a tracking number 
to your request and will advise you in writing of this tracking number.
    (b) Grants of requests. If IMLS decides to grant your request in 
whole or in part, the agency will notify you in writing. The notice 
will include any applicable fee and the agency will disclose records to 
you promptly upon payment of applicable fees. IMLS will mark or 
annotate any records disclosed in part to show the amount, the 
location, and the FOIA exemptions under which the redaction is made, 
unless doing so would harm an interest protected by an applicable 
exemption.
    (c) Denials of requests. Denials of your FOIA request, either whole 
or in part, will be made in writing by the FOIA Officer. IMLS will 
inform you of the reasons for the denial, including any FOIA 
exemption(s) applied by the agency in denying the request, and notify 
you of your right to appeal the determination as described in Sec.  
1184.6.


Sec.  1184.6  How can I appeal a denial of my request?

    (a) Submission of an appeal. If your FOIA request has been denied 
in whole or in part, you may file an appeal no later than thirty (30) 
calendar days following the date of the notification of denial. Your 
appeal must include a description of the initial request, the reason 
for the appeal, and why you believe the agency's response was 
incorrect. Your appeal must be in writing, signed, and filed with the 
IMLS Director, c/o Office of the General Counsel, 1800 M Street NW., 
9th Floor, Washington, DC 20036-5802. Appeals may also be sent by 
facsimile to (202) 653-4625.
    (b) Decisions on appeal. The Director of IMLS will make a 
determination with respect to your appeal within twenty (20) working 
days after the agency has received the appeal, except as provided in 
Sec.  1184.4(b). If the decision on appeal is favorable to you, the 
Director of IMLS will take action to assure prompt dispatch of the 
records to you. If the decision on appeal is adverse to you, in whole 
or in part, you will be informed by the Director of IMLS of the reasons 
for the decision and of the provisions for judicial review set forth in 
the FOIA.


Sec.  1184.7  How will fees be charged?

    (a) In general. IMLS will use the most efficient and least costly 
methods to

[[Page 22505]]

comply with FOIA requests. IMLS will charge fees to recover all 
allowable direct costs incurred, and may charge fees for searching for 
and reviewing requested records even if the records are determined to 
be exempt from disclosure or cannot be located. IMLS will charge fees 
in accordance with the category of the FOIA requester.
    (1) Commercial use requests. IMLS will assess charges to recover 
the full direct cost of searching for, reviewing and duplicating the 
requested records. IMLS may recover the cost of searching for and 
reviewing records even if there is ultimately no disclosure.
    (2) Requests from educational and non-commercial scientific 
institutions. IMLS will charge for duplication costs.
    (3) Requests by representatives of the news media. IMLS will charge 
for duplication costs.
    (4) All other requests. IMLS will assess charges to recover the 
full direct cost for searching for and duplicating the requested 
records.
    (5) Status of Requester. IMLS' decision regarding the 
categorization of a requester will be made on a case-by-case basis 
based upon the requester's intended use of the requested records.
    (b) General fee schedule. The following fees will be charged in 
accordance with paragraph (a) of this section.
    (1) Manual search fee. The fee charged will be the salary rate(s) 
(i.e., basic pay plus 16.1 percent) of the employee(s) conducting the 
search.
    (2) Computer search fee. The fee charged will be the actual direct 
cost of providing the service including the cost of operating the 
central processing unit for the operating time that is directly 
attributed to searching for records responsive to a request and the 
operator/programmer salary apportionable to the search.
    (3) Review fee. The fee charged will equal the salary rate(s) 
(i.e., basic pay plus 16.1 percent) of the employee(s) conducting the 
review.
    (4) Duplication fee. Copies of records photocopied on an 8\1/2\ x 
11 inch sheet of paper will be provided at $.10 per page. For 
duplication of other materials, the charge will be the direct cost of 
duplication.
    (c) Restrictions on charging fees.
    (1) Except for records provided in response to a commercial use 
request, the first 100 pages of duplication and the first two (2) hours 
of search time will be provided at no charge.
    (2) Fees will not be charged to any requester, including commercial 
use requesters, if the total amount calculated under this section is 
less than $25.
    (d) Fees likely to exceed $25. If the total fee charges are likely 
to exceed $25, IMLS will notify you of the estimated amount of the 
charges, unless you have indicated in advance that you are willing to 
pay higher fees and will offer you an opportunity to confer with the 
FOIA Public Liaison to revise the request to meet your needs at a lower 
cost.
    (e) Waiver or reduction of fees.
    (1) IMLS will disclose records without charge or at a reduced 
charge if the agency determines that 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 is not primarily in the commercial interest of the 
requester.
    (2) IMLS will use the following factors to determine whether a fee 
will be waived or reduced:
    (i) The subject of the request. Whether the subject of the 
requested records concerns the ``operations or activities of the 
government'';
    (ii) The informative value of the information to be disclosed. 
Whether the disclosure is ``likely to contribute'' to an understanding 
of government operations or activities;
    (iii) The contribution to an understanding of the subject by the 
general public likely to result from disclosure. Whether disclosure of 
the requested information will contribute to ``public understanding'';
    (iv) The significance of the contribution to public understanding. 
Whether disclosure is likely to contribute ``significantly'' to public 
understanding of government operations or activities;
    (v) The existence and magnitude of a commercial interest. Whether 
you have a commercial interest that would be furthered by the 
disclosure; and if so
    (vi) The primary interest in disclosure. Whether the magnitude of 
your commercial interest is sufficiently large in comparison with the 
public interest in disclosure, that disclosure is primarily in the your 
commercial interest.
    (f) Assessment and collection of fees.
    (1) If you fail to pay your bill within thirty (30) days, interest 
will accrue from the date the bill was mailed, and will be assessed at 
the rate prescribed in 31 U.S.C. 3717.
    (2) If IMLS reasonably believes that you are attempting to divide a 
request into a series of requests to avoid the assessment of fees, the 
agency may aggregate such requests and charge accordingly.
    (3) Advance payment. Advance payment of fees will generally not be 
required. IMLS may request an advance payment of the fee, however, if: 
(i) The charges are likely to exceed $250; or (ii) you have failed 
previously to pay a fee in a timely fashion. When IMLS requests an 
advance payment, the time limits described in section (a)(6) of the 
FOIA will begin only after IMLS has received full payment.
    (g) Failure to comply. In the absence of unusual or exceptional 
circumstances, IMLS will not assess fees if the agency fails to comply 
with any time limit set forth in these regulations.
    (h) Waivers. IMLS may waive fees in other circumstances solely at 
its discretion, consistent with 5 U.S.C. 552.


Sec.  1184.8  What are IMLS' policies regarding disclosure of business 
information?

    (a) In general. Business information obtained by IMLS from a 
submitter will be disclosed under FOIA only under this section.
    (b) Definitions. For purposes of this section, the following 
definitions apply:
    (1) Business information. Commercial or financial information 
obtained by IMLS from a submitter that may be protected from disclosure 
under Exemption 4 of FOIA.
    (2) Submitter. Any person or entity from whom IMLS 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, 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. When required under paragraph (e) of this 
section, subject to the exceptions in paragraph (h) of this section, 
IMLS will 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 will either 
describe the business information requested or include copies of the 
requested records or record portions containing the information. When 
notification of a voluminous number of submitters is required, 
notification may be made by posting or publishing the

[[Page 22506]]

notice in a place reasonably likely to accomplish it.
    (e) Where notice is required. IMLS will give notice 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) IMLS has reason to believe that the information may be 
protected from disclosure under Exemption 4.
    (f) Opportunity to object to disclosure. IMLS 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 must 
submit a detailed written statement to IMLS. 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. If 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 IMLS until after the 
agency's disclosure decision has been made will not be considered by 
IMLS. Information provided by a submitter under this paragraph may 
itself be subject to disclosure under FOIA.
    (g) Notice of intent to disclose. IMLS will consider a submitter's 
objections and specific grounds for nondisclosure in deciding whether 
to disclose business information. If IMLS decides to disclose business 
information over the objection of a submitter, IMLS will give the 
submitter written notice, which will 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 will be a reasonable time 
subsequent to the notice.
    (h) Exceptions to notice requirements. The notice requirements of 
paragraphs (d) and (g) of this section will not apply if:
    (1) IMLS 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; or
    (4) The designation made by the submitter under paragraph (c) of 
this section appears obviously frivolous--except that, in such a case, 
IMLS will, 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. If a requester files a lawsuit seeking 
to compel the disclosure of business information, IMLS will promptly 
notify the submitter of the filing of the lawsuit.
    (j) Corresponding notice to requesters. If IMLS provides a 
submitter with notice and an opportunity to object to disclosure under 
paragraph (d) of this section, IMLS will also notify the requester(s). 
If IMLS notifies a submitter of its intent to disclose requested 
information under paragraph (g) of this section, IMLS will also notify 
the requester(s). If a submitter files a lawsuit seeking to prevent the 
disclosure of business information, IMLS will notify the requester(s) 
of the filing of the lawsuit.


Sec.  1184.9  Disclaimer.

    Nothing in these regulations will 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.

    Signed: April 9, 2013.
Nancy E. Weiss,
General Counsel.
[FR Doc. 2013-08890 Filed 4-15-13; 8:45 am]
BILLING CODE 7036-01-P