[Federal Register Volume 79, Number 30 (Thursday, February 13, 2014)]
[Rules and Regulations]
[Pages 8607-8614]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-03040]


=======================================================================
-----------------------------------------------------------------------

OVERSEAS PRIVATE INVESTMENT CORPORATION

22 CFR Part 706

[No. FOIA-2013]
RIN 3420-ZA00


Freedom of Information

AGENCY: Overseas Private Investment Corporation.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This final rule implements revisions to the Overseas Private 
Investment Corporation's (``OPIC'') Freedom of Information Act (FOIA) 
regulations by making substantive and administrative changes. These 
revisions are intended to supersede OPIC's current FOIA regulations, 
located at this part. The final rule incorporates the FOIA revisions 
contained in the Openness Promotes Effectiveness in our National 
Government Act of 2007 (``OPEN Government Act''), makes administrative 
changes to reflect OPIC's cost, and organizes the regulations to more 
closely match those of other agencies for ease of reference. The rule 
also reflects the disclosure principles established by President Barack 
Obama and Attorney General Eric Holder in their FOIA Policy Memoranda 
issued on January 12, 2009 and March 19, 2009, respectively.

DATES: This rule is effective February 14, 2014.

FOR FURTHER INFORMATION CONTACT: Nichole Cadiente, Administrative 
Counsel, (202) 336-8400, or foia@opic.gov.

SUPPLEMENTARY INFORMATION: The revision of Part 706 incorporates 
changes to the language and structure of the regulations and adds new 
provisions to implement the OPEN Government Act. OPIC is already 
complying with these changes and this final rule serves as OPIC's 
formal codification of the applicable law and its practice.
    The most significant change in this final rule is the treatment of 
business submitters. This section will define confidential commercial 
information more concisely and provide a default expiration date for 
confidentiality labels. This will enable OPIC to more efficiently 
process requests for commercial information, which comprise the 
majority of OPIC's FOIA requests. Among other substantive changes: the 
search date is now the responsive record cutoff date, the information 
OPIC posts online has been clarified, there is more detail on how to 
request records about an individual, and illustrative examples have 
been added.
    OPIC published a proposed rule on December 4, 2013 at 78 FR 72843 
and invited interested parties to submit comments. OPIC received two 
sets of comments and a forwarded set of best practices and has made 
several changes to its rule based on these suggestions.
    OPIC adopted the following suggestions. First, OPIC made some 
editorial changes. An erroneous reference in Sec.  706.11(e) was 
changed from Section 706.10(c) to Sec.  706.24. Also the term ``non-
public records'' was changed to ``records'' as it was suggested that 
requesters might consider ``non-public records'' to be records excluded 
from the FOIA.
    Second, OPIC added a subsection for ``all other requesters'' to the 
listing of requester categories in Section 706.21 to make the listing 
comprehensive.
    Third, OPIC added definitions of ``requester categories'' and ``fee 
waivers'' to Sec. Sec.  706.21 and 706.24, respectively. These two fee 
relevant determinations are often confused by requesters and OPIC 
agrees that the public would benefit from explicit definitions.
    Fourth, OPIC added the following sentence to the end of Sec.  
706.22(f): ``OPIC will not aggregate multiple requests that involve 
multiple matters.'' This language is already included in the other 
subsection dealing with request aggregation, Sec.  706.30(e).
    Fifth, OPIC has modified the example in Sec.  706.30(f)(3) to 
remove the word ``professional.'' The sentence now reads: ``For 
example, under paragraph (e)(1)(ii) of this section, a requester who is 
not a full-time member of the news media must establish that he or she 
is a person whose primary activity or occupation is information 
dissemination.'' OPIC did so to address a concern that requesters might 
interpret the expedited processing provision relating to ``a person 
primarily engaged in information dissemination'' as applying only to 
persons who are paid for disseminating information. The new wording 
makes it clearer that the standard can be met regardless of whether the 
requester is paid.
    Sixth, OPIC has reduced its per page charge for photocopies from 
$0.15 to $0.10.
    OPIC considered, but did not adopt the following suggestions. 
First, OPIC did not adopt a suggestion to add a definitions section. 
OPIC's 2000 FOIA regulations contained a definitions section which was 
intentionally removed. Most definitions in the regulations are specific 
to a topic, therefore placing the definitions near the terms as they 
are used is more efficient for the reader.
    Second, OPIC did not add suggested language specifying that the 
Privacy Act deals with first-party requests and the FOIA deals with 
third party requests. The suggested language does not reflect OPIC's 
practice. OPIC automatically processes first party requests under both 
the Privacy Act and the FOIA, regardless of which statute it is 
submitted under, and informs the requester of that dual processing in 
the acknowledgement letter.
    Third, in Sec.  706.11(a)(3), OPIC did not change the term, ``Where 
a request for records pertains to a third party'' to, ``Where a request 
for records pertains to

[[Page 8608]]

a living third party.'' This section provides information on how to 
obtain a fuller response on records for both a living and deceased 
third party, therefore the limitation to only a living party would be 
inaccurate.
    Fourth, OPIC did not delete Sec.  706.30(e). The commenter felt 
that this section, dealing with the effect of aggregated requests upon 
the timing of OPIC's responses, was duplicative of Sec.  706.22(f), 
which deals with the effect of aggregation upon fees charged. Including 
a section that discusses the effects of aggregating requests in the 
fees section as well as the timing section ensures the public is aware 
of both effects.
    Fifth, OPIC declined to include a provision obliging it to provide 
requesters with a contact within the referral agency when making 
referrals. Since other agencies often do not provide such information 
to OPIC, OPIC is not in a position to ensure that a requester will 
receive it.
    Sixth, OPIC declined to change its appeal deadline to thirty 
calendar days or more. OPIC's 2000 regulations contained, and this 
final rule maintains, a twenty working day deadline for appeals. OPIC 
notes that twenty working days is roughly equal to thirty calendar days 
and that it is already meeting what several comments pointed to as an 
agency norm. The twenty working day deadline uses a date system 
consistent with most of the other deadlines in the FOIA. An agency's 
response deadline, as well as the extension for unusual circumstances, 
is measured in working days. In fact, the agency response deadline is 
the same length, twenty working days, during which agencies are 
expected to search for, review, and process a FOIA request. Although 
some comments expressed concern about the federal mail delay, OPIC's 
regulations use the postmark date, not the received by date. OPIC also 
notes that for at least the past five years it has not received any 
complaints from requesters about the deadline. In the one incident 
where OPIC received a request for an extension due to mail handling 
issues at the requester's office, OPIC granted the extension. Although 
OPIC's decision to measure appeal deadlines in working days rather than 
calendar days differs from many agencies, it is consistent with the way 
that response deadlines are measured within the regulations and 
provides a deadline that is effectively equivalent to the typical 
thirty calendar day deadline.

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

    Pursuant to the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., 
the head of OPIC has certified that this final rule will not have a 
significant economic impact on a substantial number of small entities. 
The final rule implements the FOIA, a statute concerning the release of 
federal records, and does not economically impact Federal Government 
relations with the private sector. Further, under the FOIA, agencies 
may recover only the direct costs of searching for, reviewing, and 
duplicating the records processed for requesters. Based on OPIC's 
experience, these fees are nominal.

Executive Order 12866

    OPIC is exempted from the requirements of this Executive Order per 
the Office of Management and Budget's October 12, 1993 memorandum. 
Accordingly, OMB did not review this final rule. However this rule was 
generally composed with the principles stated in section 1(b) of the 
Executive Order in mind.

Unfunded Mandates Reform Act of 1995 (2 U.S.C. 202-05)

    This final rule will not result in the expenditure by State, local, 
and tribal governments in the aggregate, or by the private sector, of 
$100,000,000 or more in any one year, and it will not significantly or 
uniquely affect small governments. Therefore, no actions were deemed 
necessary under the provisions of the Unfunded Mandates Reform Act of 
1995.

Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 
801 et seq.).

    This final rule is not a major rule as defined by section 804 of 
the Small Business Regulatory Enforcement Fairness Act of 1996. This 
regulation will not result in an annual effect on the economy of 
$100,000,000 or more; a major increase in costs or prices; or 
significant adverse effects on competition, employment, investment, 
productivity, innovation, or on the ability of United State based 
companies to compete with foreign-based companies in domestic and 
export markets.

List of Subjects in 22 CFR Part 706

    Administrative practice and procedure, Freedom of Information, 
Privacy.


0
For the reasons stated in the preamble the Overseas Private Investment 
Corporation revises 22 CFR Part 706 as follows:

PART 706--INFORMATION DISCLOSURE UNDER THE FREEDOM OF INFORMATION 
ACT

Subpart A--General
Sec.
706.1 Description.
706.2 Policy.
706.3 Scope.
706.4 Preservation and transfer of records.
706.5 Other rights and services.
Subpart B--Obtaining OPIC Records
706.10 Publically available records.
706.11 Requesting records.
Subpart C--Fees for Requests
706.20 Types of fees.
706.21 Requester categories.
706.22 Fees charged.
706.23 Advance payments.
706.24 Requirements for waiver or reduction of fees.
Subpart D--Processing of Requests
706.30 Timing of responses to requests.
706.31 Responses to requests.
706.32 Confidential commercial information.
706.33 Administrative appeals.

    Authority: 5 U.S.C. 552.

Subpart A--General


Sec.  706.1  Description.

    This part contains the rules that the Overseas Private Investment 
Corporation (``OPIC'') follows in processing requests for records under 
the Freedom of Information Act (``FOIA''), 5 U.S.C. 552 as amended. 
These rules should be read together with the FOIA and the Uniform 
Freedom of Information Fee Schedule and Guidelines published by the 
Office of Management and Budget at 52 FR 10012 (Mar. 27, 1987) (``OMB 
Guidelines'').


Sec.  706.2  Policy.

    It is OPIC's policy to make its records available to the public to 
the greatest extent possible, in keeping with the spirit of the FOIA. 
This policy includes providing reasonably segregable information from 
records that also contain information that may be withheld under the 
FOIA. However, implementation of this policy also reflects OPIC's view 
that the soundness and viability of many of its programs depend in 
large measure upon full and reliable commercial, financial, technical 
and business information received from applicants for OPIC assistance 
and that the willingness of those applicants to provide such 
information depends on OPIC's ability to hold it in confidence. 
Consequently, except as provided by

[[Page 8609]]

law and in this part, information provided to OPIC in confidence will 
not be disclosed without the submitter's consent.


Sec.  706.3  Scope.

    This part applies to all agency records in OPIC's possession and 
control. This part does not compel OPIC to create records or to ask 
outside parties to provide documents in order to satisfy a FOIA 
request. OPIC may, however, in its discretion and in consultation with 
a FOIA requester, create a new record as a partial or complete response 
to a FOIA request. In responding to requests for information, OPIC will 
consider only those records within its possession and control as of the 
date of OPIC's search.


Sec.  706.4  Preservation and transfer of records.

    (a) Preservation of records. OPIC preserves all correspondence 
pertaining to the requests that it receives under this part, as well as 
copies of all requested records, until disposition or destruction is 
authorized pursuant to title 44 of the United States Code or the 
General Records Schedule 14 of the National Archives and Records 
Administration. Records that are identified as responsive to a request 
will not be disposed of or destroyed while they are the subject of a 
pending request, appeal, or lawsuit under the FOIA.
    (b) Transfer of records to the National Archives. Under the Records 
Disposal Act, 44 U.S.C. Chapter 33, OPIC is required to transfer legal 
custody and control of records with permanent historical value to the 
National Archives. OPIC's Finance Project and Insurance Contract Case 
files generally do not qualify as records with permanent historical 
value. OPIC will not transfer these files except when the National 
Archives determines that an individual project or case is especially 
significant or unique. If the National Archives receives a FOIA request 
for records that have been transferred it will respond to the request 
in accordance with its own FOIA regulations.


Sec.  706.5  Other rights and services.

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

Subpart B--Obtaining OPIC Records


Sec.  706.10  Publically available records.

    Many OPIC records are readily available to the public by electronic 
access, including annual reports and financial statements, program 
handbooks, press releases, application forms, claims information, and 
annual FOIA reports. Records required to be proactively published under 
the FOIA are also online. Persons seeking information are encouraged to 
visit OPIC's Internet site at: www.opic.gov to see what information is 
already available before submitting a request.


Sec.  706.11  Requesting records.

    (a) General information. (1) How to submit. To make a request for 
records not covered under Section 706.10, a requester must submit a 
written request to OPIC's FOIA Office either by mail to Overseas 
Private Investment Corporation, 1100 New York Avenue NW., Washington, 
DC 20527 or electronic mail to FOIA@opic.gov. The envelope or subject 
line should read ``Freedom of Information Request'' to ensure proper 
routing. The request is considered received by OPIC upon actual receipt 
by OPIC's FOIA Office.
    (2) Records about oneself. A requester who is making a request for 
records about himself or herself must verify his or her identity by 
providing a notarized statement or a statement under 28 U.S.C. 1746, a 
law that permits statements to be made under penalty of perjury as a 
substitute for notarization, stating that the requester is the person 
he or she claims to be.
    (3) Records about a third party. Where a request for records 
pertains to a third party, a requester may receive greater access by 
submitting a notarized authorization signed by that individual, a 
declaration by that individual made in compliance with the requirements 
set forth in 28 U.S.C. 1746 authorizing disclosure of the records to 
the requester, proof of guardianship, or proof that the individual is 
deceased (e.g., a copy of a death certificate or an obituary). OPIC may 
require a requester to supply additional information if necessary in 
order to verify that a particular individual has consented to 
disclosure.
    (b) Description of records sought. Requesters must describe the 
records sought in sufficient detail to enable OPIC personnel to locate 
them with a reasonable amount of effort. To the extent possible, 
requesters should include specific information that may assist OPIC in 
identifying the requested records, such as the project name, contract 
number, date or date range, country, title, name, author, recipient, 
subject matter of the record, or reference number. In general, 
requesters should include as much detail as possible about the specific 
records or the types of records sought. If a requester fails to 
reasonably describe the records sought, OPIC will inform the requester 
what additional information is needed or why the request is deficient. 
Any time you spend clarifying your request in response to OPIC's 
inquiry is excluded from the 20 working-day period (or any extension of 
this period) that OPIC has to respond to your request. Requesters who 
are attempting to reformulate or modify such a request may discuss 
their request with a FOIA Officer or a FOIA Public Liaison. When a 
requester fails to provide sufficient detail after having been asked to 
clarify a request OPIC shall notify the requester that the request has 
not been properly made and that no further action will be taken.
    (c) Format. You may state the format (paper copies, electronic 
scans, etc.) in which you would like OPIC to provide the requested 
records. If you do not state a preference, you will receive any 
released records in the format most convenient to OPIC.
    (d) Requester information. You must include your name, mailing 
address, and telephone number. You may also provide your electronic 
mail address, which will allow OPIC to contact you quickly to discuss 
your request and respond to your request electronically.
    (e) Fees. You must state your willingness to pay fees under these 
regulations or, alternately, your willingness to pay up to a specified 
limit. If you believe that you qualify for a partial or total fee 
waiver under Sec.  706.24 you should request a waiver and provide 
justification as required by Sec.  706.24. If your request does not 
contain a statement of your willingness to pay fees or a request for a 
fee waiver, OPIC will consider your request an agreement to pay up to 
$25.00 in fees.

Subpart C--Fees for Requests


Sec.  706.20  Types of fees.

    (a) Direct costs are those expenses that an agency expends in 
searching for and duplicating (and, in the case of commercial-use 
requests, reviewing) records in order to respond to a FOIA request. For 
example, direct costs include the salary of the employee performing the 
work (i.e., the basic rate of pay for the employee, plus 16 percent of 
that rate to cover benefits) and the cost of operating computers and 
other electronic equipment. OPIC shall ensure that searches, review, 
and duplication are conducted in the most efficient and the least 
expensive manner. Direct costs do not include overhead expenses such as 
the costs of space, and of heating or lighting a facility.
    (b) Duplication is reproducing a copy of a record or of the 
information contained in it, necessary to respond to a FOIA request. 
Copies can take the

[[Page 8610]]

form of paper, audiovisual materials, or electronic records, among 
others.
    (c) Review is the examination of a record located in response to a 
request in order to determine whether any portion of it is exempt from 
disclosure. Review time includes processing any record for disclosure, 
such as doing all that is necessary to prepare the record for 
disclosure, including the process of redacting the record and marking 
the appropriate exemptions. Review costs are properly charged even if a 
record ultimately is not disclosed. Review time also includes time 
spent both obtaining and considering any formal objection to disclosure 
made by a confidential commercial information submitter under Sec.  
706.32(c), but it does not include time spent resolving general legal 
or policy issues regarding the application of exemptions.
    (d) Search is the process of looking for and retrieving records or 
information responsive to a request. Search time includes page-by-page 
or line-by-line identification of information within records; and the 
reasonable efforts expended to locate and retrieve information from 
electronic records. Search costs are properly charged even if no 
records are located.


Sec.  706.21  Requester categories.

    Requester category means one of five categories that agencies place 
requesters in for the purpose of determining whether a requester will 
be charged fees for search, review and duplication. This is separate 
from a fee waiver, which waives any fees charged. Fee waivers are 
covered in Sec.  706.24.
    (a) A Commercial Use request is a request that asks for information 
for a use or a purpose that furthers a commercial, trade, or profit 
interest, which can include furthering those interests through 
litigation.
    (b) An Educational Use request is one made on behalf of an 
educational institution, defined as 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. 
Records requested for the intention of fulfilling credit requirements 
are not considered to be sought for an educational institution's use.
    (c) A Noncommercial Scientific Institution Use request is a request 
made on behalf of a noncommercial scientific institution, defined as an 
institution that is not operated on a ``commercial'' basis, as defined 
in paragraph (a) 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.
    (d) A News Media Request is a request made by a representative of 
the news media in that capacity. A representative of the news media is 
defined as any person or entity that actively gathers information of 
potential interest to a segment of the public, uses its editorial 
skills to turn the raw materials into a distinct work, and distributes 
that work to an audience. The term ``news'' means information that is 
about current events or that would be of current interest to the 
public. Examples of news media entities include television or radio 
stations that broadcast news to the public at large and publishers of 
periodicals that disseminate news and make their products available 
through a variety of means to the general public. A request for records 
that supports the news-dissemination function of the requester shall 
not be considered to be for a commercial use. ``Freelance'' journalists 
who demonstrate a solid basis for expecting publication through a news 
media entity shall be considered as working for that entity. A 
publishing contract would provide the clearest evidence that 
publication is expected; however, OPIC shall also consider a 
requester's past publication record in making this determination. 
OPIC's decision to grant a requester media status will be made on a 
case-by-case basis based upon the requester's intended use.
    (e) All Other Requesters is any request made for a use not covered 
by paragraphs (a) through (d) of this section.


Sec.  706.22  Fees charged.

    (a) In responding to FOIA requests, OPIC will charge the following 
fees unless a waiver or reduction of fees has been granted under Sec.  
706.24.
    (1) Search. (i) Search fees shall be charged for all requests 
subject to the restrictions of paragraph (b) of this section.
    (ii) For each hour spent by personnel searching for requested 
records, including electronic searches that do not require new 
programming, the fees will be as follows: Professional--$41.50; and 
administrative--$33.50.
    (iii) Requesters will be charged the direct costs associated with 
conducting any search that requires the creation of a new program to 
locate the requested records.
    (iv) For requests that require the retrieval of records stored at a 
Federal records center operated by the National Archives and Records 
Administration (NARA), additional costs shall be charged in accordance 
with the Transactional Billing Rate Schedule established by NARA.
    (2) Duplication. Duplication fees will be charged to all 
requesters, subject to the restrictions of paragraph (b) of this 
section. OPIC will honor a requester's preference for receiving a 
record in a particular form or format where it is readily reproducible 
in the form or format requested. Where photocopies are supplied, OPIC 
will provide one copy per request at a cost of $0.15 per page. For 
copies of records produced on tapes, disks, or other electronic media, 
OPIC will charge the direct costs of producing the copy, including 
operator time. Where paper documents must be scanned in order to comply 
with a requester's preference to receive the records in an electronic 
format, the requester shall pay the direct costs associated with 
scanning those materials. For other forms of duplication OPIC will 
charge the direct costs.
    (3) Review. Review fees will be charged to requesters who make 
commercial-use requests. Review fees will be assessed in connection 
with the initial review of the record, i.e., the review conducted by 
OPIC to determine whether an exemption applies to a particular record 
or portion of a record. No charge will be made for review at the 
administrative appeal stage of exemptions applied at the initial review 
stage. However, if the appellate authority determines that a particular 
exemption no longer applies, any costs associated with the re-review of 
the records in order to consider the use of other exemptions may be 
assessed as review fees. Review fees will be charged at the same rates 
as those charged for a search under paragraph (a)(1)(ii) of this 
section.
    (b) Restrictions on charging fees. (1) No search fees will be 
charged for educational use requests, noncommercial scientific use 
requests, or news media requests as defined in Sec.  706.21. When OPIC 
fails to comply with the time limits in which to respond to a request, 
and if no unusual or exceptional circumstances apply to the processing 
of the request, OPIC may not charge search fees, or, in the instances 
of requests from requesters defined in Sec.  706.21(b) through (d), may 
not charge duplication fees.

[[Page 8611]]

    (2) Except for requesters seeking records for a commercial use, 
OPIC will provide without charge:
    (i) The first 100 pages of duplication (or the cost equivalent for 
other media); and
    (ii) The first two hours of search.
    (3) When the total fee calculated under this section is $25.00 or 
less for any request, no fee will be charged.
    (c) Notice of anticipated fees in excess of authorization. When 
OPIC determines or estimates that the fees to be assessed in accordance 
with this section will exceed the amount authorized, OPIC will notify 
the requester of the actual or estimated amount of the fees, including 
a breakdown of fees for search, review, and duplication. Processing 
will be halted until the requester commits in writing to pay the actual 
or estimated total fee. This time will not count against OPIC's twenty 
day processing time or any extension of that time. Such a commitment 
must be made by the requester in writing, must indicate a given dollar 
amount, and must be received by OPIC within thirty calendar days from 
the date of notification of the fee estimate. If a commitment is not 
received within this period, the request shall be closed. A FOIA 
Officer or FOIA Public Liaison is available to assist any requester in 
reformulating a request in an effort to reduce fees.
    (d) Charges for other services. Although not required to provide 
special services, if OPIC chooses to do so as a matter of 
administrative discretion, the direct costs of providing the service 
will be charged. Examples of such services include certifying that 
records are true copies, providing multiple copies of the same 
document, or sending records by means other than first class mail.
    (e) Charging interest. OPIC may charge interest on any unpaid bill 
starting on the thirty-first day following the billing date. Interest 
charges will be assessed at the rate provided in 31 U.S.C. 3717 and 
will accrue from the billing date until payment is received by OPIC. 
OPIC will follow the provisions of the Debt Collection Act of 1982 
(Public Law 97-365, 96 Stat. 1749), as amended, and its administrative 
procedures, including the use of consumer reporting agencies, 
collection agencies, and offset.
    (f) Aggregating requests. If OPIC reasonably believes that a 
requester or a group of requesters acting in concert is attempting to 
divide a single request into a series of requests for the purpose of 
avoiding fees, OPIC may aggregate those requests and charge 
accordingly. OPIC will not aggregate multiple requests that involve 
unrelated matters.
    (g) Other statutes specifically providing for fees. The fee 
schedule of this section does not apply to fees charged under any 
statute that specifically requires an agency to set and collect fees 
for particular types of records. In instances where records responsive 
to a request are subject to a statutorily-based fee schedule program, 
OPIC will inform the requester of the contact information for that 
source.
    (h) Remittances. All payments under this part must be in the form 
of a check or a bank draft denominated in U.S. currency. Checks should 
be made payable to the order of United States Treasury and mailed to 
the OPIC FOIA Office.


Sec.  706.23  Advance payments.

    (a) For requests other than those described in paragraphs (i)(2) 
and (i)(3) of Sec.  706.22, OPIC will not require the requester to make 
an advance payment before work is commenced or continued on a request. 
Payment owed for work already completed (i.e., payment before copies 
are sent to a requester) is not an advance payment.
    (b) When OPIC determines or estimates that a total fee to be 
charged under this section will exceed $250.00, it may require that the 
requester make an advance payment up to the amount of the entire 
anticipated fee before beginning to process the request. OPIC may elect 
to process the request prior to collecting fees when it receives a 
satisfactory assurance of full payment from a requester with a history 
of prompt payment.
    (c) Where a requester has previously failed to pay a properly 
charged FOIA fee to any agency within thirty calendar days of the 
billing date, OPIC may require that the requester pay the full amount 
due, plus any applicable interest on that prior request. OPIC may also 
require that the requester make an advance payment of the full amount 
of any anticipated fee before OPIC begins to process a new request or 
continues to process a pending request or any pending appeal. Where 
OPIC has a reasonable basis to believe that a requester has 
misrepresented his or her identity in order to avoid paying outstanding 
fees, it may require that the requester provide proof of identity.
    (d) In cases in which OPIC requires advance payment, OPIC's 
response time will be tolled and further work will not be completed 
until the required payment is received. If the requester does not pay 
the advance payment within thirty calendar days after the date of 
OPIC's fee letter, OPIC may administratively close the request.


Sec.  706.24  Requirements for waiver or reduction of fees.

    (a) Records responsive to a request shall be furnished without 
charge or at a reduced rate below that established under Sec.  706.22, 
where OPIC determines, based on all available information, that the 
requester has demonstrated that:
    (1) Disclosure of the requested information is in the public 
interest because it is likely to contribute significantly to public 
understanding of the operations or activities of the government, and
    (2) Disclosure of the information is not primarily in the 
commercial interest of the requester.
    (b) In deciding whether disclosure of the requested information is 
in the public interest because it is likely to contribute significantly 
to public understanding of operations or activities of the government, 
OPIC will consider the following factors:
    (1) The subject of the request must concern identifiable operations 
or activities of the Federal government, with a connection that is 
direct and clear, not remote or attenuated.
    (2) The disclosable portions of the requested records must be 
meaningfully informative about government operations or activities in 
order to be ``likely to contribute'' to an increased public 
understanding of those operations or activities. The disclosure of 
information that already is in the public domain, in either the same or 
a substantially identical form, would not contribute to such 
understanding where nothing new would be added to the public's 
understanding.
    (3) The disclosure must contribute to the understanding of a 
reasonably broad audience of persons interested in the subject, as 
opposed to the individual understanding of the requester. A requester's 
expertise in the subject area as well as his or her ability and 
intention to effectively convey information to the public shall be 
considered. It shall ordinarily be presumed that a representative of 
the news media satisfies this consideration.
    (4) The public's understanding of the subject in question must be 
enhanced by the disclosure to a significant extent. However, OPIC shall 
not make value judgments about whether the information at issue is 
``important'' enough to be made public.
    (c) To determine whether disclosure of the requested information is 
primarily in the commercial interest of the requester, OPIC will 
consider the following factors:
    (1) OPIC shall identify any commercial interest of the requester, 
as defined in paragraph (b)(1) of this

[[Page 8612]]

section, that would be furthered by the requested disclosure. 
Requesters shall be given an opportunity to provide explanatory 
information regarding this consideration.
    (2) A waiver or reduction of fees is justified where the public 
interest is greater than any identified commercial interest in 
disclosure.
    (d) Where only some of the records to be released satisfy the 
requirements for a waiver of fees, a waiver shall be granted for those 
records.
    (e) Requests for a waiver or reduction of fees should be made when 
the request is first submitted to OPIC and should address the criteria 
referenced above. A requester may submit a fee waiver request at a 
later time so long as the underlying record request is pending or on 
administrative appeal. When a requester who has committed to pay fees 
subsequently asks for a waiver of those fees and that waiver is denied, 
the requester will be required to pay any costs incurred up to the date 
the fee waiver request was received.
    (f) The burden of presenting sufficient evidence or information to 
justify the requested fee waiver or reduction falls on the requester.

Subpart D--Processing of Requests


Sec.  706.30  Timing of responses to requests.

    (a) In general. OPIC ordinarily will respond to requests within 
twenty business days unless the request involves unusual circumstances 
as described in subparagraph (d) of this section. The response time 
will commence on the date that the request is received by the FOIA 
Office, but in any event not later than ten working days after the 
request is first received by OPIC. Any time tolled under paragraph (c) 
of this section does not count against OPIC's response time.
    (b) Multitrack processing. OPIC has a track for requests that are 
granted expedited processing, in accordance with the standards set 
forth in paragraph (e) of this section. All non-expedited requests are 
processed on the regular track in the order they are received.
    (c) Tolling of response time. OPIC may toll its response time once 
to seek clarification of a request in accordance with Sec.  706.11(b) 
or as needed to resolve fee issues in accordance with Sec. Sec.  
706.22(c) and 706.23(d). The response time will resume upon OPIC's 
receipt of the requester's clarification or upon resolution of the fee 
issue.
    (d) Unusual circumstances. Whenever the statutory time limits for 
processing cannot be met because of ``unusual circumstances'' as 
defined in the FOIA, and OPIC extends the time limits on that basis, 
OPIC will notify the requester in writing of the unusual circumstances 
involved and of the date by which processing of the request can be 
expected to be completed. This notice will be sent before the 
expiration of the twenty day period to respond. Where the extension 
exceeds ten working days, the requester will be provided an opportunity 
to modify the request or agree to an alternative time period for 
processing. OPIC will make its designated FOIA contact and its FOIA 
Public Liaison available for this purpose.
    (e) Aggregating requests. For the purposes of satisfying unusual 
circumstances under the FOIA, OPIC may aggregate requests in cases 
where it reasonably appears that multiple requests, submitted either by 
a requester or by a group of requesters acting in concert, constitute a 
single request that would otherwise involve unusual circumstances. OPIC 
will not aggregate multiple requests that involve unrelated matters.
    (f) Expedited processing. (1) Requests and appeals will be 
processed on an expedited basis whenever it is determined that they 
involve:
    (i) Circumstances in which the lack of expedited processing could 
reasonably be expected to pose an imminent threat to the life or 
physical safety of an individual;
    (ii) An urgency to inform the public about an actual or alleged 
Federal government activity, if made by a person who is primarily 
engaged in disseminating information;
    (2) A request for expedited processing may be made at any time.
    (3) A requester who seeks expedited processing must submit a 
statement, certified to be true and correct, explaining in detail the 
basis for making the request for expedited processing. For example, 
under paragraph (e)(1)(ii) of this section, a requester who is not a 
full-time member of the news media must establish that he or she is a 
person whose primary activity or occupation is information 
dissemination. Such a requester also must establish a particular 
urgency to inform the public about the government activity involved in 
the request--one that extends beyond the public's right to know about 
government activity generally. A requester cannot satisfy the ``urgency 
to inform'' requirement solely by demonstrating that numerous articles 
have been published on a given subject. OPIC may waive the formal 
certification requirement at its discretion.
    (4) OPIC shall notify the requester within ten calendar days of the 
receipt of a request for expedited processing of its decision whether 
to grant or deny expedited processing. If expedited processing is 
granted, the request shall be given priority, placed in the processing 
track for expedited requests, and shall be processed as soon as 
practicable. If OPIC denies expedited processing, any appeal of that 
decision which complies with the procedures set forth in Sec.  706.33 
shall be acted on expeditiously.


Sec.  706.31  Responses to requests.

    (a) Acknowledgments of requests. If a request will take longer than 
ten days to process, OPIC will send the requester an acknowledgment 
letter that assigns the request an individualized tracking number.
    (b) Grants of requests. OPIC will notify the requester in writing 
if it makes a determination to grant a request in full or in part. The 
notice will inform the requester of any fees charged under Sec.  
706.22. OPIC will disclose the requested records to the requester 
promptly upon payment of any applicable fees.
    (c) Adverse determinations of requests. OPIC will notify the 
requester in writing if it makes an adverse determination denying a 
request in any respect. Adverse determinations, or denials of requests, 
include decisions that: the requested record is exempt, in whole or in 
part; the request does not reasonably describe the records sought; the 
information requested is not a record subject to the FOIA; the 
requested record does not exist, cannot be located, or has been 
destroyed; or the requested record is not readily reproducible in the 
form or format sought by the requester. Adverse determinations also 
include denials involving fees or fee waiver matters or denials of 
requests for expedited processing.
    (d) Content of denial letter. The denial letter will be signed by 
the person responsible for the denial, and will include:
    (1) The name and title or position of the person responsible for 
the denial;
    (2) A brief statement of the reasons for the denial, including any 
FOIA exemptions applied;
    (3) An estimate of the volume of any records or information 
withheld, for example, by providing the number of pages or some other 
reasonable form of estimation. This estimation is not required if the 
volume is otherwise indicated by deletions marked on records that are 
disclosed in part, or if providing an estimate would harm an interest 
protected by an applicable exemption;

[[Page 8613]]

    (4) A brief description of the types of information withheld and 
the reasons for doing so. A description and explanation are not 
required if providing it would harm an interest protected by an 
applicable exemption;
    (5) A statement that the denial may be appealed under Section 
706.33(a) of this subpart, and a description of the requirements set 
forth therein; and
    (6) Notice of any fees charged under Sec.  706.22.
    (e) Markings on released documents. Where technically feasible, 
OPIC will mark withholdings made on released documents at the place 
where the withholding has been made and will include the exemption 
applied. Markings on released documents must be clearly visible to the 
requester.
    (f) Referrals to other government agencies. If you request a record 
in OPIC's possession that was created or classified by another Federal 
agency, OPIC will promptly refer your request to that agency for direct 
response to you unless OPIC can determine by examining the record or by 
informal consultation with the originating agency that the record may 
be released in whole or part. OPIC will notify you of any such 
referral.


Sec.  706.32  Confidential commercial information.

    (a) Definitions. (1) Confidential commercial information means 
commercial or financial information obtained from a submitter that may 
be protected from disclosure under Exemption 4 of the FOIA. Exemption 4 
protects:
    (i) Trade secrets; or
    (ii) Commercial or financial information that is privileged or 
confidential where either: Disclosure of the information would cause 
substantial competitive harm to the submitter, or the information is 
voluntarily submitted and would not customarily be publicly released by 
the submitter.
    (2) Submitter means any person or entity who provides confidential 
commercial information to OPIC, directly or indirectly.
    (b) Designation of confidential commercial information. All 
submitters may designate, by appropriate markings, any portions of 
their submissions that they consider to be protected from disclosure 
under the FOIA. The markings may be made at the time of submission or 
at a later time. These markings will be considered by OPIC in 
responding to a FOIA request but such markings (or the absence of such 
markings) will not be dispositive as to whether the marked information 
is ultimately released. Unless otherwise requested and approved these 
markings will be considered no longer applicable ten years after 
submission or five years after the close of the associated project, 
whichever is later.
    (c) When notice to submitters is required. (1) Except as provided 
in paragraph (d) of this section, OPIC's FOIA Office will use 
reasonable efforts to notify a submitter in writing whenever:
    (i) The requested information has been designated in good faith by 
the submitter as confidential commercial information; or
    (ii) OPIC has reason to believe that the requested information may 
be protected from disclosure under Exemption 4.
    (2) This notification will describe the nature and scope of the 
request, advise the submitter of its right to submit written objections 
in response to the request, and provide a reasonable time for response. 
The notice will either describe the commercial information requested or 
include copies of the requested records. In cases involving a 
voluminous number of submitters, notice may be made by posting or 
publishing the notice in a place or manner reasonably likely to 
accomplish it.
    (d) Exceptions to submitter notice requirements. The notice 
requirements of this section shall not apply if:
    (1) OPIC determines that the information is exempt under the FOIA;
    (2) The information lawfully has been published or has been 
officially made available to the public; or
    (3) Disclosure of the information is required by a statute other 
than the FOIA or by a regulation issued in accordance with the 
requirements of Executive Order 12600 of June 23, 1987.
    (e) Opportunity to object to disclosure. (1) The submitter may, at 
any time prior to the disclosure date described in paragraph (c)(2) of 
this section, submit to OPIC's FOIA Office detailed written objections 
to the disclosure of the requested information, specifying the grounds 
upon which it contends that the information should not be disclosed. In 
setting forth such grounds, the submitter should explain the basis of 
its belief that the nondisclosure of any item of information requested 
is mandated or permitted by law. In the case of information that the 
submitter believes to be exempt from disclosure under subsection (b)(4) 
of the FOIA, the submitter shall explain why the information is 
considered a trade secret or commercial or financial information that 
is privileged or confidential and either: How disclosure of the 
information would cause substantial competitive harm to the submitter, 
or why the information should be considered voluntarily submitted and 
why it is information that would not customarily be publicly released 
by the submitter. Information provided by a submitter pursuant to this 
paragraph may itself be subject to disclosure under the FOIA.
    (2) A submitter who fails to respond within the time period 
specified in the notice shall be considered to have no objection to 
disclosure of the information. Information received after the date of 
any disclosure decision will not be considered. Any information 
provided by a submitter under this subpart may itself be subject to 
disclosure under the FOIA.
    (3) The period for providing OPIC with objections to disclosure of 
information may be extended by OPIC upon receipt of a written request 
for an extension from the submitter. Such written request shall set 
forth the date upon which any objections are expected to be completed 
and shall provide reasonable justification for the extension. In its 
discretion, OPIC may permit more than one extension.
    (f) Analysis of objections. OPIC will consider a submitter's 
objections and specific grounds for nondislosure in deciding whether to 
disclose the requested information.
    (g) Notice of intent to disclose. If OPIC rejects the submitter's 
objections, in whole or in part, OPIC will promptly notify the 
submitter of its determination at least five working days prior to 
release of the information. The notification will include:
    (1) A statement of the reasons why each of the submitter's 
disclosure objections was not sustained;
    (2) A description of the information to be disclosed, or a copy 
thereof; and
    (3) A specified disclosure date, which shall be a reasonable time 
subsequent to the notice.
    (h) Notice of FOIA lawsuit. Whenever a requester files a FOIA 
lawsuit seeking to compel the disclosure of confidential commercial 
information, OPIC will promptly notify the submitter.
    (i) Requester notification. OPIC will notify a requester whenever 
it provides the submitter with notice and an opportunity to object to 
disclosure and whenever a submitter files a lawsuit to prevent the 
disclosure of the information.


Sec.  706.33  Administrative appeals.

    (a) Requirements for making an appeal. A requester may appeal any 
adverse determinations denying his or her request to OPIC's Vice 
President and General Counsel at FOIA@opic.gov or 1100 New York Avenue 
NW.,

[[Page 8614]]

Washington, DC 20527. Examples of adverse determinations are provided 
in Sec.  706.31(c). The requester must make the appeal in writing and 
it must be postmarked, or in the case of electronic submissions, 
transmitted, within twenty working days following the date on which the 
requester receives OPIC's denial. Appeals that have not been postmarked 
or transmitted within the twenty days will be considered untimely and 
will be administratively closed with notice to the requester. The 
appeal letter should include the assigned request number. The requester 
should mark both the appeal letter and envelope, or subject line of the 
electronic transmission, ``Freedom of Information Act Appeal.''
    (b) Adjudication of appeals. OPIC's Vice President and General 
Counsel or his/her designee will render a written decision within 
twenty working days after the date of OPIC's receipt of the appeal, 
unless an extension of up to ten working days is deemed necessary due 
to unusual circumstances. The requester will be notified in writing of 
any extension.
    (c) Decisions on appeals. A decision that upholds the initial 
determination will contain a written statement that identifies the 
reasons for the affirmance, including any FOIA exemptions applied, and 
will provide the requester with notification of the statutory right to 
file a lawsuit or the ability to request mediation from the Office of 
Government Information Services. If an initial determination is 
remanded or modified on appeal the requester will be notified in 
writing. OPIC's FOIA Office will then process the request in accordance 
with that appeal determination and respond directly to the requester. 
If an appeal is granted in whole or in part, the information will be 
made available promptly, provided the requirements of Sec.  706.22 
regarding payment of fees are satisfied.
    (d) When appeal is required. Before seeking court review, a 
requester generally must first submit a timely administrative appeal.

    Dated: January 28, 2014.
Nichole Cadiente,
Administrative Counsel, Department of Legal Affairs.
[FR Doc. 2014-03040 Filed 2-12-14; 8:45 am]
BILLING CODE P