[Federal Register Volume 79, Number 33 (Wednesday, February 19, 2014)]
[Proposed Rules]
[Pages 9430-9442]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-03450]


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Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of 
the proposed issuance of rules and regulations. The purpose of these 
notices is to give interested persons an opportunity to participate in 
the rule making prior to the adoption of the final rules.

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Federal Register / Vol. 79, No. 33 / Wednesday, February 19, 2014 / 
Proposed Rules

[[Page 9430]]



NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

14 CFR Part 1206

[Docket No. NASA-2700-0006]
RIN 2700-AE04


Procedures for Disclosure of Records Freedom of Information Act 
Regulations

AGENCY: National Aeronautics and Space Administration.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The National Aeronautics and Space Administration (NASA) is 
proposing to amend its regulations implementing the Freedom of 
Information Act (FOIA). The regulations are being revised to update and 
streamline the language of several procedural provisions and to 
incorporate certain changes brought about by the amendments to the FOIA 
under the Openness Promotes Effectiveness in our National (OPEN) 
Government Act of 2007. Additionally, the regulations are being updated 
to reflect developments in case law and to include current cost figures 
to be used in calculating and charging fees.

DATES: Submit comments on or before March 21, 2014.

ADDRESSES: Comments must be identified with RIN 2700-AE04 and may be 
sent to NASA via the Federal E-Rulemaking Portal: http://www.regulations.gov. Follow the online instructions for submitting 
comments. Please note that NASA will post all comments on the internet 
with changes, including any personal information provided.

FOR FURTHER INFORMATION CONTACT: Miriam Brown-Lam, (202) 358-0718.

SUPPLEMENTARY INFORMATION:

Background

    The FOIA provides that any person has a right, enforceable in 
court, to obtain access to Federal agency records, except to the extent 
that such records (or portions of them) are protected from public 
disclosure by one of nine exemptions or by one of three special law 
enforcement record exclusions. The FOIA thus established a statutory 
right of public access to Executive Branch information in the Federal 
Government.
    Part 1206 establishes the policies, responsibilities, and 
procedures for the release of Agency records, which are under the 
jurisdiction of NASA to members of the public. These regulations apply 
to information found in Agency records located at NASA Headquarters and 
NASA Centers, including Component Facilities and Technical and Service 
Support Centers (herein Centers).
    This rule proposes revisions to the Agency's regulations under the 
FOIA to update and streamline the language of several procedural 
provisions and to incorporate certain of the changes brought about by 
the amendments to the FOIA under the OPEN Government Act of 2007, 
Public Law 110-175, 121 Stat. 2524. Additionally, the regulations are 
being updated to reflect developments in case law and to include 
current cost figures to be used in calculating and charging fees. The 
revisions to the FOIA regulations incorporate changes to the language 
and structure of the regulations. Revised provisions include 
restructuring and renumbering of the current regulations: Sec.  
1206.101 (Definitions), Sec.  1206.102 (General Policy), Sec.  1206.200 
(Types of records to be made available), Sec.  1206.300 (Exemptions) 
(Requirements for making requests), Sec.  1206.5 (Timing of responses 
to requests), Sec.  1206.6 (Responses to requests), Sec.  1206.7 
(Confidential commercial information), and Sec.  1206.8 (Administrative 
appeals). The current Sec.  1206.101 (Definitions) and Sec.  1206.7 
(Classified Information) will be deleted and subsequent sections 
renumbered accordingly. Proposed revisions of the Administration's fee 
schedule can be found in Subpart 5. The duplication charge for 
photocopying will increase to .15 cents a page (.30 for double-sided 
copying), while document search and review charges will increase in 
accordance with Subpart 5. Fee rates will be effective upon final 
publication of this regulation.

Regulatory Analysis

Executive Order 12866 and Executive Order 13563

    Executive Orders 13563 and 12866 direct agencies to assess all 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). Executive 
Order 13563 emphasizes the importance of quantifying both costs and 
benefits, reducing costs, harmonizing rules, and promoting flexibility. 
This final rule has been designated a ``significant regulatory 
action,'' although not economically significant, under section 3(f) of 
Executive Order 12866. Accordingly, this rule has been reviewed by the 
Office of Management and Budget.

Regulatory Flexibility Act

    It has been certified that this rule is not subject to the 
Regulatory Flexibility Act (5 U.S.C. 601) because it would not, if 
promulgated, have a significant economic impact on a substantial number 
of small entities. Fees assessed by the Administration are nominal. 
Further, the ``small entities'' that make FOIA requests, as compared 
with individual requesters and other requesters, are relatively few in 
number.

Paperwork Reduction Act Statement

    This rule does not contain an information collection requirement 
subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et 
seq.).

Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by State, local, and 
Tribal governments, in the aggregate, or by the private sector, of 
$100,000,000 or more in any one year, and it will not significantly or 
uniquely affect small governments. 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

    This rule is not a major rule as defined by Sec.  251 of the Small 
Business Regulatory Enforcement Fairness Act of 1996 (as amended), 5 
U.S.C. 804. This

[[Page 9431]]

rule 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 States-based companies to 
compete with foreign based companies in domestic and export markets.

List of Subjects in 14 CFR Part 1206

    Administrative practice and procedure, Freedom of Information Act, 
Privacy Act.

    For the reasons stated in the preamble, NASA is proposing to revise 
14 CFR Part 1206 as follows:

PART 1206--PROCEDURES FOR DISCLOSURE OF RECORDS FREEDOM OF 
INFORMATION ACT REGULATIONS

Sec.
Subpart 1--Basic Policy
1206.100 Scope of part.
1206.101 General policy.
Subpart 2--Types of Records To Be Made Available
1206.200 Publishing of records.
1206.201 Proactive disclosure of Agency records.
1206.202 Records that have been published.
1206.203 Incorporation by reference.
Subpart 3--Procedures
1206.300 How to make a request for Agency records.
1206.301 Describing records sought.
1206.302 Fee agreements.
1206.303 Format of records disclosed.
1206.304 Expedited processing.
1206.305 Responding to requests.
1206.306 Granting a request.
1206.307 Denying a request.
1206.308 Referrals and consultations within NASA or other Federal 
agencies.
Subpart 4--Procedures and Time Limits for Responding to Requests
1206.400 Procedures for processing queues and expedited processing.
1206.401 Procedures and time limits for acknowledgement letters and 
initial determinations.
1206.402 Suspending the basic time limit.
1206.403 Time extensions.
Subpart 5--Fees Associated With Processing Requests
1206.500 Search.
1206.501 Review.
1206.502 Duplication.
1206.503 Restrictions on charging fees.
1206.504 Charging fees.
1206.505 Advance payments.
1206.506 Requirements for a waiver or reduction of fees.
1206.507 Categories of requesters.
1206.508 Aggregation of requests.
1206.509 Form of payment.
1206.510 Nonpayment of fees.
1206.511 Other rights and services.
Subpart 6--Commercial Information
1206.600 General policy.
1206.601 Notice to submitters.
1206.602 Opportunity to object to disclosure.
1206.603 Notice of intent to disclose.
Subpart 7--Appeals
1206.700 How to submit an appeal.
1206.701 Actions on appeals.
1206.702 Litigation.
Subpart 8--Responsibilities
1206.800 Delegation of authority.
1206.801 Chief FOIA Officer.
1206.802 General Counsel.
1206.803 NASA Headquarters.
1206.804 NASA Centers and Components.
1206.805 Inspector General.
Subpart 9--Location for Inspection and Request of Agency Records
1206.900 FOIA offices and electronic libraries.

    Authority:  5 U.S.C. 552, 552a; 51 U.S.C. 20113(a).

Subpart 1--Basic Policy


Sec.  1206.100  Scope of the part.

    This Part 1206 establishes the policies, responsibilities, and 
procedures for the release of Agency records which are under the 
jurisdiction of the National Aeronautics and Space Administration, 
hereinafter NASA, to members of the public. This part applies to 
information and Agency records located at NASA Headquarters and NASA 
Centers, including Component Facilities and Technical and Service 
Support Center, herein NASA Headquarters and Centers, as defined in 
this part.


Sec.  1206.101  General policy.

    (a) In compliance with the Freedom of Information Act (FOIA), as 
amended 5 U.S.C. 552, a positive and continuing obligation exists for 
NASA, herein Agency, to make available to the fullest extent 
practicable upon request by members of the public, all Agency records 
under its jurisdiction, as described in this regulation.
    (b) Part 1206 does not entitle any person to any service or to the 
disclosure of any record that is not required under the FOIA.

Subpart 2--Types of Records To Be Made Available


Sec.  1206.200  Publishing of records.

    (a) Records required to be published in the Federal Register. The 
following records are required to be published in the Federal Register, 
for codification in Title 14, Chapter V, of the CFR.
    (1) Description of NASA Headquarters and NASA Centers and the 
established places at which, the employees from whom, and the methods 
whereby, the public may secure information, make submittals or 
requests, or obtain decisions;
    (2) Statements of the general course and method by which NASA's 
functions are channeled and determined, including the nature and 
requirements of all formal and informal procedures available;
    (3) Rules of procedure, descriptions of forms available or the 
places at which forms may be obtained, and instructions regarding the 
scope and contents of all papers, reports, or examinations;
    (4) Substantive rules of general applicability adopted as 
authorized by law, and statements of general policy or interpretations 
of general applicability formulated and adopted by NASA;
    (5) Each amendment, revision, or repeal of the foregoing.
    (b) Agency opinions, orders, statements, and manuals.
    (1) Unless they are exempt from disclosure in accordance with the 
FOIA, or unless they are promptly published and copies offered for 
sale, NASA shall make available the following records for public 
inspection and copying or purchase:
    (i) All final opinions (including concurring and dissenting 
opinions) and all orders made in the adjudication of cases;
    (ii) Those statements of NASA policy and interpretations which have 
been adopted by NASA and are not published in the Federal Register;
    (iii) Administrative staff manuals (or similar issuances) and 
instructions to staff that affect a member of the public;
    (iv) Copies of all records, regardless of form or format, that have 
been released to any person under Subpart 3 herein and which, because 
of the nature of their subject matter, the Agency determines have 
become or are likely to become the subject of subsequent requests for 
substantially the same records (frequently requested documents).
    (2) A general index of records referred to under (b)(1)(iv).
    (i) For records created after November 1, 1997, which are covered 
by paragraph (b)(l)(i) through (b)(l)(v) of this section, such records 
shall be available electronically, through an electronic library and in 
electronic forms or formats.
    (ii) In connection with all records required to be made available 
or published under this paragraph (b), identifying details shall be 
deleted to the extent required to prevent a clearly unwarranted 
invasion of personal privacy. However, in each case the

[[Page 9432]]

justification for the deletion shall be explained fully in writing. The 
extent of such deletion shall be indicated on the portion of the record 
which is made available or published, unless including that indication 
would harm an interest protected by an exemption in Subpart 3. If 
technically feasible, the extent of the deletion shall be indicated at 
the place in the record where the deletion is made.
    (c) Other Agency records.
    (1) In addition to the records made available or published under 
paragraphs (a) and (b) of this section, NASA shall, upon request for 
other records made in accordance with this part, make such records 
promptly available to any person, unless they are exempt from 
disclosure, or unless they may be purchased by the public from other 
readily available sources, i.e., books.
    (2) Furthermore, at a minimum, NASA will maintain in its electronic 
library records created after November 1, 1997, under paragraphs 
(b)(1)(iv) and a guide for requesting records or information from NASA.


Sec.  1206.201  Proactive disclosure of Agency records.

    Records that are required by the FOIA to be made available for 
public inspection and copying are accessible on the Agency's Web site, 
http://www.nasa.gov. Each Center is responsible for determining which 
of its records are required to be made publicly available, as well as 
identifying additional records of interest to the public that are 
appropriate for public disclosure, and for posting such records. Each 
Center has a FOIA Public Liaison who can assist individuals in locating 
records particular to a Center. A list of the Agency's FOIA Public 
Liaisons is available at http://www.hq.nasa.gov/office/pao/FOIA/agency/.


Sec.  1206.202  Records that have been published.

    Publication in the Federal Register is a means of making certain 
Agency records are available to the public in accordance with 5 U.S.C. 
552(a)(2) without requiring the filing of a FOIA request. NASA has a 
FOIA Electronic Library Web site at NASA Headquarters and each of its 
Centers. Also, the FedBizOpps (FBO) (formerly Commerce Business Daily), 
is a source of information concerning Agency records or actions. 
Various other NASA publications and documents, and indexes thereto, are 
available from other sources, such as the U.S. Superintendent of 
Documents, and the Earth Resources Observation and Science Center 
(Department of the Interior). Such publications and documents are not 
required to be made available or reproduced in response to a request 
unless they cannot be purchased readily from available sources.


Sec.  1206.203  Incorporation by reference.

    Records reasonably available to the members of the public affected 
thereby shall be deemed published in the Federal Register when 
incorporated by reference in material published in the Federal Register 
(pursuant to the Federal Register regulation on incorporation by 
reference, 1 CFR Part 51).

Subpart 3--Procedures


Sec.  1206.300  How to make a request for Agency records.

    (a) A requester submitting a request for records must include his/
her name and mailing address, a description of the record(s) sought 
(see Sec.  1206.301), and must address fees or provide justification 
for a fee waiver (see Sec.  1206.302) as well as address the fee 
category in accordance with Sec.  1206.507. It is also helpful to 
provide a telephone number and email address in case the FOIA office 
needs to contact you regarding your request; however, this information 
is optional when submitting a written request. If a requester chooses 
to submit a request online via the NASA FOIA Web site, the required 
information must be completed. Do not include a social security number 
on any correspondence with the FOIA office.
    (b) NASA does not have a central location for submitting FOIA 
requests and it does not maintain a central index or database of 
records in its possession. Instead, Agency records are decentralized 
and maintained by various Centers and Offices throughout the country.
    (c) In accordance with the Agency Records Management procedures 
NASA has not yet implemented a records management application for 
automated capture and control of e-records; therefore, official files 
are primarily paper files.
    (d) A member of the public may request an Agency record by mail, 
facsimile (FAX), electronic-mail (email), or by submitting a written 
request in person to the FOIA office having responsibility over the 
record requested or to the NASA Headquarters (HQ) FOIA Office.
    (e) When a requester is unable to determine the proper NASA FOIA 
Office to direct a request to, the requester may send the request to 
the NASA HQ FOIA Office, 300 E Street SW., Washington, DC 20546-0001. 
The HQ FOIA Office will forward the request to the Center(s) that it 
determines to be most likely to maintain the records that are sought.
    (1) It is in the interest of the requester to send the request to 
the office they believe has responsibility over the records being 
sought. (See Appendix A for NASA FOIA Office locations and addresses.)
    (2) A misdirected request may take up to ten (10) additional 
working days to re-route to the proper FOIA office.
    (f) A requester who is making a request for records about himself 
or herself (a Privacy Act request) must comply with the verification of 
identity provisions set forth in 14 CFR 1212.202.
    (g) Where a request pertains to a third party, a requester may 
receive greater access by submitting either a notarized authorization 
signed by the individual who is the subject of the record requested, or 
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, or submit proof that the individual is 
deceased (e.g., a copy of a death certificate or a verifiable 
obituary).
    (h) As an exercise of its administrative discretion, each Center 
FOIA office may require a requester to supply additional information if 
necessary, i.e., a notarized statement from the subject of the file, in 
order to verify that a particular individual has consented to a third 
party disclosure. Information will only be released on a case-by-case 
to third party requesters if they have independently provided 
authorization from the individual who is the subject of the request.


Sec.  1206.301  Describing records sought.

    In view of the time limits under 5 U.S.C. 552(a)(6) for an initial 
determination on a request for an Agency record, a request must meet 
the following requirements:
    (a) The request must be addressed to an appropriate FOIA office or 
otherwise be clearly identified in the letter as a request for an 
Agency record under the ``Freedom of Information Act.''
    (b) Requesters must describe the records sought in sufficient 
detail to enable Agency personnel who are familiar with the subject 
area of the request to identify and locate the record with a reasonable 
amount of effort. To the extent possible, requesters should include 
specific information that may assist a FOIA office in identifying the 
requested records, such as the date, title or name, author, recipient, 
subject matter of the record, case number, file

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designation, or reference number. In general, requesters should include 
as much detail as possible about the specific records or the types of 
records sought.
    (c) If the requester fails to reasonably describe the records 
sought, the FOIA office shall inform the requester of what additional 
information is needed or why the request is deficient. The FOIA office 
will also notify the requester that it will not be able to comply with 
the FOIA request unless the additional information requested is 
provided within 20 working days from the date of the letter. If the 
additional information is not provided within that timeframe, the 
request will be closed without further notification.
    (d) If after being asked to clarify a request, the requester 
provides additional information to the FOIA office but fails to provide 
sufficient details or information to allow the FOIA office to ascertain 
exactly what records are being requested and locate them, or in general 
to process the request, the FOIA office will notify the requester that 
the request has not been properly made and the request will be closed. 
The FOIA office will advise him/her that they may submit a new request 
for the information; however, they will need to provide more 
information to allow processing of the request.
    (e) NASA need not comply with a blanket or categorical request 
(such as ``all matters relating to'' a general subject) where it is not 
reasonably feasible to determine what record is sought.
    (f) NASA will in good faith attempt to identify and locate the 
record(s) sought and will consult with the requester when necessary and 
appropriate for that purpose in accordance with these regulations.
    (g) NASA is not required to create or compile records in response 
to a FOIA request.


Sec.  1206.302  Fee agreements.

    (a) A request must explicitly state a willingness to pay all fees 
associated with processing the request, fees up to a specified amount, 
or a request for a fee waiver.
    (b) If the FOIA office determines that fees for processing the 
request will exceed the agreed upon amount or the statutory 
entitlements, the FOIA office will notify the requester that:
    (1) He/she must provide assurance of payment for all anticipated 
fees or provide an advance payment if estimated fees are expected to 
exceed $250.00, or
    (2) The FOIA office will not be able to fully comply with the FOIA 
request unless an assurance or advance payment as requested has been 
provided.
    (3) He/she may wish to limit the scope of the request to reduce the 
processing fees.
    (c) If the FOIA office does not receive a written response within 
20 working days (meaning all days except Saturdays, Sundays and all 
Federal legal holidays) after requesting the information, it will 
presume the requester is no longer interested in the records requested 
and will close the file on the request without further notification.
    (d) A commercial-use requester must:
    (1) State a willingness to pay all fess associated with processing 
a request; or
    (2) State a willingness to pay fees to cover the costs of 
conducting an initial search for responsive records to determine a fee 
estimate.
    (e) If a requester is only willing to pay a limited amount for 
processing a request and it is for more than one document, the 
requester must state the order in which he/she would like the request 
for records to be processed.
    (f) If a requester is seeking a fee waiver, the request must 
include sufficient justification to substantiate a waiver. (See Subpart 
5 for information on fee waivers.) Failure to provide sufficient 
justification will result in a denial of the fee waiver request.
    (g) If a requester is seeking a fee waiver, he/she may also choose 
to state a willingness to pay fees in case the fee waiver request is 
denied in order to allow the FOIA office to begin processing the 
request while considering the fee waiver.
    (h) If a fee is chargeable for search, review, duplication, or 
other costs incurred in connection with a request for an Agency record, 
the requester will be billed prior to releasing Agency documents. If 
the total amount of processing fees is under $50.00, the Agency will 
release the records and bill the requester when final processing is 
complete.
    (1) If the exact amount of the fee chargeable is not known at the 
time of the request, the requester will be notified in the initial 
determination (or in a final determination in the case of an appeal) of 
the amount of fees chargeable.
    (2) For circumstances in which advance payment of fees is required, 
the requester will be notified after the FOIA office has obtained an 
estimate of associated fees.
    (i) The FOIA office will begin processing a request only after the 
request has been properly described in accordance with these 
regulations and fees have been resolved.
    (j) If the requester is required to pay a fee and it is later 
determined on appeal that he/she was entitled to a full or partial fee 
waiver, a refund will be sent as appropriate.
    (k) NASA may refuse to consider a waiver or reduction of fees for 
requesters (persons or organizations) from whom unpaid fees remain owed 
to the Agency for another information access request.


Sec.  1206.303  Format of records disclosed.

    (a) The FOIA office will provide the records in the requested 
format if the records can readily be reproduced from the original file 
to that specific format.
    (b) The FOIA office may charge direct costs associated with 
converting the records or files into the requested format if they are 
not maintained in that format. If the costs to convert the records 
exceed the amount the requester has agreed to pay, the FOIA office will 
notify the requester in writing. If the requester does not agree to pay 
the additional fees for converting the records, the records may not be 
provided in the requested format.


Sec.  1206.304  Expedited processing.

    A requester may ask for expedited processing of a request. However, 
information to substantiate the request must be included in accordance 
with Sec.  1206.400, Criteria for Expedited Processing, otherwise, the 
request for expedited processing will be denied and processed in the 
simple or complex queue.


Sec.  1206.305  Responding to requests.

    (a) Except in the instances described in paragraphs (e) and (f) of 
this section, the FOIA office that first receives a request for a 
record and maintains that record, is the FOIA office responsible for 
responding to the request.
    (b) In determining what records are responsive to a request, a FOIA 
office ordinarily will include only records in its possession as of the 
date that it begins its search. If any other date is used, the FOIA 
office shall inform the requester of that date.
    (c) A record that is excluded from the requirements of the FOIA 
pursuant to 5 U.S.C. 552(c), shall not be considered responsive to a 
request.
    (d) The Head of a Center, or designee, is authorized to grant or to 
deny any requests for records that are maintained by that Center.
    (e) The FOIA office may refer a request to or consult with another 
Center FOIA office or Federal agency in accordance with Sec.  1206.308, 
if the FOIA office receives a request for records that are in its 
possession that were not

[[Page 9434]]

created at that Center. If another Center within NASA or another 
Federal agency has substantial interest in or created the records, the 
request will either be referred or they will consult with that FOIA 
office/agency.
    (f) If a request for an Agency record is received by a FOIA office 
not having responsibility of the record (for example, when a request is 
submitted to one NASA Center or Headquarters and another NASA Center 
has responsibility of the record), the FOIA office receiving the 
request shall promptly forward it to that FOIA office within 10 working 
days from the date of receipt. The receiving FOIA office shall 
acknowledge the request and provide the requester with a tracking 
number.


Sec.  1206.306  Granting a request.

    (a) The FOIA office will not begin processing a request until all 
issues regarding scope and fees have been resolved.
    (b) If fees are not expected to exceed the minimum threshold of 
$25.00, and the scope of the request is in accordance with Sec.  
1206.301, the FOIA office will begin processing the request.
    (c) If the FOIA office contacts the requester regarding fees or 
clarification and the requester has provided a response, the FOIA 
office will notify the requester in writing of the decision to either 
grant or deny the request.


Sec.  1206.307  Denying a request.

    (a) If the FOIA office denies records in response to a request 
either in full or in part, it will advise the requester in writing 
that:
    (1) The requested record(s) is exempt in full or in part; or
    (2) Records do not exist, cannot be located, or are not in the 
Agency's possession; or
    (3) A record is not readily reproducible in the form or format 
requested; or
    (4) Denial is based on a procedural issue only and not access to 
the underlying records when it makes a decision that:
    (i) A fee waiver or another fee-related issue will not be granted; 
or
    (ii) Expedited processing will not be provided.
    (b) The denial notification must include:
    (1) The name, title, or position of the person(s) responsible for 
the denial;
    (2) A brief statement of the reasons for the denial, including a 
reference to any FOIA exemption(s) applied by the FOIA office to 
withhold records in full or in part;
    (3) An estimate of the volume of any records or information 
withheld, i.e., the number of pages or a reasonable form of estimation, 
unless such an estimate would harm an interest protected by the 
exemption(s) used to withhold the records or information;
    (4) A statement that the denial may be appealed under Subpart 7 of 
this part and a description of the requirements set forth therein.
    (c) If the requested records contain both exempt and non-exempt 
material, the FOIA office will:
    (1) Segregate and release the non-exempt material unless the non-
exempt material is so intertwined with the exempt material that 
disclosure of it would leave only meaningless words and phrases;
    (2) Indicate on the released portion(s) of the records the amount 
of information redacted and the FOIA exemption(s) under which the 
redaction was made, unless doing so would harm an interest protected by 
the FOIA exemption used to withhold the information; and
    (3) If technically feasible, place the exemption at the place of 
excision.


Sec.  1206.308  Referrals and consultations within NASA or other 
Federal Agencies.

    (a) Referrals and consultations can occur within the Agency or 
outside the Agency.
    (b) If a FOIA office (other than the Office of Inspector General) 
receives a request for records in its possession that another NASA FOIA 
office has responsibility over or is substantially concerned with, it 
will either:
    (1) Consult with the other FOIA office before deciding whether to 
release or withhold the records; or
    (2) Refer the request, along with the records, to that FOIA office 
for direct response.
    (c) If the FOIA office that originally received the request refers 
all or part of the request to another FOIA office within the Agency for 
further processing, they will notify the requester of the partial 
referral and provide that FOIA contact information.
    (d) If while responding to a request, the FOIA office locates 
records that originated with another Federal agency, it will generally 
refer the request and any responsive records to that other agency for a 
release determination and direct response.
    (e) If the FOIA office refers all the records to another agency, it 
will document the referral and maintain a copy of the records that it 
refers; notify the requester of the referral in writing, unless that 
identification will itself disclose a sensitive, exempt fact; and may 
provide the name of a contact at the other agency.
    (f) If the FOIA office locates records that originated with another 
Federal agency while responding to a request, the office will make the 
release determination itself (after consulting with the originating 
agency) when:
    (1) The record is of primary interest to NASA (for example, a 
record may be of primary interest to NASA if it was developed or 
prepared according to Agency regulations or directives, or in response 
to an Agency request); or
    (2) NASA is in a better position than the originating agency to 
assess whether the record is exempt from disclosure; or
    (3) The originating agency is not subject to the FOIA; or
    (4) It is more efficient or practical depending on the 
circumstances.
    (g) If the FOIA office receives a request for records that another 
Federal agency has classified under any applicable executive order 
concerning record classification, it must refer the request to that 
agency for response.
    (h) If the FOIA office receives a request for records that are 
under the purview of another Federal agency, the office will return the 
request to the requester and may advise the requester to submit it 
directly to another agency. The FOIA office will then close the 
request.
    (i) All consultations and referrals received by the Agency will be 
handled according to the date that the FOIA request initially was 
received by the first FOIA office.

Subpart 4--Procedures and Time Limits for Responding to Requests


Sec.  1206.400  Procedures for processing queues and expedited 
processing.

    (a) The FOIA office will normally process requests in the order in 
which they are received in each of the processing tracks.
    (b) FOIA offices use three queues for multi-track processing 
depending on the complexity of the request. Once it has been determined 
the request meets the criteria in accordance with Subpart 3 of this 
regulation, the FOIA office will place the request in one of the 
following tracks:
    (1) Simple--A request that can be processed within 20 working days.
    (2) Complex--A request that will take over 20 working days to 
process. (A complex request will generally require coordination with 
more than one office and a legal 10 working day extension for unusual 
circumstances (see Sec.  1206.403) may be taken either up front or 
during the first 20 days of processing the request.)
    (3) Expedited processing--A request for expedited processing will 
be processed in this track if the requester can show exceptional need 
or urgency

[[Page 9435]]

that their request should be processed out of turn in accordance with 
Sec.  1206.400(c).
    (c) Requests and appeals will be processed on an expedited basis 
whenever it is determined that they involve one or more of the 
following:
    (1) Circumstances in which the lack of expedited treatment could 
reasonably be expected to pose an imminent threat to the life or 
physical safety of an individual;
    (2) Circumstances in which there is an urgency to inform the public 
about an actual or alleged Federal Government activity if the FOIA 
request is made by a person primarily engaged in disseminating 
information; or
    (i) In most situations, a person primarily engaged in disseminating 
information will be a representative of the news media and therefore, 
will qualify as a person primarily engaged in disseminating 
information.
    (ii) If the requester is not a full-time member of the news media, 
to qualify for expediting processing with regard to item Sec.  
1206.400(c)(1)(ii), he/she must establish that their main professional 
activity or occupation is information dissemination, although it need 
not be their sole occupation.
    (iii) To substantiate Sec.  1206.400(c)(1)(ii), the requested 
information must be the type of information which has particular value 
that will be lost if not disseminated quickly; this ordinarily refers 
to a breaking news story of general public interest. Information of 
historical interest only or information sought for litigation or 
commercial activities would not qualify, nor would a news media 
deadline unrelated to breaking news.
    (3) The loss of substantial due process rights.
    (d) A request for expedited processing must contain a statement 
that:
    (1) Explains in detail how the request meets one or more of the 
criteria in paragraph (c) of this section; and
    (2) Certifies that the explanation is true and correct to the best 
of the requester's knowledge and belief.
    (3) If the request is made referencing (c)(ii), the requester must 
substantiate the public interest.
    (e) A request for expedited processing may be made at any time. 
Requests must be submitted to the FOIA office responsible for 
processing the requested records.
    (f) The FOIA office must notify the requester of its decision to 
grant or deny expedited processing within 10 calendar days from the 
date of receipt.
    (g) If expedited processing is granted, the request will be 
processed on a first-in, first-out basis in that queue.
    (h) If expedited processing is denied, the FOIA office will notify 
the requester and provide information on appealing this decision in 
accordance with Subpart 7 of this part and place the request in the 
appropriate processing queue.
    (i) If the FOIA office processing the request does not provide 
notification of either granting or denying the request for expedited 
processing within 10 calendar days from the date of receipt, the 
requester may file an appeal for non-response in accordance with 
Subpart 7 of this part.


Sec.  1206.401  Procedures and time limits for acknowledgement letters 
and initial determinations.

    (a) Following receipt of a request submitted under the FOIA, the 
FOIA staff will send an acknowledgement letter providing the case 
tracking number and processing track within ten (10) working days from 
date of receipt to the requester.
    (b) An initial determination is a decision by a NASA official, in 
response to a request by a member of the public for an Agency record, 
on whether the record described in the request can be identified and 
located after a reasonable search and, if so, whether the record (or 
portions thereof) will be made available under this part or will be 
withheld from disclosure under Subpart 3 of this part.
    (c) An initial determination on a request for an Agency record 
addressed in accordance with this regulation (to include one made in 
person at a FOIA office) shall be made, and the requester shall be sent 
an initial determination letter within 20 working days after receipt of 
the request, as required by 5 U.S.C. 552(a)(6) (unless unusual 
circumstances exist as defined in Sec.  1206.403).
    (d) The basic time limit for a misdirected FOIA request begins on 
the date on which the request is first received by the appropriate FOIA 
office within the Agency, but in any event no later than ten (10) 
working days after the date the request is first received by a FOIA 
office designated to receive FOIA requests.
    (e) Any notification of an initial determination that does not 
comply fully with the request for an Agency record, including those 
searches that produce no responsive documents, shall include a 
statement of the reasons for the adverse determination, include the 
name and title of the person making the initial determination, and 
notify the requester of the right to appeal to the Administrator or the 
Inspector General, as appropriate, pursuant to Subpart 7.


Sec.  1206.402  Suspending the basic time limit.

    (a) In accordance with 5 U.S.C. 552(a)(6)(A)(ii)(I), the FOIA 
office may make one request to the requester for information to clarify 
a request and temporarily suspend (toll) the time (the 20-day period) 
while it is awaiting such information that it has reasonably requested 
from the requester. Receipt of the requester's response by the FOIA 
office to the Agency's request for additional information or 
clarification ends the temporary time suspension.
    (b) In accordance with 5 U.S.C. 552(a)(6)(A)(ii)(II), the FOIA 
office may temporarily suspend (toll) the 20-day period as many times 
as is necessary to clarify with the requester issues regarding fees. 
Receipt of the requester's response by the FOIA office to the Agency's 
request for information regarding fees ends the temporary time 
suspension.


Sec.  1206.403  Time extensions.

    (a) In ``unusual circumstances'' as defined in this section, the 
time limits for an initial determination and for a final determination 
may be extended, but not to exceed a total of 10 working days in the 
aggregate in the processing of any specific request for an Agency 
record. The extension must be taken before the expiration of the 20 
working day time limits. The requester will be notified in writing of:
    (1) The unusual circumstances surrounding the extension of the time 
limit;
    (2) The date by which the FOIA office expects to complete the 
processing of the request.
    (b) Unusual circumstances are defined as:
    (1) The need to search for and collect the requested records from 
offices other than the office processing the request;
    (2) The need to search for, collect, and appropriately examine a 
voluminous amount of documents;
    (3) The need to coordinate and/or consult with another NASA office 
or Agency having a substantial subject-matter interest in the 
determination of the request.
    (c) If initial processing time will exceed or is expected to exceed 
30 working days, the FOIA office will notify the requester of the delay 
in processing and:
    (1) Provide an opportunity to modify or limit the scope of the 
request to reduce processing time; and
    (2) Provide appeal rights, since the FOIA office has exceeded the 
30 working day time period.

[[Page 9436]]

    (3) Shall make available its designated FOIA contact and its FOIA 
Public Liaison for this purpose.
    (d) The requester's refusal to reasonably modify the scope of a 
request or arrange an alternative timeframe for processing a request 
after being given the opportunity to do so may be considered a factor 
when determining whether exceptional circumstances exist. Exceptional 
circumstances means a delay that does not result from a predictable 
workload of requests, unless the Agency demonstrates reasonable 
progress in reducing its backlog of pending requests.

Subpart 5--Fees Associated With Processing Requests

    Fees such as search, review, and duplication will be charged in 
accordance with the requester's fee category as defined in Sec.  
1206.507 of this subpart.


Sec.  1206.500  Search.

    (a) Search includes all time spent looking for material that is 
responsive to a request, including page-by-page or line-by-line 
identification of material within documents. A search will determine 
what specific documents, if any, are responsive to a request. A search 
for Agency records responsive to a request may be accomplished by 
manual or automated means.
    (b) Search charges, as set forth in this part may be billed even 
when an Agency record, which has been requested, cannot be identified 
or located after a diligent search and consultation with a professional 
NASA employee familiar with the subject area of the request has been 
conducted or if located, cannot be made available under Sec.  1206.308.
    (c) In responding to FOIA requests, FOIA offices shall charge the 
following fees based on the date the request is received in the NASA 
FOIA Office unless a waiver or reduction of fees has been granted under 
Sec.  1206.506. Fees will be determined on October 1st of each year 
based on the appropriate General Schedule (GS) base salary, plus the 
District of Columbia locality payment, plus 16 percent for benefits of 
employees.
    (d) For each quarter hour spent by personnel searching for 
requested records, including electronic searches that do not require 
new programming, the fees will be the average hourly General Schedule 
(GS) base salary, plus the District of Columbia locality payment, plus 
16 percent for benefits of employees in the following three categories, 
as applicable:
    (1) Clerical--Based on a GS-6, Step 5 (all employees at a GS-7 and 
below are classified as clerical for this purpose).
    (2) Professional--Based on a GS-11, Step 7 pay (all employees at a 
GS-8 through GS-12 are classified as professional for this purpose);
    (3) Managerial--Based on GS-14, Step 2, pay (all employees at a GS-
13 and above are classified as managerial for this purpose).
    (e) 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.
    (f) For requests that require the retrieval of records stored by an 
agency at a Federal records center operated by the National Archives 
and Records Administration (NARA), additional costs shall be charged in 
accordance with the Transactional Billing Rate Schedule established by 
NARA.


Sec.  1206.501  Review.

    (a) Review means the process of examining a document(s) located in 
response to a request to determine whether the document(s) or any 
portion thereof is disclosable. Review does not include time spent 
resolving general legal or policy issues regarding the application of 
exemptions.
    (b) Review fees will be assessed in connection with the initial 
review of the record, i.e., the review conducted by Agency staff to 
determine whether an exemption applies to a particular record or 
portion of a record.
    (c) Review fees will be charged to commercial use requesters.
    (d) No charge will be made for review at the administrative appeal 
stage of exemptions applied at the initial review stage. However, when 
the appellate authority determines that a particular exemption no 
longer applies, any costs associated with an additional review of the 
records in order to consider the use of other exemptions may be 
assessed as review fees.
    (e) Review fees will be charged at the same rates as those charged 
for a search under Sec.  1206.500.
    (f) Review fees can be charged even if the record(s) reviewed 
ultimately is not disclosed.
    (g) Review fees will not include costs incurred in resolving issues 
of law or policy that may be raised in the course of processing a 
request under this section.


Sec.  1206.502  Duplication.

    (a) Duplication is reproducing a copy of a record or of the 
information contained in it, necessary to respond to a FOIA request. 
Copies can take the form of paper, audiovisual materials, or electronic 
records, among others.
    (b) FOIA offices shall honor a requester's preference for receiving 
a record in a particular form or format where it is readily 
reproducible by the FOIA office in the form or format requested. If the 
records are not readily reproducible in the requested form or format, 
the Agency will so inform the requester. The requester may specify an 
alternative form or format that is available. If in this situation the 
requester refuses to specify an alternative form or format, the Agency 
will not process the request any further.
    (c) Where standard-sized photocopies or scans are supplied, the 
FOIA office will provide one copy per request at the regular copy rate 
per page.
    (d) For copies of records produced on tapes, disks, or other 
electronic media, FOIA offices will charge the direct costs of 
producing the copy, including the time spent by personnel duplicating 
the requested records. For each quarter hour spent by personnel 
duplicating the requested records, the fees will be the same as those 
charged for a search under this subpart.
    (e) If NASA staff must scan paper documents in order to accommodate 
a requester's preference to receive the records in an electronic 
format, the requester shall pay the appropriate copy fee charge per 
page as well as each quarter hour spent by personnel scanning the 
requested records. Fees will be the same as those charged for search 
under this subpart for each quarter hour spent by personnel scanning 
the requested records.
    (f) For other forms of duplication, FOIA offices will charge the 
direct costs as well as any associated personnel costs. For standard-
sized copies of documents such as letters, memoranda, statements, 
reports, contracts, etc., $0.15 per copy of each page; charges for 
double-sided copies will be $0.30. For copies of oversized documents, 
such as maps, charts, etc., fees will be assessed as direct costs. 
Charges for copies (and scanning) include the time spent in duplicating 
the documents. For copies of computer disks, still photographs, 
blueprints, videotapes, engineering drawings, hard copies of aperture 
cards, etc., the fee charged will reflect the direct cost to NASA of 
reproducing, copying, or scanning the record.
    (g) If the request for an Agency record required to be made 
available under this part requires a computerized search or printout, 
the charge for the time of personnel involved shall be at the rates 
specified in this part or the direct costs assessed to the Agency. The 
charge for computer time involved and for any

[[Page 9437]]

special supplies or materials used shall not exceed the direct cost to 
NASA.
    (h) Reasonable standard fees may be charged for additional direct 
costs incurred in searching for or duplicating an Agency record in 
response to a request under this part. Charges made under this 
paragraph include, but are not limited to, the transportation of NASA 
personnel to places of record storage for search purposes or freight 
charges for transporting records to the personnel searching for or 
duplicating a requested record.
    (i) Complying with requests for special services such as those 
listed in (h)(1), (2) and (3) of this section is entirely at the 
discretion of NASA. To the extent that NASA elects to provide the 
following services, it will levy a charge equivalent to the full cost 
of the service provided:
    (1) Certifying that records are true copies.
    (2) Sending records by special methods such as express mail.
    (3) Packaging and mailing bulky records that will not fit into the 
largest envelope carried in the supply inventory.


Sec.  1206.503  Restrictions on charging fees.

    (a) No search fees will be charged when the FOIA office fails to 
comply with the statutory time limits in response to a request if no 
unusual or exceptional circumstances apply to the processing of the 
request, as those terms are defined in Subpart 4 of this regulation.
    (b) In the case of a requester as defined in Sec.  1206.507(c)(2) 
(education and noncommercial scientific institution) and (c)(3) 
(representative of the news media), no duplication fees will be charged 
when the FOIA office fails to comply with the statutory time limits in 
response to a request if no unusual or exceptional circumstances apply 
to the processing of the request, as those terms are defined in Subpart 
4 of this regulation.
    (c) Fees will not be charged unless they are over $25.00.
    (d) No search or review fees will be charged for a quarter-hour 
period unless more than half of that period is required to fulfill 
processing of the request.


Sec.  1206.504  Charging fees.

    (a) When a FOIA office determines or estimates the fees to be 
assessed in accordance with this section will exceed $25.00, the FOIA 
office shall notify the requester unless the requester has indicated a 
willingness to pay fees as high as those anticipated. If a portion of 
the fees can be readily estimated, the FOIA office shall advise the 
requester accordingly.
    (b) In cases in which a requester has been notified that actual or 
estimated fees are in excess of $25.00, the request shall be placed on 
hold and further work will not be completed until the requester commits 
in writing to pay the actual or estimated fees. Such a commitment must 
be made by the requester in writing, must indicate a given dollar 
amount or a willingness to pay all processing fees, and must be 
received by the FOIA office within 20 working day days from the date of 
the letter providing notification of the fee estimate. If a commitment 
is not received within this period, the request shall be closed without 
further notification.
    (c) After the FOIA office begins processing a request, if it finds 
that the actual cost will exceed the amount the requester previously 
agreed to pay, the FOIA office will: (1) Stop processing the request; 
and (2) promptly notify the requester of the higher amount. The request 
will be placed on hold until the fee issue has been resolved. If the 
issue is not resolved within 20 working days from the date of the 
notification letter, the request shall be closed without further 
notification.
    (d) Direct costs, meaning those expenditures that NASA actually 
incurs in searching for, duplicating, and downloading computer files 
and documents in response to a FOIA request will be included on the 
invoice as appropriate. Direct costs include, for example, the salary 
of the employee who would ordinarily perform the work (the basic rate 
of pay for the employee plus 16 percent of that rate to cover 
benefits), the cost of operating computers and other electronic 
equipment, such as photocopiers and scanners, the costs associated with 
retrieving records stored at a Federal records center operated by the 
National Archives and Records Administration (NARA).
    (e) NASA may charge interest on any unpaid bill starting on the 
31st day following the date of billing the requester. 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 the FOIA office. 
NASA will follow the provisions of the Debt Collection Act of 1982 
(Pub. L. 97-365, 96 Stat. 1749), as amended, and its administrative 
procedures, including the use of consumer reporting agencies, 
collection agencies, and offset.
    (f) If processing fees are less than $50.00, NASA will send all 
releaseable documents (or portions thereof) along with a copy of the 
billing invoice following the completion of the initial determination. 
If fees are greater than $50.00, the documents will not be released 
until the invoice has been paid and verified by the FOIA office.
    (g) Final billing will be sent when the initial determination has 
been completed. At that time the case will be closed.


Sec.  1206.505  Advance payments.

    (a) For requests other than those described in paragraphs (b), (c) 
and (f) of this section, a FOIA office shall not require the requester 
to make an advance payment before work is commenced or continued on a 
request. Payment owed for work already completed (i.e., payment for 
search, review and/or before records are released to a requester) is 
not an advance payment.
    (b) When a FOIA office 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. A FOIA office 
may elect to process the request prior to collecting fees when it 
receives a satisfactory assurance of full payment from a requester.
    (c) Where a requester has previously failed to pay a properly 
charged FOIA fee assessed by any FOIA office in the agency within 30 
calendar days of the billing date, a FOIA office may require the 
requester to pay the full amount due, plus any applicable interest due 
on the outstanding debt, before the FOIA office begins to process a new 
request or continues to process a pending request or any pending remand 
of an appeal. Once the outstanding bill has been paid, the FOIA office 
may also require the requester to make an advance payment of the full 
amount of any anticipated fee before processing the new request.
    (d) Where a FOIA office 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 
further proof of identity.
    (e) In cases in which a FOIA office requires advance payment, the 
request shall be placed on hold and further work will not be completed 
until the required payment is received. If the requester does not pay 
the advance payment within 20 working days after the date of the FOIA 
office's letter, the request will be closed without further 
notification.
    (f) When advance payment is required in order to initiate 
processing, after a fee

[[Page 9438]]

estimate has been determined, the FOIA office will require payment 
before continuing to process the request.
    (g) The fee schedule of this section does not apply to fees charged 
under any statute that specifically requires an agency to set and 
collect fees for particular types of records. In instances where 
records responsive to a request are subject to a statutorily-based fee 
schedule program, the FOIA office will inform the requester of the 
contact information for that source.


Sec.  1206.506  Requirements for a waiver or reduction of fees.

    (a) The burden is on the requester to justify an entitlement to a 
fee waiver.
    (b) Requests for a waiver or reduction of fees shall be considered 
on a case-by-case basis using the criteria in this section. These 
statutory requirements must be satisfied by the requester before 
properly assessable fees are waived or reduced under the statutory 
standard.
    (c) Records shall be furnished without charge or at a reduced rate 
if the requester has demonstrated, based on all available information, 
that disclosure of the information is in the public interest because 
it:
    (1) Is likely to contribute significantly to public understanding 
of the operations or activities of the Government; and
    (2) Is not primarily in the commercial interest of the requester.
    (d) In deciding whether a request for a fee waiver meets the 
requirements in Sec.  1206.506(c)(1), of this subpart, the FOIA office 
will use the following factors, which must be addressed by the 
requester:
    (1) Does the subject of the request specifically concern 
identifiable operations or activities of the Agency with a connection 
that is direct and clear, not remote or attenuated? For example, is the 
information requested clearly associated to current events?
    (2) If the record(s) concern the operations or activities of the 
Government, is disclosure likely to contribute to an increased public 
understanding of those operations or activities? For example, are the 
disclosable contents of the record(s) meaningfully informative in 
relation to the subject matter of the request?
    (3) Is the focus of the requester on contributing to public 
understanding, rather than on the individual understanding of the 
requester or a narrow segment of interested persons? The requester must 
demonstrate how he/she plans to disseminate the information. The 
dissemination of information must be to the general public or a 
reasonably broad audience. (Dissemination to a wide audience is not 
merely posting the documents on a Web site, but providing an 
informative analysis of the information.)
    (4) If there is likely to be a contribution to public 
understanding, will that contribution be significant? A contribution to 
public understanding will be significant if the information disclosed 
is new, clearly supports public oversight of Agency operations, 
including the quality of Agency activities and the effect of policy and 
regulations on public health and safety, or otherwise confirms or 
clarifies data on past or present operations of the Agency.
    (e) In deciding whether the fee waiver meets the requirements in 
Sec.  1206.506 (c)(2) of this subpart, the FOIA office will consider 
any commercial interest of the requester that would be furthered by the 
requested disclosure.
    (1) Requesters are encouraged 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.
    (3) If the requester is a representative of a news media 
organization seeking information as part of a news gathering process, 
the FOIA office will presume that the public interest outweighs the 
requester's commercial interest.
    (4) If the requester represents a business, corporation, or is an 
attorney representing such an organization, the FOIA office will 
presume that the commercial interest outweighs the public interest 
unless otherwise demonstrated.
    (f) Where only some of the records to be released satisfy the 
requirements for a waiver of fees, a partial waiver shall be granted 
for those records.
    (g) Requests for a waiver or reduction of fees should be made when 
the request is first submitted to the Agency 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.
    (h) 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 by the office processing the original 
request.
    (i) When deciding whether to waive or reduce fees, the FOIA office 
will rely on the fee waiver justification submitted in the request 
letter. If the request letter does not include sufficient 
justification, the FOIA office will either deny the fee waiver request 
or at its discretion, ask for additional justification from the 
requester.
    (j) FOIA offices may make available their FOIA Public Liaison or 
other FOIA professional to assist any requester in reformulating a 
request in an effort to reduce fees; however, the FOIA staff may not 
assist a requester in composing a request, advising what specific 
records to request, or how to write a request to qualify for a fee 
waiver.


Sec.  1206.507  Categories of requesters.

    (a) A request should indicate the fee category. If the requester 
does not indicate a fee category, or it is unclear to the FOIA office, 
they will make a determination of the fee category based on the 
request. If the requester does not agree with their determination, he/
she will be afforded the opportunity to provide information to support 
a different fee category.
    (b) If the request is submitted on behalf of another person or 
organization (e.g., if an attorney is submitting a request on behalf of 
a client), the fee category will be determined by considering the 
underlying requester's identity and intended use of the information.
    The following table outlines the basic fee categories and 
applicable fees:

----------------------------------------------------------------------------------------------------------------
          Requester category                 Search fees            Review fees           Duplication fees
----------------------------------------------------------------------------------------------------------------
Commercial use requester.............  Yes....................  Yes...............  Yes.
Educational and non-commercial         No.....................  No................  Yes (first 100 pages, or
 scientific institutions.                                                            equivalent volume, without
                                                                                     charge).
Representative of news media           No.....................  No................  Yes (first 100 pages, or
 requester.                                                                          equivalent volume, without
                                                                                     charge).
All other requesters.................  Yes (first 2 hours       No................  Yes (first 100 pages, or
                                        without charge).                             equivalent volume, without
                                                                                     charge).
----------------------------------------------------------------------------------------------------------------


[[Page 9439]]

    (c) The FOIA provides for three categories of requesters. However, 
for clarity purposes, NASA has broken them down to four for the 
purposes of determining fees. These four categories of FOIA requesters 
are: commercial use requesters; educational and noncommercial 
scientific institutions; representatives of the news media; and all 
other requesters. The Act prescribes specific levels of fees for each 
of these categories, which is indicated in the FOIA fee table above.
    (1) Commercial use requesters. When NASA receives a request for 
documents appearing to be for commercial use, meaning a request from or 
on behalf of one whom seeks information for a use or purpose that 
furthers the commercial, trade, or profit interests of either the 
requester or the person on whose behalf the request is made, it will 
assess charges to recover the full direct costs of searching for, 
reviewing for release, and duplicating the records sought. NASA will 
not consider a commercial-use request for a waiver or reduction of fees 
based upon an assertion that disclosure would be in the public 
interest. A request from a corporation (not a news media corporation) 
may be presumed to be for commercial use unless the requester 
demonstrates that it qualifies for a different fee category. Commercial 
use requesters are not entitled to two (2) hours of search time or to 
100 pages of duplication of documents without charge.
    (2) Education and non-commercial scientific institution requesters. 
To be eligible for inclusion in this category, requesters must show 
that the request being made is authorized by and under the auspices of 
a qualifying institution and that the records are not being sought for 
a commercial use (not operated for commerce, trade or profit), but are 
being sought in furtherance of scholarly (if the request is from an 
educational institution) or scientific (if the request is from a 
noncommercial scientific institution) research. A request for 
educational purposes must be sent on the Institution's letterhead and 
signed by the Dean of the School or Department. Records requested for 
the intention of fulfilling credit requirements are not considered to 
be sought for a scholarly purpose.
    For the purposes of a non-commercial scientific institution, it 
must be solely for the purpose of conducting scientific research, the 
results of which are not intended to promote any particular product or 
industry. Requests must be sent on the letterhead of the scientific 
institution and signed by the responsible official in charge of the 
project/program associated with the subject of the documents that are 
being requested.
    (3) Representative of the news media. NASA shall provide documents 
to requesters in this category for the cost of duplication alone, 
excluding charges for the first 100 pages when the requester 
demonstrates the following:
    (a) The requester's intended dissemination,
    (b) Whether the information is current news and/or of public 
interest, and
    (c) Whether the information sought will shed new light on agency 
statutory operations.
    A representative of the news media is 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 the raw materials into a 
distinct work, and distributes that work to an audience. 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, NASA shall also consider a 
requester's past publication record in making this determination. 
NASA's decision to grant a requester news media status for the purposes 
of assessing fees will be made on a case-by-case basis based upon the 
requesters intended use.
    Requesters seeking this fee category who do not articulate 
sufficient information to support their request will not be included in 
this fee category. Additionally, FOIA staff may grant a partial fee 
waiver if the requester can articulate the information above for some 
of the documents.
    (4) All other requesters. NASA shall charge requesters who do not 
fit into any of the categories mentioned in this section fees in 
accordance with the fee table above.


Sec.  1206.508  Aggregation of requests.

    (a) A requester may not file multiple requests at the same time, 
each seeking portions of a document or documents, solely in order to 
avoid payment of fees.
    (b) When NASA has reason to believe that a requester or a group of 
requesters acting in concert is attempting to divide a request into a 
series of requests on a single subject or related subjects for the 
purpose of avoiding the assessment of fees, NASA will aggregate any 
such requests and charge accordingly.
    (c) NASA will consider that multiple requests made within a 30-day 
period were so intended submitted as such to avoid fees, unless there 
is evidence to the contrary.
    (d) NASA will aggregate requests separated by a longer period of 
time only when there is a reasonable basis for determining that 
aggregation is warranted in view of all the circumstances involved.
    (e) NASA will not aggregate multiple requests on unrelated subjects 
from one requester or organization.


Sec.  1206.509  Form of payment.

    Payment shall be made by check or money order payable to the 
``Treasury of the United States,'' or by credit card per instructions 
in the initial determination or billing invoice and sent to NASA.


Sec.  1206.510  Nonpayment of fees.

    (a) Requesters are advised that should they fail to pay the fees 
assessed, they may be charged interest on the amount billed starting on 
the 31st day following the day on which the billing was sent. Interest 
will be at the rate prescribed in Sec.  3717 of Title 31 U.S.C.
    (b) Applicability of Debt Collection Act of 1982 (Pub. L. 97-365). 
Requesters are advised that if full payment is not received within 60 
days after the billing was sent, the procedures of the Debt Collection 
Act may be invoked (14 CFR 1261.407-1261.409). These procedures include 
three written demand letters at not more than 30-day intervals, 
disclosure to a consumer reporting agency, and the use of a collection 
agency, where appropriate.


Sec.  1206.511  Other rights and services.

    Nothing in this subpart shall be construed to entitle any person to 
any service or to the disclosure of any record that is not required 
under the FOIA.

Subpart 6--Commercial Information


Sec.  1206.600  General policy.

    (a) Notice shall be given to a submitter whenever the information 
requested is commercial information and has been designated by the 
submitter as information deemed protected from disclosure under 
Exemption 4 of the Act, or the Agency otherwise has reason to believe 
that the information may be protected from disclosure under Exemption 
4. For the purpose of applying the notice requirements, commercial 
information is information

[[Page 9440]]

provided by a submitter and in the possession of NASA, that may 
arguably be exempt from disclosure under the provisions of Exemption 4 
of the FOIA (5 U.S.C. 552(b)(4)). The meaning ascribed to this term for 
the purpose of this notice requirement is separate and should not be 
confused with use of this or similar terms in determining whether 
information satisfies one of the elements of Exemption 4.
    (b) A submitter is a person or entity outside the Federal 
Government from whom the Agency directly or indirectly obtains 
commercial or financial information. The term submitter includes, but 
is not limited to corporations, state governments, individuals, and 
foreign governments.
    (c) The notice requirements of Sec.  1206.601 of this subpart will 
not apply if:
    (1) The information has been lawfully published or officially made 
available to the public; or
    (2) Disclosure of the information is required by a statute (other 
than this part); or
    (3) The submitter has received notice of a previous FOIA request 
which encompassed information requested in the later request, and the 
Agency intends to withhold and/or release information in the same 
manner as in the previous FOIA request.
    (d) An additional limited exception to the notice requirements of 
Sec.  1206.601 of this subpart, to be used only when all of the 
following exceptional circumstances are found to be present, authorizes 
the Agency to withhold information that is the subject of a FOIA 
request, based on Exemption 4 (5 U.S.C. 552(b)(4)), without providing 
the submitter individual notice when:
    (1) The Agency would be required to provide notice to over 10 
submitters, in which case, notification may be accomplished by posting 
or publishing the notice in a place reasonably calculated to accomplish 
notification.
    (2) Absent any response to the published notice, the Agency 
determines that if it provided notice as is otherwise required by Sec.  
1206.601 of this subpart, it is reasonable to assume that the submitter 
would object to disclosure of the information based on Exemption 4; 
and,
    (3) If the submitter expressed the anticipated objections, the 
Agency would uphold those objections.
    (e) The exception shall be used only with the approval of the Chief 
Counsel of the Center, the Counsel to the Inspector General, or the 
Associate General Counsel responsible for providing advice on the 
request. This exception shall not be used for a class of documents or 
requests, but only as warranted by an individual FOIA request.


Sec.  1206.601  Notice to submitters.

    (a) Except as provided in Sec.  1206.603(b) and Sec.  1206.603(c) 
of this subpart, the Agency shall provide a submitter with prompt 
written notice of a FOIA request that seeks its commercial information 
whenever required under Sec.  1206.600(a) of this subpart.
    (b) A notice to a submitter must include:
    (1) The exact language of the request or an accurate description of 
the request;
    (2) Access to or a description of the responsive records or 
portions thereof containing the commercial information to the 
submitter;
    (3) A description of the procedures for objecting to the release of 
the possibly confidential information under Sec.  1206.602 of this 
subpart;
    (4) A time limit for responding to the Agency that shall not exceed 
10 working days from receipt or publication of the notice (as set forth 
in Sec.  1206.603(b) of this subpart) to object to the release and to 
explain the basis for the objection;
    (5) Notice that the information contained in the submitter's 
objections may itself be subject to disclosure under the FOIA;
    (6) Notice that the Agency, not the submitter, is responsible for 
deciding whether the information shall be released or withheld;
    (7) Notice that failing to respond within the timeframe specified 
under Sec.  1206.601(b)(4) of this subpart will create a presumption 
that the submitter has no objection to the disclosure of the 
information in question.
    (c) Whenever the Agency provides notice pursuant to this section, 
the Agency shall advise the requester that notice and opportunity to 
comment are being provided to the submitter.


Sec.  1206.602  Opportunity to object to disclosure.

    (a) If a submitter has any objections to the disclosure of 
commercial information, the submitter must provide a detailed written 
statement to the FOIA office that specifies all factual and/or legal 
grounds for withholding the particular information under any FOIA 
exemptions.
    (b) The submitter must include a daytime telephone number, an email 
and mailing address and a fax number if available on a response to the 
FOIA office.
    (c) A submitter who does not respond within the time period 
specified under this subpart will be considered to have no objection to 
disclosure of the information.
    (d) Responses received by the FOIA office after this time period 
will not be considered by the FOIA office unless the submitter provides 
an explanation justifying additional time to respond, which the FOIA 
office determines to be reasonable, before the end of the 10 working 
day notification.


Sec.  1206.603  Notice of intent to disclose.

    (a) The Agency shall carefully consider any objections of the 
submitter in the course of determining whether to disclose commercial 
information. The Agency, not the submitter, is responsible for deciding 
whether the information will be released or withheld.
    (b) Whenever the Agency decides to disclose commercial information 
over the objection of a submitter, the Agency shall forward to the 
submitter a written statement which shall include the following:
    (1) A brief explanation as to why the Agency did not agree with any 
objections;
    (2) A description of the commercial information to be disclosed, 
sufficient to identify information to the submitter; and
    (3) A date after which disclosure is expected, no less than 10 
working days after notification to the submitter.
    (c) The FOIA office will provide notification regarding a FOIA 
lawsuit:
    (1) To a submitter, when a requester brings suit seeking to compel 
disclosure of commercial information; or
    (2) To a requester, when a submitter brings suit against the Agency 
in order to prevent disclosure of commercial information.

Subpart 7--Appeals


Sec.  1206.700  How to submit an appeal.

    (a) A member of the public who has requested an Agency record in 
accordance with Sec.  1206.601 or Sec.  1206.602, and who has received 
an initial determination which does not comply fully with the request, 
may appeal such an adverse initial determination to the Administrator, 
or, for records as specified in Sec.  1206.805, to the Inspector 
General under the procedures of this section for reversal of any 
adverse initial determination received in response to the request for 
an Agency record within 30 days from the date of the initial 
determination letter.
    (b) The Appeal must:
    (1) Be in writing;
    (2) Be addressed to the Administrator, NASA Headquarters, Executive

[[Page 9441]]

Secretariat, Washington, DC 20546, or, for records as specified in 
Sec.  1206.805, to the Inspector General, NASA Headquarters, 
Washington, DC 20546;
    (3) Be identified clearly on the envelope and in the letter as an 
``Appeal under the Freedom of Information Act;''
    (4) Include a copy of the initial request for the Agency record and 
a copy of the adverse initial determination along with any other 
correspondence with the FOIA office;
    (5) To the extent possible, state the reasons the adverse initial 
determination should be reversed; and
    (6) Be sent to the Administrator or the Inspector General, as 
appropriate, within 30 days of the date of the initial determination.
    (c) An official authorized to make a final determination may waive 
any of the requirements of paragraph (b) of this section, in which case 
the time limit for the final determination (see Sec.  1206.607(a)) 
shall run from the date of such waiver.


Sec.  1206.701  Actions on appeals.

    (a) Except as provided in Sec.  1206.608, the Administrator or 
designee, or in the case of records as specified in Sec.  1206.805, the 
Inspector General or designee, shall make a final determination on an 
appeal and notify the appellant thereof, within 20 working days after 
the receipt of the appeal by the Administrator's Office.
    (b) In ``unusual circumstances'' as defined in Sec.  1206.403, the 
time limit for a final determination may be extended, but not to exceed 
a total of 10 working days in the aggregate in the processing of any 
specific appeal for an Agency record. The extension must be taken 
before the expiration of the 20 working day time limit. The appellant 
will be notified in writing in accordance with Sec.  1206.403.
    (c) If processing time will exceed or is expected to exceed 30 
working days, the appellant will be notified of the delay in processing 
and the reason for the delay.
    (d) If the final determination reverses in whole or in part the 
initial determination, the record requested (or portions thereof) shall 
be made available promptly to the requester, as provided in the final 
determination.
    (e) If a reversal in whole or in part of the initial determination 
requires additional document search or production, associated fees will 
be applicable in accordance with fee guidance in this regulation.
    (f) If the final determination sustains in whole or in part an 
adverse initial determination, the notification of the final 
determination shall:
    (1) Explain the basis on which the record (or portions thereof) 
will not be made available;
    (2) Include the name and title of the person making the final 
determination;
    (3) Include a statement that the final determination is subject to 
judicial review under 5 U.S.C. 552(a)(4); and
    (4) Enclose a copy of 5 U.S.C. 552(a)(4).
    (g) Before seeking a review by a court of a FOIA office's adverse 
initial determination, a requester must generally submit a timely 
administrative appeal in accordance with this regulation.


Sec.  1206.702  Litigation.

    In any instance in which a requester brings suit concerning a 
request for an Agency record under this part, the matter shall promptly 
be referred to the General Counsel with a report on the details and 
status of the request. In such a case, if a determination with respect 
to the initial FOIA request has not been made, an initial determination 
shall be made as soon as possible by the FOIA office processing the 
request after coordinating a release strategy with the General Counsel 
in each case.

Subpart 8--Responsibilities


Sec.  1206.800  Delegation of authority.

    Authority necessary to carry out the responsibilities specified in 
this subpart is delegated from the Administrator to the officials named 
in this subpart.


Sec.  1206.801  Chief FOIA Officer.

    (a) The Associate Administrator, Office of Communications, is 
designated as the Chief FOIA Officer for the Agency. The Chief FOIA 
Officer is delegated authority for administering the FOIA and all 
related laws and regulations within the Agency. The Associate 
Administrator has delegated the day-to-day oversight of the Agency FOIA 
Program to the Deputy Associate Administrator for Communications.
    (b) The Deputy Associate Administrator for Communications has 
delegated the overall responsibility for developing and administering 
the FOIA program within NASA to the Principal Agency FOIA Officer, 
located in the Office of Communications. This includes:
    (1) Developing regulations, guidelines, procedures, and standards 
for the Agency's FOIA program;
    (2) Oversight of all FOIA offices and programs and ensuring they 
are in compliance with FOIA laws and regulations;
    (3) Ensuring implementation of the FOIA Programs throughout the 
Agency and keeping the Chief FOIA Officer and the Deputy Associate 
Administrator for Communications informed of the Agency's FOIA 
performance;
    (4) Providing program oversight, technical assistance, and training 
to employees to ensure compliance with the Act;
    (5) Preparing the Agency's FOIA Annual Report to the Department of 
Justice and Congress, as well as the Chief FOIA Officer's Report;
    (6) Preparing all other reports as required to DOJ/Congress or 
within the Agency;
    (7) The Principal Agency FOIA Officer has primary responsibility 
for developing, conducting and reviewing all internal Agency FOIA 
training for NASA FOIA staff;
    (8) Direct supervision of the Headquarters FOIA Office.


Sec.  1206.802  General Counsel.

    The General Counsel is responsible for the interpretation of 5 
U.S.C. 552 and of this part, as well as providing legal guidance with 
regard to disclosure of Agency records. The General Counsel is also 
responsible for the handling of appeals and litigation in connection 
with a request for an Agency record under this part.


Sec.  1206.803  NASA Headquarters.

    Except as otherwise provided under this subpart, the Deputy 
Associate Administrator for Communications is responsible for the 
following:
    (a) Delegating the authority for direct oversight of the 
Headquarters FOIA Office to the Principal Agency FOIA Officer.
    (b) When denying records in whole or in part, ensuring the 
Headquarters FOIA Office consults with the General Counsel charged with 
providing legal advice to Headquarters before releasing an initial 
determination under Sec.  1206.308.


Sec.  1206.804  NASA Centers and Components.

    Except as otherwise provided in this subpart, in coordination with 
the Deputy Associate Administrator for Communications, the Director of 
each NASA Center or the Official-in-Charge of each Center, is 
responsible for ensuring the following:
    (a) The Director of Public Affairs or the Head of the Public 
Affairs Office at the Center has delegated authority to process all 
FOIA requests at their respective Center.
    (b) This delegated authority has further been delegated to the FOIA 
Officer at their Center or in the absence of a FOIA Officer, the FOIA 
Specialist,

[[Page 9442]]

who must report to and be supervised by their Director of Public 
Affairs or the Head of the Public Affairs Office.
    (c) When denying records in whole or in part, the FOIA Officer at 
the Center will consult with the Chief Counsel or the Counsel charged 
with providing legal advice to that FOIA office before releasing an 
initial determination under Sec.  1206.308.


Sec.  1206.805  Inspector General.

    (a) The Inspector General or designee is responsible for making 
final determinations under Sec.  1206.701, within the time limits 
specified in Subpart 7 of this part, concerning audit inspection and 
investigative records originating in the Office of the Inspector 
General records from outside the Government related to an audit 
inspection or investigation, records prepared in response to a request 
from or addressed to the Office of the Inspector General, or other 
records originating within the Office of the Inspector General, after 
consultation with the General Counsel or designee on an appeal of an 
initial determination to the Inspector General.
    (b) The Assistant Inspectors General or their designees are 
responsible for making initial determinations under Subpart 4 
concerning Office of Inspector General records originating in the 
Office of the Inspector General, records from outside the Government 
related to Office of Inspector General records prepared in response to 
a request from or addressed to the Office of the Inspector General, or 
other records originating with the Office of the Inspector General, 
after consultation with the Counsel to the Inspector General or 
designee.
    (c) The Inspector General or designee is responsible for ensuring 
that requests for Agency records as specified in paragraphs (a) and (b) 
of this section are processed and initial determinations are made 
within the time limits specified in Subpart 4 of this part.
    (d) The Inspector General or designee is responsible for 
determining whether unusual circumstances exist under Sec.  1206.403 
that would justify extending the time limit for an initial or final 
determination, for records as specified in paragraphs (a) and (b) of 
this section.
    (e) Records as specified in paragraphs (a) and (b) of this section 
include any records located at Regional and field Inspector General 
Offices, as well as records located at the Headquarters Office of the 
Inspector General.

Subpart 9--Location for Inspection and Request of Agency Records


Sec.  1206.900  FOIA offices and electronic libraries.

    (a) NASA Headquarters and each NASA Center have a FOIA Electronic 
Library on the Internet. The Electronic library addresses are located 
on the NASA FOIA homepage http://www.hq.nasa.gov/office/pao/FOIA/agency/
    (b) In addition a requester may submit a FOIA request 
electronically. The addresses are located on the NASA FOIA homepage 
under each Center link.

Appendix A

NASA FOIA Requester Service Center Addresses

NASA Ames Research Center, FOIA Requester Service Center, Mail Stop 
943-4, Moffett Field, CA 94035
NASA Dryden Flight Research Center, FOIA Requester Service Center, 
Post Office Box 273, Edwards, CA 93523
NASA Glenn Research Center, FOIA Requester Service Center, 21000 
Brookpark Road, Cleveland, OH 44135
NASA Goddard Space Flight Center, FOIA Requester Service Center, 
Greenbelt, MD 20771
NASA Headquarters, FOIA Requester Service Center, Mail Stop 5-L19, 
300 E Street SW., Washington, DC 20546
NASA Office of the Inspector General, FOIA Requester Service Center, 
Mail Stop, 300 E Street SW., Washington, DC 20546
NASA Management Office--Jet Propulsion Laboratory, FOIA Requester 
Service Center, 4800 Oak Grove Drive, Pasadena, CA 91109
NASA Johnson Space Center, FOIA Requester Service Center, Houston, 
TX 77058
NASA Kennedy Space Center, FOIA Requester Service Center, Kennedy 
Space Center, FL 32899
NASA Langley Research Center, FOIA Requester Service Center, 
Hampton, VA 23681
NASA Marshall Space Flight Center, FOIA Requester Service Center, 
Huntsville, AL 35812
NASA Stennis Space Center, FOIA Requester Service Center, Stennis 
Space Center, MS 39529
NASA Shared Services Center, FOIA Requester Service Center, Bldg 
5100, Stennis Space Center, MS 39529

Charles F. Bolden, Jr.,
Administrator.
[FR Doc. 2014-03450 Filed 2-18-14; 8:45 am]
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