28592 Federal Register / Vol. 83, No. 119 / Wednesday, June 20, 2018 / Proposed Rules 

a. Alternatives; 

b. Purpose and Need; 

c. Reasonably Foreseeable; 

d. Trivial Violation; and 

e. Other NEPA terms. 

9. Should the provisions in CEQ’s 

NEPA regulations relating to any of the 

types of documents listed below be 

revised, and if so, how? 

a. Notice of Intent; 

b. Categorical Exclusions 

Documentation; 

c. Environmental Assessments; 

d. Findings of No Significant Impact; 

e. Environmental Impact Statements; 

f. Records of Decision; and 

g. Supplements. 

10. Should the provisions in CEQ’s 

NEPA regulations relating to the timing 

of agency action be revised, and if so, 

how? 

11. Should the provisions in CEQ’s 

NEPA regulations relating to agency 

responsibility and the preparation of 

NEPA documents by contractors and 

project applicants be revised, and if so, 

how? 

12. Should the provisions in CEQ’s 

NEPA regulations relating to 

programmatic NEPA documents and 

tiering be revised, and if so, how? 

13. Should the provisions in CEQ’s 

NEPA regulations relating to the 

appropriate range of alternatives in 

NEPA reviews and which alternatives 

may be eliminated from detailed 

analysis be revised, and if so, how? 

General 

14. Are any provisions of the CEQ’s 

NEPA regulations currently obsolete? If 

so, please provide specific 

recommendations on whether they 

should be modified, rescinded, or 

replaced. 

15. Which provisions of the CEQ’s 

NEPA regulations can be updated to 

reflect new technologies that can be 

used to make the process more efficient? 

16. Are there additional ways CEQ’s 

NEPA regulations should be revised to 

promote coordination of environmental 

review and authorization decisions, 

such as combining NEPA analysis and 

other decision documents, and if so, 

how? 

17. Are there additional ways CEQ’s 

NEPA regulations should be revised to 

improve the efficiency and effectiveness 

of the implementation of NEPA, and if 

so, how? 

18. Are there ways in which the role 

of tribal governments in the NEPA 

process should be clarified in CEQ’s 

NEPA regulations, and if so, how? 

19. Are there additional ways CEQ’s 

NEPA regulations should be revised to 

ensure that agencies apply NEPA in a 

manner that reduces unnecessary 

burdens and delays as much as possible, 

and if so, how? 

20. Are there additional ways CEQ’s 

NEPA regulations related to mitigation 

should be revised, and if so, how? 

(Authority: 42 U.S.C. 4332, 4342, 4344 and 

40 CFR parts 1500, 1501, 1502, 1503, 1505, 

1506, 1507, and 1508) 

III. Statutory and Executive Order 

Reviews 

Under E.O. 12866, ‘‘Regulatory 

Planning and Review,’’ 58 FR 51735 

(October 4, 1993), this is a ‘‘significant 

regulatory action.’’ Accordingly, CEQ 

submitted this action to the Office of 

Management and Budget (OMB) for 

review under E.O. 12866 and any 

changes made in response to OMB 

recommendations have been 

documented in the docket for this 

action. Because this action does not 

propose or impose any requirements, 

and instead seeks comments and 

suggestions for CEQ to consider in 

possibly developing a subsequent 

proposed rule, the various statutes and 

executive orders that normally apply to 

rulemaking do not apply in this case. If 

CEQ decides in the future to pursue a 

rulemaking, CEQ will address the 

statutes and executive orders applicable 

to that rulemaking at that time. 

Mary B. Neumayr, 

Chief of Staff, Council on Environmental 

Quality. 

[FR Doc. 2018–13246 Filed 6–19–18; 8:45 am] 

BILLING CODE 3225–F8–P 

GENERAL SERVICES 

ADMINISTRATION 

41 CFR Part 105–60 

[GSPMR Case 2016–105–1; Docket No. 

2016–0004, Sequence No. 1] 

RIN 3090–AJ74 

Public Availability of Agency Records 

and Informational Materials 

AGENCY: Office of Administrative 

Services (OAS), General Services 

Administration (GSA). 

ACTION: Proposed rule. 

SUMMARY: The General Services 

Administration (GSA) is issuing a 

proposed rule 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 both statutory and nonstatutory 

authorities. This rule also amends the 

GSA’s regulations under the Freedom of 

Information Act (FOIA) to incorporate 

certain changes made to the FOIA by the 

FOIA Improvement Act of 2016. 

Additionally, the regulations are being 

updated to reflect developments in case 

law, executive guidance from the 

Department of Justice—Office of 

Information Policy, technological 

advancements in how the FOIA is 

administered, and to include current 

cost figures to be used in calculating 

and charging fees. Finally, the revisions 

increase the amount of information that 

members of the public may receive from 

the Agency without being charged 

processing fees through proactive 

disclosures. 

DATES: Interested parties should submit 

written comments to the Regulatory 

Secretariat Division at one of the 

addresses shown below on or before 

August 20, 2018 to be considered in the 

formation of the final rule. 

ADDRESSES: Submit comments in 

response to GSPMR case 2016–105–1 by 

any of the following methods: 

• Regulations.gov: http://

www.regulations.gov. Submit comments 

via the Federal eRulemaking portal by 

searching for ‘‘GSPMR Case 2016–105– 

1’’. Select the link ‘‘Comment Now’’ that 

corresponds with ‘‘GPSMR Case 2016– 

105–1.’’ Follow the instructions 

provided on the screen. Please include 

your name, company name (if any), and 

‘‘GSPMR Case 2016–105–1’’ on your 

attached document. 

• Mail: General Services 

Administration, Regulatory Secretariat 

Division (MVCB), ATTN: Ms. Lois 

Mandell, 1800 F Street NW, 2nd Floor, 

Washington, DC 20405. 

Instructions: Please submit comments 

only and cite GSPMR Case 2016–105–1, 

in all correspondence related to this 

case. All comments received will be 

posted without change to http://

www.regulations.gov, including any 

personal and/or business confidential 

information provided. To confirm 

receipt of your comment(s), please 

check www.regulations.gov, 

approximately two to three days after 

submission to verify posting (except 

allow 30 days for posting of comments 

submitted by mail). 

FOR FURTHER INFORMATION CONTACT: Mr. 

Travis S. Lewis, Director of GSA, OAS, 

Freedom of Information Act and 

Records Management Division, at 202– 

219–3078 via email at travis.lewis@

gsa.gov for clarification of content. For 

information pertaining to status or 

publication schedules, contact the 

Regulatory Secretariat Division at 202– 

501–4755. Please cite GSPMR Case 

2016–105–1. 


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SUPPLEMENTARY INFORMATION: 

I. Background 

The FOIA provides that any person 

has a right, enforceable in federal 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. 41 CFR part 105– 

60 establishes the policies, 

responsibilities and procedures for the 

release of GSA records, which are under 

the jurisdiction of GSA, to members of 

the public. These regulations apply to 

information found in all GSA 

organizations, portfolios, business lines, 

regional offices, and components. This 

rule proposes revisions to GSA’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 FOIA Improvement Act 

of 2016, the OPEN FOIA Act of 2009, 

the OPEN Government Act of 2007, and 

the Electronic Freedom of Information 

Act Amendments of 1996. With respect 

to the FOIA Improvement Act of 2016, 

Public Law 114–185, 130 Stat. 538 (June 

30, 2016). The FOIA Improvement Act 

of 2016 provides that agencies must 

allow a minimum of 90 days for 

requesters to file an administrative 

appeal. The Act also requires that 

agencies notify requesters of the 

availability of dispute resolution 

services at various times throughout the 

FOIA process. Finally, the Act codifies 

the ‘‘foreseeable harm’’ standard. This 

proposed rule updates the GSA’s 

regulations in 41 CFR part 105–60 to 

reflect those statutory changes. 

Additionally, the regulations are 

being updated to reflect developments 

in case law, technological changes in 

the administration of the FOIA, 

executive guidance from the Department 

of Justice, other nonstatutory authorities 

such as Presidential Executive Orders, 

and to include current cost figures to be 

used in calculating and charging fees. 

The proposed revisions incorporate 

changes to the language and structure of 

the current GSA regulations enumerated 

in 41 CFR part 105–60 to achieve the 

aforementioned updates. Please note 

that proposed revisions to GSA’s FOIA 

Fee Schedule can be found in Subpart 

J—Fees. The revisions also increase the 

amount of information that members of 

the public may receive from the Agency 

without being charged processing fees 

through proactive disclosures of agency 

records online in the GSA FOIA 

Reading Room. All substantive changes 

to GSA’s FOIA regulations in this 

proposed rule will be effective upon 

final publication of this rule in the 

Federal Register. 

II. Executive Orders 12866 and 13563— 

Regulatory Review 

Executive Orders (E.O.s) 12866 and 

13563 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). E.O. 13563 emphasizes the 

importance of quantifying both costs 

and benefits, of reducing costs, of 

harmonizing rules, and of promoting 

flexibility. This is not a significant 

regulatory action and, therefore, was not 

subject to review under Section 6(b) of 

E.O. 12866, Regulatory Planning and 

Review, dated September 30, 1993. This 

proposed rule is not a major rule under 

5 U.S.C. 804. 

III. Executive Order 13771 

This rule is not subject to E.O. 13771, 

because this rule is not a significant 

regulatory action under E.O. 12866. 

IV. Regulatory Flexibility Act 

This proposed rule will not have a 

significant economic impact on a 

substantial number of small entities 

within the meaning of the Regulatory 

Flexibility Act, 5 U.S.C. 601 et seq. This 

proposed rule is also exempt from 

Administrative Procedure Act per 5 

U.S.C. 553(a)(2), because it applies to 

agency management or personnel. 

V. Small Business Regulatory 

Enforcement Fairness Act 

This proposed rule is also exempt 

from Congressional review prescribed 

under 5 U.S.C. 801 since it relates solely 

to agency management and personnel. 

VI. Paperwork Reduction Act 

This proposed rule does not contain 

any information collection requirements 

that require approval of the Office of 

Management and Budget under the 

Paperwork Reduction Act (44 U.S.C. 

chapter 35). 

VII. 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 million 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. 

List of Subjects in 41 CFR Part 105–60 

Administrative practice and 

procedure, Records, Information, 

Confidential business information, 

Freedom of Information Act, Privacy 

Act. 

Dated: June 12, 2018. 

Robert Stafford, 

Chief Administrative Services Officer, General 

Services Administration. 

■ For the reasons stated in the preamble, 

GSA proposes to revise 41 CFR part 

105–60 to read as follows: 

PART 105–60—PUBLIC AVAILABILITY 

OF AGENCY RECORDS AND 

INFORMATIONAL MATERIALS 

Sec. 

Subpart A—General Policy 

105–60.000 Scope of part. 

105–60.001 General policy. 

Subpart B–Proactive Disclosures 

105–60.100 Public availability of 

information. 

Subpart C—Requirements for Making 

Requests 

105–60.200 Making a request. 

105–60.201 Description of records sought. 

Subpart D—Responding to Requests 

105–60.300 Responsibility for responding 

to requests. 

105–60.301 Consultation, referral, and 

coordination. 

105–60.302 Time requirements to respond 

to FOIA requests. 

105–60.303 Unusual circumstances. 

105–60.304 Expedited processing. 

Subpart E—Acknowledging the FOIA 

Request 

105–60.400 Acknowledgement procedures. 

Subpart F—FOIA Exemptions 

105–60.500 Applying FOIA exemptions. 

Subpart G—Final Responses to the FOIA 

Request 

105–60.600 Final response procedures and 

rules. 

Subpart H—Handling Confidential 

Commercial Information 

105–60.700 Procedural and lawful 

considerations. 

105–60.701 Opportunity to object to 

disclosure. 

Subpart I—Appeals 

105–60.800 Submitting an appeal. 

105–60.801 Adjudication. 

105–60.802 Requirements to preserve FOIA 

records. 


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Subpart J—Fees 

105–60.900 General provisions. 

105–60.901 Definitions. 

105–60.902 Fees to be charged. 

105–60.903 Restrictions on charging fees. 

105–60.905 Anticipated fees. 

105–60.906 Advanced payments. 

105–60.907 Fee waivers and fee reductions. 

Subpart K—Other Rights and Services 

105–60.1000 Coda. 

Subpart L—Definitions 

105–60.1100 Definitions. 

Authority: 5 U.S.C. 301 and 552; 40 U.S.C. 

486(c). 

Subpart A—General Policy 

§ 105–60.000 Scope of part. 

This part of the Code of Federal 

Regulations contains the rules that the 

United States General Services 

Administration, hereinafter GSA, 

follows in processing requests for 

records under the Freedom of 

Information Act (‘‘FOIA’’), 5 U.S.C. 552. 

These rules should be read in 

conjunction with the text of the FOIA 

and the Uniform Freedom of 

Information Fee Schedule and 

Guidelines published by the Office of 

Management and Budget (‘‘OMB 

Guidelines’’). Requests made by 

individuals for records about 

themselves under the Privacy Act of 

1974, 5 U.S.C. 552a, are processed in 

accordance with Privacy Act regulations 

as well as under this part. 

§ 105.60.001 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 the GSA to make 

available to the fullest extent practicable 

upon request by members of the public, 

all records and informational materials 

that are generated, maintained, and 

controlled by GSA. 

(b) This subpart also covers 

exemptions from disclosure of these 

records; procedures for the public to 

inspect or obtain copies of GSA records. 

(c) The regulations promulgated in 

this subpart are consistent with 

amendments to 5 U.S.C. 552a as well as 

other applicable Federal laws germane 

to disclosure of information to the 

public. 

(d) This subpart applies to all GSA 

organizations, portfolios, business lines, 

regional offices and components. The 

aforementioned units may establish 

additional rules due to unique program 

requirements; however, such rules must 

be consistent with these rules and have 

the concurrence of the GSA 

Administrator and GSA Chief FOIA 

Officer. 

(e) Any internal GSA policies or 

procedures inconsistent with the 

policies and procedures promulgated in 

this subpart are superseded by this 

subpart to the extent of that 

inconsistency. 

(f) This subpart does not entitle any 

person to any service or to the 

disclosure of any GSA records that are 

not required to be disclosed under the 

FOIA. 

Subpart B–Proactive Disclosures 

§ 105–60.100 Public availability of 

information. 

Records that the FOIA requires GSA 

to make available for public inspection 

in an electronic format can be accessed 

through the GSA FOIA Reading Room, 

and the FOIA Online System. The GSA 

is responsible for determining which of 

its records must be made publicly 

available, for identifying additional 

records of interest to the public that are 

appropriate for public disclosure, and 

for posting and indexing such records. 

GSA shall ensure that its online FOIA 

Library of posted records and indices is 

reviewed and updated on an ongoing 

basis. GSA has a FOIA Requester 

Service Center and FOIA Public Liaison 

who can assist individuals in locating 

records particular to an agency. A list of 

agency FOIA Public Liaisons is 

available at: http://www.foia.gov/reportmakerequest.html. 

Subpart C—Requirements for Making 

Requests 

§ 105–60.200 Making a request. 

(a) To make a request for GSA records, 

a requester should file their request 

directly to the GSA FOIA Requester 

Service Center, the office that oversees 

FOIA requests for all of GSA. A request 

shall receive the quickest possible 

response if it is filed online via the 

FOIAonline website: (https://

foiaonline.regulations.gov/foia/action/ 

public/home). From FOIAonline you 

can submit FOIA requests to GSA and 

other participating FOIAonline 

agencies, track the status of requests, 

search for requests submitted by others, 

access previously released records, and 

generate agency-specific FOIA 

processing reports. 

(b) If it is not possible for a requester 

to submit an electronic request via 

FOIAonline, there are several 

alternatives to submit FOIA requests to 

GSA: Standard Mail: GSA FOIA 

Requester Service Center (H1F), Room 

7308, 1800 F. Street NW, Washington, 

DC 20405. Fax: 202–501–2727. Email: 

gsa.foia@gsa.gov (Subject: Request via 

Email). 

(c) Additional requirements for 

submitting a request to GSA include: 

(1) The requester must provide the 

following items of contact information: 

(i) Full name with surname (Mr., Ms., 

Mrs., Dr., etc.); 

(ii) Complete mailing address; 

(iii) Telephone number. 

(2) Although it is not a mandatory 

requirement, GSA also recommends the 

requester provide a personal/business 

email address. 

(3) Requesters must provide their 

contact information to assist the agency 

in communicating with them and 

providing released records. These 

requirements apply to both electronic 

FOIA requests as well as those filed via 

standard mail. 

(d) A perfected FOIA request is a 

FOIA request for records which 

adequately describes the records sought, 

is made in accordance with GSA’s 

regulations, has been received by the 

GSA FOIA Requester Service center, 

and for which there is no remaining 

question about the payment or amount 

of applicable fees. 

(e) Agency records are those created 

or received in the course of conducting 

agency business, including, but not 

limited to: Paper, electronic or other 

physical forms for records. These may 

include reports, letters, photographs, 

audio recordings and emails. A record 

must exist and be in the possession and 

control of the GSA before it is 

considered for release. 

(f) GSA is not required to: 

(1) Answer questions or 

interrogatories posed as FOIA requests; 

(2) Issue opinions; 

(3) Analyze and/or interpret 

documents for a requester; 

(4) Create records; 

(5) Conduct research; or 

(6) Initiate investigations; 

(g) A requester who is making a 

request for records about himself or 

herself must comply with the 

verification of identity requirements as 

determined by the Agency. 

(h) Where a request for records 

pertains to another individual, a 

requester may receive greater access by 

submitting either a notarized 

authorization signed by that individual 

or a declaration made in compliance 

with the requirements set forth in 28 

U.S.C. 1746 by that individual 

authorizing disclosure of the records to 

the requester, or by submitting proof 

that the individual is deceased (e.g., a 

copy of a death certificate or an 

obituary). As an exercise of 

administrative discretion, the GSA can 

require a requester to supply additional 

information such as a ‘‘Certification of 

Identity Form’’ in order to sufficiently 


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verify the individual submitting the 

request and/or also verify that a 

particular individual has consented to 

disclosure. 

§ 105–60.201 Description of records 

sought. 

(a) Requesters must describe the 

records sought in sufficient detail to 

enable GSA personnel to locate them 

with a reasonable amount of effort. To 

the extent possible, requesters should 

include the following information in 

their FOIA request that may help the 

GSA identify the requested records the 

date/timeframe the requested 

information was created or occurred, 

title or name, author, recipient, subject 

matter of the record, case number, file 

designation, contract number, leasing 

identification number, or reference 

number and if known, the component of 

GSA housing the records. 

(b) Before submitting their requests, 

requesters may contact the GSA FOIA 

Requester Service Center or GSA FOIA 

Public Liaison to discuss the records 

they seek and to receive assistance in 

describing the records. If after receiving 

a request, the GSA determines that it 

does not reasonably describe the records 

sought, GSA shall inform the requester 

what additional information is needed 

or why the request is otherwise 

insufficient. Requesters who are 

attempting to reformulate or modify 

such a request may discuss their request 

with their assigned Government 

Information Specialist or FOIA Public 

Liaison. If a request does not reasonably 

describe the records sought, the GSA’s 

response to the request may be delayed. 

(c) In order to efficiently respond to 

FOIA requests within the required 

twenty business day timeframe per 5 

U.S.C. 552, GSA may close an 

unperfected request ten business days 

after the GSA notifies the requester of 

the information needed to perfect the 

request. If the request does not 

reasonably describe the records sought, 

it is unperfected. 

(d) Requesters may specify their 

preferred form or format (including 

electronic formats) for the records they 

seek. GSA shall accommodate the 

request if the record is readily 

reproducible in that form or format. 

Subpart D—Responding to Requests 

§ 105–60.300 Responsibility for 

responding to requests. 

(a) GSA is responsible for responding 

to all requests for records under the 

FOIA 5 U.S.C. 552. GSA is responsible 

for releasing records only when the 

requested records are generated, 

maintained and controlled by GSA. GSA 

will only release records after the 

appropriate exemptions, redactions, and 

other legal considerations have been 

applied per 5 U.S.C. 552 In determining 

which records are responsive to a 

request, the Agency shall include only 

the records in its possession as of the 

date that it begins its search. If any other 

date is used, GSA must inform the 

requester of that date. A record that is 

excluded from the requirements of the 

FOIA pursuant to 5 U.S.C. 552(c) is not 

considered responsive to a request. 

(b) The GSA Administrator and GSA 

Chief FOIA Officer are authorized to 

grant or deny any requests for records 

that are generated, maintained and 

controlled by GSA. 

(c) The GSA FOIA Requester Service 

Center is responsible for managing 

requests from the time the request is 

received until the time a response is 

provided to the requester. 

(d) Upon receiving a request, the GSA 

FOIA Requester Service Center 

determines whether the information 

resides within GSA. If GSA is not the 

owner of the information, then the GSA 

FOIA Requester Service Center will 

make a good faith effort to redirect the 

requester to the appropriate record 

location or entity that controls the 

record, if known. 

(e) If GSA has the records, then the 

FOIA Requester Service Center shall 

work in coordination with the 

appropriate GSA component to fulfill 

the FOIA request in compliance with 5 

U.S.C. 552a. 

§ 105–60.301 Consultation, referral, and 

coordination. 

(a) When GSA is reviewing records 

located in response to a FOIA request, 

GSA shall determine whether another 

agency of the federal government is 

better able to determine if the records 

are releasable under the FOIA. As to any 

such record, the GSA shall proceed in 

one of the following ways: 

(1) Consultation. When the requested 

records originate with GSA, but contain 

within them information of interest to 

another agency or other Federal 

Government office, GSA should 

typically consult with that other entity 

prior to making a release determination. 

(2) Referral. (i) When GSA believes 

that a different agency or component is 

best able to determine whether to 

disclose the record, GSA should refer 

the responsibility for responding to the 

request regarding that record to that 

agency. Ordinarily, the agency that 

created the record is presumed to be the 

best agency to make the disclosure 

determination. However, if GSA and the 

originating agency jointly agree that 

GSA is in the best position to respond 

regarding the record, then the record 

may be handled as a consultation. 

(ii) Whenever GSA refers any part of 

the responsibility for responding to a 

request to another agency, it must 

document the referral, maintain a copy 

of the record that it refers, and notify the 

requester of the referral- informing the 

requester of the name(s) of the agency to 

which the record was referred, 

including that agency’s FOIA contact 

information. 

(3) Coordination. (i) This referral 

procedure is not appropriate where 

disclosure of the identity of the agency 

to which the referral would be made 

could harm an interest protected by an 

applicable exemption, such as the 

exemptions that protect personal 

privacy or national security interests. 

(ii) For example, if a non-law 

enforcement agency responding to a 

request for records on a living third 

party locates within its files records 

originating with a law enforcement 

agency, and if the existence of that law 

enforcement interest in the third party 

was not publicly known, then to 

disclose that law enforcement interest 

could cause an unwarranted invasion of 

the personal privacy of the third party. 

Similarly, if GSA locates a record that 

originates with an intelligence 

community agency, and the 

involvement of that agency in the matter 

is classified and not publicly 

acknowledged, then to disclose or give 

attribution to the involvement of that 

Intelligence Community agency could 

cause national security harms. 

(iii) In such instances, in order to 

avoid harm to an interest protected by 

an applicable exemption, GSA should 

coordinate with the originating agency 

to seek its views on the disclosability of 

the record. The release determination 

for the record that is the subject of the 

coordination should then be conveyed 

to the requester by GSA. 

(4) Classified information. (i) On 

receipt of any request involving 

classified information, GSA must 

determine whether the information is 

currently and properly classified in 

accordance with applicable 

classification rules. Whenever a request 

involves a record containing 

information that has been classified or 

may be appropriate for classification by 

another agency under any applicable 

executive order concerning the 

classification of records, GSA must refer 

the responsibility for responding to the 

request regarding this information to the 

agency that classified the information or 

that should consider the information for 

classification. 

(ii) Whenever GSA’s records contain 

information that has been derivatively 


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classified (meaning it contains 

information classified by another 

agency), GSA must refer the 

responsibility for responding to that 

portion of the request to the agency that 

classified the underlying information. 

(b) All consultations and referrals 

received by GSA shall be handled 

according to the date the other agency 

received the perfected FOIA request. 

(c) GSA may establish agreements 

with other agencies to eliminate the 

need for consultations or referrals with 

respect to particular types of records. 

§ 105–60.302 Time requirements to 

respond to FOIA requests. 

(a) Once a perfected request is 

received, it can begin to be processed by 

the GSA FOIA Requester Service Center. 

Pursuant to the FOIA, GSA generally 

has twenty (20) business days to make 

a determination on the request, 

excluding Saturdays, Sundays, and 

federal holidays. This time period 

begins when the request is received by 

the GSA FOIA Requester Service Center 

via U.S. Mail, email or facsimile. 

(b) GSA shall respond to requests by 

order of receipt. 

(c) GSA will inform the FOIA 

requester of GSA’s decision and send 

the requester the responsive documents 

within a reasonable timeframe and or 

negotiated timeframe based on scope 

and level of effort to prepare the FOIA 

request response. 

(d) GSA must designate a specific 

track for requests that are granted 

expedited processing, in accordance 

with the standards set forth in § 105– 

60.304 Expedited Processing of this 

part. GSA may also designate additional 

processing tracks that distinguish 

between simple and more complex 

requests based on the estimated amount 

of work or time needed to process the 

request. Among the factors GSA may 

consider are the number of records 

requested, the number of pages involved 

in processing the request and the need 

for consultations or referrals. GSA shall 

advise requesters of the track into which 

their request falls upon request, and 

when appropriate, offer the requester an 

opportunity to narrow or modify their 

request to ensure it is fulfilled in a 

timely manner. 

§ 105–60.303 Unusual circumstances. 

(a) Whenever GSA cannot meet the 

statutory time limit for processing a 

request because of ‘‘unusual 

circumstances,’’ as defined in 5 U.S.C. 

552, and GSA extends the time limit on 

that basis, GSA must, before expiration 

of the 20-day period to respond, notify 

the requester in writing of the unusual 

circumstances involved and of the date 

by which GSA estimates the processing 

of the request shall be completed. 

Where the extension exceeds ten (10) 

business days, GSA must, as described 

by the FOIA, provide the requester with 

an opportunity to modify the request or 

arrange an alternative time period for 

processing the original or modified 

request. GSA must make available its 

FOIA Public Liaison for this purpose. 

GSA must also alert requesters to the 

availability of the Office of Government 

Information Services (OGIS) to provide 

dispute resolution services. 

(b) To satisfy unusual circumstances 

under the FOIA, GSA 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. GSA cannot aggregate 

multiple requests that involve unrelated 

matters. 

§ 105–60.304 Expedited processing. 

(a) A request for expedited processing 

may be made at any time. In order to 

qualify for consideration for expedited 

processing, the request must reasonably 

describe the records sought. Expedited 

requests should be described in 

sufficient detail to facilitate expedited 

processing. 

(b) 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 as 

described in (c)(1)–(3). As a matter of 

administrative discretion, GSA may 

waive the formal certification 

requirement. 

(c) GSA may process requests and 

appeals on an expedited basis whenever 

it is determined that they involve: 

(1) 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; 

(2) 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; or 

(3) The loss of substantial due process 

rights; or 

(4) A matter of widespread and 

exceptional media interest in which 

there exist possible questions about the 

government’s integrity that affect public 

confidence 

(d) GSA must notify the requester 

within ten (10) calendar days of its 

decision 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 processed as 

soon as practicable. If a request for 

expedited processing is denied, GSA 

shall act on any appeal of that decision 

within three business days. 

Subpart E—Acknowledging the FOIA 

Request 

§ 105–60.400 Acknowledgement 

procedures. 

(a) GSA to the extent practicable, shall 

communicate with requesters 

electronically via the FOIAonline web 

portal and/or email. 

(b) Upon receipt of a request, GSA 

shall send requesters an 

acknowledgement letter within two 

business days containing a brief 

description of the records sought so 

requesters may more easily keep track of 

their requests. 

(c) When a request is submitted via 

FOIAonline, the system automatically 

generates a tracking number which 

allows for easy identification of each 

request. This tracking number is 

included in the acknowledgement letter. 

(d) When GSA receives a request not 

directly entered by the requester into 

FOIAonline (i.e., email, fax, standard 

mail, etc) the FOIA Requester Service 

Center shall immediately upload the 

request into the FOIAonline system and 

it shall be assigned a tracking number 

which shall be communicated to the 

requester. 

(e) Upon request, GSA shall provide 

an estimated date by which the agency 

expects to provide a response to the 

requester. If a request involves a 

voluminous amount of material or 

searches in multiple locations, GSA may 

provide an interim response, meaning 

the agency releases the records on a 

rolling basis as the records are located 

and verified. 

§ 105–60.500 Applying FOIA exemptions. 

(a) 5 U.S.C. 552(b)(1)–(9) of the 

Freedom of Information Act provides 

that the disclosure requirements of the 

FOIA do not apply to matters that are: 

(1) Specifically authorized under the 

criteria established by an executive 

order to be kept secret in the interest of 

national defense or foreign policy and 

are in fact properly classified pursuant 

to such executive order (see Executive 

Order No. 13,526); 

(2) Related solely to the internal 

personnel rules and practices of an 

agency; and 

(3) Specifically exempted from 

disclosure by statute other than 5 U.S.C. 

552(b)(1)–(9), provided that such 

statute: 


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(i) Requires that the matters be 

withheld from the public in such a 

manner as to leave no discretion on the 

issue; 

(ii) Establishes particular criteria for 

withholding or refers to particular types 

of matters to be withheld; 

(iii) Trade secrets and commercial or 

financial information which could harm 

the competitive posture or business 

interests of a company; 

(iv) Interagency or intra-agency 

memorandums or letters that would not 

be available by law to a party other than 

an agency in litigation with the agency, 

provided that the deliberative process 

privilege shall not apply to records 

created 25 years or more before the date 

on which the records were requested; 

(v) Personnel and medical files and 

similar files the disclosure of which 

would constitute a clearly unwarranted 

invasion of personal privacy; or 

(vi) Records or information compiled 

for law enforcement purposes, but only 

to the extent that the production of such 

law enforcement records or information: 

(A) Could reasonably be expected to 

interfere with enforcement proceedings; 

(B) Would deprive a person of a right 

to a fair trial or an impartial 

adjudication; 

(C) Could reasonably be expected to 

constitute an unwarranted invasion of 

personal privacy; 

(D) Reasonably be expected to 

disclose the identity of a confidential 

source, including a State, local, or 

foreign agency or authority or any 

private institution which furnished 

information on a confidential basis, and, 

in the case of a record or information 

compiled by a criminal law enforcement 

authority in the course of a criminal 

investigation or by an agency 

conducting a lawful national security 

intelligence investigation, information 

furnished by a confidential source; 

(E) Would disclose techniques and 

procedures for law enforcement 

investigations or prosecutions, or would 

disclose guidelines for law enforcement 

investigations or prosecutions if such 

disclosure could reasonably be expected 

to risk circumvention of the law; or 

(F) Could reasonably be expected to 

endanger the life or physical safety of 

any individual; 

(G) Contained in or related to 

examination, operating, or condition 

reports prepared by, on behalf of, or for 

the use of an agency responsible for the 

regulation or supervision of financial 

institutions; or 

(H) Geological and geophysical 

information and data, including maps, 

concerning wells. 

(b) GSA will provide any reasonably 

segregable portion of a record to a 

requester after redacting the portions of 

the requested records that are exempt 

under this section. 

Subpart G—Final Responses to the 

FOIA Request 

§ 105–60.600 Final response procedures 

and rules. 

(a) Once GSA determines that it shall 

grant a request in full or in part, the 

requester shall be notified of the 

decision in writing. GSA shall also 

inform the requester of any fees charged 

under § 105–60.904 Fee Schedule of this 

part and must disclose the requested 

records to the requester promptly upon 

payment of any applicable fees. The 

agency must inform the requester of the 

availability of its FOIA Public Liaison to 

offer assistance. 

(b) If GSA makes an adverse 

determination denying any part of the 

request, it shall notify the requester of 

that determination in writing. Adverse 

determinations, or denials of requests, 

include decisions that: 

(1) The requested record is exempt, in 

whole or in part; 

(2) The request does not reasonably 

describe the records sought; 

(3) The information requested is not a 

record subject to the FOIA; 

(4) The requested record does not 

exist, cannot be located, or has been 

destroyed; or 

(5) The requested record is not readily 

reproducible in the form or format 

sought by the requester. 

(c) Records disclosed in part shall be 

marked clearly to show the amount of 

information deleted and the exemption 

under which the deletion was made 

unless doing so would harm an interest 

protected by an applicable exemption. 

The location of the information deleted 

shall also be indicated on the record, if 

technically feasible. 

(d) Adverse determinations also 

include denials involving fees waiver 

requests, denials for expedited 

processing or closure of requests due to 

nonpayment. 

(e) The denial, in full or in part, must 

be signed by the Chief FOIA Officer or 

designee and shall 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 

exemption applied by the GSA in 

denying the request; 

(3) An estimate of the volume of any 

records or information withheld, such 

as the number of pages or some other 

reasonable form of estimation, although 

such an estimate 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; 

and 

(4) A statement that the denial may be 

appealed under Subpart I—Appeals of 

this part, and a description of the appeal 

requirements. 

(5) A statement notifying the requester 

of the assistance available from the 

agency’s FOIA Public Liaison and the 

dispute resolution services offered by 

OGIS. 

(f) Use of record exclusions: 

(1) In the event that GSA identifies 

records that may be subject to exclusion 

from the requirements of the FOIA 

pursuant to 5 U.S.C. 552(c), GSA must 

confer with Department of Justice, 

Office of Information Policy (OIP), to 

obtain approval to apply the exclusion. 

(2) If GSA invokes an exclusion, it 

must maintain an administrative record 

of the process of invocation and 

approval of the exclusion by OIP. 

Subpart H—Handling Confidential 

Commercial Information 

§ 105–60.700 Procedural and lawful 

considerations. 

(a) Confidential commercial 

information means commercial or 

financial information obtained by the 

GSA from a submitter that may be 

protected from disclosure under 

Exemption 4 of the FOIA, 5 U.S.C. 

552(b)(4). 

(b) Submitter means any person or 

entity, including a corporation, State, or 

foreign government, but not including 

another Federal Government entity, that 

provides confidential commercial 

information, either directly or indirectly 

to the Federal Government. 

(c) A submitter of confidential 

commercial information must use good 

faith efforts to designate by appropriate 

markings/or redact any portion of its 

submission that it considers to be 

protected from disclosure under 

Exemption 4. These designations expire 

10 years after the date of the submission 

unless the submitter requests and 

provides justification for a longer 

designation period. 

(d) When notice to submitters is 

required. (1) GSA must promptly 

provide written notice to the submitter 

of confidential commercial information 

whenever records containing such 

information are requested under the 

FOIA if GSA determines that it may be 

required to disclose the records, 

provided: 

(i) The requested information has 

been designated in good faith by the 

submitter as information considered 

protected from disclosure under 

Exemption 4; or 


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(ii) GSA has a reason to believe that 

the requested information may be 

protected from disclosure under 

Exemption 4, but has not yet 

determined whether the information is 

protected from disclosure. 

(2) The notice shall either describe the 

commercial information requested or 

include a copy of the requested records 

or portions of records containing the 

information. In cases involving a 

voluminous number of submitters, GSA 

may post or publish a notice in a place 

or manner reasonably likely to inform 

the submitters of the proposed 

disclosure, instead of sending 

individual notifications. 

(e) The notice requirements of this 

section do not apply if: 

(1) GSA determines that the 

information is exempt under the FOIA, 

and therefore shall not be disclosed; 

(2) The information has been lawfully 

published or has been officially made 

available to the public; 

(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 12,600 of June 23, 

1987; or 

(4) The designation made by the 

submitter under paragraph (c) of this 

section appears obviously frivolous. In 

such a case, GSA shall give the 

submitter written notice of any final 

decision to disclose the information 

within reasonable time prior to a 

specified disclosure date. 

§ 105–60.701 Opportunity to object to 

disclosure. 

(a) GSA shall provide a submitter 

with ten business days, within which 

the submitter must respond to the notice 

referenced above. 

(b) If a submitter has any objections to 

disclosure, it should provide GSA a 

detailed written statement that specifies 

all grounds for withholding the 

particular information under any 

exemption of the FOIA. In order to rely 

on Exemption 4 as the basis for 

nondisclosure, the submitter must 

explain why the information constitutes 

a trade secret or commercial or financial 

information that is privileged or 

confidential. 

(c) 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. 

(d) GSA is not required to consider 

any information received after the date 

of any disclosure decision. Any 

information provided by a submitter 

under this subpart may itself be subject 

to disclosure under the FOIA. 

(e) GSA must consider a submitter’s 

objections and specific grounds for 

nondisclosure in deciding whether to 

disclose the requested information. 

(f) Whenever GSA decides to disclose 

information over the objection of a 

submitter, the agency must provide the 

submitter written notice, which must 

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 copies of the records as 

the agency intends to release them; and 

(3) The specified disclosure date. 

(g) Whenever a requester files a 

lawsuit seeking to compel the disclosure 

of confidential commercial information, 

GSA must promptly notify the 

submitter. 

(h) GSA must notify the requester 

whenever it provides the submitter with 

notice and an opportunity to object to 

disclosure; whenever it notifies the 

submitter of its intent to disclose the 

requested information; and whenever a 

submitter files a lawsuit to prevent the 

disclosure of the information. 

Subpart I—Appeals 

§ 105–60.800 Submitting an appeal. 

(a) Before seeking review by a court of 

an adverse GSA FOIA request 

determination, a requester must first 

submit a timely administrative appeal 

per the rules of this subpart. 

(b) A requester may appeal any 

adverse determinations to the GSA 

FOIA Requester Service Center which is 

designated as the agency’s FOIA 

Appeals Office. Examples of adverse 

determinations are provided in §§ 105– 

60.600(b) and (d) of this part. Requesters 

can submit appeals in accordance with 

the following requirements: 

(1) The requester must submit the 

appeal in writing and to be considered 

timely it must be postmarked, or in the 

case of electronic submissions, 

transmitted, within ninety calendar 

days after the date of the response; 

(2) The appeal must contain the basis 

for disagreement with the initial denial, 

i.e., the appeal should clearly identify 

the agency determination that is being 

appealed; 

(3) The appeal must include the 

associated FOIAonline tracking number; 

and 

(4) To facilitate handling, the 

requester should mark both the appeal 

letter and envelope, or subject line of 

the electronic transmission, ‘‘Freedom 

of Information Act Appeal.’’ 

§ 105–60.801 Adjudication. 

(a) The GSA Chief FOIA Officer or a 

designee shall act on behalf of the GSA 

on all appeals under this section. 

(b) An appeal ordinarily shall not be 

adjudicated if the request becomes a 

matter of FOIA litigation. 

(c) On receipt of any appeal involving 

classified information, the GSA must 

take appropriate action to ensure 

compliance with applicable 

classification rules. 

(d) GSA must provide its decision on 

an appeal in writing. A decision that 

upholds GSA’s original determination 

in whole or in part must contain a 

statement that identifies the reasons for 

the affirmance, including any FOIA 

exemptions applied. 

(e) The decision must provide the 

requester with notification of the 

statutory right to file a lawsuit and shall 

inform the requester of the mediation 

services offered by the Office of 

Government Information Services of the 

National Archives and Records 

Administration as a non-exclusive 

alternative to litigation. If GSA’s 

decision is remanded or modified on 

appeal, GSA shall notify the requester of 

that determination in writing. GSA shall 

then further process the request in 

accordance with that appeal 

determination and shall respond 

directly to the requester. 

(f) Engaging in dispute resolution 

services provided by OGIS. Mediation is 

a voluntary process. If GSA agrees to 

participate in the mediation services 

provided by OGIS, it will actively 

engage as a partner to the process in an 

attempt to resolve the dispute. 

§ 105–60.802 Requirements to preserve 

FOIA records. 

(a) GSA must preserve all 

correspondence pertaining to the 

requests that it receives under this 

subpart, as well as copies of all 

requested records, until disposition or 

destruction is authorized pursuant to 

title 44 of the United States Code 

(U.S.C) or the General Records Schedule 

14 of the National Archives and Records 

Administration (NARA). GSA must not 

dispose of or destroy records while they 

are the subject of a pending request, 

appeal, or lawsuit under the FOIA. 

Subpart J—Fees 

§ 105–60.900 General provisions. 

(a) GSA shall charge for processing 

requests under the FOIA in accordance 

with the provisions of this section and 

with OMB Guidelines. For purposes of 

assessing fees, the FOIA establishes 

three categories of requesters: 

(1) Commercial use requesters; 


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(2) Non-commercial scientific or 

educational institutions or news media 

requesters; and 

(3) All other requesters. 

(b) Different fees are assessed 

depending on the category. Requesters 

may seek a fee waiver. GSA must 

consider requests for fee waiver in 

accordance with the requirements in 

§ 105–60.907 Fee Waivers and Fee 

Reductions of this subpart. To resolve 

any fee issues that arise under this 

section, GSA may contact a requester for 

additional information. GSA must 

ensure that searches, review, and 

duplication are conducted in the most 

efficient and the least expensive 

manner. 

(c) GSA shall collect all applicable 

fees before sending copies of records to 

a requester. Requesters must pay fees by 

check, credit card, or money order made 

payable to the United States General 

Services Administration, or by another 

method as determined by GSA. 

§ 105–60.901 Definitions. 

(a) Commercial use request is a 

request that asks for information for use 

or purpose that furthers a commercial, 

trade, or profit interest, which can 

include furthering those interests 

through litigation. GSA’s decision to 

place a requester in the commercial use 

category shall be made on a case-by-case 

basis and is based on the requester’s 

intended use of the information. GSA 

shall notify requesters of their 

placement in this category. 

(b) Direct costs are those expenses 

that GSA incurs 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 sixteen 

(16) percent of that rate to cover 

benefits) and the cost of operating 

computers and other electronic 

equipment, such as photocopiers and 

scanners. Direct costs do not include 

overhead expenses such as the costs of 

space or the heating or lighting of a 

facility. 

(c) Duplication is reproducing a copy 

of a record, or of the information 

contained in it, necessary to respond to 

a FOIA request. Copies here can take the 

form of paper, audiovisual materials, or 

electronic records. 

(d) Educational institution is any 

school that operates a program of 

scholarly research. A requester in this 

fee category must show that the request 

is made in connection with his or her 

role at the educational institution. 

Agencies may seek verification from the 

requester that the request is in 

furtherance of scholarly research. The 

examples below serve to further clarify: 

(1) Example 1. A request from a 

professor of geology at a university for 

records relating to soil erosion, written 

on letterhead of the Department of 

Geology, would be presumed to be from 

an educational institution. 

(2) Example 2. A request from the 

same professor of geology seeking drug 

information from the Food and Drug 

Administration in furtherance of a 

murder mystery he is writing would not 

be presumed to be an institutional 

request, regardless of whether it was 

written on institutional stationery. 

(3) Example 3. A student who makes 

a request in furtherance of their 

coursework or other school-sponsored 

activities and provides a copy of a 

course syllabus or other reasonable 

documentation to indicate the research 

purpose for the request, would qualify 

as part of this fee category. 

(e) Noncommercial scientific 

institution is an institution that is not 

operated on a ‘‘commercial’’ basis, as 

defined in paragraph (b)(1) of this 

section and that is operated solely for 

the purpose of conducting scientific 

research the results of which are not 

intended to promote any particular 

product or industry. A requester in this 

category must show that the request is 

authorized by and is made under the 

auspices of a qualifying institution and 

that the records are sought to further 

scientific research and are not for a 

commercial use. GSA shall advise 

requesters of their placement in this 

category. 

(f) Representative of the news media 

is any person or entity that 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, including news 

organizations that disseminate solely on 

the internet. A request for records 

supporting 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 a representative 

of the news media. A publishing 

contract would provide the clearest 

evidence that publication is expected; 

however, GSA can also consider a 

requester’s past publication record in 

making this determination. GSA shall 

advise requesters of their placement in 

this category. 

(g) 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 the process of 

reviewing each individual record for 

possible redactions 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 § 105–60.701—Opportunity to 

Object to Disclosure of this part. It does 

not include time spent resolving general 

legal or policy issues regarding the 

application of exemptions. 

(h) 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. 

§ 105–60.902 Fees to be charged. 

In responding to FOIA requests, GSA 

shall charge the following fees unless a 

waiver or reduction of fees has been 

granted under § 105–60.907 Fee Waivers 

and Fee Reductions of this subpart. 

Because the fee amounts provided 

below already account for the direct 

costs associated with a given fee type, 

GSA shall not add any additional costs 

to charges calculated under this section. 

(a) Search fees. (1) Requests made by 

educational institutions, noncommercial 

scientific institutions, or representatives 

of the news media are not subject to 

search fees. GSA shall charge search 

fees for all other requesters, subject to 

the rules and restrictions enumerated in 

this subpart. GSA may properly charge 

for time spent searching even if the GSA 

FOIA Requester Service Center does not 

locate any responsive records or if they 

determine that the records are entirely 

exempt from disclosure. 

(2) For each half hour (30 minutes) 

spent by GSA personnel searching for 

requested records, including electronic 

searches that do not require new 

programming, a $24.50 fee shall be 

assessed per the guidelines of the fee 

schedule enumerated in § 105–60.904 

Fee Schedule of this subpart. 

(3) GSA shall charge the direct costs 

associated with conducting any search 


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that requires the creation of a new 

computer program to locate the 

requested records. GSA must notify the 

requester of the costs associated with 

creating such a program, and the 

requester must agree to pay the 

associated costs before the costs may be 

incurred. 

(4) For requests that require the 

retrieval of records stored by GSA at a 

Federal records center operated by the 

National Archives and Records 

Administration (NARA), GSA shall 

charge additional costs in accordance 

with the Transactional Billing Rate 

Schedule established by NARA. 

(b) Duplication fees. (1) GSA shall 

charge duplication fees to all requesters, 

subject to the restrictions of § 105– 

60.903 Restrictions on charging fees of 

this subpart. GSA must honor a 

requester’s preference for receiving a 

record in a particular form or format 

where the agency can readily reproduce 

it in the form or format requested. 

Where photocopies are supplied, GSA 

shall provide one copy per request at 

the cost of $0.10 per copy. For copies of 

records produced on tapes, disks, or 

other media, GSA shall charge the direct 

costs of producing the copy, including 

operator time. 

(2) 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 must also pay the direct costs 

associated with scanning those 

materials. For other forms of 

duplication, GSA shall charge the direct 

costs. 

(3) GSA determines the standard fee 

for duplication of records as follows: 

(i) Per copy of each page (not larger 

than 8.5 x 14 inches) reproduced by 

photocopy or similar means (includes 

costs of personnel and equipment)— 

U.S. $0.10. 

(ii) Per copy prepared by any other 

method of duplication—actual direct 

cost of production. 

(c) Review fees. GSA shall charge 

review fees to requesters who make 

commercial use requests. Review fees 

shall be assessed based upon the initial 

review of the record (i.e., the review 

conducted by GSA to determine 

whether an exemption applies to a 

particular record or portion of a record). 

No charge shall be made for review 

during the administrative appeal stage 

of exemptions applied at the initial 

review stage. However, if a particular 

exemption is deemed to no longer 

apply, any costs associated with GSA or 

another agency’s secondary review of 

the records in order to consider the use 

of other exemptions may be assessed as 

review fees. Review fees shall be 

charged at the same rates as those 

enumerated in the fee schedule of this 

section. 

§ 105–60.903 Restrictions on charging 

fees. 

(a) When GSA determines that a 

requester is an educational institution, 

non-commercial scientific institution or 

representative of the news media, and 

the records are not sought for 

commercial use, GSA shall not charge 

search fees. 

(b) If GSA fails to comply with the 

time limits in which to respond to a 

request for agency records under FOIA, 

it will not charge search fees, or in the 

instances of requests from requesters 

described in (a) of this section, may not 

charge duplication fees, except as 

described in paragraphs (b)(1) through 

(3) below. GSA will charge duplication 

fees in accordance with §§ 105–60.902 

(b)(1) through (3) of this part. 

(1) If GSA has determined that 

unusual circumstances as defined by the 

FOIA apply and the agency provided 

timely written notice to the requester in 

accordance with the FOIA, a failure to 

comply with the time limit shall be 

excused for an additional 10 days. 

(2) If GSA has determined that 

unusual circumstances, as defined by 

the FOIA, apply and more than 5,000 

pages are necessary to respond to the 

request, GSA may charge search fees, or, 

in the case of requesters described in 

paragraph (d)(1) of this section, may 

charge duplication fees, if the following 

steps are taken. GSA must have 

provided timely written notice of 

unusual circumstances to the requester 

in accordance with the FOIA and GSA 

must have discussed with the requester 

via written mail, email, or telephone (or 

made not less than three good-faith 

attempts to do so) how the requester 

could effectively limit the scope of the 

request in accordance with 5. U.S.C. 

552(a)(6)(B)(ii). If this exception is 

satisfied, the component may charge all 

applicable fees incurred in the 

processing of the request. 

(3) If a court has determined that 

exceptional circumstances exist, as 

defined by the FOIA, a failure to comply 

with the time limits shall be excused for 

the length of time provided by the court 

order. 

(c) No search or review fees shall be 

charged for a half hour period unless 

more than half of that period is required 

for search or review. 

(d) Except for requesters seeking 

records for a commercial use, GSA must 

provide without charge: 

(1) The first 100 pages of duplication 

(or the cost equivalent for other media); 

and 

(2) The first two (2) hours of search 

time. 

(e) No fee shall be charged when the 

total fee, after deducting the 100 free 

pages (or its cost equivalent) and the 

first two hours of search, is equal to or 

less than $49.00. 

§ 105–60.904 Fee schedule. 

Table 1—Fee Requester Category 

Table outlines the basic fee categories 

and applicable fees: 

(A) TABLE 1—FEE REQUESTER CATEGORY TABLE

Requester category Search fees Review fees Duplication fees Amount 

Commercial use requester.Yes .................... Yes .................... Yes, first 100 pages, or equivalent volume without charge. Then, U.S. $0.10. per 

copy of each page (not larger than 8.5 x 14 inches) reproduced by photocopy 

or similar means (includes costs of personnel and equipment)—OR, per copy 

prepared by any other method of duplication—actual direct cost of production.

$49.00/hour plus 

applicable duplication costs. 

Educational and 

noncommercial 

scientific institutions.

No ...................... No ...................... Yes, first 100 pages, or equivalent volume without charge. Then, U.S. $0.10. per 

copy of each page (not larger than 8.5 x 14 inches) reproduced by photocopy 

or similar means (includes costs of personnel and equipment)—OR, per copy 

prepared by any other method of duplication—actual direct cost of production.

Eligible requesters 

not subject to 

fees other than 

duplication costs. 

Representative of 

news media.

No ...................... No ...................... Yes, first 100 pages, or equivalent volume without charge. Then, U.S. $0.10. per 

copy of each page (not larger than 8.5 x 14 inches) reproduced by photocopy 

or similar means (includes costs of personnel and equipment)—OR, per copy 

prepared by any other method of duplication—actual direct cost of production.

Eligible requesters 

not subject to 

fees other than 

duplication costs. 


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Federal Register / Vol. 83, No. 119 / Wednesday, June 20, 2018 / Proposed Rules 28601 

(A) TABLE 1—FEE REQUESTER CATEGORY TABLE—Continued 

Requester category Search fees Review fees Duplication fees Amount 

All other requesters Yes (first two 

hours without 

charge).

No ...................... Yes, first 100 pages, or equivalent volume without charge. Then, U.S. $0.10. per 

copy of each page (not larger than 8.5 x 14 inches) reproduced by photocopy 

or similar means (includes costs of personnel and equipment)—OR, per copy 

prepared by any other method of duplication—actual direct cost of production.

$49.00/hour plus 

applicable duplication costs 

Note 1: GSA’s calculated hourly rate for manual search, computer operator/programmer time, and employee time spent reviewing records is set at a flat rate of 

49.00 per hour. GSA charges for these FOIA services by the hour at $49.00 and half hour at $24.50. 

Note 2: The fee schedule of this section does not apply to fees charged under any statute that specifically requires GSA 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, GSA must inform the requester of the contact 

information for that program. 

Note 3: If GSA utilizes a contractor or agency personnel outside of the FOIA Requester Service Center to perform any services described in this subpart, the 

standard fee is based on the equivalent hourly rates. 

§ 105–60.905 Anticipated fees. 

(a) When GSA determines or 

estimates that the fees to be assessed in 

accordance with this section shall 

exceed $49.00, the Agency shall notify 

the requester of the actual or estimated 

amount of the fees, including a 

breakdown of the fees for search, review 

or duplication, unless the requester has 

indicated a willingness to pay fees as 

high as those anticipated via writing. If 

only a portion of the fee can be 

estimated readily, GSA shall advise the 

requester accordingly. If the request is 

not for noncommercial use, the notice 

shall specify that the requester is 

entitled to the statutory entitlements of 

100 pages of duplication at no charge 

and, if the requester is charged search 

fees, two (2) hours of search time at no 

charge, and shall advise the requester 

whether those entitlements have been 

provided. 

(b) If the GSA notifies the requester 

that the actual or estimated fees are in 

excess of $49.00, the request shall not be 

considered received and further work 

shall not be completed until the 

requester commits in writing to pay the 

actual or estimated total fee, or 

designates some amount of fees the 

requester is willing to pay. Or in the 

case of a noncommercial use requester 

who has not yet been provided with the 

requester’s statutory entitlements, 

designates that the requester seeks only 

that which can be provided by the 

statutory entitlements. The requester 

must provide the commitment/or 

designate an exact dollar amount in 

writing the requester is willing to pay. 

GSA is not required to accept payments 

in installments. 

(c) If the requester has indicated a 

willingness to pay some designated 

amount of fees, but the agency estimates 

that the total fee shall exceed that 

amount, GSA shall toll the processing of 

the request when it notifies the 

requester of the estimated fees in excess 

of the amount the requester has 

indicated a willingness to pay. GSA 

shall inquire whether the requester 

wishes to revise the amount of fees the 

requester is willing to pay or modify the 

request. Once the requester submits the 

new estimated fee, the time to respond 

shall resume from where it was at the 

date of the notification. 

(d) GSA’s FOIA Public Liaison and 

other FOIA professionals shall be 

available to assist any requester in 

reformulating a request to meet the 

requester’s needs at a lower cost. 

(e) If the total fees due are over 

$250.00, the processing of the request 

shall stop until the requester pays the 

fees. Once the materials are ready for 

response, the GSA FOIA Requester 

Service Center must receive payment 

prior to releasing the response to the 

requester. 

(f) Although not required to provide 

special services, if GSA chooses to do so 

as a matter of administrative discretion, 

the direct costs of providing the service 

shall 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. 

(g) GSA may charge interest on any 

unpaid bill starting on the 31st day 

following the date the requester is first 

billed. Interest charges shall be assessed 

at the rate provided in 31 U.S.C. 3717 

and shall accrue from the billing date 

until payment is received by the agency. 

GSA must 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. 

(h) When GSA reasonably believes 

that a requester or a group of requesters 

acting in concert are attempting to 

divide a single request into a series of 

requests for the purpose of avoiding 

fees, GSA may aggregate those requests 

and charge accordingly. GSA may 

presume that multiple requests of this 

type made within a thirty (30) day 

period have been made in order to avoid 

fees. For requests separated by a longer 

period, GSA shall aggregate them only 

where there is a reasonable basis for 

determining that aggregation is 

warranted in view of all the 

circumstances involved. Multiple 

requests involving unrelated matters 

cannot be aggregated. 

§ 105–60.906 Advanced payments. 

(a) For requests other than those 

described in this subpart, GSA cannot 

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 GSA determines or 

estimates that a total fee to be charged 

under this section shall 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. GSA 

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 GSA within 30 calendar days of 

the billing date, GSA may require that 

the delinquent requester pay the full 

amount due, plus any applicable 

interest on that prior request, and 

require that the requester make an 

advance payment of the full amount of 

any anticipated fee before the agency 

begins to process a new request or 

continues to process a pending request 

or any pending appeal. If GSA has a 

reasonable basis to believe that a 

requester has misrepresented the 

requester’s identity in order to avoid 

paying outstanding fees, it may require 

that the requester provide proof of 

identity. 

(d) In cases in which GSA requires 

advance payment, the request shall not 

be considered received and further work 

shall not be completed until the 

required payment is received. If the 

requester does not pay the advance 

payment within 10 business days after 

the date of the GSA’s fee determination, 

the request shall be closed. 


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28602 Federal Register / Vol. 83, No. 119 / Wednesday, June 20, 2018 / Proposed Rules 

§ 105–60.907 Fee waivers and fee 

reductions. 

(a) Requests for a fee waiver shall 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. When a 

requester who has committed to pay 

fees subsequently asks for a waiver of 

those fees and that waiver is denied, the 

requester must pay any costs incurred 

up to the date the fee waiver request 

was received. 

(b) Requirements for waiver or 

reduction of fees: 

(1) Requesters may seek a waiver of 

fees by submitting a written rationale as 

to how 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 is not primarily in the 

commercial interest of the requester; 

and 

(2) GSA shall furnish records 

responsive to a request without charge 

or at a reduced rate when it determines, 

based on all available information, that 

the factors described in paragraphs 

(b)(2)(i) through (iii) of this section are 

satisfied: 

(i) Disclosure of the requested 

information would shed light on the 

operations or activities of the 

government. 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; and 

(ii) Disclosure of the requested 

information is likely to contribute 

significantly to public understanding of 

those operations or activities. This 

factor is satisfied when the following 

criteria are met; and 

(A) Disclosure of the requested 

records must be meaningfully 

informative about government 

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 

be meaningfully informative if nothing 

new would be added to the public’s 

understanding. 

(B) 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 the requester’s ability and 

intention to effectively convey 

information to the public must be 

considered. GSA shall presume that a 

representative of the news media shall 

satisfy this consideration; 

(iii) The disclosure must not be 

primarily in the commercial interest of 

the requester. To determine whether 

disclosure of the requested information 

is primarily in the commercial interest 

of the requester, GSA shall consider the 

following criteria: 

(A) GSA must identify whether the 

requester has any commercial interest 

that would be furthered by the 

requested disclosure. A commercial 

interest includes any commercial, trade, 

or profit interest. Requesters must be 

given an opportunity to provide 

explanatory information regarding this 

consideration. 

(B) If there is an identified 

commercial interest, GSA must 

determine whether that is the primary 

interest furthered by the request. A 

waiver or reduction of fees is justified 

when the requirements of paragraphs 

(b)(2)(i) and (ii) of this section are 

satisfied and any commercial interest is 

not the primary interest furthered by the 

request. GSA ordinarily shall presume 

that when a news media requester has 

satisfied factors (b)(1) and (2) of this 

section, the request is not primarily in 

the commercial interest of the requester. 

Disclosure to data brokers or others who 

merely compile and market government 

information for direct economic return 

shall not be presumed to primarily serve 

the public interest. 

(c) Where only some of the records to 

be released satisfy the requirements for 

a fee waiver, a waiver shall be granted 

for those records. 

Subpart K—Other Rights and Services 

§ 105–60.1000 Coda. 

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 L—Definitions 

§ 105–60.1100 Definitions. 

Agency records are those created or 

received in the course of conducting 

agency business, including, but not 

limited to: Paper, electronic or other 

physical forms for records. These may 

include reports, letters, photographs, 

audio recordings and emails. A record 

must exist and be in the possession and 

control of the GSA before it is 

considered for release. 

Commercial use request. 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. GSA’s decision to 

place a requester in the commercial use 

category shall be made on a case-by-case 

basis based on the requester’s intended 

use of the information. GSA shall notify 

requesters of their placement in this 

category. 

Complex Request. A FOIA request 

that an agency using multi-track 

processing places in a slower track 

based on the volume and/or complexity 

of records requested. 

Confidential commercial information. 

Commercial or financial information 

obtained by the GSA from a submitter 

that may be protected from disclosure 

under Exemption 4 of the FOIA, 5 

U.S.C. 552(b)(4). 

Consultation. When the requested 

records originate with the agency 

processing the request, but contain 

within them information of interest to 

another agency or other Federal 

Government office, the agency 

processing the request should typically 

consult with that other entity prior to 

making a release determination. 

Coordination. This referral procedure 

is not appropriate where disclosure of 

the identity of the agency to which the 

referral would be made could harm an 

interest protected by an applicable 

exemption, such as the exemptions that 

protect personal privacy or national 

security interests. 

Direct costs are those expenses that 

GSA incurs 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 sixteen 

(16) percent of that rate to cover 

benefits) and the cost of operating 

computers and other electronic 

equipment, such as photocopiers and 

scanners. Direct costs do not include 

overhead expenses such as the costs of 

space or the heating or lighting of a 

facility. 

Duplication. Reproducing a copy of a 

record, or of the information contained 

in it, necessary to respond to a FOIA 

request. Copies here can take the form 

of paper, audiovisual materials, or 

electronic records. 

Duplication Fees. Reasonable direct 

costs of making copies of documents. 

Copies can take various forms, 

including paper copies, microforms or 

machine-readable documentation. 

Educational institution. Any school 

that operates a program of scholarly 

research. A requester in this fee category 

must show that the request is made in 

connection with his or her role at the 

educational institution. Agencies may 


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Federal Register / Vol. 83, No. 119 / Wednesday, June 20, 2018 / Proposed Rules 28603 

seek verification from the requester that 

the request is in furtherance of scholarly 

research. 

Exempt means the record in question, 

or a portion thereof, is not subject to 

disclosure due to one or more of the 

nine statutory FOIA exemptions, found 

at 5 U.S.C. 552(b)(1) through (9). 

Exemption refers to one or more of the 

FOIA’s nine statutory exemptions, 

found at 5 U.S.C. 552(b)(1) through (9). 

FOIA Requester Service Center is the 

office that oversees FOIA requests for all 

of GSA. 

Interim response is when the agency 

releases the records on a rolling basis, 

as the records are located and verified. 

Noncommercial scientific institution 

is an institution that is not operated on 

a ‘‘commercial’’ basis, as defined in 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 are not for a 

commercial use. GSA shall advise 

requesters of their placement in this 

category. 

Perfected FOIA Request. A perfected 

FOIA request is a FOIA request for 

records which adequately describes the 

records sought, is made in accordance 

with GSA’s regulations, which has been 

received by the GSA FOIA Requester 

Service center the FOIA office of the 

agency or agency component in 

possession of the records, and for which 

there is no remaining question about the 

payment or amount of applicable fees. 

Referral. When an agency locates a 

record that originated with, or is of 

otherwise primary interest to another 

agency, it will forward that record to the 

other agency to process the record and 

to provide the final determination 

directly to the requester. This process is 

called a ‘‘referral.’’ 

Representative of the news media. 

Any person or entity that 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, including news 

organizations that disseminate solely on 

the internet. A request for records 

supporting 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 a representative 

of the news media. A publishing 

contract would provide the clearest 

evidence that publication is expected; 

however, GSA can also consider a 

requester’s past publication record in 

making this determination. GSA shall 

advise requesters of their placement in 

this category. 

Review. 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 § 7 of this subpart, but it does not 

include time spent resolving general 

legal or policy issues regarding the 

application of exemptions. 

Review Fees. Costs which may be 

charged to commercial-use requesters 

that consist of direct costs incurred 

during the initial examination of a 

document for the purposes of 

determining whether the records must 

be disclosed under the FOIA. Review 

time includes processing the documents 

for disclosure. 

Search. 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 Fees. Charges for document 

‘‘search’’ that include all the time spent 

looking for responsive material, 

including page-by-page or line-by-line 

identification of material within 

documents. GSA may charge for search 

time even when it fails to locate records 

responsive to request or even if the 

records located are subsequently 

determined to be exempt from 

disclosure. 

Simple request. A FOIA request that 

an agency using multi-track processing 

places in its fastest (non-expedited) 

track based on the volume and/or 

simplicity of records requested. 

Submitter means any person or entity, 

including a corporation, State, or foreign 

government, but not including another 

Federal Government entity, that 

provides confidential commercial 

information, either directly or indirectly 

to the Federal Government. 

[FR Doc. 2018–13105 Filed 6–19–18; 8:45 am] 

BILLING CODE 6820–FM–P 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

Centers for Medicare & Medicaid 

Services 

42 CFR Parts 412, 413, 424, and 495 

[CMS–1694–CN] 

RIN–0938–AT27 

Medicare Program; Hospital Inpatient 

Prospective Payment Systems for 

Acute Care Hospitals and the LongTerm Care Hospital Prospective 

Payment System and Proposed Policy 

Changes and Fiscal Year 2019 Rates; 

Proposed Quality Reporting 

Requirements for Specific Providers; 

Proposed Medicare and Medicaid 

Electronic Health Record (EHR) 

Incentive Programs (Promoting 

Interoperability Programs) 

Requirements for Eligible Hospitals, 

Critical Access Hospitals, and Eligible 

Professionals; Medicare Cost 

Reporting Requirements; and 

Physician Certification and 

Recertification of Claims; Correction 

AGENCY: Centers for Medicare & 

Medicaid Services (CMS), HHS. 

ACTION: Proposed rule; correction. 

SUMMARY: This document corrects 

technical and typographical errors in 

the proposed rule that appeared in the 

May 7, 2018 issue of the Federal 

Register titled ‘‘Medicare Program; 

Hospital Inpatient Prospective Payment 

Systems for Acute Care Hospitals and 

the Long-Term Care Hospital 

Prospective Payment System and 

Proposed Policy Changes and Fiscal 

Year 2019 Rates; Proposed Quality 

Reporting Requirements for Specific 

Providers; Proposed Medicare and 

Medicaid Electronic Health Record 

(EHR) Incentive Programs (Promoting 

Interoperability Programs) Requirements 

for Eligible Hospitals, Critical Access 

Hospitals, and Eligible Professionals; 

Medicare Cost Reporting Requirements; 

and Physician Certification and 

Recertification of Claims’’. 

DATES: June 20, 2018. 


sradovich on DSK3GMQ082PROD with PROPOSALS