[Federal Register Volume 83, Number 119 (Wednesday, June 20, 2018)]
[Proposed Rules]
[Pages 28592-28603]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-13105]


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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.

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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:
    <bullet> 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.
    <bullet> 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 <a href="/cdn-cgi/l/email-protection#54202635223d277a3831233d27143327357a333b22"><span class="__cf_email__" data-cfemail="e6929487908f95c88a83918f95a6819587c8818990">[email protected]</span></a> 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.

[[Page 28593]]


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.


0
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.

[[Page 28594]]

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


Sec.  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.


Sec.  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


Sec.  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/report-makerequest.html.

Subpart C--Requirements for Making Requests


Sec.  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: <a href="/cdn-cgi/l/email-protection#e0879381ce868f8981a0879381ce878f96"><span class="__cf_email__" data-cfemail="620511034c040d0b03220511034c050d14">[email protected]</span></a> (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

[[Page 28595]]

verify the individual submitting the request and/or also verify that a 
particular individual has consented to disclosure.


Sec.  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


Sec.  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.


Sec.  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

[[Page 28596]]

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.


Sec.  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 Sec.  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.


Sec.  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.


Sec.  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


Sec.  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.


Sec.  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:

[[Page 28597]]

    (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


Sec.  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 Sec.  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


Sec.  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

[[Page 28598]]

    (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.


Sec.  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


Sec.  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 
Sec. Sec.  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.''


Sec.  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.


Sec.  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


Sec.  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;

[[Page 28599]]

    (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 Sec.  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.


Sec.  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 Sec.  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.


Sec.  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 Sec.  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 Sec.  105-60.904 Fee 
Schedule of this subpart.
    (3) GSA shall charge the direct costs associated with conducting 
any search

[[Page 28600]]

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 Sec.  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.


Sec.  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 Sec. Sec.  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.


Sec.  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,  $49.00/hour plus
                                                                          or equivalent volume   applicable
                                                                          without charge.        duplication
                                                                          Then, U.S. $0.10.      costs.
                                                                          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.
Educational and noncommercial  No.................  No.................  Yes, first 100 pages,  Eligible
 scientific institutions.                                                 or equivalent volume   requesters not
                                                                          without charge.        subject to fees
                                                                          Then, U.S. $0.10.      other than
                                                                          per copy of each       duplication
                                                                          page (not larger       costs.
                                                                          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.
Representative of news media.  No.................  No.................  Yes, first 100 pages,  Eligible
                                                                          or equivalent volume   requesters not
                                                                          without charge.        subject to fees
                                                                          Then, U.S. $0.10.      other than
                                                                          per copy of each       duplication
                                                                          page (not larger       costs.
                                                                          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.

[[Page 28601]]

 
All other requesters.........  Yes (first two       No.................  Yes, first 100 pages,  $49.00/hour plus
                                hours without                             or equivalent volume   applicable
                                charge).                                  without charge.        duplication
                                                                          Then, U.S. $0.10.      costs
                                                                          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.
----------------------------------------------------------------------------------------------------------------
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.

Sec.  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.


Sec.  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.

[[Page 28602]]

Sec.  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


Sec.  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


Sec.  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

[[Page 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 Sec.  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


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