Federal Register / Vol. 85, No. 19 / Wednesday, January 29, 2020 / Rules and Regulations 5137 

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: Final rule. 

SUMMARY: GSA is amending the General 

Services Administration’s regulations 

implementing the Freedom of 

Information Act (FOIA). The regulations 

are being updated to incorporate 

changes brought about by the 

amendments to FOIA under both 

statutory and nonstatutory authorities. 

Specifically, this rule amends GSA’s 

regulations under FOIA to incorporate 

certain changes made to FOIA by the 

FOIA Improvement Act of 2016. 

Additionally, the regulations are being 

updated to reflect developments in case 

law, recent guidance from the 

Department of Justice—Office of 

Information Policy for processing FOIA 

requests, technological advancements in 

how the FOIA is administered, and to 

update the cost figures used in 

calculating and charging search/or 

review fees. Finally, the revisions to the 

rule increase the amount of information 

that members of the public may receive 

from the agency without being charged 

processing fees through proactive 

agency disclosures. 

DATES: Effective: February 28, 2020. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Travis S. Lewis, Director of GSA, OAS, 

Freedom of Information Act Requester 

Service Center, at 202–219–3078 or 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. 

SUPPLEMENTARY INFORMATION: 

I. Background 

GSA published a proposed rule in the 

Federal Register at 83 FR 28592 on June 

20, 2018, to amend the General Services 

Administration rule to regulations 

implementing the Freedom of 

Information Act (FOIA). 

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. FOIA thus established a 

statutory right of public access to 

Executive Branch information in the 

Federal Government. Part 105–60 of 41 

CFR establishes the policies, 

responsibilities, and procedures for the 

release of GSA records that are under 

the jurisdiction of GSA to members of 

the public. These regulations apply to 

information found in all GSA agency 

organizations and components. 

This final rule revises GSA’s 

regulations under the FOIA to address 

changes to the language of several 

procedural provisions and to 

incorporate certain changes brought 

about by the amendments to FOIA 

under the FOIA Improvement Act of 

2016 Public Law 114–185, 130 Stat. 538 

(June 30, 2016). 

The final rule also incorporates 

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 the final rule that applies 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. 

The FOIA Improvement Act of 2016 

provides that agencies shall 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. Additionally, GSA’s FOIA 

regulations are being updated to reflect 

developments in case law, technological 

changes in the administration of FOIA, 

executive guidance from the Department 

of Justice, other non-statutory 

authorities such as Presidential 

Executive Orders, including current cost 

figures to be used in calculating and 

charging fees. 

II. Discussion and Analysis 

GSA has reviewed the public 

comments in the development of the 

final rule. A discussion of the comments 

is provided as follows: 

A. Summary of Significant Changes 

There were no significant changes as 

a result of the comments received. 

B. Analysis of Public Comments 

Comment: The first respondent 

expressed that GSA should remove its 

references to the Office of Management 

and Budget’s (OMB) Uniform Freedom 

of Information Act Fee Schedule and 

Guidelines (‘‘OMB Guidelines’’) as both 

an authority for interpreting the FOIA 

and GSA’s implementing regulations, 

because the OMB Guidelines are now 

outdated. 

Response: Per the Freedom of 

Information Reform Act of 1986 (Pub. L. 

99–570), all federal agencies subject to 

the FOIA are required to promulgate 

regulations implementing the FOIA’s 

amended fee and fee waiver provisions 

reflecting the OMB Guidelines. To date, 

there has not been a statutory 

amendment to the Freedom of 

Information Reform Act of 1986 (Pub. L. 

99–570) nor any case precedent which 

has eliminated GSA’s requirement to 

promulgate regulations implementing 

the FOIA’s amended fee and fee waiver 

provisions reflecting the OMB 

Guidelines. GSA will continue to 

implement the OMB Guidelines 

accordingly. 

Comment: The second respondent 

expressed that streamlining the National 

Environmental Policy Act (NEPA) via a 

time/or page limit on NEPA documents 

will just create the need for more 

administrative paperwork and project 

management costs as government 

decision-makers struggle to meet these 

new requirements. This will thus divert 

time from the more important work of 

thinking about and discussing proposed 

NEPA related projects. 

Response: Responder’s comment does 

not make mention of nor concerns 

GSA’s FOIA regulations. This comment 

is not germane to GSA. 

III. Executive Orders 12866 and 

13563—Regulatory Review 

Executive Orders (E.O.) 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 

rule is not a major rule under 5 U.S.C. 

804. 


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IV. 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. 

V. Regulatory Flexibility Act 

This final 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 

final rule is also exempt from the 

Administrative Procedure Act per 5 

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

agency management or personnel. 

VI. Small Business Regulatory 

Enforcement Fairness Act 

This final rule is also exempt from 

Congressional review prescribed under 

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

agency management and personnel. 

VII. Paperwork Reduction Act 

This final 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). 

VIII. 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: December 23, 2019. 

Emily W. Murphy, 

Administrator. 

■ For the reasons stated in the preamble, 

GSA revises 41 CFR part 105–60 to read 

as follows: 

PART 105–60—PUBLIC AVAILABILITY 

OF AGENCY RECORDS AND 

INFORMATIONAL MATERALS 

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 Acknowledging FOIA request 

105–60.302 Responding to FOIA requests. 

105–60.303 Consolation, referral, and 

coordination 

105–60.304 Time requirements to respond 

to FOIA requests. 

105.60.305 Unusual circumstances. 

105.60.306 Expedited processing. 

Subpart E—Acknowledging the FOIA 

Request 

105–60.400 Applying FOIA exemptions. 

Subpart F—Final Responses to the FOIA 

Request 

105–60.500 Final response procedures and 

rules. 

Subpart G—Handling Confidential 

Commercial Information 

105–60.600 Procedural and lawful 

considerations. 

105–60.601 Submitter’s opportunity to 

object to disclosure. 

Subpart I—Appeals 

105–60.700 Submitting an appeal. 

105–60.701 Adjudication of appeals. 

105–60.702 Requirements to preserve FOIA 

records. 

Subpart J—Fees 

105–60.800 General provisions. 

105–60.801 Definitions pertaining to fee 

assessments. 

105–60.802 Fees to be charged. 

105–60.803 Restrictions on charging fees. 

105–60.804 Fee Schedule. 

105–60.805 Anticipated fees. 

105–60.806 Advanced payments. 

105–60.807 Fee waivers and fee reductions. 

Subpart K—Other Rights and Services 

105–60.900 Coda. 

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 contains the rules that the 

U.S. General Services Administration, 

hereinafter GSA, follows in processing 

requests for records under the Freedom 

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

552. The rules in this part 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 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 for processing FOIA 

requests due to unique program 

requirements; however, such rules shall 

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 FOIA in 5 U.S. Code 

section 552(a)(2) requires GSA to make 

available for public inspection in an 

electronic format can be accessed via 

GSA’s website at www.gsa.gov. 

Additionally, the GSA FOIA Reading 

Room, and the FOIA Online System. 

GSA is responsible for determining 

which of its records shall 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. These records shall be 

made available electronically via the 

GSA FOIA Reading Room. GSA shall 

ensure that its online FOIA Library of 

posted records and indices is reviewed 

and updated on an ongoing basis. GSA 

maintains a FOIA Requester Service 

Center, the office that oversees FOIA 

requests for all of GSA, and a FOIA 


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Public Liaison to assist individuals in 

locating records particular to an agency. 

A list of agency FOIA Public Liaisons is 

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

Subpart C—Requirements for Making 

Requests 

§ 105–60.200 Making a request. 

(a) To make a request for GSA records, 

a requester shall file their request to the 

GSA FOIA Requester Service Center via 

one of the following, via the FOIAonline 

website: (https://foiaonline.gov/ 

foiaonline/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 reasonably possible for 

a requester to submit an electronic 

request via FOIAonline, the requester 

shall submit their request via U.S. Mail 

to the following address: GSA FOIA 

Requester Service Center (H3), Room 

7308, 1800 F Street NW, Washington, 

DC 20405. Fax: 202–501–2727. 

Alternatively, a FOIA requester may 

email its FOIA request to gsa.foia@

gsa.gov (Subject: FOIA Request via 

Email). 

(c) FOIA request description 

requirements: 

(1) The requester shall provide the 

following items of contact information 

when submitting a request to GSA: 

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

Mrs., Dr., etc.); 

(ii) Complete mailing address; and 

(iii) Telephone number. 

(2) This requirement is applicable to 

both FOIA requests submitted 

electronically and via U.S. mail, 

respectively. 

(3) Although it is not a mandatory 

requirement, GSA also recommends the 

requester provide a personal/business 

email address for remittance as well. 

(d) A requester who is making a 

request for records about himself or 

herself shall comply with the 

verification of identity requirements as 

specified in paragraph (e) of this 

section. 

(e) Where a request for records 

pertains to another individual, a 

requester may receive access to the 

requested records by submitting: Either 

a notarized authorization signed by the 

individual permitting that he or she 

explicitly grants access to the requested 

records pursuant to the requirements set 

forth in 28 U.S.C. 1746 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, GSA can 

require a requester to supply additional 

information such as a Certification of 

Identity Form in order to sufficiently 

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 shall 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, which may help 

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 a FOIA request, 

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, 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, GSA’s 

response to the request may be delayed. 

(c) In order to efficiently respond to 

FOIA requests within the required 20- 

business-day timeframe per 5 U.S.C. 

552(a)(6)(A), GSA may close an 

unperfected request 10 business days 

after 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. A perfected FOIA 

request is a FOIA request for records 

that 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. 

(d) Requesters may specify whether 

they prefer to receive paper copies of 

the records or receive the records 

electronically. GSA shall accommodate 

the request if the record is readily 

reproducible in the requested form. 

Subpart D—Responding to Requests 

§ 105–60.300 Responsibility for 

responding to FOIA requests. 

(a) The GSA FOIA Requester Service 

Center is responsible for managing all 

requests for records submitted to GSA 

from initial receipt of the FOIA request 

through the agency’s final decision to 

release in whole or in part, or withhold 

the requested records. 

(b) Upon receiving a request for 

records, the GSA FOIA Requester 

Service Center shall determine whether 

the requested records reside within 

GSA. If GSA does not have ownership 

of the requested records, the GSA FOIA 

Requester Service Center shall make a 

good faith effort to redirect the requester 

to the appropriate record location or/ 

entity that has control and ownership of 

the requested record, if known. 

(c) If GSA has possession of the 

requested records, the FOIA Requester 

Service Center shall work in 

coordination with the appropriate GSA 

component/or program office to fulfill 

the FOIA request in accordance with 5 

U.S.C. 552. 

§ 105–60.301 Acknowledging FOIA 

requests. 

(a) To the extent practicable, GSA 

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 2 

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 shall be 

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 

that shall be communicated to the 

requester. 

§ 105–60.302 Responding to FOIA 

requests. 

(a) 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 


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response, meaning the agency releases 

the records on a rolling basis as the 

records are located and verified. 

(b) In determining which records are 

responsive to a request, the agency shall 

include only the records in its 

possession as of the date the agency 

receives the perfected FOIA request. If 

any other date is used, GSA shall inform 

the requester accordingly. 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. 

(c) Pursuant to 5 U.S.C. 552, GSA is 

not required to perform the following in 

response to a FOIA request: 

(1) Answer questions or 

interrogatories posed as FOIA requests; 

(2) Issue guidance/or opinions; 

(3) Analyze and/or interpret 

documents for a requester; 

(4) Create records; 

(5) Conduct research; or 

(6) Initiate investigations. 

(d) The GSA Administrator and GSA 

Chief FOIA Officer and/or their assigned 

delegates are authorized to grant or deny 

any requests for records or portions 

thereof that are generated, maintained, 

or controlled by GSA. 

§ 105–60.303 Consultation, referral, and 

coordination. 

(a) All consultations and referrals 

received by GSA shall be handled 

according to the date the other agency 

received the perfected FOIA request. 

(b) GSA may establish agreements 

with other agencies to eliminate the 

need for consultations or referrals with 

respect to particular types of records. 

(c) 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, GSA shall proceed in one 

of the following ways: 

(1) Consultation. When GSA receives 

a request for records that either 

originated with another agency or is a 

GSA record that includes information 

that originated with another agency, 

GSA should typically consult with that 

other agency prior to making a release 

determination. 

(2) Referral. (i) Whenever GSA 

receives a request for records that are 

known to be the primary responsibility 

of another agency, GSA shall refer the 

responsibility for responding to the 

request regarding records to that agency. 

Ordinarily, the agency that created the 

records 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 

responsive record(s) may be handled as 

a consultation. 

(ii) Whenever GSA refers any part of 

the responsibility for responding to a 

record request to another agency, GSA 

shall maintain documentation that the 

referral to the other agency has 

occurred, and shall notify the requester 

of the referral. The notification to the 

requester shall include both the name of 

the agency to which the record request 

was referred and the contact 

information for the agency’s FOIA 

office/or personnel. 

(iii) This referral procedure is not 

appropriate where disclosure of the 

identity of the agency to which the 

referral would be made could 

reasonably harm an interest protected 

by an applicable exemption, such as the 

exemptions that protect personal 

privacy or national security interests. 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. Records 

meeting these criteria shall be treated as 

a consultation. 

(iv) In such instances, in order to 

avoid a harm to an interest protected by 

an FOIA 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 shall 

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 shall refer 

request for records 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 

classified (i.e., it contains information 

classified by another agency), GSA shall 

refer the responsibility for responding to 

that portion of the request to the agency 

that classified the information. 

§ 105–60.304 Time requirements to 

respond to FOIA requests. 

(a) Upon receipt of perfected request 

via U.S. mail, email, or facsimile, the 

GSA FOIA Requester Service Center 

shall begin processing the request for 

records. Pursuant to 5 U.S.C. 

552(a)(6)(A)(i), GSA has 20 business 

days (excluding Saturdays, Sundays, 

and Federal holidays) to inform the 

requester of the agency’s determination 

with respect to the request for records, 

unless in the alternative, the agency has 

negotiated a different timeframe based 

on scope and level of effort to prepare 

the FOIA request response. If a requester 

does not receive a response to their 

perfected FOIA request within the 

statutory timeframe requester may seek 

judicial review in the U.S. District Court 

in the district in which the requester 

resides or has a principal place of 

business, or where the records are 

situated, or in the U.S. District Court for 

the District of Columbia. 

(b) GSA shall to the greatest extent 

practicable respond to FOIA requests by 

order of receipt of the requests. 

(c) GSA shall designate a specific 

track for requests that are granted 

expedited processing, in accordance 

with the standards set forth in this 

subpart. 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 the scope and/or 

modify their requests. 

(d) GSA may aggregate requests in 

cases where it reasonably appears that 

multiple requests for records were 

submitted either by a requester or by a 

group of requesters acting in concert for 

the same, or similar information to 

ensure it is fulfilled in a timely manner. 

GSA cannot aggregate multiple requests 

for unrelated subject matters. 


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§ 105–60.305 Unusual circumstances. 

Whenever GSA cannot meet the 

statutory time limit for processing a 

request because of ‘‘unusual 

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

552(a)(6)(A)(iii), GSA shall, before 

expiration of the 20-day statutory time 

period to respond to a request for 

records, 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 of time 

is anticipated to exceed 10 business 

days, GSA shall provide the requester 

with an opportunity to modify the 

request or arrange an alternative time 

period for processing the original or 

modified request. GSA shall make 

available its FOIA Public Liaison for 

this purpose. GSA shall also alert 

requesters to the availability of the 

Office of Government Information 

Services (OGIS) to provide dispute 

resolution services. 

§ 105–60.306 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 shall reasonably 

describe the records sought. Expedited 

requests should be described in 

sufficient detail to facilitate expedited 

processing. 

(b) A requester who seeks expedited 

processing shall submit a statement 

with their FOIA request, certified to be 

true and correct, explaining in detail the 

basis for making the request for 

expedited processing as described in 

paragraphs (c)(1) through (4) of this 

section. 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 shall notify the requester 

within 10 calendar days of its receipt of 

a request for expedited processing and 

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 3 business days. 

Subpart E—Acknowledging the FOIA 

Request 

§ 105–60.400 Applying FOIA exemptions. 

(a) 5 U.S.C. 552(b)(1)–(9) of the 

Freedom of Information Act provides 

that the disclosure requirements of 

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; 

(3) Specifically exempted from 

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

552(b)(1)–(9), provided that such 

statute: 

(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; 

(4) Trade secrets and commercial or 

financial information that could harm 

the competitive posture or business 

interests of a company; 

(5) 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; 

(6) Personnel and medical files and 

similar files the disclosure of which 

would constitute a clearly unwarranted 

invasion of personal privacy; 

(7) Records or information compiled 

for law enforcement purposes, but only 

to the extent that the production of such 

law enforcement records or information: 

(i) Could reasonably be expected to 

interfere with enforcement proceedings; 

(ii) Would deprive a person of a right 

to a fair trial or an impartial 

adjudication; 

(iii) Could reasonably be expected to 

constitute an unwarranted invasion of 

personal privacy; 

(iv) Reasonably be expected to 

disclose the identity of a confidential 

source, including a State, local, or 

foreign agency or authority or any 

private institution that 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; 

(v) 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 

(vi) Could reasonably be expected to 

endanger the life or physical safety of 

any individual; 

(8) 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 

(9) 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 F—Final Responses to the 

FOIA Request 

§ 105–60.500 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 as well. GSA shall 

also inform the requester of any fees 

charged under § 105–60.804 of this part 

and shall disclose the requested records 

to the requester promptly upon payment 

of any applicable fees. The agency shall 

inform the requester of the availability 

of its FOIA Public Liaison to offer 

assistance. 

(b) If GSA makes an adverse 

determination on any part of the FOIA 

request, it shall notify the requester of 

that determination in writing. Adverse 

determinations, or denials of requests, 

include determinations that: 

(1) The requested record is exempt 

from disclosure, in whole or in part; 

(2) The FOIA request does not 

reasonably describe the records sought; 

(3) The information requested is not 

subject to 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. 


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(c) Records disclosed in part in 

response to a FOIA request shall be 

marked clearly to show the exemption 

under which the applicable portions of 

the responsive records were redacted 

unless doing so would harm an interest 

protected by an applicable exemption. 

(d) Adverse determinations also 

include denials involving fee waiver 

requests, denials for expedited 

processing, and the administrative 

closure of FOIA requests due to 

nonpayment of search and review fees 

for processing the FOIA request. 

(e) Any adverse determination of a 

FOIA request, in full or in part, shall be 

signed by the Chief FOIA Officer or his 

or her designee and shall include: 

(1) The name and title or position of 

the person responsible for the adverse 

determination; 

(2) A brief statement of the reasons for 

the adverse determination, including 

any FOIA exemption that is the basis for 

GSA’s decision; 

(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 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 pursuant 

to 5 U.S.C. 552(c): 

(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 shall 

confer with Department of Justice, 

Office of Information Policy (OIP), to 

obtain approval to apply the exclusion. 

(2) If GSA invokes an exclusion, it 

shall maintain an administrative record 

of the process of invocation and 

approval of the exclusion by OIP. 

Subpart G—Handling Confidential 

Commercial Information 

§ 105–60.600 Procedural and lawful 

considerations. 

(a) Confidential commercial 

information means commercial or 

financial information obtained by 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 shall 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 shall 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 

(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 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. 

§ 105–60.601 Submitters opportunity to 

object to disclosure. 

(a) GSA shall provide a submitter 

with 10 business days, within which the 

submitter shall respond to the notice 

referenced in § 105–60.600. 

(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 shall 

explain why the information constitutes 

a trade secret or commercial or financial 

information that is privileged or 

confidential and the harm of the release 

of the information to the submitter. 

(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 shall 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 shall provide the 

submitter written notice, which shall 

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 shall promptly notify the 

submitter. 

(h) GSA shall 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 

§ 105–60.700 Submitting an appeal. 

(a) A requester may appeal any 

adverse determination (denial of access 

to records, denial of fee waiver, or 


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denial of expedited processing, etc.) to 

the GSA FOIA Requester Service Center 

which is designated as the agency’s 

FOIA Appeals Office. 

(b) The appeal shall include: 

(1) The FOIAonline tracking number; 

(2) The basis for disagreement with 

GSA’s adverse determination that is 

being appealed; and 

(3) A brief statement of the reasons he 

or she thinks GSA should release the 

records or provide expedited processing 

and enclose copies of the initial request 

and denial. 

(c) The requester may submit the 

appeal electronically to GSA.FOIA@

gsa.gov. The requester should mark the 

subject line of the electronic 

transmission, ‘‘Freedom of Information 

Act Appeal.’’ In the alternative, the 

requester may submit an appeal via 

facsimile to 202–501–2727, or via US 

mail to U.S. General Services 

Administration, FOIA Requester Service 

Center (H3), 1800 F Street NW, 7308, 

Washington, DC 20405–0001. If the 

appeal is submitted via US mail, the 

appeal letter must include the words 

‘‘Freedom of Information Act Appeal’’ 

on both the face of the appeal letter and 

on the envelope. Failure to follow these 

procedures will delay processing of the 

appeal. 

(d) The GSA FOIA Officer must 

receive the requester’s appeal no later 

than 90 calendar days after receipt by 

the requester of any adverse 

determination by GSA with respect to 

the FOIA request. GSA has 20 business 

days after receipt of a proper appeal to 

issue a response to the requester’s 

appeal. The 20-workday time limit shall 

not begin until the GSA FOIA Officer 

receives the appeal. As noted in 

§ 105.60.305 of this part, the GSA FOIA 

Officer may extend this time limit in 

unusual circumstances. GSA will 

process appeals of denials of expedited 

processing as soon as possible after 

receiving them. The GSA FOIA Officer 

may also extend the time limit in the 

event of unusual circumstances occur 

during the processing of appeals as well. 

§ 105–60.701 Adjudication of appeals. 

(a) The GSA Chief FOIA Officer or his 

or her designee shall act on behalf of 

GSA on all appeals under this section. 

(b) An appeal ordinarily shall not be 

adjudicated if the request that is the 

subject of the appeal becomes a matter 

of FOIA litigation. GSA shall 

administratively close the appeal if it 

becomes the subject of litigation and 

provide this notice to the requester in 

writing that the request has been 

administratively closed. 

(c) On receipt of any appeal involving 

classified information, GSA shall take 

appropriate action to ensure compliance 

with applicable classification rules. 

(d) GSA shall provide its review and 

decision on any appeal in writing. Any 

decision that either upholds GSA’s 

original determination in whole or in 

part shall contain a statement that 

identifies the reasons for the affirmance, 

including any FOIA exemptions 

applied. 

(e) 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. If GSA affirms 

its original decision after timely receipt 

of an appeal, GSA shall inform the 

requester via writing as well. GSA shall 

inform the requester of their right to 

seek judicial review in the U.S. District 

Court in the district in which the 

requester resides or has a principal 

place of business, or where the records 

are situated, or in the U.S. District Court 

for the District of Columbia. GSA shall 

also inform the requester of the 

mediation services offered by the Office 

of Government Information Services 

(OGIS) of the National Archives and 

Records Administration (NARA) as a 

non-exclusive alternative to litigation. 

(f) Engaging in dispute resolution or 

mediation services provided by OGIS is 

a voluntary process. 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. 

§ 105–60.702 Requirements to preserve 

FOIA records. 

GSA shall 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 or the 

General Records Schedule 4.2 of the 

NARA. GSA shall not dispose of or 

destroy records while they are the 

subject of a pending request, appeal, or 

lawsuit under FOIA. 

Subpart J—Fees 

§ 105–60.800 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, FOIA establishes three 

categories of requesters: 

(1) Commercial use requesters; 

(2) Noncommercial scientific or 

educational institutions or news media 

requesters; and 

(3) All other requesters. 

(b) Fees are assessed depending on 

the category GSA determines the 

requester falls under in subpart A of this 

part. Requesters may seek a fee waiver. 

GSA shall consider requests for fee 

waiver in accordance with the 

requirements in § 105–60.807 of this 

subpart. To resolve any fee issues that 

arise under this section, GSA may 

contact a requester for additional 

information. GSA shall ensure that 

searches, review, and duplication of 

FOIA records 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 pay fees by 

check, credit card, or money order made 

payable to the U.S. General Services 

Administration, or by another method 

as determined by GSA. 

§ 105–60.801 Definitions pertaining to fee 

assessments. 

(a) A commercial use request is a 

request that asks for information 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 

record to respond to a FOIA request. 

Duplicating records can occur via paper, 

audiovisual materials or electronic 

records. 

(d) An educational institution is any 

school that operates a program of 

scholarly research. A requester in this 

fee category shall 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. 


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(e) A noncommercial scientific 

institution is an institution that is not 

operated on a commercial basis. The 

term ‘commercial’ for purposes of this 

subpart is that which is defined in 

paragraph (a) of this section and that is 

operated solely for the purpose of 

conducting scientific research the 

results of which are not intended to 

promote any particular product or 

industry. A requester in this category 

shall show that the request is authorized 

by a qualifying noncommercial 

institution, or educational institution of 

vocational and higher learning and 

where the records are sought to further 

scientific, or academic scholarly 

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 § 105–60.601 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. 

§ 105–60.802 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 § 105–60.807 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 § 105–60.804 of 

this subpart. 

(3) GSA shall charge the direct costs 

associated with conducting any search 

that requires the creation of a new 

computer program to locate the 

requested records. GSA shall notify the 

requester of the costs associated with 

creating such a program, and the 

requester shall 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 

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– 

60.803 of this subpart. GSA shall 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 shall be 

scanned in order to comply with a 

requester’s preference to receive the 

records in an electronic format, the 

requester shall 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. 

§ 105–60.803 Restrictions on charging 

fees. 

(a) When GSA determines that a 

requester is an educational institution, 

noncommercial scientific institution, or 

representative of the news media, and 

that 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 paragraph (a) of this 

section, may not charge duplication 

fees, except as described in paragraphs 

(b)(1) through (3) of this section. GSA 

will charge duplication fees in 

accordance with § 105–60.802(b)(1) 

through (3) of this subpart. 


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(1) If GSA has determined that 

unusual circumstances, as defined by 

FOIA, apply and the agency provided 

timely written notice to the requester in 

accordance with FOIA, a failure to 

comply with the time limit shall be 

excused for an additional 10 business 

days. 

(2) If GSA has determined that 

unusual circumstances, as defined by 

the FOIA, apply and that 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 shall 

have provided timely written notice of 

unusual circumstances to the requester 

in accordance with FOIA and GSA shall 

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 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 shall 

provide without charge: 

(1) The first 100 pages of duplication 

(or the cost equivalent for other media); 

and 

(2) The first 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 2 hours of search, is equal to or less 

than $49.00. 

§ 105–60.804 Fee schedule. 

Table 1 to § 105–60.804 outlines the 

basic fee categories and applicable fees: 

TABLE 1 TO § 105–60.804—FEE REQUESTER CATEGORY TABLE

Requester category Search fees Review fees Duplication fees Amount 

(a) 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. 

(b) 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. 

(c) 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. 

(d) All other requesters Yes (first 2 

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 to § 105–60.804: 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 to § 105–60.804: 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 

shall inform the requester of the contact 

information for that program. 

Note 3 to § 105–60.804: 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. 

§ 105–60.805 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, 2 hours of search time at no charge, 

and shall advise the requester whether 

those entitlements have been provided. 

(b) If 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 

shall provide the commitment/or 

designate an exact dollar amount in 

writing the requester is willing to pay. 


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5146 Federal Register / Vol. 85, No. 19 / Wednesday, January 29, 2020 / Rules and Regulations 

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) 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. 

(f) 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 shall follow the provisions of the 

Debt Collection Act of 1982 (Public Law 

97–365, 96 Stat. 1749), as amended, and 

its administrative procedures, including 

the use of consumer reporting agencies, 

collection agencies, and offset. 

(g) 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 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. 

§ 105–60.806 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 GSA’s fee determination, the 

request shall be closed. 

§ 105–60.807 Fee waivers and fee 

reductions. 

(a) Requests for a fee waiver shall be 

made when the FOIA 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 

being reviewed per an 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 shall 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 

shall 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 shall 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 shall 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 shall be 

considered. GSA shall presume that a 

representative of the news media shall 

satisfy this consideration; 

(iii) The disclosure shall 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 shall 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 shall be 

given an opportunity to provide 

explanatory information regarding this 

consideration. 

(B) If there is an identified 

commercial interest, GSA shall 

determine whether that is the primary 

interest furthered by the request. A 


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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 in paragraph (b)(1) of 

this section and this paragraph (b)(2), 

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 

§ 105–60.900 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. 

[FR Doc. 2020–00057 Filed 1–28–20; 8:45 am] 

BILLING CODE 6820–FM–P 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Parts 1 and 73 

[AU Docket No. 19–290; DA 19–1256; DA 

19–1265] 

Auction of FM Broadcast Construction 

Permits Scheduled for April 28, 2020; 

Notice of Filing Requirements, 

Minimum Opening Bids, Upfront 

Payments, and Other Procedures for 

Auction 106; Auction 106 Freeze 

Announced for FM Minor Change 

Applications 

AGENCY: Federal Communications 

Commission. 

ACTION: Final action; requirements and 

procedures. 

SUMMARY: This document summarizes 

public notices that announce the 

procedures and upfront payments 

amounts and minimum opening bids for 

the auction of certain FM broadcast 

construction permits as well as a 

temporary freeze on the filing of minor 

change applications for FM stations. 

The Auction 106 Procedures Public 

Notice summarized here is intended to 

familiarize applicants with the 

procedures and other requirements for 

participation in Auction 106. 

DATES: Applications to participate in 

Auction 106 must be submitted before 6 

p.m. Eastern Time (ET) on February 11, 

2020. FM commercial and 

noncommercial educational minor 

change applications may not be filed 

during a period starting on January 29, 

2020, and ending on February 11, 2020. 

Upfront payments for Auction 106 must 

be received by 6 p.m. ET on March 20, 

2020. Bidding in Auction 106 is 

scheduled to start on April 28, 2020. 

FOR FURTHER INFORMATION CONTACT: For 

auction legal questions, Lynne Milne or 

Daniel Habif in the OEA Auctions 

Division at (202) 418–0660. For general 

auction questions, the Auction Hotline 

at (717) 338–2868. For FM Broadcast 

service questions, Lisa Scanlan, Thomas 

Nessinger, or James Bradshaw in the MB 

Audio Division at (202) 418–2700. To 

request materials in accessible formats 

(Braille, large print, electronic files, or 

audio format) for people with 

disabilities, send an email to fcc504@

fcc.gov or call the Consumer and 

Governmental Affairs Bureau at (202) 

418–0530 or (202) 418–0432 (TTY). 

SUPPLEMENTARY INFORMATION: This is a 

summary of the Auction 106 Procedures 

Public Notice, released on December 13, 

2019, and the Auction 106 Freeze Public 

Notice, also released on December 13, 

2019. The complete text of the Auction 

106 Procedures Public Notice, including 

attachments and any related document, 

and the complete text of the Auction 

106 Freeze Public Notice are available 

for public inspection and copying from 

8 a.m. to 4:30 p.m. ET Monday through 

Thursday or from 8 a.m. to 11:30 a.m. 

ET on Fridays in the FCC Reference 

Information Center, 445 12th Street SW, 

Room CY–A257, Washington, DC 20554. 

These public notices and related 

documents also are available on the 

internet at the Commission’s website: 

www.fcc.gov/auction/106, or by using 

the search function for DA 19–1256 or 

DA 19–1265 on the Commission’s 

EDOCS web page at http://www.fcc.gov/ 

edocs/. 

I. General Information 

1. Construction Permits in Auction 

106. Auction 106 will offer 130 

construction permits in the FM 

broadcast service for 130 new FM 

allotments, including 34 construction 

permits that were offered but not sold or 

were defaulted upon in prior auctions. 

These construction permits are for 

vacant FM allotments, reflecting FM 

channels added to the Table of FM 

Allotments pursuant to the 

Commission’s established rulemaking 

procedures, and assigned at the 

indicated communities specified in 47 

CFR 73.202(b). Attachment A of the 

Auction 106 Procedures Public Notice 

lists the reference coordinates for each 

vacant FM allotment offered in Auction 

106. Each Auction 106 applicant may 

submit in its FCC Form 175 a set of 

preferred site coordinates for any of its 

selected construction permits as an 

alternative to the reference coordinates 

for that vacant FM allotment. 

2. The set of construction permits 

listed in Attachment A of the Auction 

106 Procedures Public Notice is 

unchanged from the list of construction 

permits that were proposed for this 

auction in the Auction 106 Comment 

Public Notice. Two commenters request 

the addition of specific construction 

permits in Auction 106. Those requests 

cannot be granted because the 

underlying allotments must first be 

added to the Table of Allotments 

through separate administrative 

processes. Likewise, a third 

commenter’s request to delete a specific 

allocation from the Table of Allotments 

cannot be granted because it is beyond 

the scope of this proceeding. 

3. Pursuant to the policies established 

in the Broadcast Competitive Bidding 

Order, applicants may apply for any 

vacant FM allotment listed in 

Attachment A. If two or more \FCC 

Forms 175 specify the same FM 

allotment in Auction 106, mutual 

exclusivity exists for auction purposes, 

and that construction permit must be 

awarded by competitive bidding 

procedures. Once mutual exclusivity 

exists for auction purposes, even if only 

one applicant is qualified to bid for a 

particular construction permit in 

Auction 106, that applicant is required 

to submit a bid in order to obtain the 

construction permit. 

4. Media Bureau Freeze Public Notice. 

Pursuant to the Auction 106 Freeze 

Announced for FM Minor Change 

Applications Public Notice, DA 19–1265 

(Dec. 13, 2019), the Media Bureau (MB) 

will not accept FM commercial and 

noncommercial educational (NCE) 

minor change applications filed during 

the Auction 106 short-form application 

(FCC Form 175) filing window. This 

freeze ensures that there will not be a 

mutual exclusivity conflict between 

stations proposed in an Auction 106 

Form 175 and a minor change 

application. Accordingly, this freeze 

promotes a more certain and speedier 

auction process. 

5. Auction Dates and Deadlines. The 

following dates and deadlines apply: 

Auction Tutorial Available (via 

internet): by January 22, 2020 

FCC Form 175 Initial Filing Window 

Opens: January 29, 2020, 12:00 noon 

ET 

FCC Form 175 Initial Filing Deadline: 

February 11, 2020, 6:00 p.m. ET 


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