This section of the FEDERAL REGISTER

contains notices to the public of the proposed

issuance of rules and regulations. The

purpose of these notices is to give interested

persons an opportunity to participate in the

rule making prior to the adoption of the final

rules.

Proposed Rules Federal Register

42610 

Vol. 83, No. 164 

Thursday, August 23, 2018 

OFFICE OF MANAGEMENT AND 

BUDGET 

5 CFR Part 1303 

RIN 0348–AB42 

OMB Freedom of Information Act 

Regulation 

AGENCY: Office of Management and 

Budget, Executive Office of the 

President. 

ACTION: Proposed rule; notice of 

proposed rulemaking. 

SUMMARY: The Office of Management 

and Budget (OMB) seeks public 

comment on a proposed rule that would 

revise OMB’s regulations found in our 

regulations implementing the Freedom 

of Information Act (FOIA). These 

revisions are being proposed to 

implement the FOIA and incorporate 

the provisions of the OPEN Government 

Act of 2007 and the FOIA Improvement 

Act of 2016 as well as to streamline 

OMB’s FOIA regulations by structuring 

the text of the regulation in an order 

more similar to that of the Department 

of Justice’s (DOJ) FOIA regulation and 

the DOJ Office of Information Policy’s 

Guidance for Agency FOIA Regulations, 

thus promoting uniformity of FOIA 

regulations across agencies. 

Additionally, the regulations would be 

updated to reflect developments in the 

case law. 

DATES: Comments are due on or before 

September 24, 2018. 

ADDRESSES: You may send comments, 

identified by docket number and/or RIN 

number, by any of the following 

methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for sending comments. 

• Email: OMBFOIA@omb.eop.gov. 

Include docket number and/or RIN 

number in the subject line of the 

message. 

• Those who cannot submit 

electronically should contact the person 

identified in the FOR FURTHER

INFORMATION CONTACT section by 

telephone for advice on filing 

alternatives. 

• All comments received may be 

posted without change, including any 

personal information provided. Do not 

submit confidential business 

information, trade secret information, or 

other sensitive or protected information 

that you do not want to be available to 

the public. 

FOR FURTHER INFORMATION CONTACT: 

Dionne Hardy, Office of Management 

and Budget, Office of General Counsel, 

at OMBFOIA@omb.eop.gov, 202–395– 

FOIA. 

SUPPLEMENTARY INFORMATION: Subjects: 

Freedom of Information, Administrative 

practice and procedure, Archives and 

records. 

Background 

OMB proposes to revise its rules 

under the CFR at part 1303 governing 

requests and responses for agency 

records under the FOIA, 5 U.S.C. 552. 

These revisions are being proposed to 

implement the FOIA and incorporate 

the provisions of the OPEN Government 

Act of 2007 (Pub. L. 110–81) and the 

FOIA Improvement Act of 2016 (Pub. L. 

114–185) as well as to streamline OMB’s 

FOIA regulations by structuring the text 

of the regulation in an order more 

similar to that of DOJ’s FOIA regulation 

and the DOJ Office of Information 

Policy’s Guidance for Agency FOIA 

Regulations, thus promoting uniformity 

of FOIA regulations across agencies. 

Additionally, the regulations would be 

updated to reflect developments in the 

case law. OMB proposes these changes 

after conducting the review made in 

accordance with section 3(a) of the 

FOIA Improvement Act of 2016, which 

provides that each agency ‘‘shall review 

the regulations of such agency and shall 

issue regulations on procedures for the 

disclosure of records under [the FOIA].’’ 

Summary of Proposed Changes 

For the reasons discussed in the 

preamble, OMB is proposing changes to 

the following rules in title 5 of the CFR 

to update its regulations consistent with 

OMB’s FOIA practices, the OPEN 

Government Act of 2007, and the FOIA 

Improvement Act of 2016. The proposed 

changes are summarized as follows: 

• General revisions are proposed 

throughout Part 1303 to update 

terminology used and streamline 

language for clarity purposes and to 

restructure the text of the regulation into 

an order more similar to that of the 

DOJ’s FOIA regulation (28 CFR 16.10) 

and the DOJ OIP’s Guidance for Agency 

FOIA Regulations, thus promoting 

uniformity of FOIA regulations across 

agencies. For example, section 1303.10 

currently includes information about 

required contents of FOIA requests, 

responsibilities of OMB to respond to 

requests, timing of responses, contents 

of responses, and appeals in a single 

code section. This proposal would 

separate those topics into their own 

code subsections and order them as 

listed in this paragraph, which follows 

the structure of DOJ’s FOIA regulation 

and OIP’s guidance. The remaining 

summarized changes to OMB’s existing 

regulation are listed according to their 

enumeration in the proposed regulatory 

text. 

• Section 1303.3 

Æ Subsection (a) is updated to include 

changes to OMB offices since the last 

changes were made to this part. 

• Section 1303.20 

Æ Current subsection 1303.10(b) is 

revised to update contact information 

and to provide the availability of, and 

services provided by, OMB’s FOIA 

Public Liaison. 

• Section 1303.21 

Æ Added a new section regarding 

requests pertaining to individuals who 

authorize the release of information. 

The new text is modeled after the 

procedures described in DOJ’s FOIA 

regulation. 

• Section 1303.30 

Æ New subsection (a) is added to 

reflect OMB procedures for determining 

when it cuts off inclusion of records in 

a search and informs the requestor of 

such determination, pursuant to the 

rulings of McGehee v. CIA, 697 F.2d 

1095 (D.C. Cir. 1983) and Pub. Citizen 

v. Dep’t of State, 276 F.3d 634 (D.C. Cir. 

2002). 

Æ New subsection (b) is added to 

reflect that documents for which control 

has been transferred to the National 

Archives pursuant to the Federal 

Records Act are not included in 

responses to requests to OMB. For 

example, all emails previously 

controlled by OMB which were created 

during the Obama Administration were 

transferred to the control of NARA in 

2017 and therefore cannot be accessed 

by FOIA requests to OMB. 

Æ Subsection (c) describes OMB’s 

procedures when it determines that 


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another agency of the Federal 

Government is better able to determine 

whether a record is exempt from 

disclosure of the FOIA. 

• Section 1303.40 

Æ New subsection (b) describes 

OMB’s multitrack processing of FOIA 

requests. Requests will be placed into 

one of three tracks based on expedited 

processing and complexity of requests 

in terms of the amount of work or time 

involved in processing requests. 

Æ Proposed subsection (d), which is 

currently 1303.60 (c), is revised to 

provide for the aggregation of multiple 

requests from one requestor or a group 

of requestors acting in concert regarding 

clearly related matters, with a 

presumption that multiple such requests 

within a 45-day period will be 

aggregated. Setting a time period for this 

presumption for aggregation in cases of 

unusual circumstances will harmonize 

this provision with this regulation’s 

aggregation provision concerning fees, 

section 1303.93 (c). This presumption 

period of 45 days is reasonable given 

that the total time that the FOIA allows 

an agency for routing (10 days), initial 

response (20 days), and response to an 

appeal (20 days) would be 50 days, and 

therefore the 45-day presumption period 

would support the apparent intent of 

the FOIA’s aggregation provision to 

allow an agency to aggregate requests 

wherever they may be throughout the 

stages of the response process. 

• Section 1303.50 

Æ New subsection (a) specifies that 

OMB will acknowledge requests and 

assign a tracking number to requests 

that will take longer than ten days to 

process, and will, upon request, make 

available an estimated date on which 

OMB will respond to the request. 

Æ Subsection (b) is added to reflect 

OMB’s practices regarding notification 

of grants of requests to requestors. 

• Section 1303.60 

Æ This new section is modeled after 

DOJ’s FOIA regulation and is added in 

order to follow the directive of 

Executive Order 12600. This section 

describes the procedures OMB will 

follow when records that are responsive 

to FOIA requests contain confidential 

commercial information. This 

subsection includes (1) definitions of 

the terms ‘‘confidential commercial 

information’’ and ‘‘submitter;’’ (2) 

specifications for when the procedures 

will be followed by OMB; and (3) an 

explanation of how a submitter has the 

opportunity to object to disclosure and 

the process followed by OMB to address 

those objections. 

• Section 1303.70 

Æ Information on appeals of agency 

determinations currently in Section 

1303.10 (e) is moved to a separate 

subsection, and revised to change the 

time period in which a requester can file 

an administrative appeal from 30 to 90 

days, and is revised to specify that, in 

the case of an adverse determination, 

the requester can seek dispute 

resolution services from OMB’s FOIA 

Public Liaison or the Office of 

Governmental Information Services 

(OGIS) of the National Archives and 

Records Administration (NARA), 

consistent with the FOIA Improvement 

Act of 2016. 

• Section 1303.80 

Æ Added a new section describing 

OMB’s responsibilities under the 

Federal Records Act (44 U.S.C. Chapter 

31) and General Records Schedule 4.2. 

• Section 1303.90 

Æ Revisions are made to the 

definitions currently in section 1303.30 

to help clarify the meaning of each term. 

Æ Subsection (b) of section 1303.30 of 

the current regulation, regarding ‘‘[a] 

statute specifically providing for setting 

the level of fees for particular types of 

records,’’ which would be a direct 

restatement of a statutory provision, is 

removed. 

• Section 1303.91 

Æ Revisions are made in current 

sections 1303.30, 1303.40, and 1303.60 

to help clarify OMB’s procedures in 

assessing and charging fees and to 

update the terminology now used when 

describing electronic search and 

duplication processes. 

Æ Proposed subsection (a), currently 

section 1303.30 (c), is revised to remove 

a fee rate that is based the salary of the 

employee conducting the search and 

incorporates a flat rate of $10.00 per 

quarter hour for professional work and 

$4.75 per quarter hour for clerical or 

administrative work. This revision is 

made to assist requesters in anticipating 

the cost and assist OMB in determining 

those charges. Subsection (a) is also 

revised to distinguish between 

electronic searches and searches that 

require the creation of software, as well 

as specify the fee schedule used when 

requested records are stored at the 

Federal Records Center operated by 

NARA. 

Æ Proposed subsection (b), currently 

section 1303.40 (c) is revised to specify 

that fees will not be charged for costs 

incurred in resolving issues of law or 

policy. 

Æ Subsection (c) is revised to change 

the rate charged for duplication from 

$.15 per page to $.05 per page. This 

subsection is also revised to remove the 

process by which OMB notifies 

requesters if the anticipated cost will 

exceed $25, as that provision is moved 

to subsection (i). 

Æ New subsection (h) is added to 

describe the limitations in charging fees 

when OMB does not comply with the 

FOIA’s time limits in which to respond 

to a request. This subsection 

incorporates the language from section 2 

of the FOIA Improvement Act of 2016. 

Æ Subsection (i) is inserted to clarify 

that OMB will not charge a fee 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 $25. Using language originally 

found in 1303.60(b), this subsection also 

clarifies that OMB will notify the 

requester that the estimated fee is higher 

than $25, unless the requester has 

expressed a willingness to pay in 

advance. 

• Section 1303.92 

Æ Revisions are made in this section, 

currently section 1303.50, to clarify the 

definition of the categories of requester 

and to avoid duplication with other 

provisions in these regulations. 

• Section 1303.93 

Æ Section (c) of current section 

1303.60 is revised to provide for the 

aggregation of multiple requests from 

one requestor or a group of requestors 

acting in concert regarding clearly 

related matters, with a presumption that 

multiple such requests within a 45-day 

period will be aggregated. The FOIA 

statute authorizes agencies to issue 

regulations for the aggregation of 

multiple requests in this way in order to 

prevent requesters from taking an 

unintended advantage of the FOIA 

statute’s provision of the first two hours 

of search time or first 100 pages of 

duplication free of charge by breaking 

up a larger request into smaller requests. 

OMB believes that this presumption 

period of 45 days is reasonable given 

that the total time that the FOIA allows 

an agency for routing (10 days), initial 

response (20 days), and response to an 

appeal (20 days) would be 50 days, and 

therefore the 45-day presumption period 

would support the apparent intent of 

the FOIA’s aggregation provision to 

allow an agency to group requests 

wherever they may be throughout the 

stages of the response process. 

• Section 1303.94 

Æ Subsections (b) and (c) are inserted 

into current section 1303.60 to provide 

additional detail regarding the factors 

OMB considers when assessing a 

request for a fee waiver, consistent with 

5 U.S.C. 552(a)(4)(A)(i). 

Classification 

Regulatory Flexibility Act 

OMB, in accordance with the 

Regulatory Flexibility Act (5 U.S.C. 

605(b)), has reviewed this regulation 


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and, by proposing it, certifies that this 

regulation will not have a significant 

economic impact on a substantial 

number of small entities. Under the 

FOIA, agencies may recover only the 

direct costs of searching for, reviewing, 

and duplicating the records processed 

for requesters, and only for certain 

classes of requesters and when 

particular conditions are satisfied. Thus, 

fees assessed by the OMB are nominal. 

Executive Orders 12866 and 13771 

For purposes of Executive Order 

(E.O.) 13771 on Reducing Regulation 

and Controlling Regulatory Costs, this 

proposed rule is not an E.O. 13771 

regulatory action because this rule is not 

a significant regulatory action under 

section 3(f) of E.O. 12866. 

Unfunded Mandates Reform Act of 1995 

This rule will not result in the 

expenditure by State, local, and tribal 

governments, in the aggregate, or by the 

private sector, of $100,000,000 or more 

in any one year, and it will not 

significantly or uniquely affect small 

governments. Therefore, no actions were 

deemed necessary under the provisions 

of the Unfunded Mandates Reform Act 

of 1995. 

Small Business Regulatory Enforcement 

Fairness Act of 1995 

This rule is not a major rule as 

defined by section 251 of the Small 

Business Regulatory Enforcement 

Fairness Act of 1996 (as amended), 5 

U.S.C. 804. This rule will not result in 

an annual effect on the economy of 

$100,000,000 or more; a major increase 

in costs or prices; or significant adverse 

effects on competition, employment, 

investment, productivity, innovation, or 

on the ability of United States-based 

companies to compete with foreignbased companies in domestic and 

export markets. 

Comments Requested 

Interested persons are invited to 

provide written comments concerning 

the proposed rule. In particular, 

comments are requested regarding 

OMB’s proposal to base the structure of 

this proposed rule revision on DOJ’s 

current FOIA regulation and on the DOJ 

Office of Information Policy’s Guidance 

for Agency FOIA Regulations. 

Comments are also requested regarding 

the ways in which this rule language 

departs from the language found in the 

DOJ’s FOIA regulation in particular as 

well as other agency’s FOIA regulations 

more generally. OMB requests 

comments on the proposed 45-day 

period for aggregating requests from the 

same requester, and in particular 

whether the period should be shorter or 

longer than 45 days and the proposal 

that a specific period of presumption is 

used in cases of unusual circumstances 

in addition to fees. Comments are due 

no later than 30 days after the date of 

publication of this notice in the Federal 

Register. All comments and suggestions 

received will be available for review on 

Regulations.gov or OMB’s FOIA 

website: https://www.whitehouse.gov/ 

omb/freedom-information-act-foia/. 

List of Subjects in 5 CFR Part 1303 

Office of Management and Budget, 

Freedom of Information Act, 

Administrative practice and procedure, 

Archives and records. 

For the reasons stated in the 

preamble, OMB proposes to amend 5 

CFR part 1303, as follows: 

PART 1303—PUBLIC INFORMATION 

PROVISIONS OF THE 

ADMINISTRATIVE PROCEDURES ACT 

■ 1. The authority citation for part 1303 

is revised to read as follows: 

Authority: 5 U.S.C. 301 and 5 U.S.C. 552, 

unless otherwise noted. 

■ 2. Part 1303 is revised to read as 

follows: 

Table of Contents 

General 

1303.1 Purpose. 

1303.2 Authority and Functions. 

1303.3 Organization. 

Proactive Disclosures 

1303.10 Availability of Proactive 

Disclosures. 

Requirements for Making Requests 

1303.20 Where to Send Requests. 

1303.21 Requesters Making Requests About 

Themselves Or Others. 

1303.22 Description of the Records Sought. 

1303.23 OMB Notification That Additional 

Information Is Needed. 

Responsibility for Responding to Requests 

1303.30 Responsibility for Responding to 

Requests. 

Timing of Responses to Requests 

1303.40 Timing of Responses to Requests. 

Responses to Requests 

1303.50 Responses to Requests. 

Confidential Commercial Information 

1303.60 Confidential Commercial 

Information. 

Appeals 

1303.70 Appeals. 

Preservation of Records 

1303.80 Preservation of Records. 

Fees 

1303.90 Definitions. 

1303.91 Fees to be Charged—General. 

1303.92 Fees to be Charged—Categories of 

Requesters. 

1303.93 Miscellaneous Fee Provisions. 

1303.94 Waiver or Reduction of Charges. 

General 

§ 1303.1 Purpose. 

This part implements the Freedom of 

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

amended, and prescribes the rules 

governing the public availability of 

Office of Management and Budget 

(OMB) records. 

§ 1303.2 Authority and Functions. 

The general functions of OMB, as 

provided by statute and by executive 

order, are to develop and to execute the 

budget, oversee implementation of 

Administration policies and programs, 

advise and assist the President, and 

develop and implement management 

policies for the government. 

§ 1303.3 Organization. 

(a) The central organization of OMB is 

as follows: 

(1) The Director’s Office includes the 

Director, the Deputy Director, the 

Deputy Director for Management, and 

the Executive Associate Director. 

(2) Staff Offices include General 

Counsel, Legislative Affairs, 

Communications, Management and 

Operations, and Economic Policy. 

(3) Offices that provide OMB-wide 

support include the Legislative 

Reference Division and the Budget 

Review Division. 

(4) Resource Management Offices, 

which develop and support the 

President’s management and budget 

agenda in the areas of Natural 

Resources, Energy and Science; National 

Security; Health; Education, Income 

Maintenance and Labor; and General 

Government Programs. 

(5) Statutory offices include the 

Offices of Federal Financial 

Management, Federal Procurement 

Policy, Intellectual Property 

Enforcement Coordinator; E-government 

and Information Technology; and 

Information and Regulatory Affairs. 

(b) OMB is located in the Old 

Executive Office Building, 17th Street 

and Pennsylvania Ave. NW, and the 

New Executive Office Building, 725 

17th Street NW, Washington, DC 20503. 

OMB has no field offices. Security in 

both buildings prevents visitors from 

entering the building without an 

appointment. 


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Proactive Disclosures 

§ 1303.10 Availability of Proactive 

Disclosures. 

OMB makes available records that are 

required by the FOIA to be made 

available for public inspection in an 

electronic format. OMB information 

pertaining to matters issued, adopted, or 

promulgated by OMB that is within the 

scope of 5 U.S.C. 552(a)(2) is available 

electronically on OMB’s website at 

www.whitehouse.gov/omb/. 

Additionally, for help accessing these 

materials, you may contact OMB’s FOIA 

Officer at (202) 395–3642. 

Requirements for Making Requests 

§ 1303.20 Where to Send Requests. 

The FOIA Officer is responsible for 

acting on all initial requests. Individuals 

wishing to file a request under the FOIA 

should address their request in writing 

to FOIA Officer, Office of Management 

and Budget, 725 17th Street NW, Room 

9204, Washington, DC 20503, via fax to 

(202) 395–3504, or by email at 

OMBFOIA@omb.eop.gov. Additionally, 

OMB’s FOIA Public Liaison is available 

to assist requesters who have questions 

and can be reached at (202) 395–7545 or 

in writing at the address above. 

§ 1303.21 Requesters Making Requests 

About Themselves or Others. 

A requester who is making a request 

for records about himself or herself 

pursuant to 5 U.S.C. 552a must comply 

with the verification of identity 

requirements as determined by OMB 

pursuant to OMB’s Rules For 

Determining if an Individual Is the 

Subject of a Record in 5 CFR 1302.1. 

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, 

OMB may require a requester to supply 

additional information if necessary in 

order to verify that a particular 

individual has consented to disclosure. 

§ 1303.22 Requirement for Providing 

Description of the Records Sought. 

Requesters must describe the records 

sought in sufficient detail to enable 

OMB personnel to locate them with a 

reasonable amount of effort. To the 

extent possible, requesters should 

include specific information that may 

help the agency identify the requested 

records, such as the date, title or name, 

author, recipient, subject matter of the 

record, case number, file designation, or 

reference number. Before submitting 

their requests, requesters may contact 

the FOIA Officer or FOIA Public Liaison 

to discuss the records they seek and to 

receive assistance in describing the 

records. 

If, after receiving a request, OMB 

determines that the request does not 

reasonably describe the records sought, 

OMB will inform the requester what 

additional information is needed and 

why the request is otherwise 

insufficient. Requesters who are 

attempting to reformulate or modify 

such a request may discuss their request 

with the FOIA Officer or the FOIA 

Public Liaison. If a request does not 

reasonably describe the records sought, 

OMB’s response to the request may be 

delayed. 

Responsibility for Responding to 

Requests 

§ 1303.30 Responsibility for Responding 

to Requests. 

(a) Search cutoff date. In determining 

which records are responsive to a 

request, OMB ordinarily will include 

only records in its possession as of the 

date that it begins its search. If any other 

date is used, OMB will inform the 

requester of that date. 

(b) Transfer of Records to the National 

Archives and Records Administration 

(NARA). Permanent records of OMB 

which have been transferred to the 

control of NARA under the Federal 

Records Act are not in the control of 

OMB and are therefore not accessible by 

a FOIA request to OMB. Requests for 

such records should be directed to 

NARA. 

(c) Consultation and referral. When 

reviewing records, OMB will determine 

whether another agency of the Federal 

Government is better able to determine 

whether the record is exempt from 

disclosure under the FOIA. As to any 

such record, OMB will proceed in one 

of the following ways: 

(1) Consultation. When records 

contain information of interest to 

another agency, OMB typically will 

consult with that agency prior to making 

a release determination. 

(2) Referral. 

(i) When OMB believes that a 

different agency is best able to 

determine whether to disclose the 

record, OMB will refer the 

responsibility for responding to the 

request regarding that record to that 

agency. Ordinarily, the agency that 

originated the record is best situated to 

make the disclosure determination. 

However, if OMB and the originating 

agency jointly agree that OMB is in the 

best position to respond regarding the 

record, then OMB may provide it. 

(ii) If OMB determines that another 

agency is best situated to consider a 

request, OMB promptly will notify the 

requestor and inform him of the agency 

which will be processing his request, 

except when disclosure of the identity 

of the agency could harm an interest 

protected by an applicable FOIA 

exemption. In those instances, in order 

to avoid harm to an interest protected by 

an applicable exemption, OMB will 

coordinate with the originating agency 

to seek its views on the disclosability of 

the record and convey the release 

determination for the record that is the 

subject of the coordination to the 

requester. 

Timing of Responses to Requests 

§ 1303.40 Timing of Responses to 

Requests. 

(a) Upon receipt of any request for 

information or records, the FOIA Officer 

will determine within 20 working days 

(excepting Saturdays, Sundays, and 

legal public holidays) after the receipt of 

such request whether it is appropriate to 

grant the request and will immediately 

notify the requester of (1) such 

determination and the reasons therefore 

and (2) the right of such person to seek 

assistance from the FOIA Public 

Liaison. The 20-day period, as used 

herein, shall commence on the date on 

which the FOIA Officer or the FOIA 

Public Liaison first receives the request. 

OMB may toll this 20-day period either 

(1) one time while OMB is awaiting 

information that it has reasonably 

requested from the requester or (2) any 

time when necessary to clarify with the 

requester issues regarding fee 

assessment. OMB’s receipt of the 

requester’s response to OMB’s request 

for information ends the tolling period. 

(b) Multitrack processing. FOIA 

requests are placed on one of three 

tracks: 

(1) Track one covers those requests 

that seek and receive expedited 

processing pursuant to subsection 

(a)(6)(E) of the FOIA and in accordance 

with subsection (g) below. 

(2) Track two covers simple requests. 

(3) Track three covers complex 

requests. 

Whether a request is simple or 

complex is based on the amount of work 

or time needed to process the request. 

OMB considers various factors, 

including the number of records 

requested, the number of pages involved 

in processing the request, and the need 


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for consultations or referrals. OMB will 

advise the requester of the processing 

track in which their request has been 

placed and provide an opportunity to 

narrow or modify their request so that 

the request can be placed in a different 

processing track. 

(c) Unusual circumstances. Whenever 

the statutory time limit for processing a 

request cannot be met because of 

‘‘unusual circumstances,’’ as defined in 

the FOIA, and OMB extends the time 

limit on that basis, OMB will, 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 processing of 

the request can be expected to be 

completed. Where the extension 

exceeds 10 working days, OMB will, as 

described by the FOIA, provide the 

requester with an opportunity to modify 

the request or arrange an alternative 

time period for processing. OMB will 

alert requesters to the availability of its 

FOIA Public Liaison, who will assist in 

the resolution of any disputes between 

the requester and OMB, and notify the 

requester of the right of the requester to 

seek dispute resolution services from 

the Office of Government Information 

Services (OGIS). 

(d) Aggregating Requests. When OMB 

reasonably believes that a requester, or 

a group of requestors acting in concert, 

has submitted requests that constitute a 

single request, that would otherwise 

satisfy the unusual circumstances 

specified in this section, OMB may 

aggregate those requests for the 

purposes of this section. OMB will 

presume that multiple requests of this 

type made within a 45-day period can 

be aggregated for the purposes of this 

section. For requests separated by a 

longer period, OMB will 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 

will not be aggregated. 

(e) Expedited processing. 

(1) Requests and appeals will be given 

expedited treatment in cases where 

OMB determines: 

(i) The lack of expedited treatment 

could reasonably be expected to pose an 

imminent threat to the life or physical 

safety of an individual; (ii) there is an 

urgency to inform the public about an 

actual or alleged Federal Government 

activity; (iii) failure to respond to the 

request expeditiously would result in 

the loss of due process rights in other 

proceedings; or (iv) there are possible 

questions, in a matter of widespread and 

exceptional public interest, about the 

government’s integrity which effect 

public confidence. 

(2) A request for expedited processing 

may be made at the time of the initial 

request for records or at any later time. 

(3) A requester who seeks expedited 

processing must submit a statement, 

certified to be true and correct to the 

best of the requester’s knowledge and 

belief, explaining in detail the basis for 

requesting expedited processing. OMB 

may waive this certification requirement 

at its discretion. 

(4) OMB will decide whether to grant 

expedited processing and will notify the 

requester within 10 days after the date 

of the request. If a request for expedited 

treatment is granted, OMB will 

prioritize the request and process the 

request as soon as practicable. If a 

request for expedited processing is 

denied, any appeal of that decision will 

be acted on expeditiously. 

Responses to Requests 

§ 1303.50 Responses to Requests. 

(a) Acknowledgements of requests. 

OMB will assign an individualized 

tracking number to each request 

received that will take longer than ten 

days to process; and acknowledge each 

request, informing the requestor of their 

tracking number if applicable; and, 

upon request, make available 

information about the status of a request 

to the requester using the assigned 

tracking number, including— 

(i) the date on which OMB originally 

received the request; and 

(ii) an estimated date on which OMB 

will complete action on the request. 

(b) Grants of requests. Once OMB 

makes a determination to grant a request 

in full or in part, it will notify the 

requester in writing. OMB also will 

inform the requester of any fees charged 

under Sec. 1303.9 and shall provide the 

requested records to the requester 

promptly upon payment of any 

applicable fees. OMB will inform the 

requester of the availability of the FOIA 

Public Liaison to offer assistance. 

(c) Adverse determinations of 

requests. In the case of an adverse 

determination, the FOIA Officer will 

immediately notify the requester of— 

(i) the right of the requester to appeal 

to the head of OMB within 90 calendar 

days after the date of such adverse 

determination in accordance with Sec. 

1303.70; 

(ii) the right of such person to seek 

dispute resolution services from the 

FOIA Public Liaison or the OGIS at 

NARA; 

(iii) the names and titles or positions 

of each person responsible for the denial 

of such request; and 

(iv) OMB’s estimate of the volume of 

any requested records OMB is 

withholding, unless providing such 

estimate would harm an interested 

protected by the exemption in 5 U.S.C. 

552(b). 

Confidential Commercial Information 

§ 1303.60 Confidential Commercial 

Information. 

Notification Procedures for 

Confidential Commercial Information. 

(a) Definitions. 

(1) ‘‘Confidential commercial 

information’’ means commercial or 

financial information obtained by OMB 

from a submitter that may be protected 

from disclosure under Exemption 4 of 

the FOIA, 5 U.S.C. 552(b)(4). 

(2) ‘‘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. 

(b) Designation of confidential 

commercial information. A submitter of 

confidential commercial information 

must use good faith efforts to designate 

by appropriate markings, at the time of 

submission, any portion of its 

submission that it considers to be 

protected from disclosure under 

Exemption 4 of the FOIA. These 

designations expire 10 years after the 

date of the submission unless the 

submitter requests and provides 

justification for a longer designation 

period. 

(c) When notice to submitters is 

required. OMB will promptly notify a 

submitter when OMB determines that a 

pending FOIA lawsuit seeks to compel 

the disclosure of records containing the 

submitter’s confidential information, or 

if OMB determines that it may be 

required to disclose such records, 

provided: 

(1) The requested information has 

been designated by the submitter as 

information considered protected from 

disclosure under Exemption 4 in 

accordance with subsection (b); or 

(2) OMB 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. 

The notice will 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, OMB 

may post or publish a notice in a place 

or manner reasonably likely to inform 


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the submitters of the proposed 

disclosure, instead of sending 

individual notifications. 

(d) Exceptions to submitter notice 

requirements. The notice requirements 

of this section do not apply if: 

(i) OMB determines that the 

information is exempt under the FOIA, 

and therefore will not be disclosed; 

(ii) The information has been lawfully 

published or has been officially made 

available to the public; 

(iii) Disclosure of the information is 

required by law, including regulation 

issued in accordance with the 

requirements of Executive Order 12,600 

of June 23, 1987; or 

(iv) The designation made by the 

submitter under paragraph (2) of this 

section appears obviously frivolous. In 

such case, OMB will give the submitter 

written notice of any final decision to 

disclose the information within a 

reasonable number of days prior to a 

specified disclosure date. 

(e) Opportunity to object to 

disclosure. 

(i) Unless OMB specifies a different 

period, submitters who fail to respond 

to OMB’s notice within 30 days of 

OMB’s notice will be deemed to have 

consented to disclosure. 

(ii) If a submitter has any objections 

to disclosure, it should provide OMB 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 basis for 

nondisclosure, the submitter must 

explain why the information constitutes 

a trade secret or commercial or financial 

information that is confidential. OMB is 

not required to consider any 

information received after the date of 

any disclosure decision. 

(iii) Any information provided by a 

submitter under this section may itself 

be subject to disclosure under the FOIA. 

(f) Analysis of objections. OMB will 

consider a submitter’s objections and 

specific grounds for nondisclosure in 

deciding whether to disclose the 

requested information. 

(g) Notice of intent to disclose. 

Whenever OMB decides to disclose 

information over the objection of a 

submitter, OMB will provide the 

submitter written notice, which will 

include: 

(i) A statement of the reasons why 

each of the submitter’s disclosure 

objections were not sustained; 

(ii) A description of the information to 

be disclosed or copies of the records as 

OMB intends to release them; and 

(iii) A specified disclosure date, at 

least 30 days after OMB transmits its 

notice of intent to disclose, except for 

good cause. 

(h) Requester notification. OMB will 

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. 

Appeals 

§ 1303.70 Appeals. 

A requester must appeal to the head 

of OMB in writing within 90 calendar 

days after the date of such adverse 

determination addressed to the FOIA 

Officer at the address specified in Sec. 

1303.20. The appeal must include a 

statement explaining the basis for the 

appeal. Determinations of appeals will 

be set forth in writing and signed by the 

Deputy Director, or his designee, within 

20 working days. If on appeal the denial 

is upheld in whole or in part, the 

written determination will also contain 

a notification of the provisions for 

judicial review, the names of the 

persons who participated in the 

determination, and notice of the 

services offered by the OGIS as a nonexclusive alternative to litigation. 

OGIS’s dispute resolution services is 

a voluntary process. If OMB agrees to 

participate in the mediation services 

provided by OGIS, OMB will actively 

engage as a partner to the process in an 

attempt to resolve the dispute. An 

appeal ordinarily will not be 

adjudicated if the request becomes a 

matter of FOIA litigation. Before seeking 

review by a court of an agency’s adverse 

determination, a requester generally 

must first submit a timely 

administrative appeal. 

Preservation of Records 

§ 1303.80 Preservation of Records. 

OMB will preserve all correspondence 

pertaining to the requests that it receives 

under this section, as well as copies of 

all requested records, until disposition 

or destruction is authorized pursuant to 

title 44 of the United States Code or 

NARA’s General Records Schedule 14. 

OMB will not dispose of or destroy 

records while they are the subject of a 

pending request, appeal, or lawsuit 

under the FOIA. 

Fees 

§ 1303.90 Definitions. 

For the purpose of these regulations: 

(a) All definitions set forth in the 

FOIA apply. 

(b) The term ‘‘direct costs’’ means 

those expenditures that OMB actually 

incurs in searching for and duplicating 

(and in the case of commercial 

requesters, reviewing) documents to 

respond to a FOIA request. Not included 

in direct costs are overhead expenses 

such as costs of space, heating, or 

lighting the facility in which the records 

are stored. 

(c) The term ‘‘search’’ means the 

process of looking for and retrieving 

records or information responsive to a 

request. It includes page-by-page or lineby-line identification of information 

within records and also includes 

reasonable efforts to locate and retrieve 

information from records maintained in 

electronic form or format. 

(d) The term ‘‘duplication’’ means the 

making of a copy of a document, or of 

the information contained in it, that is 

necessary to respond to a FOIA request. 

Such copies can be in the form of paper, 

microform, audio-visual materials, or 

electronic records (e.g., magnetic tape or 

disk), among others. 

(e) The term ‘‘review’’ refers to the 

process of examining documents located 

in response to a request to determine 

whether any portion of any document 

located is permitted to be withheld. It 

also refers to the processing of any 

documents for disclosure, e.g., doing all 

that is necessary to excise them and 

otherwise prepare them for release. 

Review does not include time spent 

resolving general legal or policy issues 

regarding the application of exemptions. 

(f) The term ‘‘commercial use request’’ 

is a request that asks for information for 

a use or purpose that furthers a 

commercial, trade, or profit interest, 

which can include furthering those 

interests through litigation. 

(g) The term ‘‘educational institution’’ 

is any school that operates a program of 

teaching or scholarly research. To be 

eligible for inclusion in this category, 

requesters must show that the request is 

being made as authorized by and in 

connection with the requester’s role at 

a qualifying institution and that the 

records are not sought for commercial 

use, but are sought in furtherance of 

teaching or scholarly research. OMB 

may seek assurance from the requester 

that the request is in furtherance of 

teaching or scholarly research and will 

advise requesters of their placement in 

this category. 

(h) The term ‘‘non-commercial 

scientific institution’’ refers to an 

institution that is not operated on a 

commercial basis (as that term is 

referenced in paragraph (g) of this 

section) and that is operated solely for 

the purpose of conducting scientific 

research where the results of the 

research are not intended to promote 

any particular product or industry. A 


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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. 

(i) The term ‘‘representative of the 

news media’’ refers to 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. 

(j) 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 broadcasting to the public at 

large, and publishers of periodicals (but 

only in those instances when they can 

qualify as disseminators of ‘‘news’’) who 

make their products available for 

purchase, subscription, or free 

distribution to the general public. These 

examples are not all-inclusive. 

Moreover, as methods of news delivery 

evolve, such alternative media would 

also be included in this category. 

Freelance journalists may be regarded as 

working for a news-media organization 

if the journalist can demonstrate a solid 

basis for expecting publication through 

that organization, even though the 

journalist is not actually employed by 

the organization. A publication contract 

would present solid basis for such an 

expectation, but OMB may also look to 

the past publication record of a 

requester in making such a 

determination. 

§ 1303.91 Fees to be Charged—General. 

OMB will charge fees that recoup the 

full allowable direct costs it incurs. 

Moreover, it will use the most efficient 

and least costly methods to comply with 

requests for documents made under the 

FOIA. For example, employees should 

not engage in line-by-line search when 

merely duplicating an entire document 

would prove the less expensive and 

quicker method of complying with a 

request. Search should be distinguished, 

moreover, from review of material in 

order to determine whether the material 

is exempt from disclosure. When 

documents that would be responsive to 

a request are maintained for distribution 

by agencies operating statutory-based 

fee schedule programs (see definition in 

Section 1303.30(b)), such as the NTIS, 

OMB will inform requesters of the steps 

necessary to obtain records from those 

sources. 

(a) Search. Requests made by 

educational institutions, noncommercial 

scientific institutions, or representatives 

of the news media are not subject to 

search fees. OMB will charge search fees 

for all other requesters, subject to the 

restrictions of paragraph (h) of this 

section. 

(1) For each quarter hour spent by 

personnel searching for requested 

records, including electronic searches 

that do not require new programming, 

the fees will be charged as follows: 

professional—$10.00; and clerical/ 

administrative—$4.75. 

(2) Requesters shall be charged the 

direct costs associated with conducting 

any search that requires the creation of 

a new computer program to locate the 

requested records. Requesters shall be 

notified of the costs associated with 

creating such a program and must agree 

to pay the associated costs before the 

costs may be incurred. 

(b) Review of records. Only requesters 

who are seeking documents for 

commercial use may be charged for time 

spent reviewing records to determine 

whether they are exempt from 

mandatory disclosure. Charges may be 

assessed only for the initial review; i.e., 

Records or portions of records withheld 

in full under an exemption that is 

subsequently determined not to apply 

may be reviewed again to determine the 

applicability of other exemptions not 

previously considered. The costs for 

such a subsequent review is assessable. 

However, review costs will not include 

any costs incurred in resolving issues of 

law or policy that may be raised in the 

course of processing a request under 

this section. 

(c) Duplication of records. The 

requester’s specified preference of form 

or format of disclosure will be honored 

if the record is readily reproducible in 

that format. Where photocopies are 

supplied, OMB will provide one copy 

per request at a cost of five cents per 

page. For copies prepared by computer, 

such as tapes or printouts, OMB will 

charge the actual cost, including 

operator time, of production of the tape 

or printout. For other methods of 

reproduction or duplication, OMB will 

charge the actual direct costs of 

producing the document(s). 

(d) Other charges. OMB will recover 

the full costs of providing services such 

as those enumerated below when it 

elects to provide them: 

(1) Certifying that records are true 

copies; or 

(2) Sending records by special 

methods, such as express mail. 

(e) Remittances shall be in the form of 

either a personal check, a bank draft 

drawn on a bank in the United States, 

or a postal money order. Remittances 

shall be made payable to the order of the 

Treasury of the United States and 

mailed to the FOIA Officer at the 

address found in Section 1303.10(b) 

above. 

(f) A receipt for fees paid will be 

provided upon request. Refund of fees 

paid for services actually rendered will 

not be made. 

(g) Restrictions on assessing fees. 

With the exception of requesters seeking 

documents for a commercial use, OMB 

will provide the first 100 pages of 

duplication (or the cost equivalent for 

other media) and the first two hours of 

search time without charge. 

(h) If OMB fails to comply with the 

FOIA’s time limits in which to respond 

to a request, it may not charge search 

fees, or, in the instances of requests 

from requesters described in section 

1303.90(g) through (i), may not charge 

duplication fees, except as described in 

the following circumstances: 

(1) If OMB has determined that 

unusual circumstances, as defined by 

the FOIA, apply, and OMB provided 

timely written notice to the requester in 

accordance with the FOIA, a failure to 

comply with the time limit will be 

excused for an additional 10 days. 

(2) If OMB has determined that 

unusual circumstances, as defined by 

the FOIA, apply, and more than 5,000 

pages are necessary to respond to the 

request, OMB may charge search fees, 

or, in the case of requesters described in 

Section 1303.90(g) through (i), may 

charge duplication fees, if OMB has 

provided timely written notice to the 

requester in accordance with the FOIA 

and OMB has 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). 

(3) If a court determines 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. 

(i) No fee will 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 $25. If OMB estimates that the 

charges are likely to exceed $25, it will 

notify the requester of the estimated 

amount of fees, unless the requester has 

indicated in advance his willingness to 

pay fees as high as those anticipated. 

Such a notice shall offer a requester the 

opportunity to confer with agency 

personnel to meet the requester’s needs 

at a lower cost. 


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§ 1303.92 Fees to be Charged—Categories 

of Requesters. 

There are four categories of FOIA 

requesters: Commercial use requesters; 

educational and non-commercial 

scientific institutions; representatives of 

the news media; and all other 

requesters. The specific levels of fees for 

each of these categories are: 

(a) Commercial use requesters. When 

OMB receives a request for documents 

for commercial use, it will assess 

charges that recover the full direct costs 

of searching for, reviewing for release, 

and duplicating the record sought. 

Commercial use requesters are not 

entitled to two hours of free search time 

nor 100 free pages of reproduction of 

documents. OMB may recover the cost 

of searching for and reviewing records 

even if there is ultimately no disclosure 

of records (see Sec. 1303.93(b)). 

(b) Educational and non-commercial 

scientific institution requesters. OMB 

will provide documents to requesters in 

this category for the cost of reproduction 

alone, excluding charges for the first 100 

pages. To be eligible for inclusion in 

this category, a requester must meet the 

criteria in Sec. 1303.30(h) through (i). 

OMB may seek evidence from the 

requester that the request is in 

furtherance of scholarly research and 

will advise requesters of their placement 

in this category. 

(c) Requesters who are representatives 

of the news media. OMB will provide 

documents to requesters in this category 

for the cost of reproduction alone, 

excluding charges for the first 100 

pages. To be eligible for inclusion in 

this category, a requester must meet the 

criteria in § 1303.10(j) through (k) and 

not make the request for commercial 

use. A request for records supporting 

the news dissemination function of the 

requester is not a commercial use for 

this category. 

(d) All other requesters. OMB will 

charge requesters who do not fit into 

any of the categories above fees that 

recover the full reasonable direct cost of 

searching for and reproducing records 

that are responsive to the request, 

except that the first 100 pages of 

reproduction and the first two hours of 

search time will be furnished without 

charge. Moreover, requests for records 

about the requesters filed in OMB’s 

systems of records will continue to be 

treated under the fee provisions of the 

Privacy Act of 1974, which permit fees 

only for reproduction. 

§ 1303.93 Miscellaneous Fee Provisions. 

(a) Charging interest—notice and rate. 

OMB may begin assessing interest 

charges on an unpaid bill starting on the 

31st day after OMB sends the bill. If 

OMB receives the fee within the thirtyday grace period, interest will not 

accrue on the paid portion of the bill, 

even if the payment is unprocessed. 

Interest will be at the rate prescribed in 

section 3717 of title 31 of the United 

States Code and will accrue from the 

date of the billing. 

(b) Charges for unsuccessful search. 

OMB may properly charge for time 

spent searching even if it does not locate 

any responsive records or if OMB 

determines that the records are entirely 

exempt from disclosure. 

(c) Aggregating requests. A requester 

may not file multiple requests at the 

same time, each seeking portions of a 

document or documents, solely in order 

to avoid payment of fees. When OMB 

reasonably believes that a requester, or 

a group of requestors acting in concert, 

has submitted requests that constitute a 

single request, involving clearly related 

matters, OMB may aggregate those 

requests and charge fees accordingly. 

OMB will presume that multiple 

requests of this type made within a 45- 

day period have been made in order to 

avoid fees. For requests separated by a 

longer period, OMB will 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 

shall not be aggregated. 

(d) Advance payments. 

(1) OMB will not require a requester 

to make an advance payment, i.e., 

payment before work is commenced or 

continued on a request, unless OMB 

estimates or determines that allowable 

charges that a requester may be required 

to pay are likely to exceed $250 or the 

requester has previously failed to make 

payments due within 30 days of billing. 

(2) In cases in which OMB requires 

advance payment, the request will not 

be considered received and further work 

will not be completed until the required 

payment is received. If the requester 

does not pay the advance payment 

within 30 calendar days after the date of 

OMB’s fee determination, the request 

will be closed. 

(e) Effect of the Debt Collection Act of 

1982 (Pub. L. 97–365). OMB will 

comply with applicable provisions of 

the Debt Collection Act, including 

disclosure to consumer reporting 

agencies and use of collection agencies, 

where appropriate, to encourage 

repayment. 

§ 1303.94 Waiver or Reduction of Charges. 

(a) How to apply for a fee waiver. 

Requesters may seek a waiver of fees by 

submitting a written application 

demonstrating 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. 

(b) Factors for approving fee waivers. 

OMB will furnish records responsive to 

a request without charge or at a reduced 

rate when it determines, based on all 

available information, that the following 

factors 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. 

(ii) Disclosure of the requested 

information is likely to contribute 

significantly to public understanding of 

those operations or activities. This 

factor is satisfied when both of the 

following criteria are met: 

(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. OMB will presume that a 

representative of the news media will 

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, OMB will consider the 

following criteria: 

(A) OMB will 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, OMB must 

determine whether that is the primary 

interest furthered by the request. A 

waiver or reduction of fees is justified 


daltland on DSKBBV9HB2PROD with PROPOSALS
42618 Federal Register / Vol. 83, No. 164 / Thursday, August 23, 2018 / Proposed Rules 

when the requirements of paragraphs 

(b)(i) and (ii) are satisfied and any 

commercial interest is not the primary 

interest furthered by the request. OMB 

ordinarily will presume that when a 

news media requester has satisfied 

factors (i) and (ii) above, 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 will not be 

presumed to primarily serve the public 

interest. 

(c) Timing of requests for fee waivers. 

Requests for a waiver or reduction of 

fees should be made when the request 

is first submitted to OMB 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 shall be required to pay any 

costs incurred up to the date the fee 

waiver request was received. 

Dated: August 17, 2018. 

Mark R. Paoletta, 

General Counsel and Chief FOIA Officer. 

[FR Doc. 2018–18061 Filed 8–22–18; 8:45 am] 

BILLING CODE 3110–01–P 

DEPARTMENT OF AGRICULTURE 

Rural Housing Service 

7 CFR Part 3555 

RIN 0575–AD09 

Single Family Housing Guaranteed 

Loan Program 

AGENCY: Rural Housing Service, USDA. 

ACTION: Proposed rule. 

SUMMARY: The Rural Housing Service 

(RHS or Agency) proposes to make 

several changes to the single-family 

housing guaranteed loan program 

(SFHGLP) regulations to streamline the 

loss claim process for lenders who have 

acquired title to property through 

voluntary liquidation or foreclosure; 

clarify that lenders must comply with 

applicable laws, including those within 

the purview of the Consumer Financial 

Protection Bureau; and better align loss 

mitigation policies with those in the 

mortgage industry. 

DATES: Written or email comments on 

the proposed rule must be received on 

or before October 22, 2018 to be assured 

for consideration. 

ADDRESSES: You may submit comments 

on this proposed rule by any one of the 

following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• Mail: Submit written comments via 

the U.S. Postal Service to the Branch 

Chief, Regulations and Paperwork 

Management Branch, U.S. Department 

of Agriculture, STOP 0742, 1400 

Independence Ave. SW, Washington, 

DC 20250–0742. 

• Hand Delivery/Courier: Submit 

written comments via Federal Express 

mail, or other courier service requiring 

a street address to the Branch Chief, 

Regulations and Paperwork 

Management Branch, U.S. Department 

of Agriculture, 1400 Independence Ave. 

SW, Washington, DC 20250. 

All written comments will be 

available for public inspection during 

regular work hours at the 1400 

Independence Ave. SW, address listed 

above. 

FOR FURTHER INFORMATION CONTACT: Kate 

Jensen, Finance and Loan Analyst, 

Single Family Housing Guaranteed Loan 

Division, STOP 0784, Room 2250, 

USDA Rural Development, South 

Agriculture Building, 1400 

Independence Avenue SW, Washington, 

DC 20250–0784, telephone: (503) 894– 

2382, email is Kate.Jensen@

wdc.usda.gov. 

SUPPLEMENTARY INFORMATION: 

Executive Order 12866, Classification 

This proposed rule has been 

determined to be non-significant and, 

therefore was not reviewed by the Office 

of Management and Budget (OMB) 

under Executive Order 12866. 

Executive Order 12988, Civil Justice 

Reform 

This proposed rule has been reviewed 

under Executive Order 12988, Civil 

Justice Reform. Except where specified, 

all State and local laws and regulations 

that are in direct conflict with this rule 

will be preempted. Federal funds carry 

Federal requirements. No person is 

required to apply for funding under 

SFHGLP, but if they do apply and are 

selected for funding, they must comply 

with the requirements applicable to the 

Federal program funds. This proposed 

rule is not retroactive. It will not affect 

agreements entered prior to the effective 

date of the rule. Before any judicial 

action may be brought regarding the 

provisions of this rule, the 

administrative appeal provisions of 7 

CFR part 11 must be exhausted. 

Unfunded Mandates Reform Act 

Title II of the Unfunded Mandates 

Reform Act of 1995 (UMRA), Public 

Law 104–4, establishes requirements for 

Federal agencies to assess the effect of 

their regulatory actions on State, local, 

and tribal governments and the private 

sector. Under section 202 of the UMRA, 

the Agency generally must prepare a 

written statement, including a costbenefit analysis, for proposed and final 

rules with ‘‘Federal mandates’’ that may 

result in expenditures to State, local, or 

tribal governments, in the aggregate, or 

to the private sector, of $100 million, or 

more, in any one year. When such a 

statement is needed for a rule, section 

205 of the UMRA generally requires the 

Agency to identify and consider a 

reasonable number of regulatory 

alternatives and adopt the least costly, 

most cost-effective, or least burdensome 

alternative that achieves the objectives 

of the rule. 

This proposed rule contains no 

Federal mandates (under the regulatory 

provisions of Title II of the UMRA) for 

State, local, and tribal governments or 

the private sector. Therefore, this rule is 

not subject to the requirements of 

sections 202 and 205 of the UMRA. 

Environmental Impact Statement 

This document has been reviewed in 

accordance with 7 CFR part 1970, 

subpart G, ‘‘Environmental Program.’’ It 

is the determination of the Agency that 

this action does not constitute a major 

Federal action significantly affecting the 

quality of the human environment, and, 

in accordance with the National 

Environmental Policy Act of 1969, 

Public Law 91–190, neither an 

Environmental Assessment nor an 

Environmental Impact Statement is 

required. 

Executive Order 13132, Federalism 

The policies contained in this rule do 

not have any substantial direct effect on 

States, on the relationship between the 

national government and States, or on 

the distribution of power and 

responsibilities among the various 

levels of government. Nor does this rule 

impose substantial direct compliance 

costs on State and local governments. 

Therefore, consultation with the States 

is not required. 

Regulatory Flexibility Act 

In compliance with the Regulatory 

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

undersigned has determined and 

certified by signature of this document 

that this rule change will not have a 

significant impact on a substantial 

number of small entities. This rule does 

not impose any significant new 


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