[Federal Register Volume 83, Number 164 (Thursday, August 23, 2018)]
[Proposed Rules]
[Pages 42610-42618]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-18061]


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Proposed Rules
                                                Federal Register
________________________________________________________________________

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

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Federal Register / Vol. 83, No. 164 / Thursday, August 23, 2018 / 
Proposed Rules

[[Page 42610]]



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:
    <bullet> Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for sending comments.
    <bullet> Email: <a href="/cdn-cgi/l/email-protection#8dc2c0cfcbc2c4cccde2e0efa3e8e2fda3eae2fb"><span class="__cf_email__" data-cfemail="4c03010e0a03050d0c23212e6229233c622b233a">[email protected]</span></a>. Include docket number and/or 
RIN number in the subject line of the message.
    <bullet> Those who cannot submit electronically should contact the 
person identified in the FOR FURTHER INFORMATION CONTACT section by 
telephone for advice on filing alternatives.
    <bullet> 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 <a href="/cdn-cgi/l/email-protection#034c4e41454c4a42436c6e612d666c732d646c75"><span class="__cf_email__" data-cfemail="cc83818e8a83858d8ca3a1aee2a9a3bce2aba3ba">[email protected]</span></a>, 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:
    <bullet> 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.
    <bullet> Section 1303.3
    [cir] Subsection (a) is updated to include changes to OMB offices 
since the last changes were made to this part.
    <bullet> Section 1303.20
    [cir] 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.
    <bullet> Section 1303.21
    [cir] 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.
    <bullet> Section 1303.30
    [cir] 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).
    [cir] 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.
    [cir] Subsection (c) describes OMB's procedures when it determines 
that

[[Page 42611]]

another agency of the Federal Government is better able to determine 
whether a record is exempt from disclosure of the FOIA.
    <bullet> Section 1303.40
    [cir] 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.
    [cir] 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.
    <bullet> Section 1303.50
    [cir] 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.
    [cir] Subsection (b) is added to reflect OMB's practices regarding 
notification of grants of requests to requestors.
    <bullet> Section 1303.60
    [cir] 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.
    <bullet> Section 1303.70
    [cir] 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.
    <bullet> Section 1303.80
    [cir] 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.
    <bullet> Section 1303.90
    [cir] Revisions are made to the definitions currently in section 
1303.30 to help clarify the meaning of each term.
    [cir] 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.
    <bullet> Section 1303.91
    [cir] 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.
    [cir] 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.
    [cir] 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.
    [cir] 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).
    [cir] 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.
    [cir] 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.
    <bullet> Section 1303.92
    [cir] 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.
    <bullet> Section 1303.93
    [cir] 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.
    <bullet> Section 1303.94
    [cir] 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

[[Page 42612]]

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 foreign-based 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

0
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.

0
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


Sec.  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.


Sec.  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.


Sec.  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.

[[Page 42613]]

Proactive Disclosures


Sec.  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


Sec.  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 <a href="/cdn-cgi/l/email-protection#5d12101f1b12141c1d32303f7338322d733a322b"><span class="__cf_email__" data-cfemail="5d12101f1b12141c1d32303f7338322d733a322b">[email protected]</span></a>. 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.


Sec.  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.


Sec.  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


Sec.  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


Sec.  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

[[Page 42614]]

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


Sec.  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


Sec.  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

[[Page 42615]]

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


Sec.  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 non-
exclusive 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


Sec.  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


Sec.  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 line-by-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

[[Page 42616]]

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.


Sec.  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.

[[Page 42617]]

Sec.  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 Sec.  [thinsp]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.


Sec.  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 thirty-day 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.


Sec.  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

[[Page 42618]]

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


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