9654 Federal Register / Vol. 78, No. 28 / Monday, February 11, 2013 / Proposed Rules 

IV. Statutory and Executive Order 

Reviews 

Under the CAA, the Administrator is 

required to approve a SIP submission 

that complies with the provisions of the 

Act and applicable Federal regulations. 

42 U.S.C. 7410(k); 40 CFR 52.02(a). 

Thus, in reviewing SIP submissions, 

EPA’s role is to approve state choices, 

provided that they meet the criteria of 

the CAA. Accordingly, this action 

merely approves state law as meeting 

Federal requirements and does not 

impose additional requirements beyond 

those imposed by state law. For that 

reason, this action: 

• Is not a ‘‘significant regulatory 

action’’ subject to review by the Office 

of Management and Budget under 

Executive Order 12866 (58 FR 51735, 

October 4, 1993); 

• Does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act (44 

U.S.C. 3501 et seq.); 

• Is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act (5 

U.S.C. 601 et seq.); 

• Does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4); 

• Does not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• Is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

13045 (62 FR 19885, April 23, 1997); 

• Is not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• Is not subject to requirements of 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (15 U.S.C. 272 note) because 

application of those requirements would 

be inconsistent with the Clean Air Act; 

and 

• Does not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

In addition, this rule does not have 

tribal implications as specified by 

Executive Order 13175 (65 FR 67249, 

November 9, 2000), because the SIP is 

not approved to apply in Indian country 

located in the state, and it will not 

impose substantial direct costs on tribal 

governments or preempt tribal law. 

List of Subjects in 40 CFR Part 52 

Environmental protection, Air 

pollution control, Particulate matter. 

Dated: January 31, 2013. 

Dennis J. McLerran, 

Regional Administrator, Region 10. 

[FR Doc. 2013–02964 Filed 2–8–13; 8:45 am] 

BILLING CODE 6560–50–P 

NATIONAL FOUNDATION ON THE 

ARTS AND HUMANITIES 

National Endowment for the 

Humanities 

45 CFR Part 1171 

RIN 3136–AA32 

Public Access to NEH Records Under 

the Freedom of Information Act 

AGENCY: National Endowment for the 

Humanities. 

ACTION: Proposed rule. 

SUMMARY: The National Endowment for 

the Humanities (NEH) is unilaterally 

rescinding its joint Freedom of 

Information Act (FOIA) regulations with 

the National Endowment for the Arts 

(NEA) and the Institute of Museum and 

Library Services (IMLS), and issuing its 

own FOIA regulations. The new 

regulations provide the NEH’s proposed 

procedures for disclosure of its records, 

as required by the FOIA, 5 U.S.C. 552, 

as amended. These regulations also 

provide the proposed procedures for 

disclosing records of the Federal 

Council on the Arts and the Humanities 

(FCAH), an agency for which NEH 

provides legal counsel. 

DATES: Written comments must be 

postmarked and electronic comments 

must be submitted on or before April 12, 

2013. 

ADDRESSES: You may submit comments 

by any of the following methods: 

• Email: Gencounsel@neh.gov. Please 

include ‘‘FOIA Regulations’’ in the 

subject line of the message. 

• FAX: (202) 606–8600. Please send 

your comments to the attention of 

Michelle Ghim. 

• Mail: Michelle Ghim, Office of the 

General Counsel, National Endowment 

for the Humanities, 1100 Pennsylvania 

Ave. NW., Room 529, Washington, DC 

20506. To ensure proper handling, 

please reference ‘‘FOIA Regulations’’ on 

your correspondence. 

FOR FURTHER INFORMATION CONTACT: 

Michelle Ghim, Office of the General 

Counsel, National Endowment for the 

Humanities, 202–606–8322. 

SUPPLEMENTARY INFORMATION: The NEH 

along with the NEA, the IMLS, and the 

FCAH make up the National Foundation 

on the Arts and Humanities 

(Foundation). The Foundation was 

established by the National Foundation 

on the Arts and Humanities Act of 1965, 

20 U.S.C. 951 et seq. The NEH along 

with the NEA and the IMLS last issued 

joint FOIA regulations, 45 CFR part 

1100, on December 21, 1987. Each 

agency has now decided to issue its own 

separate FOIA regulations. The NEH’s 

regulations incorporate changes brought 

by the amendments to the FOIA under 

the OPEN Government Act of 2007, 

Public Law 110–175, 121 Stat. 2524. 

These regulations also include changes 

to the NEH’s fee schedule for processing 

FOIA requests, provide procedures 

under which the agency will process 

requests for the NEH Office of the 

Inspector General records, and reflect 

developments in FOIA case law. 

E.O. 12866, Regulatory Review 

The NEH has determined that the 

proposed rule is not a ‘‘significant 

regulatory action’’ under Executive 

Order 12866 and therefore is not subject 

to Office of Management and Budget 

(OMB) Review. 

Regulatory Flexibility Act 

The NEH Chairman, in accordance 

with the Regulatory Flexibility Act, 5 

U.S.C. 605(b), certifies that this 

proposed rule will not have a significant 

economic impact on a substantial 

number of small entities. Under the 

FOIA, NEH may recover only the direct 

costs of searching for, reviewing, and 

duplicating the records that agencies 

process for requesters. NEH’s fee 

schedules for such costs are consistent 

with OMB guidelines on FOIA fees, and 

provide criteria by which requesters 

may receive a fee waiver or reduction of 

fees. Furthermore, the rule will only 

affect persons and organizations who 

file FOIA requests with NEH, which 

receives relatively few requests each 

year (generally less than fifty (50) per 

year) in comparison to other Federal 

departments and agencies. 

Unfunded Mandates Reform Act of 

1995 

For purposes of the Unfunded 

Mandates Reform Act of 1995, Pub. L. 

104–4, the proposed 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 

million or more in any one year, and it 

will not significantly or uniquely affect 

small governments. 


erowe on DSK2VPTVN1PROD with PROPOSALS-1
Federal Register / Vol. 78, No. 28 / Monday, February 11, 2013 / Proposed Rules 9655 

Small Business Regulatory Enforcement 

Fairness Act of 1996 

This proposed rule is not a major rule 

as defined by section 251 of the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, 5 U.S.C. 804, as 

amended. This rule will not result in an 

annual effect on the economy of 

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

increase in costs or prices; or significant 

adverse effects on competition, 

employment, investment, productivity, 

innovation, or the ability of United 

States-based companies to compete with 

foreign-based companies in domestic 

and export markets. 

Paperwork Reduction Act 

The NEH has determined that the 

Paperwork Reduction Act, 44 U.S.C. 

3501 et seq., does not apply to the 

proposed rule because the rule does not 

contain information collection 

requirements that require OMB 

approval. 

List of Subjects in 45 CFR Part 1171 

Administrative practice and 

procedure, Freedom of Information. 

For the reasons stated in the 

preamble, the National Endowment for 

the Humanities proposes to amend 45 

CFR Subchapter D by adding part 1171 

as follows: 

PART 1171—PUBLIC ACCESS TO NEH 

RECORDS UNDER THE FREEDOM OF 

INFORMATION ACT 

Sec. 

1171.1 About the National Endowment for 

the Humanities. 

1171.2 General provisions. 

1171.3 Information policy. 

1171.4 Public availability of records. 

1171.5 Requests for records. 

1171.6 Responsibilities for processing and 

responding to requests. 

1171.7 Timing of responses to requests. 

1171.8 Responses to requests. 

1171.9 Confidential commercial 

information. 

1171.10 Administrative appeals. 

1171.11 Fees. 

1171.12 Other Rights and Services. 

Authority: 5 U.S.C. 552, 31 U.S.C. 3717, 

E.O. 12600. 

§ 1171.1 About the National Endowment 

for the Humanities. 

The National Endowment for the 

Humanities (NEH) was established by 

the National Foundation on the Arts and 

Humanities Act of 1965, 20 U.S.C. 951 

et seq., and is an independent grantmaking agency of the United States 

government dedicated to supporting 

research, education, preservation, and 

public programs in the humanities. The 

NEH is directed by a Chairman and has 

an advisory council composed of 

twenty-six presidentially-appointed and 

Senate-confirmed members. 

§ 1171.2 General provisions. 

This part contains the regulations the 

NEH follows in processing requests for 

NEH records under the Freedom of 

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

amended. The NEH also follows these 

regulations to process all FOIA requests 

made to the Federal Council on the Arts 

and the Humanities (FCAH), an 

organization established by the National 

Foundation on the Arts and Humanities 

Act of 1965 for which the NEH provides 

legal counsel. These regulations should 

be read together with the FOIA, which 

provides additional information about 

access to NEH and FCAH records. 

§ 1171.3 Information policy. 

The NEH may provide information 

the agency routinely makes available to 

the public through its regular activities 

(for example, program announcements 

and solicitations, press releases, and 

summaries of awarded grant 

applications) without following this 

part. As a matter of policy, the NEH 

makes discretionary disclosures of 

records or information otherwise 

exempt under the FOIA whenever 

disclosure would not foreseeably harm 

an interest protected by a FOIA 

exemption. This policy, however, does 

not create any right enforceable in court. 

§ 1171.4 Public availability of records. 

(a) In accordance with 5 U.S.C. 

552(a)(2), the NEH will make the 

following records available for public 

inspection and copying (unless they are 

published and copies are offered for 

sale) without a FOIA request: 

(1) Final opinions, including 

concurring and dissenting opinions, as 

well as orders made in the adjudication 

of cases, 

(2) Statements of policy and 

interpretations which have been 

adopted by the agency and are not 

published in the Federal Register, 

(3) Administrative staff manuals and 

instructions to staff that affect a member 

of the public, 

(4) Copies of all records, regardless of 

format, which have been released to any 

person under 5 U.S.C. 552(a)(3) and 

which, because of the nature of their 

subject matter, the NEH determines 

have become or are likely to become the 

subject of subsequent requests for 

substantially the same records, and 

(5) a general index of the records 

referred to in paragraph (b)(4) of this 

paragraph. 

(b) The NEH will also maintain and 

make available for public inspection 

and copying current indexes as required 

by 5 U.S.C. 552(a)(2) of the FOIA. 

However, since the NEH has determined 

that publication and distribution of 

these indexes is unnecessary and 

impracticable, the NEH will provide 

these indexes upon request at a cost not 

to exceed the direct cost of the 

duplication. 

(c) Many NEH records, including past 

awards, press releases, grant guidelines, 

and grant terms and conditions, are 

available on the NEH’s Web site at 

www.neh.gov. In addition, copies of the 

NEH’s policy statements, frequently 

requested records, and information 

about the NEH’s FOIA program are 

available in the NEH’s Electronic 

Reading Room. 

§ 1171.5 Requests for records. 

(a) How to make a request. Your FOIA 

request need not be in any particular 

format, but it must: 

(1) Be in writing; 

(2) Include your full name, mailing 

address, and daytime telephone 

number; 

(3) Include your email address if you 

choose to submit your request on the 

NEH Web site; 

(4) Be clearly identified as a FOIA 

request both in the text of the request 

and on the envelope (or on the facsimile 

or in the subject heading of an email 

message); and 

(5) Describe the requested records in 

enough detail to enable NEH staff to 

locate them with a reasonable amount of 

effort. Whenever possible, your request 

should include specific information 

about each record sought, such as the 

date, title or name, author, recipient, 

and subject matter of the record. The 

NEH has no obligation to answer 

questions posed as FOIA requests or to 

create, compile, or obtain a record to 

satisfy a FOIA request. 

(b) Agreement to pay fees. If you make 

a FOIA request, the NEH will consider 

it an agreement by you to pay all 

applicable fees charged under this part, 

up to and including the amount of 

$25.00, unless you seek a waiver or 

reduction of fees. When making a 

request, you may specify a willingness 

to pay a greater or lesser amount. 

(c) Where to send a request. (1) For 

NEH records (except NEH Office of the 

Inspector General records) and/or FCAH 

records, write to: The General Counsel, 

Office of the General Counsel, National 

Endowment for the Humanities, 1100 

Pennsylvania Ave. NW., Room 529, 

Washington, DC 20506. You may also 

send your request to the NEH General 

Counsel by facsimile at 202–606–8600, 

by email at gencounsel@neh.gov, or 

through the NEH’s electronic FOIA 


erowe on DSK2VPTVN1PROD with PROPOSALS-1
9656 Federal Register / Vol. 78, No. 28 / Monday, February 11, 2013 / Proposed Rules 

request system, which is available on 

the NEH Web site at www.neh.gov. 

(2) For NEH Office of the Inspector 

General records, write to: The Inspector 

General, Office of the Inspector General, 

National Endowment for the 

Humanities, 1100 Pennsylvania Ave. 

NW., Room 419, Washington, DC 20506. 

You may also send your request to the 

Inspector General by facsimile at 202– 

606–8329 or by email at oig@neh.gov. 

§ 1171.6 Responsibilities for processing 

and responding to requests. 

(a) Processing requests. The NEH 

Office of the General Counsel (OGC) is 

the central office for processing requests 

for records, except when it’s necessary 

for the NEH Office of Inspector General 

(OIG) to process a request to maintain 

the OIG’s independence or ability to 

carry out its statutorily mandated 

duties. If the request is for OIG records, 

the NEH will inform the requester 

which office will be processing the 

request. 

(b) Authority to grant or deny 

requests. The NEH General Counsel (or 

designee) is authorized to grant or deny 

requests for NEH records (excluding 

requests for OIG records), and/or FCAH 

records. The NEH Deputy Inspector 

General (or designee) is authorized to 

grant or deny requests for OIG records. 

The NEH General Counsel (or designee) 

is authorized to grant or deny requests 

on any fee matters and requests for 

expedited treatment, including OIGrelated requests. 

(c) Consultations and referrals. When 

the NEH receives a request for a record 

in its possession, the agency will 

determine whether another Federal 

government agency is better able to 

decide whether the record should or 

should not be disclosed under the FOIA. 

(1) If the NEH determines that it is the 

agency best able to process the record in 

response to the request, then it will do 

so, after consultation with the other 

agency that has a substantial interest in 

the requested records. 

(2) If the NEH determines that it is not 

the agency best able to process the 

record, then it will refer the record (or 

portion thereof) to the other Federal 

agency, but only if that agency is subject 

to the FOIA. 

(d) Notice of referral. Whenever the 

NEH refers all or any part of the 

responsibility for responding to a 

request to another agency, the NEH will 

notify the requester of the referral and 

of the name of each agency to which the 

NEH has referred the request. 

§ 1171.7 Timing of responses to requests. 

(a) In general. The NEH customarily 

will respond to requests according to 

their order of receipt. In determining 

which records are responsive to a 

request, the NEH will include only 

those records in its possession as of the 

date it begins its search for records. If 

any other date is used, the NEH will 

inform the requester of that date. 

(b) Timing for initial response. 

Ordinarily, the NEH will determine 

whether to grant or deny a request for 

records within twenty (20) days 

(weekends and Federal holidays 

excluded) of when the NEH receives a 

request. 

(c) Tolling of time limits. The NEH 

may toll the 20-day time period to: 

(1) Make one request for information 

it reasonably requests from the 

requester; or 

(2) Clarify the applicability or amount 

of any fees, if necessary, with the 

requester. 

(3) Under paragraphs (c)(1) or (2) of 

this section, the tolling period ends 

upon the NEH’s receipt of the 

information or clarification from the 

requester. 

(d) Unusual circumstances. (1) When 

the NEH cannot meet the statutory time 

limits for processing a request because 

of unusual circumstances as defined in 

the FOIA, the NEH may extend the 

response time as follows: 

(i) if the extension will be for ten (10) 

or less working days (i.e., weekends and 

Federal holidays excluded), the NEH 

will notify the requester as soon as 

practicable in writing of the unusual 

circumstances and the expected 

response date; and 

(ii) if the extension will be for more 

than ten (10) working days, the NEH 

will provide the requester with an 

opportunity either to modify the request 

so that it may be processed within the 

time limit or to arrange an alternative 

time period to process the request or a 

modified request. 

(2) If the NEH reasonably believes that 

multiple requests submitted by a 

requester, or a group of requesters acting 

in concert, constitute a single request 

that would otherwise involve unusual 

circumstances, and the requests involve 

clearly related matters, the NEH may 

aggregate the requests. The NEH will not 

aggregate multiple requests involving 

unrelated matters. 

(e) Expedited processing. (1) The NEH 

will take requests and appeals out of 

order and give them expedited 

treatment whenever it determines that 

they involve: 

(i) circumstances in which the lack of 

expedited treatment could reasonably be 

expected to pose an imminent threat to 

the life or physical safety of an 

individual; or 

(ii) an urgency to inform the public 

about actual or alleged Federal 

government activity if the expedited 

processing request is made by a person 

primarily engaged in disseminating 

information. 

(2) A requester may seek expedited 

processing at the time of the requester’s 

initial request for records or at any later 

time. 

(3) To request expedited processing, a 

requester must submit a statement, 

certified to be true and correct to the 

requester’s best knowledge and belief, 

explaining in detail the basis for 

requesting expedited processing. 

(4) Within ten (10) calendar days of 

receipt of a request for expedited 

processing, the NEH will decide 

whether to grant it and will notify the 

requester of the decision. If the NEH 

grants a request for expedited 

processing, the NEH will give the 

request priority and will process the 

request as soon as practicable. If the 

NEH denies a request for expedited 

processing, the NEH will act upon any 

appeal of that decision expeditiously. 

§ 1171.8 Responses to requests. 

(a) Acknowledgment of requests. 

Upon receipt of a request that will take 

longer than ten (10) days to process, the 

NEH will send the requester an 

acknowledgment letter that assigns the 

request an individualized tracking 

number. 

(b) Grants of requests. If the NEH 

makes a determination to grant a request 

in whole or in part, it will notify the 

requester in writing. The NEH will 

inform the requester of any applicable 

fees and will disclose records to the 

requester promptly on payment of any 

applicable fees. The NEH will mark or 

annotate records disclosed in part to 

show the amount of information deleted 

pursuant to a FOIA exemption, unless 

doing so would harm an interest 

protected by an applicable FOIA 

exemption. If technically feasible, the 

NEH will also indicate, on the agency 

record(s) it provides, the location of the 

information deleted. 

(c) Denials of requests. If the NEH 

makes a determination to deny a request 

in any respect, the NEH will also notify 

the requester in writing of: (1) the name 

and title or position of the person 

responsible for the denial; (2) a brief 

statement of the reason(s) for the denial, 

including any FOIA exemption applied 

by the NEH in denying the request; (3) 

an estimate of the volume of records or 

information withheld, if applicable. 

This estimate need not be provided if 

the volume is otherwise indicated 

through deletion on the records 

disclosed in part, or if providing an 


erowe on DSK2VPTVN1PROD with PROPOSALS-1
Federal Register / Vol. 78, No. 28 / Monday, February 11, 2013 / Proposed Rules 9657 

estimate would harm an interest 

protected by an applicable exemption; 

(4) a statement that the requester may 

appeal the denial under § 1171.10 and a 

description of the requirements to 

appeal. 

§ 1171.9 Confidential commercial 

information. 

(a) In general. The NEH will not 

disclose confidential commercial 

information in response to a FOIA 

request, except as described in this 

section. 

(b) Definitions. For purposes of this 

section: 

(1) Confidential commercial 

information means commercial or 

financial information obtained by the 

NEH from a submitter that may be 

protected from disclosure under 

Exemption 4 of the FOIA. 

(2) Submitter means any person or 

entity from whom the NEH obtains 

confidential commercial information, 

directly or indirectly. The term includes 

corporations; state, local, and tribal 

governments; and foreign governments. 

(c) Designation of confidential 

commercial information. A submitter of 

confidential commercial information 

will use good-faith efforts to designate 

by appropriate markings, either at the 

time of submission or at a reasonable 

time thereafter, any portions of its 

submission that it considers to be 

protected from disclosure under 

Exemption 4. These designations will 

expire ten years after the date of the 

submission unless the submitter 

requests, and provides justification for, 

a longer designation period. 

(d) When notice to submitters is 

required. 

(1) The NEH will give notice to a 

submitter whenever: (i) The submitter, 

in good faith, has designated the 

requested information as information 

considered protected from disclosure 

under Exemption 4; or 

(ii) The NEH has reason to believe 

that the information may be protected 

from disclosure under Exemption 4. 

(2) The notice will either describe the 

confidential commercial information 

requested or include copies of the 

requested records or record portions 

containing the information. In cases 

involving a voluminous number of 

submitters, the NEH may make notice 

by posting or publishing the notice in a 

place reasonably likely to accomplish it. 

(e) Exceptions to submitter notice 

requirements. The notice requirements 

of this section will not apply if: 

(1) The NEH determines that the 

requested information is exempt under 

the FOIA; 

(2) The information lawfully has been 

published or has been officially made 

available to the public; 

(3) Disclosure of the information is 

required by statute (other than the 

FOIA) or by a regulation issued in 

accordance with the requirements of 

Executive Order 12600 of June 23, 1987; 

or 

(4) The designation made by the 

submitter under paragraph (c) of this 

section appears obviously frivolous, 

except that, in such a case, the NEH 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. 

(f) Opportunity to object to disclosure. 

(1) The NEH will specify a reasonable 

time period within which the submitter 

must respond to the notice described in 

paragraph (d)(2) of this section. If a 

submitter has any objection to 

disclosure, it must submit a detailed 

written statement to the NEH specifying 

all grounds for withholding any portion 

of the information under any exemption 

of the FOIA. If the submitter relies on 

Exemption 4 as a basis of nondisclosure, 

the submitter must explain why the 

information constitutes a trade secret, or 

commercial or financial information 

that is privileged or confidential. 

(2) The NEH will consider a submitter 

who fails to respond with the time 

period specified on the notice to have 

no objection to disclosure of the 

information. The NEH will not consider 

information it receives from a submitter 

after the date of any disclosure decision. 

Any information provided by a 

submitter under this section may itself 

be subject to disclosure under the FOIA. 

(g) Notice of intent to disclose. The 

NEH will consider a submitter’s 

objections and specific grounds for 

nondisclosure in deciding whether to 

disclose confidential commercial 

information. Whenever the NEH decides 

to disclose confidential commercial 

information over the objection of a 

submitter, the NEH will provide the 

submitter written notice, which will 

include: 

(1) A statement of the reason(s) why 

each of the submitter’s disclosure 

objections was not sustained; 

(2) A description of the business 

information to be disclosed; and 

(3) A specified disclosure date, which 

will be a reasonable time after the 

notice. 

(h) Notice of FOIA lawsuit. Whenever 

a requester files a lawsuit seeking to 

compel the disclosure of confidential 

commercial information, the NEH will 

promptly notify the submitter. 

(i) Requester notification. The NEH 

will notify the requester whenever the 

NEH provides the submitter with notice 

and an opportunity to object to 

disclosure; whenever the NEH 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. 

§ 1171.10 Administrative appeals. 

(a) Appeals of denials. You may 

appeal a denial of your request for NEH 

records (except NEH OIG records) and/ 

or FCAH records to The Deputy 

Chairman, National Endowment for the 

Humanities, 1100 Pennsylvania Ave. 

NW., Room 503, Washington, DC 20506. 

For a denial of your request for OIG 

records, you may appeal to The 

Inspector General, National Endowment 

for the Humanities, 1100 Pennsylvania 

Ave. NW., Room 419, Washington DC 

20506. You must make your appeal in 

writing no later than ten (10) days 

following the date that you receive the 

letter denying your request (weekends 

and Federal holidays excluded). Your 

appeal letter must clearly identify the 

NEH decision that you are appealing 

and contain the assigned tracking 

number. You should clearly mark your 

appeal letter and envelope ‘‘Freedom of 

Information Act Appeal.’’ 

(b) Responses to appeals. The Deputy 

Chairman (or designee) or the Inspector 

General (or designee) will make a 

written determination on your appeal 

within twenty (20) days (weekends and 

Federal holidays excluded) after the 

agency receives your appeal. If the 

appeal decision affirms the denial of 

your request, the NEH will notify you in 

writing of the reason(s) for the decision, 

including the applicable FOIA 

exemption(s), and inform you of the 

FOIA provisions for court review of the 

decision. If the denial of your request is 

reversed or modified, in whole or in 

part, the NEH will reprocess your 

request in accordance with that appeal 

decision and notify you of that decision 

in writing. 

(c) When appeal is required. If you 

wish to seek review by a court of any 

denial by the NEH, you must first 

submit a timely administrative appeal to 

the NEH. 

§ 1171.11 Fees. 

(a) In general. The NEH will assess 

fees for processing FOIA requests in 

accordance with this section and with 

the Uniform Freedom of Information 

Fee Schedule and Guidelines published 

by the Office of Management and 

Budget at 52 FR 10012 (Mar. 27, 1987). 

In order to resolve any fee issues that 

arise under this section, the NEH may 


erowe on DSK2VPTVN1PROD with PROPOSALS-1
9658 Federal Register / Vol. 78, No. 28 / Monday, February 11, 2013 / Proposed Rules 

contact a requester for additional 

information. The NEH ordinarily will 

collect all applicable fees before sending 

copies of records to a requester. 

Requesters must pay fees by check or 

money order made payable to the 

Treasury of the United States. 

(b) Definitions. For purposes of this 

section: 

(1) Commercial use request means a 

request from or on behalf of a person 

who seeks information for a use or 

purpose that furthers his or her 

commercial, trade, or profit interest, 

which can include furthering those 

interests through litigation. When it 

appears that the requester will put the 

records to a commercial use, either 

because of the nature of the request 

itself or because the NEH has reasonable 

cause to doubt a requester’s stated use, 

the NEH will provide the requester a 

reasonable opportunity to submit 

further clarification. 

(2) Direct costs means those expenses 

that an agency actually incurs in 

searching for and duplicating (and, in 

the case of commercial use requests, 

reviewing) records to respond to a FOIA 

request. Direct costs include, for 

example, the salary of the employee 

performing the work (the basic rate of 

pay for the employee, plus 16 percent of 

that rate to cover benefits) and the cost 

of operating duplication machinery. Not 

included in direct costs are overhead 

expenses such as the costs of space and 

heating or lighting of the facility in 

which the records are kept. 

(3) Duplication means the making of 

a copy of a record, or of the information 

contained in it, necessary to respond to 

a FOIA request. Copies can take the 

form of paper, microform, audiovisual 

materials, or electronic records among 

others. 

(4) Educational institution means any 

school that operates a program of 

scholarly research. A requester in this 

category must show that the request is 

authorized by and made under the 

auspices of a qualifying institution and 

that the records are not sought for a 

commercial use, but are sought to 

further scholarly research. 

(5) Noncommercial scientific 

institution means an institution that is 

not operated on a ‘‘commercial’’ basis, 

as defined in paragraph (b)(1) above, 

and that is operated solely for the 

purpose of conducting scientific 

research, the results of which are not 

intended to promote any particular 

product or industry. A requester in this 

category must show that the request is 

authorized by and made under the 

auspices of a qualifying institution and 

that the records are not sought for a 

commercial use or to promote any 

particular product or industry, but are 

sought to further scientific research. 

(6) Representative of the news media 

means any person or entity that gathers 

information of potential interest to a 

segment of the public, uses its editorial 

skills to turn the raw materials into a 

distinct work, and distributes that work 

to an audience. The term ‘‘news’’ means 

information that is about current events 

or that would be of current interest to 

the public. Examples of news-media 

entities include television or radio 

stations broadcasting to the public at 

large, and publishers of periodicals (but 

only if such entities qualify as 

disseminators of ‘‘news’’) who make 

their products available for purchase or 

by subscription or by free distribution to 

the general public. The NEH will regard 

‘‘freelance’’ journalists as working for a 

news-media organization if they 

demonstrate a solid basis for expecting 

publication though that organization. A 

publication contract would provide the 

clearest evidence, but the NEH will also 

consider a requester’s past publication 

record in making this determination. 

(7) Review means the process of 

examining a record located in response 

to a request in order to determine 

whether any portion of it is exempt from 

disclosure. Review includes processing 

any record for disclosure, such as doing 

all that is necessary to redact it and 

prepare it for disclosure. It also includes 

time spent both obtaining and 

considering any formal objection to 

disclosure made by a confidential 

commercial information submitter 

under § 1171.9 of this part, but it does 

not include time spent resolving general 

legal or policy issues regarding the 

application of exemptions. Review costs 

are recoverable even if the NEH 

ultimately does not disclose a record. 

(8) 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 the reasonable efforts 

expended to locate and retrieve 

information from electronic records. 

The NEH will ensure that searches are 

done in the most efficient and least 

expensive manner reasonably possible. 

(c) Fee Schedule. In responding to 

FOIA requests, the NEH will charge the 

following fees for requests, subject to 

paragraphs (d), (e), and (f) of this 

section: 

(1) Search. (i) The NEH will charge 

$4.00 for each quarter hour spent by 

clerical personnel in searching for and 

retrieving a requested record. When 

clerical personnel cannot perform the 

search and retrieval (e.g. identification 

of records within scope of request 

requires professional personnel), the 

NEH will charge $7.00 for each quarter 

hour of search time spent by 

professional personnel. Where the time 

of managerial personnel is required, the 

fee will be $10.00 for each quarter hour 

of time spent by those personnel. The 

NEH may charge for time spent 

searching even if it does not locate any 

responsive records or if it determines 

that the records are entirely exempt 

from disclosure. 

(ii) For computer searches of records, 

the NEH will charge the actual direct 

cost of conducting the search. This 

includes the cost of operating the 

central processing unit for the portion of 

operating time that is directly attributed 

to searching for the records responsive 

to a FOIA request and the operator/ 

programmer salary apportionable to the 

search. 

(2) Duplication. The fee for a 

photocopy of a record on one-side of an 

81⁄2 x 11 inch sheet of paper is ten cents 

per page. For copies of records 

produced on tapes, disks, or other 

electronic media, the NEH will charge 

the direct costs of producing the copy, 

including operator time. For other forms 

of duplication, the NEH will charge the 

direct costs of that duplication. The 

NEH will honor a requester’s preference 

for receiving a record in a particular 

form or format where it is readily 

reproducible by the NEH in the form or 

format requested. 

(3) Review. The NEH will charge 

review fees to requesters who make a 

commercial use request. Review fees 

will be charged only for the initial 

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

conducted to determine whether an 

exemption applies to a particular record 

or record portion at the initial request 

stage). No charge will be made for 

review at the administrative appeal 

stage for exemptions applied at the 

initial review stage. However, if the 

NEH re-reviews the records for the 

applicability of other exemptions that it 

did not previously consider, then the 

costs for the subsequent review are 

assessable. Review fees will be charged 

at the same rates as those charged for a 

search under paragraph (c)(1)(i). The 

NEH may charge for review even if it 

ultimately decides not to disclose a 

record. 

(d) Limitations on charging 

requesters. (1) Except for requesters 

seeking records for commercial use, the 

NEH will provide without charge: (i) 

The first 100 pages of duplication (or 

the cost equivalent); and (ii) The first 

two hours of search (or the cost 

equivalent). 

(2) When, after first deducting the 100 

pages (or its cost equivalent) and the 


erowe on DSK2VPTVN1PROD with PROPOSALS-1
Federal Register / Vol. 78, No. 28 / Monday, February 11, 2013 / Proposed Rules 9659 

first two hours of search, the total fee is 

$14.00 or less for any request, the NEH 

will not charge a fee. 

(e) 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 

NEH will assess fees for these categories 

of requesters as follows: 

(1) Commercial use requesters. The 

NEH will charge the full direct costs for 

searching for, reviewing, and 

duplicating requested records. 

(2) Educational and non-commercial 

scientific institution requesters. The 

NEH will charge for duplication only, 

excluding costs for the first 100 pages. 

(3) News media requesters. The NEH 

will charge for duplication only, 

excluding costs for the first 100 pages. 

(4) All other requesters. The NEH will 

charge requesters who do not fit into 

any of the categories above the full 

reasonable direct cost of searching for 

and reproducing records, excluding 

costs for the first 100 pages and the first 

two hours of search time. 

(f) Requirements for fee waivers or 

reduction of fees. 

(1) The NEH will furnish responsive 

records without charge or at a reduced 

charge if it determines, based on all 

available information, that the requester 

has demonstrated that: 

(i) 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 

(ii) Disclosure of the information is 

not primarily in the commercial interest 

of the requester. 

(2) To determine whether the first fee 

requirement is met, the NEH will 

consider the following factors: 

(i) The subject of the requested 

records must concern identifiable 

operations or activities of the Federal 

government, with a connection that is 

direct and clear, not remote or 

attenuated. 

(ii) The disclosable portions of the 

requested records must be meaningfully 

informative about government 

operations or activities in order to be 

‘‘likely to contribute’’ to an increased 

public understanding of those 

operations or activities. Disclosure of 

information already in the public 

domain, in either duplicative or 

substantially identical form, is unlikely 

to contribute to such understanding 

where nothing new would be added to 

the public’s understanding. 

(iii) 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 his or her ability and 

intention to effectively convey 

information to the public will be 

considered. It will ordinarily be 

presumed that a representative of the 

news media satisfies this consideration. 

(iv) The public’s understanding of the 

subject in question must be enhanced by 

the disclosure to a significant extent. 

The NEH will make no value judgments 

about whether the information at issue 

is ‘‘important’’ enough to be made 

public. 

(3) To determine whether the second 

fee waiver requirement is met, the NEH 

will consider the following factors: 

(i) The NEH will identify any 

commercial interest of the requester, as 

defined in paragraph (b)(1) of this 

section, that would be furthered by the 

requested disclosure. Requesters will be 

given an opportunity to provide 

explanatory information regarding this 

consideration. 

(ii) A fee waiver or reduction is 

justified where the public interest is 

greater than any identified commercial 

interest in disclosure. 

(4) Where only some of the requested 

records satisfy the requirements for a fee 

waiver, a waiver will be granted for 

those records. 

(5) Requesters should make fee waiver 

or reduction requests when they first 

submit a FOIA request to the NEH. Fee 

waiver or reduction requests should 

address the factors listed in (f)(2) and (3) 

above. Fee waiver or reduction requests 

may be submitted at a later time so long 

as the underlying record request is 

pending or on administrative appeal. 

(g) Notice of anticipated fees in excess 

of $25.00. (1) When the NEH determines 

or estimates that the fees to be charged 

under this section will exceed $25.00, it 

will notify the requester of the actual or 

estimated fees, unless the requester has 

indicated a willingness to pay fees as 

high as those anticipated. If the NEH 

can only readily estimate a portion of 

the fees, it will advise the requester that 

the estimated fee may be only a portion 

of the total fee. 

(2) The notice will offer the requester 

an opportunity to confer with NEH 

personnel in order to reformulate the 

request to meet the requester’s needs at 

a lower cost. A commitment by the 

requester to pay the anticipated fee must 

be in writing and must be received by 

the NEH within thirty (30) calendar 

days from the date of notification of the 

fee estimate. Until the requester agrees 

to pay the anticipated fee, the NEH will 

not consider the request as received by 

the agency and no further work will be 

done on the request. If a requester fails 

to respond within this timeframe, the 

NEH will administratively close the 

request. 

(h) Charges for other services. When 

the NEH chooses, in its sole discretion, 

to provide a requested special service 

(e.g. certifying that records are true 

copies or sending them by other than 

ordinary mail), it will charge the direct 

costs of providing the service to the 

requester. 

(i) Charging interest. The NEH may 

charge interest on any unpaid bill 

starting on the 31st day following the 

date of billing the requester. The NEH 

will assess interest charges at the rate 

provided in 31 U.S.C. 3717 and such 

charges will accrue from the billing date 

until the NEH receives payment from 

the requester. The NEH will follow the 

provisions of the Debt Collection Act of 

1982 (Pub. L. 97–365, 96 Stat. 1749), as 

amended, and its administrative 

procedures, including the use of 

consumer reporting agencies, collection 

agencies, and offset. 

(j) Advance payment. (1) For requests 

other than those described in 

paragraphs (j)(2) and (3) of this section, 

the NEH will not require the requester 

to make an advance payment before it 

commences or continues work on a 

request. Payment owed for work already 

completed (i.e., payment before copies 

are sent to a requester) is not an advance 

payment. 

(2) When the NEH determines or 

estimates that a total fee to be charged 

under this section will be more than 

$250.00, it may require the requester to 

make an advance payment of an amount 

up to the amount of the entire 

anticipated fee before beginning to 

process the request, except where it 

receives a satisfactory assurance of full 

payment from a requester that has a 

history of prompt payment. 

(3) When a requester has previously 

failed to pay a properly charged fee to 

the NEH within thirty (30) days of the 

billing date, the NEH may require the 

requester to pay the full amount due, 

plus any applicable interest, and to 

make an advance payment of the full 

amount of any anticipated fee, before 

the NEH begins to process a new request 

or continues to process a pending 

request from that requester. 

(4) When there is an advance payment 

request, the NEH will not consider the 

request as received by the agency and 

no further work will be done on the 

request until the required payment is 

received. If the requester fails to 

respond within thirty (30) calendar days 

after the date of the advance payment 


erowe on DSK2VPTVN1PROD with PROPOSALS-1
9660 Federal Register / Vol. 78, No. 28 / Monday, February 11, 2013 / Proposed Rules 

request, the NEH will administratively 

close the request. 

(k) Aggregating requests. When the 

NEH reasonably believes that a 

requester or a group of requesters acting 

together is attempting to divide a 

request into a series of requests for the 

purpose of avoiding fees, the NEH may 

aggregate those requests and charge 

accordingly. The NEH may presume that 

multiple requests of this type made 

within a 30-day period have been made 

in order to avoid fees. For requests 

separated by a longer period, the NEH 

will aggregate them only when there is 

a reasonable basis for determining that 

aggregation is warranted in view of all 

the circumstances involved. The NEH 

will not aggregate multiple requests 

involving unrelated matters. 

§ 1171.12 Other Rights and Services. 

Nothing in this part will be construed 

to entitle any person, as of right, to any 

service or to the disclosure of any record 

to which such person is not entitled 

under the FOIA. 

Michael P. McDonald, 

General Counsel. 

[FR Doc. 2013–01746 Filed 2–8–13; 8:45 am] 

BILLING CODE 7536–01–P 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 300 

[Docket No. 130123063–3063–01] 

RIN 0648–BC75 

Pacific Halibut Fisheries; Catch 

Sharing Plan 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Proposed rule. 

SUMMARY: NMFS proposes to approve 

and implement changes to the Pacific 

Halibut Catch Sharing Plan (Plan) for 

the International Pacific Halibut 

Commission’s (IPHC or Commission) 

regulatory area off Washington, Oregon, 

and California (Area 2A). NMFS 

proposes to implement the portions of 

the Plan and management measures that 

are not implemented through the IPHC. 

These measures include the sport 

fishery allocations and management 

measures for Area 2A. These actions are 

intended to enhance the conservation of 

Pacific halibut, provide greater angler 

opportunity where available, and 

protect overfished groundfish species 

from being incidentally caught in the 

halibut fisheries. 

DATES: Comments on the proposed 

changes to the Plan and on the proposed 

domestic Area 2A halibut management 

measures must be received on February 

26, 2013. 

ADDRESSES: You may submit comments 

on this document, identified by NOAA– 

NMFS–2013–0015, by any of the 

following methods: 

• Electronic Submission: Submit all 

electronic public comments via the 

Federal e-Rulemaking Portal. Go to 

www.regulations.gov/ 

#!docketDetail;D=NOAA-NMFS-2013- 

0015, click the ‘‘Comment Now!’’ icon, 

complete the required fields, and enter 

or attach your comments. 

• Mail: Submit written comments to 

William Stelle, Regional Administrator, 

Northwest Region, NMFS, 7600 Sand 

Point Way NE., Seattle, WA 98115– 

0070. 

• Fax: 206–526–6736; Attn: Sarah 

Williams. 

Instructions: Comments sent by any 

other method, to any other address or 

individual, or received after the end of 

the comment period, may not be 

considered by NMFS. All comments 

received are a part of the public record 

and will generally be posted for public 

viewing on www.regulations.gov 

without change. All personal identifying 

information (e.g., name, address, etc.), 

confidential business information, or 

otherwise sensitive information 

submitted voluntarily by the sender will 

be publicly accessible. NMFS will 

accept anonymous comments (enter ‘‘N/ 

A’’ in the required fields if you wish to 

remain anonymous). Attachments to 

electronic comments will be accepted in 

Microsoft Word, Excel, or Adobe PDF 

file formats only. 

FOR FURTHER INFORMATION CONTACT: 

Sarah Williams, phone: 206–526–4646, 

fax: 206–526–6736, or email: 

sarah.williams@noaa.gov. 

SUPPLEMENTARY INFORMATION: 

Electronic Access 

This rule is accessible via the Internet 

at the Office of the Federal Register Web 

site at http://www.access.gpo.gov/ 

su_docs/aces/aces140.html. Background 

information and documents are 

available at the NMFS Northwest Region 

Web site at http://www.nwr.noaa.gov/ 

Groundfish-Halibut/Groundfish-FisheryManagement/index.cfm and at the 

Council’s Web site at http:// 

www.pcouncil.org. 

Background 

The Northern Pacific Halibut Act 

(Halibut Act) of 1982, 16 U.S.C. 773– 

773K, gives the Secretary of Commerce 

(Secretary) general responsibility for 

implementing the provisions of the 

Halibut Convention between the United 

States and Canada (Halibut Convention) 

(16 U.S.C. 773c). It requires the 

Secretary to adopt regulations as may be 

necessary to carry out the purposes and 

objectives of the Halibut Convention 

and the Halibut Act. Section 773c of the 

Halibut Act also authorizes the regional 

fishery management councils to develop 

regulations in addition to, but not in 

conflict with, regulations of the IPHC to 

govern the Pacific halibut catch in their 

corresponding U.S. Convention waters. 

Each year between 1988 and 1995, the 

Pacific Fishery Management Council 

(Council) developed a catch sharing 

plan in accordance with the Halibut Act 

to allocate the total allowable catch 

(TAC) of Pacific halibut between treaty 

Indian and non-treaty harvesters and 

among non-treaty commercial and sport 

fisheries in Area 2A. 

In 1995, NMFS implemented the longterm Plan recommended by the Pacific 

Council (60 FR 14651, March 20, 1995, 

as amended by 61 FR 35548). In each of 

the intervening years between 1995 and 

the present, minor revisions to the Plan 

have been made to adjust for the 

changing needs of the fisheries, in 

accordance with 50 CFR 300.62. These 

revisions are not codified. The Plan 

allocates 35 percent of the Area 2A 

Pacific halibut TAC to Washington 

treaty Indian tribes in Subarea 2A–1, 

and 65 percent of the Area 2A TAC to 

non-tribal fisheries. 

The TAC allocation to non-tribal 

fisheries is divided into three shares, 

with the Washington sport fishery 

(north of the Columbia River) receiving 

36.6 percent, the Oregon/California 

sport fishery receiving 31.7 percent, and 

the commercial fishery receiving 31.7 

percent. The commercial fishery is 

further divided into a directed 

commercial fishery that is allocated 85 

percent of the commercial allocation of 

Pacific halibut TAC, and an incidental 

catch in the salmon troll fishery that is 

allocated 15 percent of the commercial 

allocation. The directed commercial 

fishery in Area 2A is confined to 

southern Washington (south of 

46°53.30′ N. lat.), Oregon, and 

California. North of 46°53.30′ N. lat. (Pt. 

Chehalis), the Plan allows for incidental 

halibut retention in the sablefish 

primary fishery when the overall Area 

2A TAC is above 900,000 lb (408.2 mt). 

The Plan also divides the sport fisheries 

into six geographic subareas, each with 

separate allocations, seasons, and bag 

limits. 

This proposed rule describes catch 

limit information presented at the 


erowe on DSK2VPTVN1PROD with PROPOSALS-1