Federal Register / Vol. 79, No. 33 / Wednesday, February 19, 2014 / Rules and Regulations 9421 

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 Preservation of records. 

NEH will preserve all correspondence 

pertaining to the requests that it receives 

as well as copies of all requested 

records, until disposition or destruction 

is authorized by the agency’s General 

Records Schedule of the National 

Archives and Records Administration 

(NARA) or other NARA-approved 

records schedule. Records will not be 

disposed of while they are the subject of 

a pending request, appeal, or lawsuit 

under the Act. 

§ 1171.13 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. 2014–03549 Filed 2–18–14; 8:45 am] 

BILLING CODE 7536–01–P 

NATIONAL FOUNDATION ON THE 

ARTS AND THE HUMANITIES 

Institute of Museum and Library 

Services 

45 CFR Part 1184 

RIN 3137–AA22 

Implementing the Freedom of 

Information Act 

AGENCY: Institute of Museum and 

Library Services (IMLS), NFAH. 

ACTION: Final rule. 

SUMMARY: IMLS issues this final rule to 

implement the Freedom of Information 

Act (FOIA), as amended. The 

regulations both describe how IMLS 

processes requests for records under 

FOIA and reaffirm the agency’s 

commitment to providing the fullest 

possible disclosure of records to the 

public. The agency is implementing the 

regulations to replace its existing joint 

regulations as part of the National 

Foundation on the Arts and the 

Humanities, and to update, clarify, and 

streamline the language of several 

procedural provisions, while 

incorporating changes brought about by 

amendments to the FOIA. 

DATES: Effective Date: March 21, 2014. 

FOR FURTHER INFORMATION CONTACT: 

Nancy E. Weiss, General Counsel, 

Institute of Museum and Library 

Services, 1800 M Street NW., 9th Floor, 

Washington, DC 20036. Email: nweiss@

imls.gov. Telephone: (202) 653–4787. 

Facsimile: (202) 653–4625. 

SUPPLEMENTARY INFORMATION: IMLS 

operates as part of the National 

Foundation on the Arts and the 

Humanities under the National 

Foundation on the Arts and Humanities 

Act of 1965, as amended (20 U.S.C. 951 

et seq.). The corresponding regulations 

published at 45 CFR Chapter XI, 

Subchapter A apply to the entire 

Foundation, while the regulations 

published at 45 CFR Chapter XI, 

Subchapter E apply only to the institute. 

This final rule implements IMLS’ 

FOIA regulations in Subchapter E (45 

CFR part 1184), replacing the existing 

regulations in Subchapter A (45 CFR 

part 1100) with regard to IMLS. The 

final rule provides additional detail 

concerning several provisions of the 

Freedom of Information Act, and is 

intended to increase understanding of 

IMLS’ FOIA policies. IMLS is 

authorized to issue these regulations 

under 5 U.S.C. 552. 

I. Why We’re Publishing This Rule and 

What It Does 

A. Introduction 

The Institute of Museum and Library 

Services (IMLS) is adopting regulations 

to implement the Freedom of 

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

amended. FOIA requires Federal 

agencies to make official documents and 

other records available to the public 

upon request, unless the material 

requested falls under one of several 

statutorily prescribed exemptions. FOIA 

also requires agencies to publish rules 

stating the time, place, fees, and 

procedures to apply in making such 

records available. Further, Section 1803 

of the Freedom of Information Reform 

Act of 1986 requires each agency to 

establish a system for recovering costs 

associated with responding to requests 

for information under FOIA. The Office 

of Management and Budget (OMB) has 

issued guidelines that set standard 

government-wide definitions for 

assessing and collecting FOIA fees 

(OMB Fee Guidelines). These 

regulations describe the ways in which 

records may be requested by the public, 

and explain how IMLS will respond to 

such requests and assess fees in 

connection with the agency’s response. 

The regulations also incorporate the 

policies expressed in the President’s 

January 21, 2009, Executive 

Memorandum on the Freedom of 

Information Act, and the Attorney 

General’s March 19, 2009, 

Memorandum for Heads of Executive 

Departments and Agencies. These 

policies, however, do not create any 

legally enforceable rights. 

By implementing the provisions of the 

January 21, 2009, Executive 

Memorandum and Attorney General 

Holder’s March 19, 2009, Memorandum 

to the Heads of Executive Departments 

and Agencies, these regulations will 

improve IMLS’s FOIA-related service 

and performance, thereby strengthening 

the agency’s compliance with the law. 

On April 16, 2013, IMLS published a 

proposed rule in the Federal Register 

(78 FR 22501) and requested public 

comments on the proposed rule. 

B. Discussion of Comments 

The comment period ended on May 

16, 2013, and IMLS received comments 

from one commenter. This section of the 

preamble discusses issues raised in the 

comments. 

Expand Online Disclosures 

The commenter suggested that IMLS 

revise the regulations to more fully 

embrace the use of online disclosure for 

public information under FOIA, 

including recommendations to: (1) 

Adopt a policy to establish categories of 

records that can be disclosed regularly 

and posted on the IMLS Web site; (2) to 

proactively identify and disclose 

additional records of interest to the 

public; (3) to publish all records 

released in response to FOIA requests; 

and (4) to publish online indexes of 

information made available under FOIA. 

IMLS has carefully considered these 

suggestions, and adopts the 

recommendations to adopt a policy to 

establish categories of records that can 

be disclosed regularly and to proactively 

identify and disclose additional records 

of interest to the public. IMLS is 

committed to continuing to find new 

ways of proactively disclosing records 

to the public, the agency declines to 

adopt the other recommendations into 

its regulations, because it believes the 

final rule provides the agency with the 

necessary flexibility to adopt innovative 

ways of providing useful information. 

Improve the Acknowledgment of 

Requests 

The commenter suggested that IMLS 

revise the regulations to adopt a policy 

to acknowledge requests as soon as 

practicable, and to provide information 

about the agency’s FOIA Public Liaison. 

IMLS agrees and adopts these 

recommendations in the final rule. 


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Clarify Fees and Fee Waivers 

The commenter suggested that IMLS 

maintain a database of fee waivers 

granted by the agency to consult for 

future waiver requests, and revise the 

regulations to provide that it will not 

charge a fee if the total fee is $50 or less. 

IMLS has carefully considered these 

suggestions, but declines to adopt them. 

IMLS declines to adopt the first 

suggestion into its regulations, because 

the agency believes the final rule 

ensures consistent agency practice with 

regard to fee waivers. With regard to the 

second suggestion, both the proposed 

and final rule reflect IMLS’s policy 

decision to not charge a fee if the total 

fee is $25 or less. 

Improve Communication With the 

Requester 

The commenter suggested that IMLS 

improve communication with FOIA 

requesters by: (1) Adopting a policy that 

the agency will contact the requester to 

seek clarification if the agency is 

unclear as to the scope of the request; 

(2) providing an estimated time to 

complete the request and opportunities 

to reformulate; (3) informing requesters 

of status updates; (4) communicating 

with requesters by email where 

appropriate; (5) using plain language in 

all communications with requesters; 

and (6) notifying requesters when 

requests are referred. After careful 

consideration of these suggestions, 

IMLS has revised the final rule to clarify 

that IMLS will provide requesters with 

a tracking number and as appropriate, a 

brief description of the request, and 

relevant IMLS contact information. The 

final rule also has been revised to reflect 

that IMLS will communicate with 

requesters to clarify the scope of the 

request in the event of uncertainty and 

that the agency will notify requesters 

when a request is referred to another 

agency. IMLS notes that the final rule 

allows for the agency to communicate, 

where appropriate, with requesters by 

email, and that the agency is governed 

by the Plain Writing Act of 2010, which 

directs agencies to use plain language 

when communicating. 

Apply the Presumption of Openness 

The commenter suggested that the 

agency revise the rule to reflect a 

presumption of openness. IMLS agrees 

and the final rule has been revised to 

adopt this suggestion. 

Improve Administrative Appeals 

The commenter suggested that IMLS 

revise the proposed rule to: (1) Clarify 

that requesters may submit 

administrative appeals electronically; 

(2) notify requesters of dispute 

resolution services in appeal 

determinations; and (3) provide a 

minimum of 60 days for requesters to 

submit administrative appeals. 

IMLS has carefully considered these 

suggestions, and adopts the 

recommendations that the rule be 

revised to: (1) Clarify that requesters 

may submit appeals electronically; and 

(2) notify requesters of dispute 

resolution services in appeal 

determinations. IMLS declines to adopt 

the recommendation to extend the 

period of time available for a requester 

to submit an appeal to 60 days. The 

agency believes the final rule, which 

provides the requester with 30 days to 

file an administrative appeal, allows for 

sufficient time for a requester to gather 

all the facts relevant to the request and 

prepare any arguments they may wish to 

make in their appeal. 

Provide Information About Dispute 

Resolution Services 

The commenter suggested that IMLS 

revise the proposed rule to add a new 

subsection describing how requesters 

can resolve disputes with regard to their 

request. IMLS agrees and the final rule 

has been revised to adopt this 

suggestion. 

Consultation With the National 

Archives and Records Administration 

The National Archives and Records 

Administration’s Office of Government 

Information Services (OGIS) reviewed 

IMLS’s proposed regulations and made 

recommendations, which IMLS took 

into account in drafting this final rule. 

II. Compliance With Laws and 

Executive Orders 

Regulatory Planning and Review 

(Executive Orders 12866 and 13563) 

Executive Order 12866 provides that 

the Office of Information and Regulatory 

Affairs will review all significant rules. 

The Office of Information and 

Regulatory Affairs has determined that 

this rule is not significant. 

Executive Order 13563 reaffirms the 

principles of E.O. 12866 while calling 

for improvements in the nation’s 

regulatory system to promote 

predictability, to reduce uncertainty, 

and to use the best, most innovative, 

and least burdensome tools for 

achieving regulatory ends. The 

executive order directs agencies to 

consider regulatory approaches that 

reduce burdens and maintain flexibility 

and freedom of choice for the public 

where these approaches are relevant, 

feasible, and consistent with regulatory 

objectives. E.O. 13563 emphasizes 

further that regulations must be based 

on the best available science and that 

the rulemaking process must allow for 

public participation and an open 

exchange of ideas. We have developed 

this rule in a manner consistent with 

these requirements. 

Paperwork Reduction Act 

IMLS has determined that the 

Paperwork Reduction Act, 44 U.S.C. 

3501 et seq., does not apply because 

these regulations do not contain any 

information collection requirements 

subject to approval by OMB. 

Civil Justice Reform (Executive Order 

12988) 

These regulations meet the applicable 

standards set forth in Executive Order 

12988, Civil Justice Reform. 

Federalism (Executive Order 13132) 

These regulations will not have 

substantial direct effects on the States, 

on the relationship between the national 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government. Therefore, in 

accordance with Executive Order 13132, 

IMLS has determined that these 

regulations do not have sufficient 

federalism implications to warrant the 

preparation of a federalism summary 

impact statement. 

Regulatory Flexibility Act 

IMLS, in accordance with the 

Regulatory Flexibility Act, 5 U.S.C. 

605(b), has reviewed these regulations 

and certifies that they will not have a 

significant economic impact on a 

substantial number of small entities 

because they pertain to administrative 

matters affecting the agency. 

Unfunded Mandates Reform Act of 1995 

These regulations will not result in 

the expenditure by State, local, and 

tribal governments, in the aggregate, or 

by the private sector, of $100 million or 

more in any one year, and it will not 

significantly or uniquely affect small 

governments. Therefore, no actions are 

necessary under the provisions of the 

Unfunded Mandates Reform Act of 

1995, 2 U.S.C. 1501, et seq. 

Small Business Regulatory Enforcement 

Fairness Act of 1996 

These regulations are not major 

regulations as defined by section 251 of 

the Small Business Regulatory 

Enforcement Fairness Act of 1996, 5 

U.S.C. 804. They will not result in an 

annual effect on the economy of $100 

million or more, a major increase in 

costs or prices, or significant adverse 

effects on competition, employment, 


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investment, productivity, innovation, or 

the ability of United States-based 

enterprises to compete with foreignbased enterprises in domestic and 

export markets. 

National Environmental Policy Act of 

1969 

IMLS has reviewed this action for 

purposes of the National Environmental 

Policy Act of 1969 (NEPA), 42 U.S.C. 

4321–4347, and has determined that 

this action will not have a significant 

effect on the human environment. 

Takings (E.O. 21630) 

In accordance with Executive Order 

12630, the rule does not have significant 

takings implications. A takings 

implication assessment is not required. 

Consultation With Indian Tribes (E.O. 

13175) 

Under the criteria in Executive Order 

13175, we have evaluated this rule and 

determined that it has no potential 

effects on federally recognized Indian 

tribes. This rule does not have tribal 

implications that impose substantial 

direct compliance costs on Indian Tribal 

governments. 

Effects on the Energy Supply (E.O. 

13211) 

This rule is not a significant energy 

action under the definition in Executive 

Order 13211. A Statement of Energy 

Effects is not required. This rule will not 

have a significant effect on the nation’s 

energy supply, distribution, or use. 

Clarity of This Regulation 

We are required by Executive Orders 

12866 and 12988 and by the 

Presidential Memorandum of June 1, 

1998, to write all rules in plain 

language. This means that each rule we 

publish must: (a) Be logically organized; 

(b) use the active voice to address 

readers directly; (c) use clear language 

rather than jargon; (d) be divided into 

short sections and sentences; and (e) use 

lists and tables wherever possible. 

List of Subjects in 45 CFR Part 1184 

Administrative practice and 

procedure, Freedom of Information. 

For the reasons stated in the 

preamble, IMLS amends 45 CFR chapter 

XI, subchapter E to add part 1184 as 

follows: 

PART 1184—IMPLEMENTATION OF 

THE FREEDOM OF INFORMATION ACT 

Sec. 

1184.1 What is the purpose and scope of 

these regulations? 

1184.2 What are IMLS’s general policies 

with respect to FOIA? 

1184.3 How do I request records? 

1184.4 When will I receive a response to 

my request? 

1184.5 How will my request be processed? 

1184.6 How can I appeal a denial of my 

request? 

1184.7 How will fees be charged? 

1184.8 How can I address concerns 

regarding my request? 

1184.9 What are IMLS’ policies regarding 

disclosure of confidential business 

information? 

1184.10 Disclaimer 

Authority: 5 U.S.C. 552. 

§ 1184.1 What is the purpose and scope of 

these regulations? 

(a) The regulations in this part 

describe how the Institute of Museum 

and Library Services (IMLS) processes 

requests for records under the Freedom 

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

as amended. The regulations in this part 

apply only to records that are both: 

(1) Created or obtained by IMLS; and 

(2) Under the agency’s control at the 

time of the FOIA request. 

(b) The rules in this part should be 

read in conjunction with the text of the 

FOIA and the Uniform Freedom of 

Information Fee Act Schedule and 

Guidelines published by the Office of 

Management and Budget at 52 FR 10012 

(Mar. 27, 1987) (the ‘‘OMB Guidelines’’). 

Requests made by individuals for 

records about themselves under the 

Privacy Act of 1974, 5 U.S.C. 552a, are 

processed under 45 CFR part 1182 as 

well as under this part. 

§ 1184.2 What are IMLS’s general policies 

with respect to FOIA? 

(a) Non-exempt records available to 

the public. Except for records exempt or 

excluded from disclosure by 5 U.S.C. 

552 or published in the Federal Register 

under 5 U.S.C. 552(a)(1), IMLS records 

subject to the FOIA are available to any 

person who requests them in 

accordance with these regulations. 

(b) Records available at the IMLS 

FOIA Electronic Reading Room. IMLS 

makes records available on its Web site 

in accordance with 5 U.S.C. 552(a)(2), as 

amended, and other documents that, 

because of the nature of their subject 

matter, are likely to be the subject of 

FOIA requests. IMLS establishes 

categories of records that can be 

disclosed regularly and proactively 

identifies and discloses additional 

records of interest to the public. To save 

time and money, IMLS strongly urges 

you to review documents available at 

the IMLS FOIA Electronic Reading 

Room before submitting a FOIA request. 

(c) Definitions. For purposes of this 

part, all of the terms defined in the 

Freedom of Information Act, and the 

OMB Guidelines apply, unless 

otherwise defined in this part. 

(1) Commercial use request. A request 

by or on behalf of anyone who seeks 

information for a use or purpose that 

furthers his or her commercial, trade, or 

profit interests, which can include 

furthering those interests through 

litigation. 

(2) Direct costs. Those expenses that 

IMLS actually incurs in searching for 

and duplicating (and, in the case of 

commercial use requests, reviewing) 

records in order 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 16.1 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. 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, audiovisual materials, or 

electronic records (for example, 

magnetic tape or disk), among others. 

(4) Educational institution. Any 

school that operates a program of 

scholarly research. A requester in this 

category must show that the request is 

authorized by, and is made under the 

auspices of, a qualifying institution and 

that the records are not sought for a 

commercial use, but rather are sought to 

further scholarly research. 

(5) Fee waiver. The waiver or 

reduction of processing fees if a 

requester can demonstrate that certain 

statutory standards are satisfied 

including that the information is in the 

public interest and is not requested for 

a commercial interest. 

(6) FOIA Public Liaison. An IMLS 

official who is responsible for assisting 

in reducing delays, increasing 

transparency and understanding of the 

status of FOIA requests, and assisting in 

the resolution of disputes. 

(7) Non-commercial scientific 

institution. An institution that is not 

operated on a ‘‘commercial’’ basis, as 

defined in paragraph (c)(1) of this 

section, and that is operated solely for 

the purpose of conducting scientific 

research the results of which are not 

intended to promote any particular 

product or industry. A requester in this 

category must show that the request is 

authorized by and is made under the 

auspices of a qualifying institution and 

that the records are sought to further 

scientific research and not for a 

commercial use. 

(8) Representative of news media. Any 

person or entity organized and operated 

to publish or broadcast news to the 


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public that actively gathers information 

of potential interest to a segment of the 

public, uses its editorial skills to turn 

raw materials into a distinct work, and 

distributes that work to an audience. 

The term ‘‘news’’ means information 

that is about current events or that 

would be of current interest to the 

public. Examples of news media entities 

include television or radio stations that 

broadcast news to the public at large 

and publishers of periodicals that 

disseminate news and make their 

products available through a variety of 

means to the general public. A request 

for records that supports the newsdissemination function of the requester 

will not be considered to be for a 

commercial use. ‘‘Freelance’’ journalists 

who demonstrate a solid basis for 

expecting publication through a news 

media entity will be considered as 

working for that entity. A publishing 

contract would provide the clearest 

evidence that publication is expected; 

however, IMLS will also consider a 

requester’s past publication record in 

making this determination. 

(9) Requester Category. One of the 

three categories that IMLS places 

requesters in for the purpose of 

determining whether a requester will be 

charged fees for search, review and 

duplication, and include commercial 

requesters; non-commercial scientific or 

educational institutions or news media 

requesters, and all other requesters. 

(10) Review. The examination of a 

record located in response to a request 

in order to determine whether any 

portion of it is exempt from disclosure. 

Review time includes processing any 

record for disclosure, such as doing all 

that is necessary to prepare the record 

for disclosure, including the process of 

redacting the record and marking the 

appropriate exemptions. Review costs 

are properly charged even if a record 

ultimately is not disclosed. Review time 

also includes time spent both obtaining 

and considering any formal objection to 

disclosure made by a confidential 

business information submitter under 

§ 1184.8 but it does not include time 

spent resolving general legal or policy 

issues regarding the application of 

exemptions. 

(11) Search. The process of looking 

for and retrieving records or information 

responsive to a FOIA request. Search 

time includes page-by-page or line-byline identification of information within 

records; and the reasonable efforts 

expended to locate and retrieve 

information from electronic records. 

(12) Working day. A regular Federal 

working day. It does not include 

Saturdays, Sundays, or legal Federal 

holidays. 

§ 1184.3 How do I request records? 

(a) Where to send a request. You may 

make a FOIA request for IMLS records 

by writing directly to the FOIA Officer, 

Institute of Museum and Library 

Services, 1800 M Street NW., 9th Floor, 

Washington, DC 20036–5802. Requests 

may also be sent by facsimile to the 

FOIA Officer at (202) 653–4625 or by 

email to foia@imls.gov. You may also 

submit your FOIA request online 

through the IMLS FOIA Request Form 

located at: http://www.imls.gov/about/

foia_request_form.aspx. 

(b) Form of request. Your FOIA 

request need not be in any particular 

format, but it must be in writing, 

include your name and mailing address, 

and should be clearly identified as a 

Freedom of Information Act or ‘‘FOIA’’ 

request. You must describe the records 

sought with sufficient specificity to 

enable the agency to identify and locate 

the records, including, if possible, dates, 

subjects, titles, or authors of the records 

requested. If IMLS determines that your 

request does not reasonably describe the 

requested records, the agency will 

advise you what additional information 

is required to perfect your request, or 

why your request is otherwise 

insufficient. You should also indicate if 

you have a preferred form or format in 

which you would like to receive the 

requested records. 

(c) Electronic format records. IMLS 

will provide the responsive records in 

the form or format you request if the 

records are readily reproducible by 

IMLS in that form or format. IMLS will 

make reasonable efforts to maintain its 

records in forms or formats that are 

reproducible for the purpose of 

disclosure. IMLS may disclose records 

in electronic format if the records can be 

downloaded or transferred intact 

through electronic media currently in 

use by the agency. In responding to a 

request for records, IMLS will make 

reasonable efforts to search for the 

records in electronic form or format, 

except where such efforts would 

significantly interfere with the operation 

of the agency’s automated information 

system(s). 

(d) Date of receipt. IMLS considers a 

request that complies with paragraphs 

(a) and (b) of this section to be a 

perfected request. The agency considers 

a request to be received on the date that 

the request is perfected. 

§ 1184.4 When will I receive a response to 

my request? 

(a) Responses within 20 working days. 

IMLS will ordinarily grant, partially 

grant, or deny your request for records 

within 20 working days after receiving 

a perfected request. 

(b) Extensions of response time in 

‘‘unusual circumstances’’. (1) Where the 

time limits for processing a request 

cannot be met because of ‘‘unusual 

circumstances,’’ as defined in the FOIA, 

the FOIA Officer will notify you as soon 

as practicable in writing of the unusual 

circumstances and may extend the 

response period for up to ten (10) 

working days. (2) Where the extension 

is for more than ten (10) working days, 

the FOIA Officer will provide you with 

an opportunity either to modify the 

request so that it may be processed 

within the time limits or to arrange an 

agreed upon alternative time period for 

processing the request or a modified 

request. 

§ 1184.5 How will my request be 

processed? 

(a) Acknowledgment of requests. 

IMLS will assign a tracking number to 

your request and will, as soon as 

practicable, advise you in writing of this 

tracking number, and, as appropriate, a 

brief description of the request, and 

relevant IMLS contact information, 

including the name and contact 

information of the FOIA Public Liaison. 

(b) Clarifications. If there is any 

uncertainty, IMLS will attempt to 

communicate with you to clarify the 

scope of your request. 

(c) Referrals of requests. Whenever 

IMLS refers all or any part of the 

responsibility for responding to a 

request to another agency, IMLS will 

notify you of the name of the agency to 

which the request has been referred. 

(d) Grants of requests. When 

responsive records are located, IMLS 

will apply a presumption of disclosure 

and openness. If IMLS decides to grant 

your request in whole or in part, the 

agency will notify you in writing. The 

notice will include any applicable fee 

and the agency will disclose records to 

you promptly upon payment of 

applicable fees. IMLS will mark or 

annotate any records disclosed in part to 

show the amount, the location, and the 

FOIA exemptions under which the 

redaction is made, unless doing so 

would harm an interest protected by an 

applicable exemption. 

(e) Denials of requests. Denials of your 

FOIA request, either whole or in part, 

will be made in writing by the FOIA 

Officer. IMLS will inform you of the 

reasons for the denial, including any 

FOIA exemption(s) applied by the 

agency in denying the request, and 

notify you of your right to appeal the 

determination as described in § 1184.6. 

IMLS will, as appropriate, provide a 

brief description of the information 

being withheld. 


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§ 1184.6 How can I appeal a denial of my 

request? 

(a) Submission of an appeal. If your 

FOIA request has been denied in whole 

or in part, or if the agency has not found 

any records in response to your request, 

you may file an appeal no later than 

thirty (30) calendar days following the 

date of the notification of denial. Your 

appeal must include a description of the 

initial request, the reason for the appeal, 

and why you believe the agency’s 

response was incorrect. Your appeal 

must be in writing, signed, and filed 

with the IMLS Director, c/o Office of the 

General Counsel, 1800 M Street NW., 

9th Floor, Washington, DC 20036–5802. 

Appeals may also be sent by email to 

foia@imls.gov, or by facsimile to (202) 

653–4625. 

(b) Decisions on appeal. The Director 

of IMLS will make a determination with 

respect to your appeal within twenty 

(20) working days after the agency has 

received the appeal, except as provided 

in § 1184.4(b). If the decision on appeal 

is favorable to you, the Director of IMLS 

will take action to assure prompt 

dispatch of the records to you. If the 

decision on appeal is adverse to you, in 

whole or in part, you will be informed 

by the Director of IMLS of the reasons 

for the decision and of the provisions 

for judicial review set forth in the FOIA. 

As appropriate, IMLS will advise you in 

a response to an appeal that the 2007 

FOIA amendments created the Office of 

Government Services (OGIS) to offer 

mediation services to resolve disputes 

between FOIA requesters and Federal 

agencies as a non-exclusive alternative 

to litigation. 

§ 1184.7 How will fees be charged? 

(a) In general. IMLS will use the most 

efficient and least costly methods to 

comply with FOIA requests. IMLS will 

charge fees to recover all allowable 

direct costs incurred, and may charge 

fees for searching for and reviewing 

requested records even if the records are 

determined to be exempt from 

disclosure or cannot be located. IMLS 

will charge fees in accordance with the 

category of the FOIA requester. 

(1) Commercial use requests. IMLS 

will assess charges to recover the full 

direct cost of searching for, reviewing 

and duplicating the requested records. 

IMLS may recover the cost of searching 

for and reviewing records even if there 

is ultimately no disclosure. 

(2) Requests from educational and 

non-commercial scientific institutions. 

IMLS will charge for duplication costs. 

(3) Requests by representatives of the 

news media. IMLS will charge for 

duplication costs. 

(4) All other requests. IMLS will 

assess charges to recover the full direct 

cost for searching for and duplicating 

the requested records. 

(5) Status of Requester. IMLS’ 

decision regarding the categorization of 

a requester will be made on a case-bycase basis based upon the requester’s 

intended use of the requested records. 

(b) General fee schedule. The 

following fees will be charged in 

accordance with paragraph (a) of this 

section. 

(1) Manual search fee. The fee 

charged will be the salary rate(s) (i.e., 

basic pay plus 16.1 percent) of the 

employee(s) conducting the search. 

(2) Computer search fee. The fee 

charged will be the actual direct cost of 

providing the service including the cost 

of operating the central processing unit 

for the operating time that is directly 

attributed to searching for records 

responsive to a request and the 

operator/programmer salary 

apportionable to the search. 

(3) Review fee. The fee charged will 

equal the salary rate(s) (i.e., basic pay 

plus 16.1 percent) of the employee(s) 

conducting the review. 

(4) Duplication fee. Copies of records 

photocopied on an 81⁄2 x 11 inch sheet 

of paper will be provided at $.10 per 

page. For duplication of other materials, 

the charge will be the direct cost of 

duplication. 

(c) Restrictions on charging fees. (1) 

Except for records provided in response 

to a commercial use request, the first 

100 pages of duplication and the first 

two (2) hours of search time will be 

provided at no charge. 

(2) Fees will not be charged to any 

requester, including commercial use 

requesters, if the total amount 

calculated under this section is less than 

$25. 

(d) Fees likely to exceed $25. If the 

total fee charges are likely to exceed 

$25, IMLS will notify you of the 

estimated amount of the charges, 

including a breakdown of the fees for 

search, review and/or duplication, 

unless you have indicated in advance 

that you are willing to pay higher fees 

and will offer you an opportunity to 

confer with the FOIA Public Liaison to 

revise the request to meet your needs at 

a lower cost. 

(e) Waiver or reduction of fees. (1) 

IMLS will disclose records without 

charge or at a reduced charge if the 

agency determines that disclosure of the 

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. 

(2) IMLS will use the following factors 

to determine whether a fee will be 

waived or reduced: 

(i) The subject of the request. Whether 

the subject of the requested records 

concerns the ‘‘operations or activities of 

the government’’; 

(ii) The informative value of the 

information to be disclosed. Whether 

the disclosure is ‘‘likely to contribute’’ 

to an understanding of government 

operations or activities; 

(iii) The contribution to an 

understanding of the subject by the 

general public likely to result from 

disclosure. Whether disclosure of the 

requested information will contribute to 

‘‘public understanding’’; 

(iv) The significance of the 

contribution to public understanding. 

Whether disclosure is likely to 

contribute ‘‘significantly’’ to public 

understanding of government operations 

or activities; 

(v) The existence and magnitude of a 

commercial interest. Whether you have 

a commercial interest that would be 

furthered by the disclosure; and if so 

(vi) The primary interest in 

disclosure. Whether the magnitude of 

your commercial interest is sufficiently 

large in comparison with the public 

interest in disclosure, that disclosure is 

primarily in the your commercial 

interest. 

(f) Assessment and collection of fees. 

(1) If you fail to pay your bill within 

thirty (30) days, interest will accrue 

from the date the bill was mailed, and 

will be assessed at the rate prescribed in 

31 U.S.C. 3717. 

(2) If IMLS reasonably believes that 

you are attempting to divide a request 

into a series of requests to avoid the 

assessment of fees, the agency may 

aggregate such requests and charge 

accordingly. 

(3) Advance payment. (i) Advance 

payment of fees will generally not be 

required. IMLS may request an advance 

payment of the fee, however, if: 

(A) The charges are likely to exceed 

$250; or 

(B) You have failed previously to pay 

a fee in a timely fashion. 

(ii) When IMLS requests an advance 

payment, the time limits described in 

section (a)(6) of the FOIA will begin 

only after IMLS has received full 

payment. 

(g) Failure to comply. In the absence 

of unusual or exceptional 

circumstances, IMLS will not assess fees 

if the agency fails to comply with any 

time limit set forth in these regulations. 

(h) Waivers. IMLS may waive fees in 

other circumstances solely at its 

discretion, consistent with 5 U.S.C. 552. 


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9426 Federal Register / Vol. 79, No. 33 / Wednesday, February 19, 2014 / Rules and Regulations 

§ 1184.8 How can I address concerns 

regarding my request? 

(a) FOIA Public Liaison. If you have 

questions or concerns regarding your 

request, your first point of contact 

should be the FOIA Public Liaison, who 

is responsible for reducing delays, 

increasing transparency and 

understanding of the status of requests, 

and assisting in the resolution of 

disputes. 

(b) Additional resource. The National 

Archives and Records Administration 

(NARA), Office of Government 

Information Services (OGIS) offers noncompulsory, non-binding mediation 

services to help resolve FOIA disputes. 

If you seek information regarding OGIS 

and/or the services it offers, please 

contact OGIS directly at Office of 

Government Information Services, 

National Archives and Records 

Administration, Room 2510, 8601 

Adelphi Road, College Park, MD 20740– 

6001, Email: ogis@nara.gov, Phone: 

(301) 837–1996, Fax: (301) 837–0348. 

This information is provided as a public 

service only. By providing this 

information, IMLS does not commit to 

refer disputes to OGIS, or to defer to 

OGIS’ mediation decision in particular 

cases. 

§ 1184.9 What are IMLS’ policies regarding 

disclosure of confidential business 

information? 

(a) In general. Confidential business 

information obtained by IMLS from a 

submitter will be disclosed under FOIA 

only under this section. 

(b) Definitions. For purposes of this 

section, the following definitions apply: 

(1) Confidential business information. 

Commercial or financial information 

obtained by IMLS from a submitter that 

may be protected from disclosure under 

Exemption 4 of FOIA. 

(2) Submitter. Any person or entity 

from whom IMLS obtains confidential 

business information, directly or 

indirectly. The term includes 

corporations; state, local and tribal 

governments; and foreign governments. 

(c) Designation of confidential 

business information. A submitter of 

confidential business information will 

use good-faith efforts to designate, 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) Notice to submitters. When 

required under paragraph (e) of this 

section, subject to the exceptions in 

paragraph (h) of this section, IMLS will 

provide a submitter with prompt written 

notice of a FOIA request or 

administrative appeal that seeks its 

confidential business information, in 

order to give the submitter an 

opportunity to object to disclosure of 

any specified portion of that 

information. The notice will either 

describe the confidential business 

information requested or include copies 

of the requested records or record 

portions containing the information. 

When notification of a voluminous 

number of submitters is required, 

notification may be made by posting or 

publishing the notice in a place 

reasonably likely to accomplish it. 

(e) Where notice is required. IMLS 

will give notice to a submitter wherever: 

(1) The information has been 

designated in good faith by the 

submitter as information considered 

protected from disclosure under 

Exemption 4; or 

(2) IMLS has reason to believe that the 

information may be protected from 

disclosure under Exemption 4. 

(f) Opportunity to object to disclosure. 

IMLS will allow a submitter a 

reasonable time to respond to the notice 

described in paragraph (d) of this 

section and will specify that time period 

within the notice. If a submitter has any 

objection to disclosure, it must submit 

a detailed written statement to IMLS. 

The statement must specify all grounds 

for withholding any portion of the 

information under any exemption of 

FOIA and, in the case of Exemption 4, 

it must show why the information is a 

trade secret or commercial or financial 

information that is privileged or 

confidential. If a submitter fails to 

respond to the notice within the time 

specified, the submitter will be 

considered to have no objection to 

disclosure of the information. 

Information provided by the submitter 

that is not received by IMLS until after 

the agency’s disclosure decision has 

been made will not be considered by 

IMLS. Information provided by a 

submitter under this paragraph may 

itself be subject to disclosure under 

FOIA. 

(g) Notice of intent to disclose. IMLS 

will consider a submitter’s objections 

and specific grounds for nondisclosure 

in deciding whether to disclose 

confidential business information. If 

IMLS decides to disclose confidential 

business information over the objection 

of a submitter, IMLS will give 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 confidential 

business information to be disclosed; 

and 

(3) A specified disclosure date, which 

will be a reasonable time subsequent to 

the notice. 

(h) Exceptions to notice requirements. 

The notice requirements of paragraphs 

(d) and (g) of this section will not apply 

if: 

(1) IMLS determines that the 

information should not be disclosed; 

(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 FOIA) or 

by a regulation issued in accordance 

with the requirements of Executive 

Order 12600; or 

(4) The designation made by the 

submitter under paragraph (c) of this 

section appears obviously frivolous— 

except that, in such a case, IMLS will, 

within a reasonable time prior to a 

specified disclosure date, give the 

submitter written notice of any final 

decision to disclose the information. 

(i) Notice of FOIA lawsuit. If a 

requester files a lawsuit seeking to 

compel the disclosure of confidential 

business information, IMLS will 

promptly notify the submitter of the 

filing of the lawsuit. 

(j) Corresponding notice to requesters. 

If IMLS provides a submitter with notice 

and an opportunity to object to 

disclosure under paragraph (d) of this 

section, IMLS will also notify the 

requester(s). If IMLS notifies a submitter 

of its intent to disclose requested 

information under paragraph (g) of this 

section, IMLS will also notify the 

requester(s). If a submitter files a lawsuit 

seeking to prevent the disclosure of 

confidential business information, IMLS 

will notify the requester(s) of the filing 

of the lawsuit. 

§ 1184.10 Disclaimer. 

Nothing in the regulations in this part 

will be construed to entitle any person, 

as a right, to any service or to the 

disclosure of any record to which such 

person is not entitled under FOIA. 

Signed: February 12, 2014. 

Nancy E. Weiss. 

General Counsel. 

[FR Doc. 2014–03545 Filed 2–18–14; 8:45 am] 

BILLING CODE 7036–01–P 


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