Federal Register / Vol. 79, No. 33 / Wednesday, February 19, 2014 / Rules and Regulations 9413 

the devices, if seized, may appeal a 

detention order. Any appeal shall be 

submitted in writing to the FDA District 

Director in whose district the devices 

are located within 5 working days of 

receipt of a detention order. If the 

appeal includes a request for an 

informal hearing, as defined in section 

201(x) of the act, the appellant shall 

request either that a hearing be held 

within 5 working days after the appeal 

is filed or that the hearing be held at a 

later date, which shall not be later than 

20 calendar days after receipt of a 

detention order. 

* * * * * 

(k) Recordkeeping requirements. (1) 

After issuance of a detention order 

under paragraph (d) of this section, the 

owner, operator, or agent in charge of 

any factory, warehouse, other 

establishment, or consulting laboratory 

where detained devices are 

manufactured, processed, packed, or 

held shall have, or establish, and 

maintain adequate records relating to 

how the detained devices may have 

become adulterated or misbranded, 

records on any distribution of the 

devices before and after the detention 

period, records on the correlation of any 

in-process detained devices that are put 

in final form under paragraph (h) of this 

section to the completed devices, 

records of any changes in, or processing 

of, the devices permitted under the 

detention order, and records of any 

other movement under paragraph (h) of 

this section. * * * 

* * * * * 

Dated: February 12, 2014. 

Leslie Kux, 

Assistant Commissioner for Policy. 

[FR Doc. 2014–03582 Filed 2–18–14; 8:45 am] 

BILLING CODE 4160–01–P 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

Food and Drug Administration 

21 CFR Part 806 

[Docket No. FDA–2014–N–0011] 

Medical Devices; Reports of 

Corrections and Removals; Technical 

Amendment 

AGENCY: Food and Drug Administration, 

HHS. 

ACTION: Final rule; technical 

amendment. 

SUMMARY: The Food and Drug 

Administration (FDA) is amending its 

regulation regarding reports of 

corrections to and removals of medical 

devices to address a minor change as a 

result of the enactment of the Food and 

Drug Administration Amendments Act 

of 2007 (FDAAA). This action is 

technical in nature and is intended to 

provide accuracy to the Agency’s 

regulation. 

DATES: This rule is effective February 

19, 2014. 

FOR FURTHER INFORMATION CONTACT: 

Deborah Yoder, Office of Compliance, 

Center for Devices and Radiological 

Health, Food and Drug Administration, 

10903 New Hampshire Ave., Bldg. 66, 

Rm. 2676, Silver Spring, MD 20993– 

0002, 301–796–6109, Deborah.Yoder@

fda.hhs.gov. 

SUPPLEMENTARY INFORMATION: Section 

806.1(a) (21 CFR 806.1(a)) refers to a 

subsection of the Federal Food, Drug, 

and Cosmetic Act that was redesignated 

as a result of FDAAA (Pub. L. 110–85). 

FDA is amending § 806.1(a) to update 

the obsolete reference. 

FDA is publishing the document as a 

final rule under the Administrative 

Procedures Act (5 U.S.C. 551, et seq.). 

FDA has determined that good cause 

exists to dispense with prior notice and 

public comment under 5 U.S.C. 

553(b)(3)(B) and 21 CFR 10.40(e)(1) 

since such notice and comment are 

unnecessary because this amendment to 

the regulation provides only a technical 

change to update an obsolete citation. In 

addition, FDA finds good cause to 

provide for this regulation to be 

effective immediately upon publication 

under 5 U.S.C. 553(d)(3). 

FDA has determined under 21 CFR 

25.30(i) that this final rule is of a type 

that does not individually or 

cumulatively have a significant effect on 

the human environment. Therefore, 

neither an environmental assessment 

nor an environmental impact statement 

is required. 

This final rule contains information 

collection provisions that are subject to 

review by the Office of Management and 

Budget (OMB) under the Paperwork 

Reduction Act of 1995 (44 U.S.C. 3501– 

3520). The collections of information in 

21 CFR part 806 have been approved 

under OMB control number 0910–0359, 

which expires May 31, 2014. 

List of Subjects in 21 CFR Part 806 

Imports, Medical devices, Reporting 

and recordkeeping requirements. 

Therefore, under the Federal Food, 

Drug, and Cosmetic Act and under 

authority delegated to the Commissioner 

of Food and Drugs, 21 CFR part 806 is 

amended as follows: 

PART 806—MEDICAL DEVICES; 

REPORTS OF CORRECTIONS AND 

REMOVALS 

■ 1. The authority citation for 21 CFR 

part 806 continues to read as follows: 

Authority: 21 U.S.C. 352, 360, 360i, 360j, 

371, 374. 

§ 806.1 [Amended] 

■ 2. Amend § 806.1(a) by removing 

‘‘section 519(f)’’ and adding in its place 

‘‘section 519(g)’’. 

Dated: February 12, 2014. 

Leslie Kux, 

Assistant Commissioner for Policy. 

[FR Doc. 2014–03581 Filed 2–18–14; 8:45 am] 

BILLING CODE 4160–01–P 

NATIONAL FOUNDATION ON THE 

ARTS AND THE 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: Final 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. This final rule 

provides the NEH’s procedures for 

disclosure of its records, as required by 

the FOIA, 5 U.S.C. 552, as amended. 

These regulations also provide the 

procedures for disclosing records of the 

Federal Council on the Arts and the 

Humanities (FCAH), an agency for 

which NEH provides legal counsel. 

DATES: The final rule will be effective 

March 21, 2014. 

FOR FURTHER INFORMATION CONTACT: 

Mara Campbell, Office of the General 

Counsel, National Endowment for the 

Humanities, at 202–606–8322, or 

mcampbell@neh.gov. 

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 


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with the NEA and the former Institute 

of Museum Services (now, the IMLS) 

last issued joint FOIA regulations, 45 

CFR part 1100, on December 21, 1987. 

Each agency has 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. 

These regulations were published for 

public comment in the Federal Register 

on February 11, 2013 (78 FR 9654), the 

comment period ended on April 12, 

2013, and three commenters provided 

input. The NEH carefully considered 

these comments and has made some 

changes to the final rule in response. 

The comments and NEH’s responses are 

discussed below. 

The first commenter was a federal 

agency and it offered suggestions to 

clarify the rule. First, the commenter 

suggested adding language clarifying the 

intersection between FOIA and the 

Privacy Act. We agree and in response 

have added language into section 

1171.2. 

The commenter applauded the NEH 

for incorporating a foreseeable harm 

standard in its policy and for stating it 

will make discretionary disclosures of 

records and information. The 

commenter was also pleased to see a 

listing of the types of information 

available on the agency’s Web site as 

well as our definition of ‘‘submitter in 

section 1171.9. 

In response to section 1171.5, 

addressing requests for records, the 

commenter suggested changing ‘‘must’’ 

to ‘‘should’’ in subpart (a)(4). We agree 

and have updated this section. 

In section 1171.6, the commenter 

suggested that referrals include 

information on the portion of the 

request referred and the receiving 

agency’s FOIA contact information. We 

agree and have added this language into 

subsection (d). 

In section 1171.7, the commenter 

suggested that NEH’s acknowledgement 

letters provide requesters with an 

individualized tracking number and a 

brief description of the request if it takes 

NEH longer than twenty working days 

to respond. After considering the 

suggestion, we have decided to retain 

the proposed language. We believe 

section 1171.8(a) adequately addresses 

the commenter’s concern (to assign a 

tracking number to requests taking 

twenty days), because it already requires 

NEH to provide an individual tracking 

number for requests that will take longer 

than ten days. With respect to the 

suggestion to include a brief 

description, NEH acknowledgement 

letters typically provide requesters with 

a verbatim description of the requested 

records and the contact information for 

the FOIA office. Thus, a requester can 

always contact the FOIA office if he/she 

needs further clarification. 

In section 1171.8, the commenter 

suggested that when marking on 

released documents, NEH indicate the 

precise amount of information deleted, 

if technically feasible. After considering 

the suggestion, NEH has decided to 

retain the proposed language. As a 

matter of practice, NEH routinely 

indicates the amount of information 

redacted, if doing so is feasible and does 

not create an undue burden on FOIA 

staff and the efficiency of the agency’s 

FOIA program. 

The commenter also had comments 

on section 1171.10, concerning 

administrative appeals. The 

commenter’s first suggestion was to 

change ‘‘must’’ to ‘‘should’’ in section 

1171.10(a), particularly in light of 

section 1171.8(a) which does not require 

NEH to assign tracking numbers to all 

requests. In order to clarify this section 

we have modified section 117.10(a) in 

part. The commenter also suggested the 

rule provide information on the 

National Archives and Records 

Administration, Office of Government 

Information Services. We agree and 

have updated section 1171.10(b). 

The commenter provided various 

comments on section 1171.11, 

addressing fees. First the commenter 

suggested that NEH provide requesters 

with an estimate amount of fees, 

including a breakdown of fees for 

search, review and/or duplication. 

While we appreciate the commenter’s 

suggestion, we have decided to keep the 

proposed language as it follows best 

practice language used in other agency 

FOIA regulations. The commenter also 

suggested that NEH state it would not 

charge a requester the operator/

programmer salary while a computer is 

running a query or automatic search in 

response to a request. In order to clarify 

this section we have modified section 

1171.11(c)(1)(ii) in part. The commenter 

further suggested that NEH define ‘‘fee 

waiver’’ and recommended striking the 

word ‘‘attenuated’’ from section 

1171.11(f)(2)(i) in the ‘‘interest of plain 

language.’’ After considering the 

suggestion, we have decided to retain 

the proposed language. The commenter 

applauded NEH for including a 

provision that non-commercial FOIA 

requesters are entitled to two hours of 

search time and 100 pages of 

duplication free of charge in 

1171.11(d)(1). In light of this section, 

the commenter suggested revising 

section 1171.11(g)(2) for consistency. 

We agree and have modified this section 

accordingly. 

The commenter recommended that 

NEH release all documents without any 

charge or at reduced charge if the 

information is in the public interest. 

NEH regularly releases information that 

would likely be of public interest on its 

Web site and notes that the majority of 

its FOIA requests come from 

educational institutions that are not 

charged for the information received. 

NEH will continue to assess what 

information it may proactively release 

while complying with FOIA. 

Finally, the commenter suggested that 

the rule include a section on the 

preservation of records and records 

management. We agree and have added 

a new section. 

The second commenter was a public 

interest research center. The comments 

offered improvements to the rule. Some 

of the commenter’s suggestions mirrored 

other comments, many of which were 

accepted. 

The commenter had various 

suggestions regarding document 

disclosure. The commenter suggested 

that NEH post all released records 

online and that it consider joining the 

multi-agency FOIAonline portal. While 

NEH appreciates the suggestion, posting 

all released records would be 

impractical and a heavy administrative 

burden for the small team that 

administers the NEH FOIA program. 

Additionally, NEH routinely proactively 

releases documents that are likely to 

have a significant public interest, and 

posts these documents in its electronic 

FOIA Library. Regarding the portal, 

NEH may assess joining in the future. 

The commenter further suggested that 

the rule explicitly state that NEH will 

proactively identify records of public 

interest, post these records online and 

establish categories of records that can 

be disclosed regularly and posted 

online. We agree and have modified 

section 1171.4(c) in part. The 

commenter also suggested that NEH 

publish indexes of disclosed records 

online. NEH appreciates the comment 

but has previously determined that 

publication and distribution of these 

indexes is impracticable, and in any 

event NEH routinely releases these 

indexes under FOIA upon request. The 

commenter also suggested, in the case of 

FOIA referrals, the rule provide the 

FOIA contact at the receiving agency. 


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We agree and have modified section 

1171.6(d). 

The commenter had a number of 

suggestions regarding notifying 

requesters of dispute resolution 

services. The commenter suggested that 

all acknowledgment letters include the 

FOIA Public Liaison’s contact 

information and that the rule include a 

new ‘‘Dispute Resolution’’ section to 

provide instructions on how to access 

the Public Liaison. Although we 

appreciate both comments, we believe 

that by posting the Public Liaison’s 

contact information on the NEH’s Web 

site and in its annual FOIA documents 

the public is sufficiently informed about 

how to contact this individual. 

The commenter also had comments 

regarding the Office of Government 

Information Services (OGIS). 

Specifically, the commenter suggested 

that (1) all NEH decision and appeal 

letters include information on the role 

of OGIS and its contact information (2) 

the rule include a new ‘‘Dispute 

Resolution’’ section that describes how 

requesters may access OGIS services, 

and (3) the NEH Web site include 

information on OGIS. With respect to 

the first suggestion, while we agree that 

appeal letters would be improved by 

providing information on OGIS, we do 

not believe this information is 

appropriate in decision letters. 

Regarding the second suggestion, we do 

not believe it is necessary to create a 

new ‘‘Dispute Resolution’’ section of the 

rule, particularly now that the rule will 

include the contact information for 

OGIS. Regarding the third suggestion, 

we agree and will add information on 

OGIS to the NEH FOIA Web site. 

The commenter also suggested 

revising the rule to allow requesters to 

submit administrative appeals by email 

and fax. We agree and have revised 

section 1171.10(a). The commenter 

further suggested allowing a minimum 

of sixty days for administrative appeal 

submissions. We agree more time could 

be helpful and have increased the 

timeframe to thirty days. The 

commenter also recommended 

increasing the threshold of the 

minimum fee charge. We agree and have 

increased the threshold from $14 to $25. 

Finally, the commenter suggested that 

section 1171.11 include information on 

possible fee waivers if NEH fails to 

comply with statutory time limits. We 

agree and have added new language to 

this section. 

The third commenter was a private 

citizen and provided comments to 

improve the rule. First, the commenter 

thought section 1171.7(d)(2) was 

generally duplicative of section 

1171.11(k). Although we appreciate the 

commenter’s perspective, NEH believes 

both sections are useful. One section 

serves the purpose of informing the 

public that NEH may aggregate requests 

in certain circumstances, and the other 

is about fees related to aggregated 

requests. The commenter also suggested 

the regulation include information on 

possible fee waivers if NEH fails to 

comply with statutory time limits. As 

noted above, we agree and have added 

new language to 1171.11(d). Finally, the 

commenter believed that portions of 

section 1171.11(c)(1)(ii) reflected an 

outdated and antiquated practice. We 

agree and have modified this section. 

NEH will comply with all applicable 

laws in its FOIA administration, 

including Presidential memoranda and 

Attorney General guidance. We thank 

all commenters for their thoughtful 

input. 

E.O. 12866, Regulatory Review 

This 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), has certified that this 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 fewer 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, Public 

Law 104–4, the 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. 

Small Business Regulatory Enforcement 

Fairness Act of 1996 

This 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 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 amends 45 CFR chapter 

XI, subchapter D, to add 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 Preservation of records. 

1171.13 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. 


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§ 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 and 

OMB’s Free Guidelines, which provides 

additional information about access to 

NEH and FCAH records. FOIA applies 

to requests for records concerning the 

general activities of the government and 

of the NEH in particular. When 

individuals seek records about 

themselves under the Privacy Act of 

1974, 5 U.S.C. 552a, NEH processes 

those requests under both NEH’s 

Privacy regulations at part 1115 of this 

chapter, and this part. Although 

requests are considered either FOIA 

requests or Privacy Act requests, 

agencies process requests in accordance 

with both laws, which provides the 

greatest degree of lawful access while 

safeguarding an individual’s personal 

privacy. 

§ 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) of this 

section. 

(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) NEH proactively identifies records 

of interest to the public, such as past 

awards, press releases, grant guidelines, 

and grant terms and conditions, and 

makes these records available on the 

NEH’s Web site at www.neh.gov. In 

addition, copies of the NEH’s policy 

statements, information about the NEH’s 

FOIA program, sample grant narratives, 

and other frequently requested records 

are available in the NEH’s Electronic 

Library. 

§ 1171.5 Requests for records. 

(a) How to make a request. Your FOIA 

request need not be in any particular 

format, but it must be in writing, 

include your full name, mailing address, 

daytime telephone number. If you 

choose to submit your request on the 

NEH Web site, the request must also 

include your email address. Your 

request should be clearly identified as a 

FOIA request in both the text of the 

request and on the envelope (or on the 

facsimile or in the subject heading of an 

email message) and must 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 records 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, 

subject to the fee limitations of 

§ 1171.11(d). 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 

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. 

Ordinarily, the agency that originated a 

record will be presumed to be best able 

to determine whether to disclose it. 

(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 


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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, 

provide the name of the agency to 

which the referral was directed, and 

include that agency’s FOIA contact 

information. NEH will notify the 

requester of the part of the request that 

has been referred, unless such 

notification would disclose information 

otherwise exempt. If notification to the 

requester about the referral would cause 

a harm meant to be protected against by 

the FOIA, NEH will coordinate with the 

agency rather than referring the records 

to it. 

§ 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 fewer 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 process requests and appeals on an 

expedited basis 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 place the 

request in the expedited processing 

track and then 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 

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. 


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(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. 

You may also send your appeal to the 

NEH General Counsel by facsimile at 

202–606–8600, by email at gencounsel@

neh.gov, or through the NEH’s electronic 

FOIA request system, which is available 

on the NEH Web site at www.neh.gov. 

For a denial of your request for OIG 

records, you may appeal by facsimile at 

202–606–8329, by email at oig@neh.gov 

or by mail to The Inspector General, 

National Endowment for the 

Humanities, 1100 Pennsylvania Ave. 

NW., Room 419, Washington, DC 20506. 

Your appeal must be in writing and 

received by NEH within thirty (30) days 

of the date of the letter denying your 

request, in whole or in part (weekends 

and Federal holidays excluded). Your 

appeal letter must clearly identify the 

NEH decision that you are appealing 

and contain the tracking number, if 

assigned. 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, except as 

provided by 1171.7(d). 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. A response to an appeal will 

advise the requester that the 2007 

amendments to FOIA created the Office 

of Government Information Services 

(OGIS) to offer mediation services to 

resolve disputes between FOIA 

requesters and Federal agencies as a 

non-exclusive alternative to litigation. A 

requester may contact OGIS in any of 

the following ways: Office of 

Government Information Services, 

National Archives and Records 

Administration, 8601 Adelphi Road— 

OGIS, College Park, MD 20740; https:// 

ogis.archives.gov; email: ogis@nara.gov; 

telephone: 202–741–5770; facsimile: 

202–741–5769; toll-free: 1–877–684– 

6448. 

(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 

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 


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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, 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. 

(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 

first two hours of search, the total fee is 

$25.00 or less for any request, the NEH 

will not charge a fee. 

(3) When the NEH fails to comply 

with the time limits to which to respond 

to a request, and if no unusual or 

exceptional circumstances, as those 

terms are defined by FOIA, apply to the 

processing of the request, it may not 

charge search fees, or, in the instance of 

requests from requesters defined in 

paragraphs (b)(4), (b)(5) and (b)(6) of this 

section, may not charge duplication 

fees. 

(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. 


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(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 paragraphs 

(f)(2) and (3) of this section. 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 and inform the requester of 

paragraph (d)(1) of this section, if 

applicable. 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 

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 


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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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