Freedom of Information Act; implementation,
[Federal Register: July 22, 1999 (Volume 64, Number 140)]
[Rules and Regulations]
[Page 39404-39414]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr22jy99-5]
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
14 CFR Part 1206
RIN 2700-AC36
Availability of Agency Records to Members of the Public
AGENCY: National Aeronautics and Space Administration (NASA).
ACTION: Final rule
SUMMARY: This action amends 14 CFR Part 1206, ``Availability of Agency Records to Members of the Public,'' by making administrative changes to conform with requirements made by the Electronic Freedom of Information Act of 1996 as amended.
EFFECTIVE DATE: July 22, 1999.
ADDRESSES: Freedom of Information Act Officer, Code PO, NASA Headquarters, Washington, DC 20546.
FOR FURTHER INFORMATION CONTACT: Patricia M. Riep-Dice, 202/358-1764, or Sharon Smith, 202/358-2465.
SUPPLEMENTARY INFORMATION: The National Aeronautics and Space Administration last published a Final Rule to revise its Freedom of Information Act (FOIA) regulations on October 29, 1987, 52 FR 41406- 41416, Title 14 CFR Chapter V, Part 1206. This new amendment to NASA's regulation implementing the FOIA is required by the EFOIA of 1996 as amended by Pub. L. 104-231. The amendments made include changing the processing time from 10 working days to 20 working days; to include electronic searches as well as manual searches; the addition of FOIA e- mail addresses for all of the NASA FOIA Offices; the establishment of an electronic FOIA reading room on all of NASA's FOIA Homepages on the Internet; an increase in the schedule of fees and to address and explain how records of NASA will be reviewed and released when the records are maintained in electronic format. However, documentation not previously subject to the FOIA when maintained in nonelectronic format is not made subject to FOIA by this new amendment. It has been determined that this addition is not a significant regulatory action and it will not:
(1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy; a section of the economy; productivity; competition; jobs; the environment; public health or safety; or State, local or tribal governments or communities;
(2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs, or the rights and obligations of recipients thereof;
(4) Have a significant economic impact on a substantial number of small entities; or
(5) Impose any reporting or record keeping requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35).
For the reasons set forth in the preamble, NASA amends 14 CFR chapter V by revising part 1206 to read as follows:
PART 1206--AVAILABILITY OF AGENCY RECORDS TO MEMBERS OF THE PUBLIC
Sec.
Subpart 1-- Basic Policy
1206.100 Scope of part. 1206.101 Definitions. 1206.102 General policy.
Subpart 2--Records Available
1206.200 Types of records to be made available. 1206.201 Records which have been published. 1206.202 Deletion of segregable portions of a record. 1206.203 Creation of records. 1206.204 Records of interest to other agencies. 1206.205 Incorporation by reference. 1206.206 Availability for copying. 1206.207 Copies. 1206.208 Release of exempt records.
Subpart 3--Exemptions
1206.300 Exemptions. 1206.301 Limitation of exemptions.
Subpart 4--Location for Inspection and Request of Agency Records
1206.400 Information Centers. 1206.401 Location of NASA Information Centers. 1206.402 Documents available for inspection at NASA Information Centers. 1206.403 Duty hours.
Subpart 5--Responsibilities
1206.500 Associate Deputy Administrator. 1206.501 General Counsel. 1206.502 Centers and Components. 1206.503 NASA Headquarters. 1206.504 Inspector General. 1206.505 Delegation of authority.
Subpart 6--Procedures
1206.600 Requests for records. 1206.601 Mail, fax and e-mail requests. 1206.602 Requests in person. 1206.603 Procedures and time limits for initial determinations. 1206.604 Request for records that exist elsewhere. 1206.605 Appeals. 1206.606 Requests for additional records. 1206.607 Actions on appeals. 1206.608 Time extensions in unusual circumstances. 1206.609 Litigation. 1206.610 Notice to submitters of commercial information.
Subpart 7--Search, Review, and Duplication Fees
1206.700 Schedule of fees. 1206.701 Categories of requesters. 1206.702 Waiver or reduction of fees. 1206.703 Aggregation of requests. 1206.704 Advance payments. 1206.705 Form of payment. 1206.706 Nonpayment of fees.
Subpart 8--Failure to Release Records to the Public
1206.800 Failure to release records to the public.
Subpart 9--Annual Report
1206.900 Requirements for annual report.
Authority: 5 U.S.C. 552, 552a; 42 U.S.C. 2473.
Subpart 1--Basic Policy
Sec. 1206.100 Scope of Part.
This Part 1206 establishes the policies, responsibilities, and procedures for the release of Agency records which are under the jurisdiction of the National Aeronautics and Space Administration, hereinafter NASA, to members of the public. This part applies to information and Agency records located at NASA Headquarters, at NASA Centers, and at NASA Component, as defined in Part 1201 of this chapter.
Sec. 1206.101 Definitions.
For the purposes of this part, the following definitions shall apply:
(a) The term Agency records or records means any information that would be an Agency record subject to
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the requirements of the Freedom of Information Act (FOIA) when maintained by NASA in any format, including an electronic format. Such information includes all books, papers, maps, photographs, or other documentary materials made or received by NASA in pursuance of Federal law or in connection with the transaction of public business and preserved by NASA as evidence of the organization, functions, policies, decisions, procedures, operations, or other activities or because of the informational value of data contained therein. It does not include tangible objects or articles, such as structures, furniture, paintings, sculptures, exhibits, models, vehicles or equipment; library or museum material made or acquired and preserved solely for reference or exhibition purposes; or records of another agency, a copy of which may be in NASA's possession.
(b) The term initial determination means a decision by a NASA official, in response to a request by a member of the public for an Agency record, on whether the record described in the request can be identified and located after a reasonable search and, if so, whether the record (or portions thereof) will be made available under this part or will be withheld from disclosure under Subpart 3 of this part.
(c) The term appeal means a request by a member of the public, hereinafter requester, to the Administrator or designee, or, in the case of records as specified in Sec. 1206.504, to the Inspector General or designee for reversal of any adverse initial determination the requester has received in response to a request for an Agency record.
(d) The term final determination means a decision by the Administrator or designee, or, in the case of records as specified in Sec. 1206.504, by the Inspector General or designee on an appeal.
(e) The term working days means all days except Saturdays, Sundays, and Federal holidays.
(f) As used in Sec. 1206.608, the term unusual circumstance means, but only to the extent reasonably necessary to the proper processing of a particular request for Agency records--
(1) The need to search for and collect the requested records from NASA Centers or other establishments that are separate from the NASA Information Center processing the request (see Subpart 6 of this part for procedures for processing a request for Agency records);
(2) The need to search for, collect, and appropriately examine a voluminous amount of separate and distinct records which are demanded in a single request; or
(3) The need for consultation, which shall be conducted with all practicable speed, with another agency having a substantial interest in the determination of the request or among two or more components of NASA having substantial subject-matter interest therein.
(g) A statute specifically providing for setting the level of fees for particular types of records (5 U.S.C. 552(a)(4)(A)(vi)) means any statute that specifically requires a government agency to set the level of fees for particular types of records in order to:
(1) Serve both the general public and private sector organizations by conveniently making available government information;
(2) Ensure that both groups and individuals pay the cost of publications and other services that are for their special use so that these costs are not borne by the general taxpaying public;
(3) Operate, to the maximum extent possible an information dissemination activity on a self-sustaining basis (to the maximum extent possible); or
(4) Return revenue to the Treasury for defraying, wholly or in part, appropriated funds used to pay the cost of disseminating government information.
(h) The term direct costs means those expenditures that NASA actually incurs in searching for, duplicating, and downloading computer files and documents in response to a FOIA request. Direct costs include, for example, the salary of the employee who would ordinarily perform the work (the basic rate of pay for the employee plus 16 percent of that rate to cover benefits) and the cost of operating duplicating machinery. Direct costs do not include overhead expenses such as costs of space, heating, or lighting in the records storage facility.
(i) The term search includes all time spent looking for material that is responsive to a request, including page-by-page or line-by-line identification of material within documents. A search for Agency records that are responsive to the request may be accomplished by manual or automated means. NASA will make reasonable efforts to search for records in electronic form or format, except when such efforts would significantly interfere with the operation of NASA's automated information systems. NASA will ensure that searching for material is done in the most efficient, least expensive manner so as to minimize costs for both the Agency and the requester and will only utilize line- by-line, page-by-page search when consistent with this policy. Search should be distinguished, however, from review of material in order to determine whether the material is exempt from disclosure (see paragraph (k) of this section).
(j) The term duplication means the process of making a copy of a document in order to respond to a FOIA request. Such copies can take the form of paper copy, electronic forms, microfilm, audio-visual materials, or machine-readable documentation (e.g., magnetic tape on disk), among others.
(k) The term review means the process of examining documents located in response to a request (see paragraph (l) of this section) to determine whether any portion of any document located is permitted to be withheld. It also includes processing any documents for disclosure, e.g., doing all that is necessary to excise them and otherwise prepare them for release. Review does not include time spent resolving general legal or policy issues regarding the application of exemptions.
(l) The term commercial use request means a request from or on behalf of one whom seeks information for a use or purpose that furthers the commercial, trade, or profit interests of either the requester or the person on whose behalf the request is made. In determining whether a requester properly belongs in this category, NASA will look first to the use to which a requester will put the documents requested. When NASA has reasonable cause to doubt the use to which a requester will put the records sought or when the use is not clear from the request itself, NASA will ask the requester to further clarify the immediate use for the requested records. A request from a corporation (not a news media corporation) may be presumed to be for commercial use unless the requester demonstrates that it qualifies for a different fee category.
(m) The term educational institution refers to a preschool, a public or private elementary or secondary school, an institution of graduate higher education, an institution of undergraduate higher education, an institution of professional education, and an institution of vocational education, operating a program or programs of scholarly research.
(n) The term noncommercial scientific institution refers to an institution that is not operated on a commercial basis as that term is referenced in paragraph (l) of this section, and which is operated solely for the purpose of conducting scientific research, the results of which are not intended to promote any particular product or industry.
(o) The term representative of the news media means any person actively
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gathering news for an entity that publishes, broadcasts, or makes news available to the public. The term news means information about events that would be of interest to the public. Examples of news media include, but are not limited to, television or radio stations broadcasting to the public at large, publishers of periodicals who make their products available for purchase or subscription by the general public (but only in those instances when they can qualify as disseminators of news), and entities that disseminate news to the general public through telephone, computer or other telecommunications methods. Moreover, as traditional methods of news delivery evolve (e.g., electronic dissemination of newspapers through telecommunications services), such alternative media would be included in this category. In the case of freelance journalists, they may be regarded as working for a news organization if they can demonstrate a solid basis for expecting publication through that organization, even though not actually employed by it. A publication contract would be the clearest proof, but NASA may also look to the past publication record of a requester in making this determination.
(p) The term commercial information means, for the purpose of applying the notice requirements of Sec. 1206.610, information provided by a submitter and in the possession of NASA, that may arguably be exempt from disclosure under the provisions of Exemption 4 of the FOIA (5 U.S.C. 552(b)(4)). The meaning ascribed to this term for the purpose of this notice requirement is separate and should not be confused with use of this or similar terms in determining whether information satisfies one of the elements of Exemption 4.
(q) The term submitter means a person or entity that is the source of commercial information in the possession of NASA. The term submitter includes, but is not limited to, corporations, state governments, and foreign governments. It does not include other Federal Government agencies or departments.
(r) The term compelling need means:
(1) That a failure to obtain requested records on an expedited basis could reasonably be expected to pose an imminent threat to the life or physical safety of an individual; or
(2) With respect to a request made by a person primarily engaged in disseminating information, urgency to inform the public concerning actual or alleged Federal government activity.
(s) The term electronic reading room means a World Wide Web site from which members of the public can access information regarding activities, missions, organizations, publications, or other material related to NASA's congressional mandate.
Sec. 1206.102 General policy.
(a) In accordance with section 203(a)(3) of the National Aeronautics and Space Act of 1958 (42 U.S.C. 2473(a)(3)), it has been and continues to be NASA policy to provide for the ``widest practicable and appropriate dissemination of information concerning its activities and the results thereof.''
(b) In compliance with the Freedom of Information Act, as amended (5 U.S.C. 552), a positive and continuing obligation exists for NASA to make available to the fullest extent practicable upon request by members of the public all Agency records under its jurisdiction, as described in Subpart 2 of this part, except to the extent that they may be exempt from disclosure under Subpart 3 of this part.
Subpart 2--Records Available
Sec. 1206.200 Types of records to be made available.
(a) Records required to be published in the Federal Register. The following records are required to be published in the Federal Register, for codification in Title 14, Chapter V, of the CFR.
(1) Description of NASA Headquarters and NASA Centers and the established places at which, the employees from whom, and the methods whereby, the public may secure information, make submittals or requests, or obtain decisions;
(2) Statements of the general course and method by which NASA's functions are channeled and determined, including the nature and requirements of all formal and informal procedures available;
(3) Rules of procedure, descriptions of forms available or the places at which forms may be obtained, and instructions regarding the scope and contents of all papers, reports, or examinations;
(4) Substantive rules of general applicability adopted as authorized by law, and statements of general policy or interpretations of general applicability formulated and adopted by NASA;
(5) Each amendment, revision, or repeal of the foregoing.
(b) Agency opinions, orders, statements, and manuals.
(1) Unless they are exempt from disclosure under Subpart 3 of this part, or unless they are promptly published and copies offered for sale, NASA shall make available the following records for public inspection and copying or purchase:
(i) All final opinions (including concurring and dissenting opinions) and all orders made in the adjudication of cases;
(ii) Those statements of NASA policy and interpretations which have been adopted by NASA and are not published in the Federal Register;
(iii) Administrative staff manuals (or similar issuances) and instructions to staff that affect a member of the public;
(iv) Copies of all records, regardless of form or format, which have been released to any person under subpart 6 herein and which, because of the nature of their subject matter, the Agency determines have become or are likely to become the subject of subsequent requests for substantially the same records.
(v) A general index of records referred to under paragraph (b)(1)(iv) of this section.
(2) (i) For records created after November 1, 1997, which are covered by paragraph (b)(l)(i) through (b)(l)(v) of this section, such records shall be available electronically, through an electronic reading room and in electronic forms or formats.
(ii) In connection with all records required to be made available or published under this paragraph (b), identifying details shall be deleted to the extent required to prevent a clearly unwarranted invasion of personal privacy. However, in each case the justification for the deletion shall be explained fully in writing. The extent of such deletion shall be indicated on the portion of the record which is made available or published, unless including that indication would harm an interest protected by an exemption in Subpart 3. If technically feasible, the extent of the deletion shall be indicated at the place in the record where the deletion is made.
(c) Other Agency records.
(1) In addition to the records made available or published under paragraphs (a) and (b) of this section, NASA shall, upon request for other records made in accordance with this part, make such records promptly available to any person, unless they are exempt from disclosure under Subpart 3 of this part, or unless they may be purchased from other readily available sources, as provided in Sec. 1206.201.
(2) Furthermore, at a minimum, NASA will maintain in its electronic reading room records created after November 1, 1997, under paragraphs (b)(1)(iv) and (v) and a guide for
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requesting records or information from NASA. Such guide shall include all NASA major information systems, a description of major information and record locator systems, and a handbook for obtaining various types and categories of NASA public information through the FOIA.
Sec. 1206.201 Records which have been published.
Publication in the Federal Register is a means of making certain Agency records are available to the public. NASA has a FOIA Electronic Reading Room at NASA Headquarters and each of its Centers. Also, the Commerce Business Daily, Synopsis of U.S. Government Proposed Procurement, Sales and Contract Awards (Department of Commerce) is a source of information concerning Agency records or actions. Various other NASA publications and documents, and indexes thereto, are available from other sources, such as the U.S. Superintendent of Documents, the National Technical Information Service (Department of Commerce), and the Earth Resources Observation Systems Data Center (Department of the Interior). Such publications and documents are not required to be made available or reproduced in response to a request unless they cannot be purchased readily from available sources. If a publication or document is readily available from a source other than NASA, the requester shall be informed of the procedures to follow to obtain the publication or document.
Sec. 1206.202 Deletion of segregable portions of a record.
If a record requested by a member of the public contains both information required to be made available and that which is exempt from disclosure under Subpart 3 of this part, and the portion of the records that is required to be made available is reasonably segregable from the portion that is exempt, the portion that is exempt from disclosure shall be deleted and the balance of the record shall be made available to the requester. If the nonexempt portion of the record appears to be unintelligible or uninformative, the requester shall be informed of that fact, and such nonexempt portion shall not be sent to the requester unless thereafter specifically requested. If technically feasible, the amount of information deleted shall be indicated on the released portion of the record, unless including that indication would harm an interest protected by the exemption in Subpart 3 under which the deletion is made.
Sec. 1206.203 Creation of records.
Records will not be created by compiling selected items from the files at the request of a member of the public, nor will records be created to provide the requester with such data as ratios, proportions, percentages, frequency distributions, trends, correlations, or comparisons.
Sec. 1206.204 Records of interest to other agencies.
If a NASA record is requested and another agency has a substantial interest in the record, such an agency shall be consulted on whether the record shall be made available under this part (see Sec. 1206.101(f)(3)). If a record is requested that is a record of another agency, the request shall be returned to the requester, as provided in Sec. 1206.604(c) unless NASA has possession and control of the record requested.
Sec. 1206.205 Incorporation by reference.
Records reasonably available to the members of the public affected thereby, shall be deemed published in the Federal Register when incorporated by reference in material published in the Federal Register (pursuant to the Federal Register regulation on incorporation by reference, 1 CFR Part 51).
Sec. 1206.206 Availability for copying.
Except as provided in Sec. 1206.201, the availability of a record for inspection shall include the opportunity to extract information therefrom or to purchase copies.
Sec. 1206.207 Copies.
The furnishing of a single copy of the requested record will constitute compliance with this part.
Sec. 1206.208 Release of exempt records.
If a record which has been requested is exempt from disclosure under Subpart 3 of this part, the record may nevertheless be made available under the procedures of Subpart 6 of this part if it is determined by an official authorized to make either an initial determination or a final determination that such action would not be inconsistent with a purpose of the exemptions set forth in Subpart 3 of this part.
Subpart 3--Exemptions
Sec. 1206.300 Exemptions.
(a) Under 5 U.S.C. 552(b) Agency records falling within the exemptions of paragraph (b) of this section are not required to be made available under this part. Such records may nevertheless be made available if it is determined that such actions would not be inconsistent with a purpose of the exemption (see Sec. 1206.208).
(b) The requirements of this part to make Agency records available do not apply to matters that are--
(1)(i) Specifically authorized under criteria established by an Executive Order to be kept secret in the interest of national defense or foreign policy and
(ii) Are in fact properly classified pursuant to such Executive Order;
(2) Related solely to the internal personnel rules and practices of NASA;
(3) Specifically exempted from disclosure by statute (other than 5 U.S.C. 552), provided that such statute:
(i) Requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or
(ii) Establishes particular criteria for withholding or refers to particular types of matters to be withheld;
(4) Trade secrets and commercial or financial information obtained from a person which is privileged or confidential;
(5) Interagency or intra-agency memoranda or letters which would not be available by law to a party other than an agency in litigation with NASA;
(6) Personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy;
(7) Records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information--
(i) Could reasonably be expected to interfere with enforcement proceedings,
(A) Whenever a request is made which involves access to these records and--
(1) The investigation or proceeding involves a possible violation of criminal law; and
(2) There is reason to believe that the subject of the investigation or proceeding is not aware of its pendency, and disclosure of the existence of the records could reasonably be expected to interfere with enforcement proceedings, the Agency may, during only such time as that circumstance continues, treat the records as not subject to the requirements of 5 U.S.C. 552.
(B) [Reserved]
(ii) Would deprive a person of a right to a fair trial or an impartial adjudication,
(iii) Could reasonably be expected to constitute an unwarranted invasion of personal privacy,
(iv) Could reasonably be expected to disclose the identity of a confidential source, including a State, local, or
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foreign agency or authority or any private institution which furnished information on a confidential basis, and, in the case of a record or information compiled by criminal law enforcement authority in the course of a criminal investigation or by an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source. Whenever informant records maintained by a criminal law enforcement agency under an informant's name or personal identifier are requested by a third party according to the informant's name or personal identifier, the Agency may treat the records as not subject to the requirements of 5 U.S.C. 552 unless the informant's status as an informant has been officially confirmed.
(v) Would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law, or
(vi) Could reasonably be expected to endanger the life or physical safety of any individual.
(8) Contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions; or
(9) Geological and geophysical information and data, including maps, concerning wells.
Sec. 1206.301 Limitation of exemptions.
(a) This Part 1206 does not authorize the withholding of information or the availability of records to the public, except as specifically stated in this part.
(b) Nothing in this part shall be construed as authority to withhold information from Congress.
Subpart 4--Location for Inspection and Request of Agency Records
Sec. 1206.400 Information Centers.
NASA will maintain Information Centers as set forth in this subpart.
Sec. 1206.401 Location of NASA Information Centers.
(a) NASA will maintain the following Information Centers, at which Agency records may be inspected, from which copies of Agency records may be requested and at which copies of Agency forms may be obtained:
(1) NASA Headquarters (HQ) Information Center, National Aeronautics and Space Administration, Washington, DC 20546.
(2) NASA Information Center, Ames Research Center (ARC), Moffett Field, CA 94035.
(3) NASA Information Center, Hugh L. Dryden Flight Research Center, (DFRC), Post Office Box 273, Edwards, CA 93523.
(4) NASA Information Center, Glenn Research Center (GRC), 21000 Brookpark Road, Cleveland, OH 44135.
(5) NASA Information Center, Goddard Space Flight Center (GSFC), Greenbelt, MD 20771.
(6) NASA Information Center, John F. Kennedy Space Center (KSC), Kennedy Space Center, FL 32899.
(7) NASA Information Center, Langley Research Center (LaRC), Langley Station, Hampton, VA 23665.
(8) NASA Information Center, Lyndon B. Johnson Space Center (JSC), 2101 NASA Road 1, Houston, TX 77058.
(9) NASA Information Center, George C. Marshall Space Flight Center (MSFC), Huntsville, AL 35812.
(10) NASA Information Center, John C. Stennis Space Center (SSC), MS 39529.
(11) NASA Information Center, NASA Management Office Jet Propulsion Laboratory (JPL), 4800 Oak Grove Drive, Pasadena, CA 91109.
(12) NASA Information Center, Wallops Flight Facility (WFF), Wallops Island, VA 23337.
(b) NASA Headquarters and each NASA Center also has a FOIA Electronic Reading Room on the Internet. The Uniform Resource Locator (URL) addresses are as follows:
(1) (HQ) http://www.hq.nasa.gov/office/pao/FOIA/;
(2) (ARC) http://george.arc.nasa.gov/dx/FOIA/elec.html;
(3) (DFRC) http://www.dfrc.nasa.gov/FOIA/readroom.html;
(4) (GRC) http://www.grc.nasa.gov/WWW/FOIA/ReadingRm.htm;
(5) (GSFC) http://genesis.gsfc.nasa.gov//foia/read-rm.htm;
(6) (JSC) http://www.jsc.nasa.gov/pao/public/foia/edocs.html;
(7) (KSC) http://www-foia.ksc.nasa.gov/foia/READROOM.HTM;
(8) (LaRC) http://foia.larc.nasa.gov/readroom.html;
(9) (MSFC) http://www1.msfc.nasa.gov/FOIA/docs/docs.html and
(10) (SSC) http://www.ssc.nasa.gov/‹difference›foia/reading/
(c) In addition a requester may submit a FOIA request electronically. The addresses are as follows: (HQ) foia@hq.nasa.gov; (ARC) foia@arc.nasa.gov; (DFRC) foia@dfrc.nasa.gov; (GRC) foia@grc.nasa.gov; (GSFC) foia@gsfc.nasa.gov; (JSC) foia@ems.jsc.nasa.gov; (KSC)FOIA@ksc.nasa.gov; (LaRC) foia@larc.nasa.gov; (MSFC) foia@msfc.nasa.gov and (SSC) foia@ssc.nasa.gov; and for Inspector General records, foiaoig@hq.nasa.gov.
Sec. 1206.402 Documents available for inspection at NASA Information Centers.
(a) Each NASA Information Center will have available for inspection, as a minimum, a current version of the following documents:
(1) 5 U.S.C. 552;
(2) Title 14 CFR Chapter V, and Title 41 CFR Chapter 18, and material published in the Federal Register for codification but not yet included in the Code of Federal Regulations;
(3) A master list and index of NASA Issuances, and a copy of all such issuances;
(4) A list and index of the management issuances of the NASA Center at which the Information Center is located, and a copy of such issuances;
(5) NASA's Scientific and Technical AeroSpace Reports and current indexes thereto;
(6) Cumulative Index to Selected Speeches and News Releases issued by NASA Headquarters;
(7) Index/Digest of Decisions, NASA Board of Contract Appeals;
(8) Decisions of the NASA Contract Adjustment Board and a current index thereto;
(9) Copies of Environmental Impact Statements filedby NASA under the National Environmental Policy Act of 1969;
(10) Collection of all issues of ``NASA Activities'';
(11) List of licenses granted under NASA-owned patents; and
(12) A master list and an index of NASA Policy Directives, Guidelines, and Charters, and a copy of all such Directives, Guidelines, and Charters.
(b) Because the indexes listed in paragraph (a) of this section are voluminous and because current versions thereof will be available for inspection at NASA Information Centers, from which copies of the indexes may be requested under Sec. 1206.603, it is determined and so ordered that publication of the indexes quarterly in the Federal Register would be unnecessary and impractical.
Sec. 1206.403 Duty hours.
The NASA Information Centers listed in Sec. 1206.401 shall be open to the public during all regular workdays, from 9 a.m. to 4 p.m.
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Subpart 5--Responsibilities
Sec. 1206.500 Associate Deputy Administrator.
Except as otherwise provided in Sec. 1206.504, the Associate Deputy Administrator or designee is responsible for the following:
(a) Providing overall supervision and coordination of the implementation of the policies and procedures set forth in this Part 1206;
(b) After consultation with the General Counsel, making final determinations under Sec. 1206.607, within the time limits specified in Subpart 6 of this part;
(c) Determining whether unusual circumstances exist under Sec. 1206.608 as would justify the extension of the time limit for a final determination.
Sec. 1206.501 General Counsel.
The General Counsel is responsible for the interpretation of 5 U.S.C. 552 and of this part, and for the handling of litigation in connection with a request for an Agency record under this part.
Sec. 1206.502 Centers and Components.
(a) Except as otherwise provided in Sec. 1206.504, the Director of each NASA Center or the Official-in-Charge of each Component, is responsible for the following:
(1) After consultation with the Chief Counsel or the Counsel charged with providing legal advice to a Center or a Component Facility, making initial determinations under Sec. 1206.603 and Sec. 1206.604;
(2) Determining whether unusual circumstances exist under Sec. 1206.608 as would justify the extension of the time limit for an initial determination; and
(3) In coordination with the Associate Deputy Administrator, ensuring that requests for records under the cognizance of his/her respective Center are processed and initial determinations made within the time limits specified in Subpart 6 of this part.
(b) If so designated by the Director or Officials-in-Charge of the respective Center, the principal Public Affairs Officer at the Center may perform the functions set forth in paragraphs (a)(1) and (2) of this section.
Sec. 1206.503 NASA Headquarters.
(a) Except as otherwise provided in Sec. 1206.504, the Associate Administrator for Public Affairs, is responsible for the following:
(1) Preparing the annual reports required by Sec. 1206.900, including establishing reporting procedures throughout NASA to facilitate the preparation of such reports;
(2) After consultation with the Office of General Counsel, making initial determinations under Sec. 1206.603 and Sec. 1206.604;
(3) Determining whether unusual circumstances exist under Sec. 1206.608 as would justify the extension of the time limit for an initial determination; and
(4) In coordination with the Associate Deputy Administrator, ensuring that requests for Agency records under the cognizance of Headquarters are processed and initial determinations made within the time limits specified in Subpart 6 of this part.
(b) The functions set forth in paragraphs (a)(1), (2) and (3) of this section may be delegated by the Associate Administrator for Public Affairs to a Public Affairs Officer or Specialist and to the Manager or his/her designee, NASA Management Office--JPL.
Sec. 1206.504 Inspector General.
(a) The Inspector General or designee is responsible for making final determinations under Sec. 1206.607, within the time limits specified in Subpart 6 of this part, concerning audit inspection and investigative records originating in the Office of the Inspector General records from outside the Government related to an audit inspection or investigation, records prepared in response to a request from or addressed to the Office of the Inspector General, or other records originating within the Office of the Inspector General, after consultation with the General Counsel or designee on an appeal of an initial determination to the Inspector General.
(b) The Assistant Inspectors General or their designees are responsible for making initial determinations under Sec. 1206.603 and Sec. 1206.604 concerning audit inspection and investigative records originating in the Office of the Inspector General, records from outside the Government related to an audit inspection or investigation, records prepared in response to a request from or addressed to the Office of the Inspector General, or other records originating with the Office of the Inspector General, after consultation with the Attorney- Advisor to the Inspector General or designee.
(c) The Inspector General or designee is responsible for ensuring that requests for Agency records as specified in paragraphs (a) and (b) of this section are processed and initial determinations are made within the time limits specified in Subpart 6 of this part.
(d) The Inspector General or designee is responsible for determining whether unusual circumstances exist under Sec. 1206.608 that would justify extending the time limit for an initial or final determination, for records as specified in paragraphs (a) and (b) of this section.
(e) Records as specified in paragraphs (a) and (b) of this section include any records located at Regional and field Inspector General Offices, as well as records located at the Headquarters Office of the Inspector General.
Sec. 1206.505 Delegation of authority.
Authority necessary to carry out the responsibilities specified in this subpart is delegated from the Administrator to the officials named in this subpart.
Subpart 6--Procedures
Sec. 1206.600 Requests for Records.
A member of the public may request an Agency record by mail, facsimile (FAX), electronic-mail (e-mail), or in person from the FOIA Office having cognizance over the record requested or from the NASA Headquarters FOIA Office.
Sec. 1206.601 Mail, fax and e-mail requests.
In view of the time limits under 5 U.S.C. 552(a)(6) for an initial determination on a request for an Agency record (see Sec. 1206.603), a request must meet the following requirements:
(a) The request must be addressed to an appropriate NASA FOIA Office or otherwise be clearly identified in the letter as a request for an Agency record under the ``Freedom of Information Act.''
(b) The request must identify the record requested or reasonably describe it in a manner that enables a professional NASA employee who is familiar with the subject area of the request to identify and locate the record with a reasonable amount of effort. NASA need not comply with a blanket or categorical request (such as ``all matters relating to'' a general subject) where it is not reasonably feasible to determine what is sought. NASA will in good faith endeavor to identify and locate the record sought and will consult with the requester when necessary and appropriate for that purpose. However, as provided in Sec. 1206.203, NASA will undertake no obligation to compile or create information or records not already in existence at the time of the request.
(c) If a fee is chargeable under Subpart 7 of this part for search or duplication costs incurred in connection with a request for an Agency record, and the requester knows the amount of the fee at the time of the request, the request should be accompanied by a check or
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money order payable in that amount to the ``National Aeronautics and Space Administration.'' NASA cannot be responsible for cash sent by mail; stamps will not be accepted. If the amount of the fee chargeable is not known at the time of the request, the requester will be notified in the initial determination (or in a final determination in the case of an appeal) of the amount of the fee chargeable (see Sec. 1206.608(c)). For circumstances in which advance payment of fees is required, see Sec. 1206.704.
Sec. 1206.602 Requests in person.
(a) A member of the public may request an Agency record in person at a NASA FOIA Office (see Sec. 1206.401) during the duty hours of NASA Headquarters or the Center.
(b) A request at a FOIA Office must identify the record requested or reasonably describe it as provided in Sec. 1206.601(b).
(c) If the record requested is located at the FOIA Office or otherwise readily obtainable, it shall be made available to the requester upon the payment of any fees that are chargeable (see Subpart 7 of this part), which fees may be paid by a check or money order payable to the ``National Aeronautics and Space Administration.'' If the record requested is not located at the FOIA Office or otherwise readily obtainable, the request will be docketed at the FOIA Office and processed in accordance with the procedures in Sec. 1206.603 and Sec. 1206.604, with any fee chargeable being handled in accordance with Sec. 1206.601(c).
Sec. 1206.603 Procedures and time limits for initial determinations.
(a) Except as provided in Sec. 1206.608, an initial determination on a request for an Agency record, addressed in accordance with Sec. 1206.601(a) or made in person at a NASA FOIA Office shall be made, and the requester shall be sent notification thereof, within 20-working days after receipt of the request, as required by 5 U.S.C. 552(a)(6).
(b) An initial determination on a request for an Agency record by mail not addressed in accordance with Sec. 1206.601(a) shall be made, and the requester shall be sent notification thereof, within 20-working days after the correspondence is recognized as a request for an Agency record under the ``Freedom of Information Act'' and received by the appropriate NASA FOIA Office. With respect to such a request, unless an initial determination can reasonably be made within 20-working days of the original receipt, the request will be promptly acknowledged and the requester notified of the date the request was received at that FOIA Office and that an initial determination on the request will be made within 20-working days of that date.
(c) If it is determined that the requested record (or portion thereof) will be made available, and if the charges are under $250, NASA will either send a copy of the releasable record and a bill for the fee or send the initial determination and a bill for the fee to the requester. In the latter case, the documents will be released when the fee is received. If the fee chargeable is over $250, a request for payment of the fee will always be sent with the initial determination, and the records will be mailed only upon receipt of payment. When records are sent before payment is received, the fact that interest will be charged from the 31st day after the day of the response shall be stated in the response. The date of the mailing of an initial determination, with or without the records(s), shall be deemed to satisfy the time limit for initial determinations.
(d) Any notification of an initial determination that does not comply fully with the request for an Agency record, including those searches that produce no documents, shall include a statement of the reasons for the adverse determination, include the name and title of the person making the initial determination, and notify the requester of the right to appeal to the Administrator, or the Inspector General, as appropriate, under Sec. 1206.605.
(e) If the requester demonstrates a ``compelling need'' as defined in Sec. 1206.101(r) for records, NASA shall provide expedited processing of the request. NASA will inform the requester as to whether the request for expedited processing has been granted within 10 working days after the date of the request.
Sec. 1206.604 Request for records that exist elsewhere.
(a) If a request for an Agency record is received by a FOIA Office not having cognizance of the record (for example, when a request is submitted to one NASA Center or Headquarters and the requested record exists only at another NASA Center), the FOIA Office receiving the request shall promptly forward it to the NASA FOIA Office having cognizance of the record requested. That Center shall acknowledge the request and inform the requester that an initial determination on the request will be sent within 20 working days from the date of receipt by such Center.
(b) If a request is received for Agency records which exist at two or more Centers, the FOIA Office receiving the request shall undertake to comply with the request, if feasible, or to forward the request (or portions thereof) promptly to a more appropriate Center for processing. The requester shall be kept informed of the actions taken to respond to the request.
(c) If a request is received by a NASA FOIA Office for a record of another agency, the requester shall promptly be informed of that fact, and the request shall be returned to the requester, with advice as to where the request should be directed.
Sec. 1206.605 Appeals.
(a) A member of the public who has requested an Agency record in accordance with Sec. 1206.601 or Sec. 1206.602, and who has received an initial determination which does not comply fully with the request, may appeal such an adverse initial determination to the Administrator, or, for records as specified in Sec. 1206.504, to the Inspector General under the procedures of this section.
(b) The Appeal must:
(1) Be in writing;
(2) Be addressed to the Administrator, NASA Headquarters, Washington, DC 20546, or, for records as specified in Sec. 1206.504, to the Inspector General, NASA Headquarters, Washington, DC 20546;
(3) Be identified clearly on the envelope and in the letter as an ``Appeal under the Freedom of Information Act'';
(4) Include a copy of the request for the Agency record and a copy of the adverse initial determination;
(5) To the extent possible, state the reasons why the requester believes the adverse initial determination should be reversed; and
(6) Be sent to the Administrator or the Inspector General, as appropriate, within 30 calendar days of the date of receipt of the initial determination.
(c) An official authorized to make a final determination may waive any of the requirements of paragraph (b) of this section, in which case the time limit for the final determination (see Sec. 1206.607(a)) shall run from the date of such waiver.
Sec. 1206.606 Request for additional records.
If, upon receipt of a record (or portions thereof) following an initial determination to comply with a request, the requester believes that the materials received do not comply with the request, the requester may elect either to request additional records under the procedures of Sec. 1206.601 or Sec. 1206.602,
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or to file an appeal under the procedures of Sec. 1206.605, in which case the appeal must be sent to the Administrator, or to the Inspector General, in the case of records as specified in Sec. 1206.504, within 30 days of receipt of the record (or portions thereof), unless good cause is shown for any additional delay.
Sec. 1206.607 Actions on appeals.
(a) Except as provided in Sec. 1206.608, the Administrator or designee, or in the case of records as specified in Sec. 1206.504, the Inspector General or designee, shall make a final determination on an appeal and notify the requester thereof, within 20 working days after the receipt of the appeal.
(b) If the final determination reverses in whole or in part the initial determination, the record requested (or portions thereof) shall be made available promptly to the requester, as provided in the final determination.
(c) If the final determination sustains in whole or in part an adverse initial determination, the notification of the final determination shall:
(1) Explain the basis on which the record (or portions thereof) will not be made available;
(2) Include the name and title of the person making the final determination;
(3) Include a statement that the final determination is subject to judicial review under 5 U.S.C. 552(a)(4); and
(4) Enclose a copy of 5 U.S.C. 552(a)(4).
Sec. 1206.608 Time extensions in unusual circumstances.
(a) In ``unusual circumstances'' as that term is defined in Sec. 1206.101(f), the time limits for an initial determination (see Sec. 1206.603 and Sec. 1206.604) and for a final determination (see Sec. 1206.607) may be extended, but not to exceed a total of 10-working days in the aggregate in the processing of any specific request for an Agency record.
(b) If an extension of time under this section would be required, the requester shall be promptly notified of the reasons therefor and the date when a determination will be sent.
(c) If a record described in a request cannot be located within the 20-working-day time limit for an initial determination, after consultation with a professional NASA employee who is familiar with the subject area of the request, that fact normally will justify an initial determination that the record requested cannot be identified or located, rather than a decision that an extension of time under this section would be appropriate.
(d) In exceptional circumstances, if it would be impossible to complete a search for or review of Agency records within the 20- working-day period for an initial determination, an official authorized to make an initial determination or the designee may seek an extension of time from the requester. If such an extension of time can be agreed upon, that fact should be clearly documented and the initial determination made within the extended time period; if not, an initial determination that the record cannot be identified or located, or reviewed, within the 20-working-day time limit shall be made under Sec. 1206.603. ``Exceptional circumstances'' do not include a delay that results from a predictable Agency workload of requests unless the Agency demonstrates reasonable progress in reducing its backlog of pending requests. Refusal by the requester to reasonably modify the scope of a request or arrange an alternative time frame for processing the request shall be considered as a factor in determining whether exceptional circumstances exist.
Sec. 1206.609 Litigation.
In any instance in which a requester brings suit concerning a request for an Agency record under this part, the matter shall promptly be referred to the General Counsel together with a report on the details and status of the request. In such a case, if a final determination with respect to the request has not been made, such a determination shall be made as soon as possible, under procedures prescribed by the General Counsel in each case.
Sec. 1206.610 Notice to submitters of commercial information.
(a) General policy. Upon receipt of a request for commercial information pursuant to the Freedom of Information Act, NASA shall provide the submitter with notice of the request in accordance with the requirements of this section.
(b) Notice to submitters. Except as provided in paragraph (g) or (h) of this section, the Agency shall make a good faith effort to provide a submitter with prompt notice of a request appearing to encompass its commercial information whenever required under paragraph (c) of this section. Such notice shall identify the commercial information requested and shall inform the submitter of the opportunity to object to its disclosure in accordance with paragraph (d) of this section. If the submitter would not otherwise have access to the document that contains the information, upon the request of the submitter, the Agency shall provide access to, or copies of, the records or portions thereof containing the commercial information. This notice shall be provided in writing upon the request of the submitter. Whenever the Agency provides notice pursuant to this section, the Agency shall advise the requester that notice and opportunity to comment are being provided to the submitter.
(c) When notice is required. Notice shall be given to a submitter whenever the information has been designated by the submitter as information deemed protected from disclosure under Exemption 4 of the Act, or the Agency otherwise has reason to believe that the information may be protected from disclosure under Exemption 4.
(d) Opportunity to object to disclosure. Through the notice described in paragraph (b) of this section, the Agency shall afford a submitter a reasonable period within which to provide the Agency with a detailed statement of any objection to disclosure. This period shall not exceed 10 working days from the date after which the Agency can reasonably assume receipt of notice by the submitter, unless the submitter provides a reasonable explanation justifying additional time to respond. If the Agency does not receive a response from the submitter within this period, the Agency shall proceed with its review of the information and initial determination. The submitter's response shall include all bases, factual or legal, for withholding any of the information pursuant to Exemption 4. Information provided by a submitter pursuant to this paragraph may itself be subject to disclosure under the FOIA. Submitters will not be provided additional opportunities to object to disclosure, and, therefore, should provide a complete explanation of any and all bases for withholding any information from disclosure.
(e) Notice of intent to disclose. The Agency shall carefully consider any objections of the submitter in the course of determining whether to disclose commercial information. Whenever the Agency decides to disclose commercial information over the objection of a submitter, the Agency shall forward to the submitter a written statement which shall include the following:
(1) A brief explanation as to why the Agency did not agree with any objections;
(2) A description of the commercial information to be disclosed, sufficient to identify the information to the submitter; and
(3) A date after which disclosure is expected. Such notice of intent to disclose shall be forwarded to the
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submitter in a reasonable number of working days prior to the expected disclosure date.
(4) If no comments are received by the Agency by the date described in paragraph (e)(3) of this section, the information in question will be released.
(f) Notice of FOIA lawsuit. Whenever a requester brings suit seeking to compel disclosure of commercial information covered by paragraph (c) of this section, the Agency shall promptly notify the submitter. Whenever a submitter brings suit against the Agency in order to prevent disclosure of commercial information, the Agency shall promptly notify the requester.
(g) Exceptions to notice requirements. The notice requirements of this section do not apply if--
(1) The information has been published or otherwise made available to the public.
(2) Disclosure of the information is required by law (other than 5 U.S.C. 552);
(3) The submitter has received notice of a previous FOIA request which encompassed information requested in the later request, and the Agency intends to withhold and/or release information in the same manner as in the previous FOIA request;
(4) Upon submitting the information or within a reasonable period thereafter,
(i) The submitter reviewed its information in anticipation of future requests pursuant to the FOIA,
(ii) Provided the Agency a statement of its objections to disclosure consistent with that described in paragraph (e) of this section, and
(iii) The Agency intends to release information consistent with the submitter's objections;
(5) Notice to the submitter may disclose information exempt from disclosure pursuant to 5 U.S.C. 552(b)(7).
(h)(1) An additional limited exception to the notice requirements of this section, to be used only when all of the following exceptional circumstances are found to be present, authorizes the Agency to withhold information which is the subject of a FOIA request, based on Exemption 4 (5 U.S.C. 552(b)(4)), without providing the submitter individual notice:
(i) The Agency would be required to provide notice to over 10 submitters, in which case, notification may be accomplished by posting or publishing the notice in a place reasonably calculated to accomplish notification.
(ii) Absent any response to the published notice, the Agency determines that if it provided notice as is otherwise required by paragraph (c) of this section, it is reasonable to assume that the submitter would object to disclosure of the information based on Exemption 4; and,
(iii) If the submitter expressed the anticipated objections, the Agency would uphold those objections.
(2) This exemption shall be used only with the approval of the Chief Counsel of the Center, the Attorney-Advisor to the Inspector General, or the Associate General Counsel responsible for providing advice on the request. This exception shall not be used for a class of documents or requests, but only as warranted by an individual FOIA request.
Subpart 7--Search, Review, and Duplication Fees
Sec. 1206.700 Schedule of fees.
The fees specified in this section shall be charged for searching for, reviewing, and/or duplicating Agency records made available in response to a request under this part.
(a) Copies. For copies of documents such as letters, memoranda, statements, reports, contracts, etc., $0.10 per copy of each page. For copies of oversize documents, such as maps, charts, etc., $0.15 for each reproduced copy per square foot. These charges for copies include the time spent in duplicating the documents. For copies of computer disks, still photographs, blueprints, videotapes, engineering drawings, hard copies of aperture cards, etc., the fee charged will reflect the full direct cost to NASA of reproducing or copying the record.
(b) Clerical searches. For each one-quarter hour spent by clerical personnel in searching for an Agency record in response to a request under this part, $3.75.
(c) Nonroutine, nonclerical searches. When a search cannot be performed by clerical personnel; for example, when the task of determining which records fall within a request and collecting them requires the time of professional or managerial personnel, and when the amount of time that must be expended in the search and collection of the requested records by such higher level personnel is substantial, charges for the search may be made at a rate in excess of the clerical rate, namely for each one-quarter hour spent by such higher level personnel in searching for a requested record, $7.50.
(d) Review of records. For commercial use requests only, when time is spent reviewing to determine whether they are exempt from mandatory disclosure, a charge may be made at the rate for each one-quarter hour spent by an attorney, $11.25. No charge shall be made for the time spent in resolving general legal or policy issues regarding the application of exemptions. This charge will only be assessed the first time NASA reviews a record and not at the administrative appeal level.
(e) Computerized records. Because of the diversity in the types and configurations of computers which may be required in responding to requests for Agency records maintained in whole or in part in computerized form, it is not feasible to establish a uniform schedule of fees for search and printout of such records. In most instances, records maintained in computer data banks are available also in printed form and the standard fees specified in paragraph (a) of this section shall apply. If the request for an Agency record required to be made available under this part requires a computerized search or printout, the charge for the time of personnel involved shall be at the rates specified in paragraphs (b) and (c) of this section. The charge for the computer time involved and for any special supplies or materials used shall not exceed the direct cost to NASA. This charge may be as high as $125.00 per quarter hour. Before any computer search or printout is undertaken in response to a request for an Agency record, the requester shall be notified of the applicable unit costs involved and the total estimated cost of the search and/or printout.
(f) Other search and duplication costs. Reasonable standard fees, other than as specified in paragraphs (a) through (e) of this section, may be charged for additional direct costs incurred in searching for or duplicating an Agency record in response to a request under this part. Charges which may be made under this paragraph include, but are not limited to, the transportation of NASA personnel to places of record storage for search purposes or freight charges for transporting records to the personnel searching for or duplicating a requested record.
(g) Charges for special services. Complying with requests for special services such as those listed in (g)(1), (2), and (3) of this section is entirely at the discretion of NASA. Neither the FOIA nor its fee structure cover these kinds of services. To the extent that NASA elects to provide the following services, it will levy a charge equivalent to the full cost of the service provided:
(1) Certifying that records are true copies.
(2) Sending records by special methods such as express mail.
(3) Packaging and mailing bulky records that will not fit into the largest
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envelope carried in the supply inventory.
(h) Unsuccessful or unproductive searches. Search charges, as set forth in paragraphs (b) and (c) of this section, may be made even when an Agency record which has been requested cannot be identified or located after a diligent search and consultation with a professional NASA employee familiar with the subject area of the request, or if located, cannot be made available under Subpart 3 of this part. Ordinarily, however, fees will not be charged in such instances unless they are substantial (over $50.00) and the requester has consented to the search after having been advised that it cannot be determined in advance whether any records exist which can be made available (see Sec. 1201206.704) and that search fees will be charged even if no record can be located and made available.
(i) Fees not chargeable.
(1) NASA will not charge for the first 100 pages of duplication and the first 2 hours of search time either manual or electronic except to requesters seeking documents for commercial use.
(2) If the cost to be billed to the requester is equal to or less than $15.00, no charges will be billed.
(j) Records will be provided in a form or format specified by the requester if they are readily reproducible in such format with reasonable efforts. If the records are not readily reproducible in the requested form or format, the Agency will so inform the requester. The requester may specify an alternative form or format that is available. If the requester refuses to specify an alternative form or format, the Agency will not process the request further.
Sec. 1206.701 Categories of requesters.
There are four categories of FOIA requesters: Commercial use requesters; educational and noncommercial scientific institutions; representatives of the news media; and all other requesters. The Act prescribes specific levels of fees for each of these categories:
(a) Commercial use requesters. When NASA receives a request for documents appearing to be for commercial use, it will assess charges which recover the full direct costs of searching for, reviewing for release, and duplicating the records sought. Requesters must reasonably describe the records sought. Moreover, in the case of such a request, NASA will not consider a request for waiver or reduction of fees based upon an assertion that disclosure would be in the public interest. Commercial use requesters are not entitled to 2 hours of free search time or to 100 free pages of reproduction of documents.
(b) Education and noncommercial scientific institution requesters. NASA shall provide documents to requesters in this category for the cost of reproduction alone, excluding charges for the first 100 pages. To be eligible for inclusion in this category, requesters must show that the request being made is authorized by and under the auspices of a qualifying institution and that the records are not being sought for a commercial use, but are being sought in furtherance of scholarly (if the request is from an educational institution) or scientific (if the request is from a noncommercial scientific institution) research. Requesters must reasonably describe the records sought.
(c) Requesters who are representatives of the news media. NASA shall provide documents to requesters in this category for the cost of reproduction alone, excluding charges for the first 100 pages. To be eligible for inclusion in this category, a requester must demonstrate that he/she meets the criteria in Sec. 1206.101(o) of this part, and his/her request must not be made for a commercial use. Requesters must reasonably describe the records sought.
(d) All other requesters. NASA shall charge requesters who do not fit into any of the categories mentioned in this section, fees which recover the full direct reasonable cost of searching for and reproducing records that are responsive to the request, except that the first 100 pages of reproduction and the first 2 hours of search time shall be furnished without charge. Moreover, requests from individuals for records about themselves located in NASA's systems of records will continue to be processed under the fee provisions of the Privacy Act of 1974, which permits fees only for reproduction. Requesters must reasonably describe the records sought.
Sec. 1206.702 Waiver or reduction of fees.
The burden is always on the requester to provide the evidence to qualify him/her for a fee waiver or reduction.
(a) NASA shall furnish documents without charge or at reduced charges in accordance with 5 U.S.C. 552(a)(4)(A)(iii), provided that:
(1) 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
(2) It is not primarily in the commercial interest of the requester.
(b) Where these two statutory requirements are satisfied, based upon information supplied by the requester or otherwise made known to NASA, the FOIA fee shall be waived or reduced. Where one or both of these requirements is not satisfied, a fee waiver or reduction is not warranted under the statute.
(c) In determining whether disclosure is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government, the following considerations shall be applied:
(1) Whether the subject of the requested records concerns ``the operations or activities of the government'';
(2) Whether the disclosure is ``likely to contribute'' to an understanding of government operations or activities;
(3) Whether disclosure of the requested information will contribute to ``public understanding''; and
(4) Whether the disclosure is likely to contribute ``significantly'' to public understanding of government operations or activities.
(d) In determining whether disclosure of the information ``is not primarily in the commercial interest of the requester,'' the following consideration shall be applied:
(1) Whether the requester has a commercial interest that would be furthered by the requested disclosure; and if so,
(2) Whether the magnitude of the identified commercial interest of the requester is sufficiently large, in comparison with the public interest in disclosure, that disclosure is ``primarily in the commercial interest of the requester.''
Sec. 1206.703 Aggregation of requests.
A requester may not file multiple requests at the same time, each seeking portions of a document or documents, solely in order to avoid payment of fees. When NASA has reason to believe that a requester or a group of requesters acting in concert, is attempting to break a request down into a series of requests for the purpose of evading the assessment of fees, NASA will aggregate any such requests and charge accordingly. NASA will consider that multiple requests made within a 30-day period were so intended, unless there is evidence to the contrary. Where the relevant time period exceeds 30 days, NASA will not assume such a motive unless there is evidence to the contrary. In no case will NASA aggregate multiple requests on unrelated subjects from one requester.
Sec. 1206.704 Advance payments.
(a) NASA will not require a requester to make an advance payment, i.e.,
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payment before work is commenced or continued on a request, unless:
(1) NASA estimates or determines that the allowable charges are likely to exceed $250. NASA will notify the requester of the likely cost and obtain satisfactory assurance of full payment where the requester has a history of prompt payment of FOIA fees, or require an advance payment of an amount up to the full estimated charges in the case of requesters with no history of payment; or
(2) A requester has previously failed to pay a fee in a timely fashion (within 30 days of billing), then NASA may require the requester to pay the full amount owed plus any applicable interest as provided below (see Sec. 1206.706(a)), or demonstrate that he/she has, in fact, paid the fee, and to make an advance payment of the full amount of the estimated fee before the Agency begins to process a new request or a pending request from that requester.
(b) When NASA acts under paragraphs (a)(1) and (2) of this section, the administrative time limits will begin only after NASA has received the fee payments described in paragraph (a) of this section.
Sec. 1206.705 Form of payment.
Payment shall be made by check or money order payable to the ``National Aeronautics and Space Administration'' and sent per instructions in the initial determination.
Sec. 1206.706 Nonpayment of fees.
(a) Interest to be charged. Requesters are advised that should they fail to pay the fees assessed, they may be charged interest on the amount billed starting on the 31st day following the day on which the billing was sent. Interest will be at the rate prescribed in section 3717 of Title 31 U.S.C.
(b) Applicability of Debt Collection Act of 1982 (Pub. L. 97-365). Requesters are advised that if full payment is not received within 60 days after the billing was sent, the procedures of the Debt Collection Act may be invoked (14 CFR 1261.407-1261.409). These procedures include three written demand letters at not more than 30-day intervals, disclosure to a consumer reporting agency, and the use of a collection agency, where appropriate.
Subpart 8--Failure to Release Records to the Public
Sec. 1206.800 Failure to release records to the public.
(a) Except to the extent that a person has actual and timely notice of the terms thereof, a person may not in any manner be required to resort to, or be adversely affected by, a matter required to be published in the Federal Register under Sec. 1206.200(a) and not so published.
(b) A final order, opinion, statement of policy, interpretation, or staff manual or instruction that affects a member of the public may be relied upon, used, or cited as precedent by NASA against any member of the public only if it has been indexed and either made available or published as provided by Sec. 1206.200(b) or if the member of the public has actual and timely notice of the terms thereof.
(c) Failure to make available an Agency record required to be made available under this part could provide the jurisdictional basis for a suit against NASA under 5 U.S.C. 552(a)(4) (B) through (G), which provides as follows:
(B) On complaint, the District Court of the United States in the district in which the complainant resides, or has his principal place of business, or in which the Agency records are situated, or in the District of Columbia, has jurisdiction to enjoin the Agency from withholding Agency records and to order the production of any Agency records improperly withheld from the complainant. In such a case the court shall determine the matter de novo, and may examine the contents of such Agency records in camera to determine whether such records or any part thereof shall be withheld under any of the exemptions set forth in subsection (b) of this section, and the burden is on the Agency to sustain its action.
(C) Notwithstanding any other provision of law, the defendant shall serve an answer or otherwise plead to any complaint made under this subsection within 30 days after service upon the defendant of the pleading in which such complaint is made, unless the court otherwise directs for good cause shown.
[(D) Repealed. Pub. L. 98-620, Title IV, 402(2), Nov. 8, 1984, 98 Stat. 3335, 3375.]
(E) The court may assess against the United States reasonable attorney fees and other litigation costs reasonably incurred in any case under this section in which the complainant has substantially prevailed.
(F) Whenever the court orders the production of any Agency records improperly withheld from the complainant and assesses against the United States reasonable attorney fees and other litigation costs, and the court additionally issues a written finding that the circumstances surrounding the withholding raise questions whether Agency personnel acted arbitrarily or capriciously with respect to the withholding, the Special Counsel shall promptly initiate a proceeding to determine whether disciplinary action is warranted against the officer or employee who was primarily responsible for the withholding. The Special Counsel, after investigation and consideration of the evidence submitted, shall submit his findings and recommendations to the administrative authority of the Agency concerned and shall send copies of the findings and recommendations to the officer or employee or his representative. The administrative authority shall take the corrective action that the Special Counsel recommends.
(G) In the event of noncompliance with the order of the court, the district court may punish for contempt the responsible employee, and in the case of a uniformed service, the responsible member.
Subpart 9--Annual Report
Sec. 1206.900 Requirements for annual report.
On or before February 1 of each year, NASA shall submit a report covering the preceding fiscal year to the Department of Justice.
Dated: July 2, 1999. Daniel S. Goldin, Administrator.
[FR Doc. 99-17966Filed7-21-99; 8:45 am]
BILLING CODE 7510-01-P
