Freedom of Information Act Regulations

Published date14 June 2019
Citation84 FR 27721
Record Number2019-11775
SectionRules and Regulations
CourtCommission Of Fine Arts
Federal Register, Volume 84 Issue 115 (Friday, June 14, 2019)
[Federal Register Volume 84, Number 115 (Friday, June 14, 2019)]
                [Rules and Regulations]
                [Pages 27721-27734]
                From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
                [FR Doc No: 2019-11775]
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                COMMISSION OF FINE ARTS
                45 CFR Part 2105
                Freedom of Information Act Regulations
                AGENCY: Commission of Fine Arts.
                ACTION: Final rule.
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                SUMMARY: This rule replaces the Commission of Fine Arts (CFA) Freedom
                of Information Act (FOIA) regulations, last updated in 1986, with
                regulations that incorporate FOIA-related mandates since the last
                update, including the FOIA Improvement Act of 2016.
                DATES: This rule is effective June 14, 2019.
                ADDRESSES: Please address comments concerning this rule to
                [email protected].
                FOR FURTHER INFORMATION CONTACT: Thomas Luebke, Secretary, (202) 504-
                2200.
                SUPPLEMENTARY INFORMATION: As established by Congress in 1910, the
                Commission of Fine Arts (CFA) is a small independent advisory body made
                up of seven presidentially appointed ``well qualified judges of the
                arts'' whose primary role is architectural review of designs for
                buildings, parks, monuments and memorials erected by the Federal or
                District of Columbia governments in Washington, DC. In addition to
                architectural review, the Commission considers and advises on the
                designs for coins, medals, and U.S. memorials on foreign soil. The
                Commission also advises the District of
                [[Page 27722]]
                Columbia government on private building projects within the Georgetown
                Historic District, the Rock Creek Park perimeter, and the Monumental
                Core area. The Commission advises Congress, the President, Federal
                agencies, and the District of Columbia government on the general
                subjects of design, historic preservation, and on orderly planning on
                matters within its jurisdiction.
                 The Commission of Fine Arts routinely and promptly responds to
                requests from concerned citizens and interested parties to review a
                wide variety of agency documents. To this end, the staff regularly
                posts agendas for upcoming meetings and draft documents relevant to
                those meetings to the agency website (https://www.cfa.gov/). Agendas,
                meeting minutes, recommendation letters, and actions taken under the
                Shipstead-Luce and Old Georgetown Acts are posted on the website in a
                timely manner. In that same spirit of openness and transparency, the
                CFA strives to organize and fulfill Freedom of Information Act (FOIA)
                requests efficiently and expediently, within the perimeters of current
                legislation. The CFA published revised regulations to replace those
                published in 1986 and invited public commentary. Commentary was
                received, reviewed and incorporated into this final rule.
                 The Commission adopts the interim rule published in Federal
                Register on April 16, 2019, at 84 FR 15512, as final with changes. The
                changes were incorporated from the comments received on the interim
                rule and for the convenience of the reader, the Commission is setting
                out the part revised in its entirety. Comments received include
                identification of unnecessary repetition, clarification on fee
                categories specified in FOIA legislation, suggestions to highlight the
                availability of a FOIA Public Liaison and other minor copy and wording
                suggestions.
                List of Subjects 45 CFR Part 2105
                 Administrative practice and procedure, Freedom of information.
                 For reasons stated in the preamble, the Commission of Fine Arts
                revises 45 CFR part 2105 to read as follows:
                PART 2105--REQUIREMENTS FOR COMPLIANCE WITH THE FREEDOM OF
                INFORMATION ACT
                Sec.
                Subpart A--Introduction
                2105.1 What should you know up front?
                2105.2 What kinds of records are not covered by the regulations in
                this part?
                Subpart B--How To Make a Request
                2105.3 Where should you send a FOIA request?
                2105.4 How should you describe the records you seek?
                2105.5 How will fee information affect the processing of your
                request?
                2105.6 What information should you include about your fee category?
                2105.7 Can you ask for records to be disclosed in a particular form
                or format?
                2105.8 What if your request seeks records about another person?
                2105.9 May you ask for the processing of your request to be
                expedited?
                2105.10 What contact information should your request include?
                Subpart C--Processing Requests
                2105.11 What should you know about how the Agency processes
                requests?
                2105.12 How do consultations and referrals work?
                Subpart D--Timing of Responses to Requests
                2105.13 In what order are responses usually made?
                2105.14 What is multitrack processing and how does it affect your
                request?
                2105.15 What is the basic time limit for responding to a request?
                2105.16 When can the Agency suspend the basic time limit?
                2105.17 When may the Agency extend the basic time limit?
                2105.18 When will expedited processing be provided and how will it
                affect your request?
                Subpart E--Responses to Requests
                2105.19 How will the Agency respond to requests?
                2105.20 How will the Agency grant requests?
                2105.21 When will the Agency deny a request or procedural benefits?
                2105.22 How will the Agency deny requests?
                2105.23 What if the requested records contain both exempt and
                nonexempt material?
                Subpart F--Handling Confidential Information
                2105.24 May submitters of possibly confidential information
                designate information as confidential when making submissions?
                2105.25 When will the Agency notify a submitter of a request for
                their possibly confidential information?
                2105.26 What information will the Agency include when it notifies a
                submitter of a request for their possibly confidential information?
                2105.27 When will the Agency not notify a submitter of a request for
                their possibly confidential information?
                2105.28 How and when may a submitter object to the disclosure of
                confidential information?
                2105.29 What must a submitter include in a detailed Exemption 4
                objection statement?
                2105.30 How will the Agency consider the submitter's objections?
                2105.31 What if the Agency determines it will disclose information
                over the submitter's objections?
                2105.32 Will a submitter be notified of a FOIA lawsuit?
                2105.33 Will you receive notification of activities involving the
                submitter?
                2105.34 Can an Agency release information protected by Exemption 4?
                Subpart G--Fees
                2105.35 What general principles govern fees?
                2105.36 What are the requester fee categories?
                2105.37 How does your requester category affect the fees you are
                charged?
                2105.38 How will fee amounts be determined?
                2105.39 What search fees will you have to pay?
                2105.40 What duplication fees will you have to pay?
                2105.41 What review fees will you have to pay?
                2105.42 What fees for other services will you have to pay?
                2105.43 When will the Agency waive fees?
                2105.44 When may you ask the Agency for a fee waiver?
                2105.45 How will the Agency notify you if it denies your fee waiver
                request?
                2105.46 How will the Agency evaluate your fee waiver request?
                2105.47 When will you be notified of anticipated fees?
                2105.48 When will the Agency require advance payment?
                2105.49 What if the Agency needs clarification about fee issues?
                2105.50 How will you be billed?
                2105.51 How will the Agency collect fees owed?
                2105.52 When will the Agency combine or aggregate requests?
                2105.53 What if other statutes require the Agency to charge fees?
                Subpart H--Administrative Appeals
                2105.54 When may you file an appeal?
                2105.55 How long do you have to file an appeal?
                2105.56 How do you file an appeal?
                2105.57 Who makes decisions on appeals?
                2105.58 How are decisions on appeals issued?
                2105.59 When can you expect a decision on your appeal?
                2105.60 Can you receive expedited processing of appeals?
                2105.61 Must you submit an appeal before seeking judicial review?
                Subpart I--General Information
                2105.62 Where are records made available?
                2105.63 What are public liaisons?
                2105.64 When will the Agency make records available without a FOIA
                request?
                2105.65 How will FOIA materials be preserved?
                2105.66 How will an Agency handle a request for federally-funded
                research data?
                2105.67 What definitions apply to this part?
                Appendix A to Part 2105--Fee Schedule
                [[Page 27723]]
                 Authority: 5 U.S.C. 552, as amended by Public Law 110-175, 121
                Stat. 2524 and Pub. L. 114-185, 130 Stat. 538.
                Subpart A--Introduction
                Sec. 2105.1 What should you know up front?
                 (a) This part contains the rules that the Agency follows in
                processing records under the Freedom of Information Act (FOIA), 5
                U.S.C. 552.
                 (b) Definitions of terms used in this part are found at Sec.
                2105.67.
                 (c) This part should be read in conjunction with the text of the
                FOIA and the OMB Fee Guidelines.
                 (d) This part does not entitle any person to any service or to the
                disclosure of any record that is not required under the FOIA.
                 (e) You are encouraged to review the Agency's FOIA libraries before
                filing a FOIA request. The material you seek may be immediately
                available electronically at no cost.
                Sec. 2105.2 What kinds of records are not covered by the regulations
                in this part?
                 In the event that the Agency identifies records that may be subject
                to exclusion from the requirements of the FOIA pursuant to 5 U.S.C.
                552(c), the agency must confer with legal counsel and the Department of
                Justice, Office of Information Policy, to obtain approval to apply the
                exclusion.
                Subpart B--How To Make a Request
                Sec. 2105.3 Where should you send a FOIA request?
                 (a) To make a request for Agency records, you must contact the
                Agency directly.
                 (b) Address requests to the FOIA Officer found in the Agency
                contacts at https://www.cfa.gov/foia.
                Sec. 2105.4 How should you describe the records you seek?
                 (a) You must reasonably describe the records sought. A reasonable
                description contains sufficient detail to enable Agency personnel
                familiar with the subject matter of the request to locate the records
                with a reasonable amount of effort.
                 (b) You should include as much detail as possible about the
                specific records or types of records that you are seeking. This will
                assist the Agency in identifying the requested records (for example,
                time frames involved or specific personnel who may have the requested
                records). For example, whenever possible, identify:
                 (1) The date, title or name, author, recipient, and subject of any
                particular records you seek;
                 (2) The office that created the records you seek;
                 (3) The timeframe for which you are seeking records; and
                 (4) Any other information that will assist the Agency in locating
                the records.
                 (c) The Agency's FOIA Officer or Public Liaison can assist you in
                formulating or reformulating a request in an effort to better identify
                the records you seek.
                 (d) If the Agency determines that your request does not reasonably
                describe the records sought, the Agency will inform you what additional
                information you need to provide in order to reasonably describe the
                records that you seek so the requested records can be located with a
                reasonable amount of effort. The Agency will also notify you that it
                will not be able to comply with your request unless the additional
                information it has requested is received from you in writing within 20
                workdays after the Agency has requested it and that you may appeal its
                determination. If you receive this type of notification, you may wish
                to discuss it with the Agency's designated FOIA contact or the FOIA
                Public Liaison (see Sec. 2105.63). If the Agency does not receive your
                written response containing the additional information within 20
                workdays after the Agency has requested it, the Agency will presume
                that you are no longer interested in the records and will close the
                file on the request.
                Sec. 2105.5 How will fee information affect the processing of your
                request?
                 (a) Your request should state that you will pay all fees associated
                with processing the request, that you will pay fees up to a specified
                amount, and/or that you are seeking a fee waiver.
                 (b) If the Agency anticipates that the fees for processing the
                request will exceed the amount you have agreed to pay, or if you did
                not agree in writing to pay processing fees or request a fee waiver and
                the Agency anticipates the processing costs will exceed $50 (see Sec.
                2105.35(g)) or will exceed your entitlements (see Sec. 2105.37), the
                Agency will notify you:
                 (1) Of the estimated processing fees;
                 (2) Of its need for either an advance payment (see Sec. 2105.48)
                or your written assurance that you will pay the anticipated fees (or
                fees up to a specified amount); and
                 (3) That it will not be able to fully comply with your request
                unless you provide a fee waiver request and/or the requested written
                assurance or advance payment.
                 (c) If the Agency does not receive a written response from you
                within 20 workdays after requesting the information in paragraph (b) of
                this section, it will presume that you are no longer interested in the
                records and will close the file on the request.
                 (d) If you are seeking a fee waiver, your request must include a
                justification that addresses and meets the criteria in Sec. Sec.
                2105.43 and 2105.46. Failure to provide sufficient justification will
                result in a denial of the fee waiver request. If you are seeking a fee
                waiver, you may also indicate the amount you are willing to pay if the
                fee waiver is denied. This allows the Agency to process the request for
                records while it considers your fee waiver request.
                 (e) If you are required to pay a fee and it is later determined on
                appeal that you were entitled to a full or partial fee waiver, you will
                receive an appropriate refund.
                Sec. 2105.6 What information should you include about your fee
                category?
                 (a) A request should indicate your fee category (that is, whether
                you are a commercial-use requester, news media, educational or
                noncommercial scientific institution, or other requester as described
                in Sec. Sec. 2105.36 and 2105.37).
                 (b) If you submit a FOIA request on behalf of another person or
                organization (for example, if you are an attorney submitting a request
                on behalf of a client), the Agency will determine the fee category by
                considering the underlying requester's identity and intended use of the
                information.
                 (c) If your fee category is unclear, the Agency may ask you for
                additional information (see Sec. 2105.49).
                Sec. 2105.7 Can you ask for records to be disclosed in a particular
                form or format?
                 (a) Generally, you may choose the form or format of disclosure for
                records requested. The Agency must provide the records in the requested
                form or format if the Agency can readily reproduce the record in that
                form or format.
                 (b) The Agency may charge you the direct costs involved in
                converting records to the requested format if the Agency does not
                normally maintain the records in that format (see Sec. 2105.42).
                Sec. 2105.8 What if your request seeks records about another person?
                 (a) When a request seeks records about another person, you may
                receive greater access by submitting proof that the person either:
                 (1) Consents to the release of the records to you (for example, a
                notarized authorization signed by that person); or
                 (2) Is deceased (for example, a copy of a death certificate or an
                obituary).
                 (b) The Agency can require you to supply additional information if
                necessary to verify that a particular
                [[Page 27724]]
                person has consented to disclosure or is deceased.
                Sec. 2105.9 May you ask for the processing of your request to be
                expedited?
                 You may ask for the processing of your request to be expedited. If
                you are seeking expedited processing, your request must include a
                justification that addresses and meets the criteria in Sec. 2105.18
                and includes the certification required at Sec. 2105.18(b)(2).
                Sec. 2105.10 What contact information should your request include?
                 A request should include your name and a way (such as a mailing or
                email address) for the Agency to send responsive records to you and/or
                to request additional information or clarification of your request. You
                may also wish to include a daytime telephone number (or the name and
                telephone number of an appropriate contact).
                Subpart C--Processing Requests
                Sec. 2105.11 What should you know about how the Agency processes
                requests?
                 (a) Except as described in Sec. 2105.12, the Agency is responsible
                for responding to the request and for making a reasonable effort to
                search for responsive records.
                 (b) In determining which records are responsive to a request, the
                Agency will include only records in its possession and control on the
                date that it begins its search.
                 (c) The Agency will make reasonable efforts to search for the
                requested records. As part of its reasonable efforts, the Agency will
                search paper and/or electronic records (for example, emails), as
                appropriate. The Agency will not search for records in an electronic
                form or format if these efforts would significantly interfere with the
                operation of the Agency's automated information system.
                 (d) If the Agency receives a request for records in its possession
                that it did not create or that another Federal agency is substantially
                concerned with, it may undertake consultations and/or referrals as
                described in Sec. 2105.12.
                Sec. 2105.12 How do consultations and referrals work?
                 (a) Consultations and referrals generally occur outside the Agency.
                 (1) Paragraphs (b) through (f) of this section address
                consultations and referrals that occur outside the Agency when the
                Agency has responsive records.
                 (2) Paragraph (g) of this section addresses what happens when the
                Agency has no responsive records but believes responsive records may be
                in the possession of a Federal agency outside the Agency.
                 (b) If, while responding to a request, the Agency locates records
                that originated with another Federal agency, it usually will refer the
                request and any responsive records to that other agency for a release
                determination and direct response.
                 (c) If the Agency refers records to another agency, it will
                document the referral and maintain a copy of the records that it refers
                and notify you of the referral in writing. When the Agency notifies you
                of the referral, it will tell you whether the referral was for part or
                all of your request and provide the name and contact information for
                the other agency. You may treat such a response as a denial of records
                and file an appeal, in accordance with the procedures in Sec. 2105.56.
                 (d) The standard referral procedure is not appropriate where
                disclosure of the identity of the Agency to which the referral would be
                made could harm an interest protected by an applicable exemption, such
                as the exemptions that protect personal privacy or national security
                interests. In such instances, in order to avoid harm to an interest
                protected by an applicable exemption, the Agency that received the
                request will coordinate with the originating agency and seek its views
                on the disclosability of the record. The release determination for the
                record that is the subject of the coordination will then be conveyed to
                the requester by the Agency that originally received the request.
                 (e) If the Agency locates records that originated with another
                Federal agency while responding to a request, the Agency will make the
                release determination itself (after consulting with the originating
                agency) when:
                 (1) The record is of primary interest to the Agency (for example, a
                record may be of primary interest to the Agency if it was developed or
                prepared according to the Agency's regulations or directives, or in
                response to an Agency request);
                 (2) The Agency is in a better position than the originating agency
                to assess whether the record is exempt from disclosure;
                 (3) The originating agency is not subject to the FOIA; or
                 (4) It is more efficient or practical depending on the
                circumstances.
                 (f) On receipt of any request involving classified information, the
                Agency will determine whether the information is currently and properly
                classified in accordance with applicable classification rules. Whenever
                a request involves a record containing information that has been
                classified or may be appropriate for classification by another agency
                under any applicable Executive order concerning the classification of
                records, the receiving agency will refer the responsibility for
                responding to the request regarding that information to the agency that
                classified the information, or that should consider the information for
                classification. Whenever the Agency's record contains information that
                has been derivatively classified (for example, when it contains
                information classified by another agency), the Agency will refer the
                responsibility for responding to that portion of the request to the
                agency that classified the underlying information.
                 (g) If the Agency receives a request for records not in its
                possession, but that the Agency believes may be in the possession of a
                Federal agency outside the Agency, the Agency will return the request
                to you, may advise you to submit it directly to the other agency, will
                notify you that the Agency cannot comply with the request, and will
                close the request. If you believe this response was in error, you may
                file an appeal in accordance with the procedures in Sec. 2105.56.
                Subpart D--Timing of Responses to Requests
                Sec. 2105.13 In what order are responses usually made?
                 The Agency ordinarily will respond to requests according to their
                order of receipt within their processing track.
                Sec. 2105.14 What is multitrack processing and how does it affect
                your request?
                 (a) Processing tracks are used to distinguish simple requests from
                more complex ones on the basis of the estimated number of workdays
                needed to process the request.
                 (b) In determining the number of workdays needed to process the
                request, the Agency considers factors such as the number of pages
                involved in processing the request or the need for consultations.
                 (c) The basic processing tracks are designated as follows:
                 (1) Simple: Requests in this track will take between one to five
                workdays to process;
                 (2) Normal: Requests in this track will take between six to twenty
                workdays to process;
                 (3) Complex: Requests in this track will take between twenty-one
                workdays and sixty workdays to process; or
                 (4) Voluminous: Requests in this track involve very complex
                processing challenges, which may include a large number of potentially
                responsive
                [[Page 27725]]
                records, and will take over sixty workdays to process.
                 (d) The Agency also has a specific processing track for requests
                that are granted expedited processing under the standards in Sec.
                2105.18. These requests will be processed as soon as practicable.
                 (e) The Agency must advise you of the track into which your request
                falls and, when appropriate, will offer you an opportunity to narrow
                your request so that it can be placed in a different processing track.
                If you request placement in a particular processing track but the
                Agency places you in a different processing track, the Agency will
                provide you with an explanation of why you were not placed in the
                processing track you requested.
                 (f) The use of multitrack processing does not alter the statutory
                deadline for an Agency to determine whether to comply with your FOIA
                request (see Sec. 2105.15).
                 (g) You may inquire about the status of your request, including its
                estimated processing completion date, by contacting the FOIA Public
                Liaison, whose contact information may be found at https://www.cfa.gov/foia.
                Sec. 2105.15 What is the basic time limit for responding to a
                request?
                 (a) Ordinarily, the Agency has 20 workdays (including the date of
                receipt) to determine whether to comply with a request, but unusual
                circumstances may allow the Agency to take longer than 20 workdays (see
                Sec. 2105.17).
                 (b) A consultation or referral under Sec. 2105.12 does not restart
                the statutory time limit for responding to a request.
                Sec. 2105.16 When can the Agency suspend the basic time limit?
                 (a) The basic time limit in Sec. 2105.15 may be temporarily
                suspended for the time it takes you to respond to one written
                communication from the Agency reasonably asking for clarifying
                information.
                 (b) The basic time limit in Sec. 2105.15 may also repeatedly be
                temporarily suspended for the time it takes you to respond to written
                communications from the Agency that are necessary to clarify issues
                regarding fee assessment (see Sec. 2105.49).
                Sec. 2105.17 When may the Agency extend the basic time limit?
                 (a) The Agency may extend the basic time limit, if unusual
                circumstances exist, by notifying you in writing of:
                 (1) The unusual circumstances involved; and
                 (2) The date by which it expects to complete processing the
                request.
                 (b) If the processing time will extend beyond a total of 30
                workdays, the Agency will:
                 (1) Give you an opportunity to limit the scope of the request or
                agree to an alternative time period for processing; and
                 (2) Make available its FOIA Public Liaison (see Sec. 2105.63) to
                assist in resolving any disputes between you and the Agency, and notify
                you of your right to seek dispute resolution from the Office of
                Government Information Services (OGIS).
                 (c) If the Agency extends the time limit under this section and you
                do not receive a response in accordance with Sec. 2105.15(a) in that
                time period, you may consider the request denied and file an appeal in
                accordance with the procedures in Sec. 2105.56.
                 (d) Your refusal to reasonably modify the scope of a request or
                arrange an alternative time frame for processing a request after being
                given the opportunity to do so may be considered for litigation
                purposes as a factor when determining whether exceptional circumstances
                exist.
                Sec. 2105.18 When will expedited processing be provided and how will
                it affect your request?
                 (a) The Agency will provide expedited processing upon request if
                you demonstrate to the satisfaction of the Agency that there is a
                compelling need for the records. The following circumstances
                demonstrate a compelling need:
                 (1) Where failure to expedite the request could reasonably be
                expected to pose an imminent threat to the life or physical safety of
                an individual; or
                 (2) Where there is an urgency to inform the public about an actual
                or alleged Federal Government activity and the request is made by a
                person primarily engaged in disseminating information.
                 (i) In most situations, a person primarily engaged in disseminating
                information will be a representative of the news media.
                 (ii) If you are not a full time member of the news media, to
                qualify for expedited processing here, you must establish that your
                main professional activity or occupation is information dissemination,
                although it need not be your sole occupation.
                 (iii) The requested information must be the type of information
                which has particular value that will be lost if not disseminated
                quickly; this ordinarily refers to a breaking news story of general
                public interest.
                 (iv) Information of historical interest only or information sought
                for litigation or commercial activities would not qualify, nor would a
                news media deadline unrelated to breaking news.
                 (b) If you seek expedited processing, you must submit a statement
                that:
                 (1) Explains in detail how your request meets one or both of the
                criteria in paragraph (a) of this section; and
                 (2) Certifies that your explanation is true and correct to the best
                of your knowledge and belief.
                 (c) You may ask for expedited processing of your request by writing
                to the appropriate FOIA contact in the Agency that maintains the
                records requested any time before the Agency issues its final response
                to your request. When making a request for expedited processing of an
                administrative appeal, submit the request to the appropriate deciding
                official for FOIA appeals.
                 (d) The Agency must notify you of its decision to grant or deny
                expedited processing within 10 calendar days of receiving an expedited
                processing request.
                 (e) If expedited processing is granted, the request will be given
                priority, placed in the processing track for expedited requests, and be
                processed as soon as practicable.
                 (f) If expedited processing is denied, the Agency will:
                 (1) Inform you of the basis for the denial, including an
                explanation of why the expedited processing request does not meet the
                Agency's expedited processing criteria under this section; and
                 (2) Notify you of the right to appeal the decision on expedited
                processing in accordance with the procedures in subpart H of this part.
                 (g) If you appeal the Agency's expedited processing decision, that
                portion of your appeal (if it is properly formatted under Sec.
                2105.56) will be processed before appeals that do not challenge
                expedited processing decisions.
                 (h) If the Agency has not responded to the request for expedited
                processing within 10 calendar days, you may file an appeal (for
                nonresponse in accordance with Sec. 2105.54(a)(8)).
                Subpart E--Responses to Requests
                Sec. 2105.19 How will the Agency respond to requests?
                 (a) When the Agency informs you of its decision to comply with a
                request by granting, partially granting, or denying the request, it
                will do so in writing and in accordance with the deadlines in subpart D
                of this part. The Agency's written response will include a statement
                about the services offered by its FOIA Public Liaison. The Agency's
                [[Page 27726]]
                written response will also include a statement about the services
                offered by the Office of Government Information Services (OGIS).
                 (b) If the Agency determines that your request will take longer
                than 10 workdays to process, the Agency immediately will send you a
                written acknowledgment that includes the request's individualized
                tracking number and processing track (see Sec. 2105.14(e)). The
                acknowledgement may also include a brief description of the subject of
                your request.
                Sec. 2105.20 How will the Agency grant requests?
                 (a) Once the Agency makes a determination to grant a request in
                full or in part, it must notify you in writing.
                 (b) The notification will inform you of the availability of its
                FOIA Public Liaison to offer assistance, and of any fees charged under
                subpart G of this part.
                 (c) The Agency will release records (or portions of records) to you
                promptly upon payment of any applicable fees (or before then, at its
                discretion).
                 (d) If the records (or portions of records) are not included with
                the Agency's notification, the Agency will advise you how, when, and
                where the records will be released or made available.
                Sec. 2105.21 When will the Agency deny a request or procedural
                benefits?
                 (a) The Agency denies a request when it makes a decision that:
                 (1) A requested record is exempt, in full or in part;
                 (2) The request does not reasonably describe the records sought;
                 (3) A requested record does not exist, cannot be located, or is not
                in the Agency's possession and/or control; or
                 (4) A requested record is not readily reproducible in the form or
                format you seek.
                 (b) The Agency denies a procedural benefit only, and not access to
                the underlying records, when it makes a decision that:
                 (1) A fee waiver, or another fee-related issue, will not be
                granted; or
                 (2) Expedited processing will not be provided.
                 (c) The Agency must consult with legal counsel before it denies a
                fee waiver request or withholds all or part of a requested record.
                Sec. 2105.22 How will the Agency deny requests?
                 (a) The Agency must notify you in writing of any denial of your
                request.
                 (b) The denial notification must include:
                 (1) The name and title or position of the person responsible for
                the denial, along with an office phone number or email address;
                 (2) A statement of the reasons for the denial;
                 (3) A reference to any FOIA exemption applied by the Agency to
                withhold records in full or in part, along with a statement that the
                Agency reasonably foresees that disclosure would harm an interest
                protected by the applied exemption(s) or disclosure is prohibited by
                law;
                 (4) An estimate of the volume of any records withheld in full or in
                part (for example, by providing the number of pages or some other
                reasonable form of estimation), unless including an estimate would harm
                an interest protected by an exemption used to withhold the records and
                the Agency explains this harm to you;
                 (5) The name and title of legal counsel consulted (if the Agency is
                denying a fee waiver request or withholding all or part of a requested
                record);
                 (6) Advisement of the right to seek dispute resolution services
                from the Agency's FOIA Public Liaison and the Office of Government
                Information Services (OIGS); and
                 (7) A statement that the denial may be appealed under subpart H of
                this part and a description of the procedures in subpart H of this
                part.
                Sec. 2105.23 What if the requested records contain both exempt and
                nonexempt material?
                 If responsive records contain both exempt and nonexempt material,
                the Agency will consult with legal counsel, as discussed in Sec.
                2105.21(c). After consultation, the Agency will partially grant and
                partially deny the request by:
                 (a) Segregating and releasing the nonexempt information, unless the
                nonexempt material is so intertwined with the exempt material that
                disclosure of it would leave only meaningless words and phrases;
                 (b) Indicating on the released portion of the record the amount of
                information deleted and the FOIA exemption under which the deletion was
                made, unless doing so would harm an interest protected by the FOIA
                exemption used to withhold the information; and
                 (c) If technically feasible, indicating the amount of information
                deleted and the FOIA exemption under which the deletion was made at the
                place in the record where the deletion was made.
                Subpart F--Handling Confidential Information
                Sec. 2105.24 May submitters of possibly confidential information
                designate information as confidential when making submissions?
                 (a) The Agency encourages, but does not require, submitters to
                designate confidential information in good faith (in other words, to
                identify specific information as information the submitter considers
                protected from disclosure under Exemption 4 of the FOIA, found at 5
                U.S.C. 552(b)(4)), at the time of submission or reasonably soon
                thereafter.
                 (b) The designations discussed in paragraph (a) of this section
                assist the Agency in identifying what information obtained from the
                submitter is possibly confidential and triggers the requirement for
                Agency-provided notifications under Sec. 2105.25(a)(1).
                Sec. 2105.25 When will the Agency notify a submitter of a request
                for their possibly confidential information?
                 (a) Except as outlined in Sec. 2105.27, an Agency must promptly
                notify a submitter in writing when it receives a FOIA request if:
                 (1) The requested information has been designated by the submitter
                as confidential information under Sec. 2105.24(a); or
                 (2) The requested information has not been designated as
                confidential information by the submitter under Sec. 2105.24(a), but
                the Agency identifies it as possibly confidential information.
                 (b) If a voluminous number of submitters are involved, the Agency
                may publish a notice in a manner reasonably calculated to reach the
                attention of the submitters (for example, in newspapers or newsletters,
                the Agency's website, or the Federal Register) instead of providing a
                written notice to each submitter.
                Sec. 2105.26 What information will the Agency include when it
                notifies a submitter of a request for their possibly confidential
                information?
                 A notice to a submitter must include:
                 (a) Either a copy of the request, the exact language of the
                request, or (for notices published under Sec. 2 105.25(b)) a general
                description of the request;
                 (b) Either a description of the possibly confidential information
                located in response to the request or a copy of the responsive records,
                or portions of records, containing the information;
                 (c) A description of the procedures for objecting to the release of
                the possibly confidential information under Sec. Sec. 2105.28 and
                2105.29;
                [[Page 27727]]
                 (d) A time limit for responding to the Agency--no less than 10
                workdays from receipt or publication of the notice (as set forth in
                Sec. 2105.25(b))--to object to the release and to explain the basis
                for the objection;
                 (e) Notice that information contained in the submitter's objections
                may itself be subject to disclosure under the FOIA;
                 (f) Notice that the Agency, not the submitter, is responsible for
                deciding whether the information will be released or withheld;
                 (g) A request for the submitter's views on whether they still
                consider the information to be confidential if the submitter designated
                the material as confidential commercial or financial information 10 or
                more years before the request; and
                 (h) Notice that failing to respond within the time frame specified
                under paragraph (d) of this section will create a presumption that the
                submitter has no objection to the disclosure of the information in
                question.
                Sec. 2105.27 When will the Agency not notify a submitter of a
                request for their possibly confidential information?
                 The notice requirements of Sec. 2105.26 will not apply if:
                 (a) The information has been lawfully published or officially made
                available to the public; or
                 (b) Disclosure of the information is required by a statute other
                than the FOIA or by a regulation (other than this part) issued in
                accordance with the requirements of Executive Order 12600.
                Sec. 2105.28 How and when may a submitter object to the disclosure
                of confidential information?
                 (a) If a submitter has any objections to the disclosure of
                confidential information, the submitter should provide a detailed
                written statement to the Agency that specifies all grounds for
                withholding the particular information under any FOIA exemption (see
                Sec. 2105.29 for further discussion of Exemption 4 objection
                statements).
                 (b) A submitter who does not respond within the time period
                specified under Sec. 2105.26(d) will be considered to have no
                objection to disclosure of the information. Responses received by the
                Agency after this time period will not be considered by the Agency
                unless the appropriate Agency FOIA contact determines, in his or her
                sole discretion, that good cause exists to accept the late response.
                Sec. 2105.29 What must a submitter include in a detailed Exemption 4
                objection statement?
                 If a submitter has any objections to disclosure, it should provide
                the Agency a detailed written statement that specifies all grounds for
                withholding the particular information under any exemption of the FOIA.
                In order to rely on Exemption 4 as basis for nondisclosure, the
                submitter must explain why the information constitutes a trade secret
                or commercial or financial information that is confidential.
                Sec. 2105.30 How will the Agency consider the submitter's
                objections?
                 (a) The Agency must carefully consider a submitter's objections and
                specific grounds for nondisclosure in deciding whether to disclose the
                requested information.
                 (b) The Agency, not the submitter, is responsible for deciding
                whether the information will be released or withheld.
                Sec. 2105.31 What if the Agency determines it will disclose
                information over the submitter's objections?
                 If the Agency decides to disclose information over the objection of
                a submitter, the Agency must notify the submitter by certified mail or
                other traceable mail, return receipt requested. The notification must
                be sent to the submitter's last known address and must include:
                 (a) The specific reasons why the Agency determined that the
                submitter's disclosure objections do not support withholding the
                information;
                 (b) Copies of the records or information the Agency intends to
                release; and
                 (c) Notice that the Agency intends to release the records or
                information no less than 10 workdays after receipt of the notice by the
                submitter.
                Sec. 2105.32 Will a submitter be notified of a FOIA lawsuit?
                 If you file a lawsuit seeking to compel the disclosure of
                confidential information, the Agency must promptly notify the
                submitter.
                Sec. 2105.33 Will you receive notification of activities involving
                the submitter?
                 If any of the following occur, the Agency will notify you:
                 (a) The Agency provides the submitter with notice and an
                opportunity to object to disclosure;
                 (b) The Agency notifies the submitter of its intent to disclose the
                requested information; or
                 (c) A submitter files a lawsuit to prevent the disclosure of the
                information.
                Sec. 2105.34 Can an Agency release information protected by
                Exemption 4?
                 If an Agency determines that the requested information is protected
                from release by Exemption 4 of the FOIA, the Agency has no discretion
                to release the information. Release of information protected from
                release by Exemption 4 is prohibited by the Trade Secrets Act, a
                criminal provision found at 18 U.S.C. 1905.
                Subpart G--Fees
                Sec. 2105.35 What general principles govern fees?
                 (a) The Agency will charge for processing requests under the FOIA
                in accordance with this subpart and with the OMB Fee Guidelines.
                 (b) The Agency may contact you for additional information to
                resolve fee issues.
                 (c) The Agency ordinarily will collect all applicable fees before
                sending copies of records to you.
                 (d) You may usually pay fees by check, certified check, or money
                order made payable to the ``Department of Treasury.''
                 (e) The Agency should ensure that it conducts searches, review, and
                duplication in the most efficient and the least expensive manner so as
                to minimize costs for both you and the Agency.
                 (f) If the Agency does not comply with any of the FOIA's statutory
                time limits:
                 (1) Except as provided in paragraph (f)(2) of this section, the
                Agency cannot assess any search fees (or, if you are in the fee
                category of a representative of the news media or an educational and
                noncommercial scientific institution, duplication fees).
                 (2)(i) If the Agency has determined that unusual circumstances
                apply (as the term is defined in Sec. 2105.67) and the Agency provided
                you a timely written notice to extend the basic time limit in
                accordance with Sec. 2105.17, the noncompliance is excused for an
                additional 10 workdays.
                 (ii) If the Agency has determined that unusual circumstances apply
                and more than 5,000 pages are necessary to respond to the request, the
                noncompliance is excused if the Agency has provided you a timely
                written notice in accordance with Sec. 2105.17 and has discussed with
                you via written mail, email, or telephone (or made not less than 3
                good-faith attempts to do so) how you could effectively limit the scope
                of the request.
                 (iii) If a court has determined that exceptional circumstances
                exist (as that term is defined in Sec. 2105.67), the noncompliance is
                excused for the length of time provided by the court order.
                 (g) If the fee for processing your request is less than $50, you
                will not be charged unless multiple requests are
                [[Page 27728]]
                aggregated under Sec. 2105.52 to an amount that is $50 or more.
                 (h) If you fail to pay any FOIA-related fee within 30 calendar days
                of the date of billing, the processing of any new or ongoing requests
                and/or appeals from you shall ordinarily be suspended.
                 (i) If you would like to reformulate your request so it will meet
                your needs at a lower cost, you may wish to seek assistance from the
                Agency's designated FOIA contact or its FOIA Public Liaison (see Sec.
                2105.63).
                Sec. 2105.36 What are the requester fee categories?
                 (a) There are three categories of requesters for the purposes of
                determining fees:
                 (1) Commercial-use;
                 (2) Educational and noncommercial scientific institutions and
                representatives of news media; and
                 (3) All others.
                 (b) If you do not submit sufficient information in your FOIA
                request for the Agency to determine your proper fee category, the
                Agency may ask you to provide additional information (see Sec.
                2105.49). If you request placement in a particular fee category but the
                Agency places you in a different fee category, the Agency will provide
                you with an explanation of why you were not placed in the fee category
                you requested (for example, if you were placed in the commercial use
                requester category rather than the category you requested, the Agency
                will describe how the records would further your commercial, trade, or
                profit interests).
                 (c) See Sec. 2105.67 for the definitions of each of these fee
                categories.
                Sec. 2105.37 How does your requester category affect the fees you
                are charged?
                 You will be charged as shown in the following table:
                 Table 1 to Sec. 2105.37
                ----------------------------------------------------------------------------------------------------------------
                 Requester category Search fees Review fees Duplication fees
                ----------------------------------------------------------------------------------------------------------------
                Commercial use requester............. Yes.................... Yes.................... Yes.
                Educational and noncommercial No..................... No..................... Yes (first 100 pages,
                 scientific institutions and or equivalent volume,
                 representative of news media free).
                 requester.
                All other requesters................. Yes (first two hours No..................... Yes (first 100 pages,
                 free). or equivalent volume,
                 free).
                ----------------------------------------------------------------------------------------------------------------
                Sec. 2105.38 How will fee amounts be determined?
                 (a) The Agency will charge the types of fees discussed in this
                subpart unless a waiver of fees is required under Sec. 2105.37 or has
                been granted under Sec. 2105.43.
                 (b) Because the types of fees discussed in this subpart already
                account for the overhead costs associated with a given fee type, the
                Agency should not add any additional costs to those charges.
                Sec. 2105.39 What search fees will you have to pay?
                 (a) The Agency will charge search fees for all requests, subject to
                the restrictions of Sec. Sec. 2105.35(f), 2105.37, and 2105.38(a). The
                Agency may charge you 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.
                 (b) For each quarter hour spent by personnel searching for
                requested records, including electronic searches that do not require
                new programming, the fees will be the average hourly General Schedule
                (GS) base salary, plus the District of Columbia locality payment, plus
                16 percent for benefits, of employees in the following three
                categories, as applicable:
                 (1) Clerical--Based on GS-6, Step 5, pay (all employees at GS-7 and
                below are classified as clerical for this purpose);
                 (2) Professional--Based on GS-11, Step 7, pay (all employees at GS-
                8 through GS-12 are classified as professional for this purpose); and
                 (3) Managerial--Based on GS-14, Step 2, pay (all employees at GS-13
                and above are classified as managerial for this purpose).
                 (c) You can review the current fee schedule for the categories
                discussed in paragraph (b) of this section at https://www.cfa.gov/foia.
                 (d) Some requests may require retrieval of records stored at a
                Federal records center operated by the National Archives and Records
                Administration. For these requests, the Agency will charge additional
                costs in accordance with the Transactional Billing Rate Schedule
                established by the National Archives and Records Administration.
                Sec. 2105.40 What duplication fees will you have to pay?
                 (a) The Agency will charge duplication fees, subject to the
                restrictions of Sec. Sec. 2105.35(f), 2105.37, and 2105.38(a).
                 (b) If photocopies or scans are supplied, the Agency will provide
                one copy per request at the cost determined by the table in appendix A
                to this part.
                 (c) For other forms of duplication, the Agency will charge the
                actual costs of producing the copy, including the time spent by
                personnel duplicating the requested records. For each quarter hour
                spent by personnel duplicating the requested records, the fees will be
                the same as those charged for a search under Sec. 2105.39(b).
                 (d) If the Agency must scan paper records to accommodate your
                preference to receive records in an electronic format or print
                electronic records to accommodate your preference to receive records in
                a paper format, you will pay both the per page amount noted in appendix
                A to this part and the time spent by personnel scanning or printing the
                requested records. For each quarter hour spent by personnel scanning or
                printing the requested records, the fees will be the same as those
                charged for a search under Sec. 2105.39(b).
                Sec. 2105.41 What review fees will you have to pay?
                 (a) The Agency will charge review fees if you make a commercial-use
                request, subject to the restrictions of Sec. Sec. 2105.35(f), 2105.37,
                and 2105.38(a).
                 (b) The Agency will assess review fees in connection with the
                initial review of the record (the review conducted by the Agency to
                determine whether an exemption applies to a particular record or
                portion of a record).
                 (c) The Agency will not charge for reviews at the administrative
                appeal stage of exemptions applied at the initial review stage.
                However, if the appellate authority determines that an exemption no
                longer applies, any costs associated with the Agency's re-review of the
                records to consider the use of other exemptions may be assessed as
                review fees.
                [[Page 27729]]
                 (d) The Agency will charge review fees at the same rates as those
                charged for a search under Sec. 2105.39(b).
                 (e) The Agency can charge review fees even if the record(s)
                reviewed ultimately is not disclosed.
                Sec. 2105.42 What fees for other services will you have to pay?
                 (a) Although not required to provide special services, if the
                Agency chooses to do so as a matter of administrative discretion, it
                will charge you the direct costs of providing the service.
                 (b) Examples of these services include providing multiple copies of
                the same record, converting records that are not already maintained in
                a requested format to the requested format, obtaining research data
                under Sec. 2105.66, sending records by means other than first class
                mail, and conducting a search that requires the creation of a new
                computer search program to locate the requested records.
                 (c) The Agency will notify you of these fees before they accrue and
                will obtain your written assurance of payment or an advance payment
                before proceeding (see Sec. Sec. 2105.47 and 2105.48).
                Sec. 2105.43 When will the Agency waive fees?
                 (a) The Agency will release records responsive to a request without
                charge (in other words, it will give you a full fee waiver) or at a
                reduced charge (in other words, it will give you a partial fee waiver,
                as discussed further in paragraph (b) of this section) if the Agency
                determines, based on all available information, that you have
                demonstrated (by addressing and meeting each of the criteria listed in
                Sec. 2105.46) that disclosing the information is:
                 (1) In the public interest because it is likely to contribute
                significantly to public understanding of Government operations or
                activities, and
                 (2) Not primarily in your commercial interest.
                 (b) A partial fee waiver may be appropriate if some but not all of
                the requested records are likely to contribute significantly to public
                understanding of the operations and activities of the Government.
                 (c) When deciding whether to waive or reduce fees, the Agency will
                rely on the fee waiver justification submitted in your request letter.
                If the letter does not include sufficient justification, the Agency
                will deny the fee waiver request. The Agency may, at its discretion,
                request additional information from you (see Sec. 2105.49).
                 (d) The burden is on you to justify entitlement to a fee waiver.
                Requests for fee waivers are decided on a case-by-case basis under the
                criteria discussed in paragraph (a) of this section and Sec. 2105.46.
                If you have received a fee waiver in the past, that does not mean you
                are automatically entitled to a fee waiver for every request submitted.
                 (e) The Agency must not make value judgments about whether the
                information at issue is ``important'' enough to be made public; it is
                not the Agency's role to attempt to determine the level of public
                interest in requested information.
                Sec. 2105.44 When may you ask the Agency for a fee waiver?
                 (a) You should request a fee waiver when your request is first
                submitted to the Agency (see Sec. 2105.5).
                 (b) You may submit a fee waiver request at a later time if the
                Agency has not yet completed processing your request.
                Sec. 2105.45 How will the Agency notify you if it denies your fee
                waiver request?
                 If the Agency denies your request for a fee waiver, it will notify
                you, in writing, of the following:
                 (a) The basis for the denial, including a full explanation of why
                the fee waiver request does not meet the Agency's fee waiver criteria
                in Sec. 2105.46;
                 (b) The name and title or position of each person responsible for
                the denial;
                 (c) The name and title of legal counsel consulted;
                 (d) Advisement of the right to seek dispute resolution services
                from the Agency's FOIA Public Liaison and the Office of Government
                Information Services (OIGS);
                 (e) Your right to appeal the denial under subpart H of this part
                and a description of the requirements set forth therein, within 30
                workdays from the date of the fee waiver denial letter; and
                 (f) Your anticipated fees, in accordance with Sec. 2105.47.
                Sec. 2105.46 How will the Agency evaluate your fee waiver request?
                 (a) In deciding whether your fee waiver request meets the
                requirements of Sec. 2105.43(a)(1), the Agency will consider the
                criteria listed in paragraphs (a)(1) through (4) of this section.
                 (1) How the records concern the operations or activities of the
                Federal Government.
                 (2) How disclosure is likely to contribute to public understanding
                of those operations or activities, including:
                 (i) How the contents of the records are meaningfully informative;
                 (ii) The logical connection between the content of the records and
                the operations or activities;
                 (iii) How disclosure will contribute to the understanding of a
                reasonably broad audience of persons interested in the subject, as
                opposed to your individual understanding;
                 (iv) Your identity, vocation, qualifications, and expertise
                regarding the requested information and information that explains how
                you plan to disclose the information in a manner that will be
                informative to the understanding of a reasonably broad audience of
                persons interested in the subject, as opposed to your individual
                understanding; and
                 (v) Your ability and intent to disseminate the information to a
                reasonably broad audience of persons interested in the subject (for
                example, how and to whom do you intend to disseminate the information).
                If we have categorized you as a representative of the news media under
                Sec. 2105.36, we will presume you have this ability and intent.
                 (3) How disclosure is likely to significantly contribute to the
                understanding of a reasonably broad audience of persons interested in
                the subject, as opposed to your individual understanding, including:
                 (i) Whether the information being requested is new;
                 (ii) Whether the information would confirm or clarify data that has
                been released previously;
                 (iii) How disclosure will increase the level of public
                understanding of the operations or activities of the Agency that
                existed prior to disclosure; and
                 (iv) Whether the information is already publicly available. If the
                Government previously has published the information you are seeking or
                it is routinely available to the public in a library, reading room,
                through the internet, or as part of the administrative record for a
                particular issue, it is less likely that there will be a significant
                contribution from release.
                 (4) How the public's understanding of the subject in question will
                be enhanced to a significant extent by the disclosure.
                 (b) In deciding whether the fee waiver meets the requirements in
                Sec. 2105.43(a)(2), the Agency will consider any commercial interest
                of yours that would be furthered by the requested disclosure.
                 (1) You are encouraged to provide explanatory information regarding
                this consideration.
                 (2) The Agency will not find that disclosing the requested
                information will be primarily in your commercial interest where the
                public interest is greater than any identified commercial interest in
                disclosure.
                [[Page 27730]]
                 (3) If you do have a commercial interest that would be furthered by
                disclosure, explain how the public interest in disclosure would be
                greater than any commercial interest you or your organization may have
                in the documents.
                 (i) Your identity, vocation, and intended use of the requested
                records are all factors to be considered in determining whether
                disclosure would be primarily in your commercial interest.
                 (ii) If you are a representative of a news media organization
                seeking information as part of the news gathering process, we will
                presume that the public interest outweighs your commercial interest.
                 (iii) If you represent a business/corporation/association or you
                are an attorney representing such an organization, we will presume that
                your commercial interest outweighs the public interest unless you
                demonstrate otherwise.
                Sec. 2105.47 When will you be notified of anticipated fees?
                 (a) The Agency will notify you under this section unless:
                 (1) The anticipated fee is less than $50 (see Sec. 2105.35(g));
                 (2) You have been granted a full fee waiver; or
                 (3) You have previously agreed to pay all the fees associated with
                the request.
                 (b) If none of the exceptions in paragraph (a) of this section
                apply, the Agency will:
                 (1) Promptly notify you of the estimated costs for search, review,
                and/or duplication;
                 (2) Ask you to provide written assurance within 20 workdays that
                you will pay all fees or fees up to a designated amount;
                 (3) Notify you that it will not be able to comply with your FOIA
                request unless you provide the written assurance requested; and
                 (4) Give you an opportunity to reduce the fee by modifying the
                request.
                 (c) If the Agency does not receive your written response containing
                the additional information that resolves any fee issues, in accordance
                with paragraphs (b)(2) and/or (4) of this section, within 20 workdays
                after the Agency has requested it, the Agency will presume that you are
                no longer interested in the records and will close the file on the
                request.
                 (d) After the Agency begins processing a request, if it finds that
                the actual cost will exceed the amount you previously agreed to pay,
                the Agency will:
                 (1) Stop processing the request;
                 (2) Promptly notify you of the higher amount and ask you to provide
                written assurance of payment; and
                 (3) Notify you that it will not be able to fully comply with your
                FOIA request unless you provide the written assurance requested; and
                 (4) Give you an opportunity to reduce the fee by modifying the
                request.
                 (e) If you wish to modify your request in an effort to reduce fees,
                the Agency's FOIA Officer or Public Liaison can assist you.
                Sec. 2105.48 When will the Agency require advance payment?
                 (a) The Agency may require advance payment before starting further
                work when it finds the estimated fee is over $250.
                 (1) When the Agency determines or estimates that a total fee to be
                charged under this section will exceed $250.00, it may require that you
                make an advance payment up to the amount of the entire anticipated fee
                before beginning to process the request. The Agency may elect to
                process the request prior to collecting fees when it receives a
                satisfactory assurance of full payment from a requester with a history
                of prompt payment.
                 (2) If you have previously failed to pay a properly charged FOIA
                fee within 30 calendar days of the billing date, the Agency may require
                that you pay the full amount due, plus any applicable interest on that
                prior request. The Agency may require that you make an advance payment
                of the full amount of any anticipated fee before it begins to process a
                new request or continues to process a pending request or any pending
                appeal.
                 (b) If the Agency believes that you did not pay a previous FOIA fee
                within 30 calendar days of the date of billing, the Agency will require
                you to either:
                 (1) Demonstrate you paid prior fee within 30 calendar days of the
                date of billing; or
                 (2) Pay any unpaid amount of the previous fee, plus any applicable
                interest penalties (see Sec. 2105.51), and pay in advance the
                estimated fee for the new request.
                 (c) When the Agency notifies you that an advance payment is due
                under paragraph (a) of this section, it will give you an opportunity to
                reduce the fee by modifying the request.
                 (d) Your payment of the funds you owe the Agency for work it has
                already completed before records are sent to you is not an advance
                payment under paragraph (a) of this section.
                 (e) If the Agency requires advance payment, it will start further
                work only after receiving the advance payment. It will also notify you
                that it will not be able to comply with your FOIA request unless you
                provide the advance payment. Unless you pay the advance payment within
                20 workdays after the date of the Agency's fee letter, the Agency will
                presume that you are no longer interested and will close the file on
                the request.
                Sec. 2105.49 What if the Agency needs clarification about fee
                issues?
                 If your FOIA request does not contain sufficient information for
                the Agency to determine your proper fee category or leaves another fee
                issue unclear, the Agency may ask you to provide additional
                clarification. If it does so, the Agency will notify you that it will
                not be able to comply with your FOIA request unless you provide the
                clarification requested.
                Sec. 2105.50 How will you be billed?
                 If you are required to pay a fee associated with a FOIA request,
                the Agency will send a bill for collection.
                Sec. 2105.51 How will the Agency collect fees owed?
                 (a) The Agency may charge interest on any unpaid bill starting on
                the 31st day following the billing date.
                 (b) The Agency will assess interest charges at the rate provided in
                31 U.S.C. 3717 and interest will accrue from the billing date until the
                Agency receives payment.
                 (c) The Agency 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 to collect overdue amounts
                and interest.
                 (d) This section does not apply if you are a state, local, or
                tribal government.
                Sec. 2105.52 When will the Agency combine or aggregate requests?
                 (a) The Agency may aggregate requests and charge accordingly when
                it reasonably believes that you, or a group of requesters acting in
                concert with you, are attempting to avoid fees by dividing a single
                request into a series of requests on a single subject or related
                subjects.
                 (1) The Agency may presume that multiple requests of this type made
                within a 30-day period have been made to avoid fees.
                 (2) The Agency may aggregate requests separated by a longer period
                only where there is a reasonable basis for determining that aggregation
                is warranted in view of all the circumstances involved.
                [[Page 27731]]
                 (b) The Agency will not aggregate multiple requests involving
                unrelated matters.
                Sec. 2105.53 What if other statutes require the Agency to charge
                fees?
                 (a) The fee schedule in appendix A to this part does not apply to
                fees charged under any statute that specifically requires the Agency to
                set and collect fees for particular types of records.
                 (b) If records otherwise responsive to a request are subject to a
                statutorily-based fee schedule, the Agency will inform you whom to
                contact to obtain the records.
                Subpart H--Administrative Appeals
                Sec. 2105.54 When may you file an appeal?
                 (a) You may file an appeal when:
                 (1) The Agency withholds records, or parts of records;
                 (2) The Agency informs you that your request has not adequately
                described the records sought;
                 (3) The Agency informs you that it does not possess or cannot
                locate responsive records and you have reason to believe this is
                incorrect or that the search was inadequate;
                 (4) The Agency did not address all aspects of the request for
                records;
                 (5) You believe there is a procedural deficiency (for example, fees
                are improperly calculated or you have been placed in the wrong fee
                category);
                 (6) The Agency denied your request for a fee waiver;
                 (7) The Agency did not make a decision within the time limits in
                Sec. 2105.15 or, if applicable, Sec. 2105.16; or
                 (8) The Agency denied, or was late in responding to, a request for
                expedited processing filed under the procedures in Sec. 2105.18.
                 (b) An appeal under paragraph (a)(8) of this section relates only
                to the request for expedited processing and does not constitute an
                appeal of the underlying request for records. Special procedures apply
                to requests for expedited processing of an appeal (see Sec. 2105.60).
                 (c) Before filing an appeal, you may wish to communicate with the
                contact person listed in the FOIA response, the Agency's FOIA Officer,
                and/or the FOIA Public Liaison to see if the issue can be resolved
                informally. However, appeals must be received by the FOIA Appeals
                Officer within the time limits in Sec. 2105.55 or they will not be
                processed.
                Sec. 2105.55 How long do you have to file an appeal?
                 (a) Appeals covered by Sec. 2105.54(a)(1) through (5) must be
                received by the FOIA Appeals Officer no later than 90 days from the
                date of the final response.
                 (b) Appeals covered by Sec. 2105.54(a)(6) must be received by the
                FOIA Appeals Officer no later than 90 days from the date of the letter
                denying the fee waiver.
                 (c) Appeals covered by Sec. 2105.54(a)(7) may be filed any time
                after the time limit for responding to the request has passed.
                 (d) Appeals covered by Sec. 2105.54(a)(8) should be filed as soon
                as possible.
                 (e) Appeals arriving or delivered after 5 p.m. Eastern Time, Monday
                through Friday, will be deemed received on the next workday.
                Sec. 2105.56 How do you file an appeal?
                 (a) You must submit the appeal in writing by mail, fax or email to
                the FOIA Appeals Officer (using the address available at https://www.cfa.gov/foia/). Your failure to send an appeal directly to the FOIA
                Appeals Officer may delay processing.
                 (b) The appeal must include:
                 (1) Copies of all correspondence between you and the Agency
                concerning the FOIA request, including the request and the Agency's
                response (if there is one); and
                 (2) An explanation of why you believe the Agency's response was in
                error.
                 (c) The appeal should include your name, mailing address, daytime
                telephone number (or the name and telephone number of an appropriate
                contact), email address, and fax number (if available) in case the
                Agency needs additional information or clarification.
                 (d) An appeal concerning a denial of expedited processing or a fee
                waiver denial should also demonstrate fully how the criteria in Sec.
                2105.18 or Sec. Sec. 2105.43 and 2105.46 are met.
                 (e) All communications concerning an appeal should be clearly
                marked with the words: ``FREEDOM OF INFORMATION APPEAL.''
                 (f) The Agency will reject an appeal that does not attach all
                correspondence required by paragraph (b)(1) of this section, unless the
                FOIA Appeals Officer determines, in his or her sole discretion, that
                good cause exists to accept the defective appeal. The time limits for
                responding to an appeal will not begin to run until the correspondence
                is received.
                Sec. 2105.57 Who makes decisions on appeals?
                 (a) The FOIA Appeals Officer is the deciding official for FOIA
                appeals.
                 (b) When necessary, the appropriate deciding official for FOIA
                appeals will consult other appropriate offices, including legal
                counsel, for denials of records and fee waivers.
                 (c) The deciding official for FOIA appeals normally will not make a
                decision on an appeal if the request becomes a matter of FOIA
                litigation.
                Sec. 2105.58 How are decisions on appeals issued?
                 (a) A decision on an appeal must be made in writing.
                 (b) A decision that upholds the Agency's determination in whole or
                in part must contain a statement that identifies the reasons for the
                affirmance, including any FOIA exemptions applied. The decision must
                provide you with notification of the statutory right to file a lawsuit
                and will inform you of the dispute resolution services offered by the
                Office of Government Information Services (OGIS) of the National
                Archives and Records Administration as a non-exclusive alternative to
                litigation. If the Agency's decision is remanded or modified on appeal,
                the Agency will notify you of that determination in writing. The Agency
                will then further process the request in accordance with that appeal
                determination and will respond directly to you.
                 (c) Dispute resolution is a voluntary process. If the Agency agrees
                to participate in the dispute resolution services provided by OGIS, it
                will actively engage as a partner to the process in an attempt to
                resolve the dispute.
                Sec. 2105.59 When can you expect a decision on your appeal?
                 (a) The basic time limit for responding to an appeal is 20 workdays
                after receipt of an appeal meeting the requirements of Sec. 2105.56.
                 (b) If the Agency is unable to reach a decision on your appeal
                within the given time limit for response, the appropriate deciding
                official for FOIA appeals will notify you of your statutory right to
                seek review in a United States District Court.
                Sec. 2105.60 Can you receive expedited processing of appeals?
                 (a) To receive expedited processing of an appeal, you must
                demonstrate to the Agency's satisfaction that the appeal meets one of
                the criteria under Sec. 2105.18 and include a statement that the need
                for expedited processing is true and correct to the best of your
                knowledge and belief.
                 (b) The appropriate deciding official for FOIA appeals will advise
                you whether the Agency will grant expedited processing within 10
                calendar days of receiving the appeal.
                 (c) If the appropriate deciding official for FOIA appeals decides
                to grant expedited processing, he or she will give the appeal priority
                over other pending appeals and process it as soon as practicable.
                [[Page 27732]]
                Sec. 2105.61 Must you submit an appeal before seeking judicial
                review?
                 Before seeking review by a court of the Agency's adverse
                determination, you generally must first submit a timely administrative
                appeal.
                Subpart I--General Information
                Sec. 2105.62 Where are records made available?
                 Records that are required by the FOIA to be made proactively
                available for public inspection and copying are accessible on the
                Agency's website. They may also be available at the Agency's office
                location.
                Sec. 2105.63 What are public liaisons?
                 (a) The Agency has a FOIA Officer or Public Liaison who can assist
                requesters who have concerns about the service they received when
                seeking records or who are seeking assistance under Sec. 2105.3 or
                Sec. 2105.35(i).
                 (b) FOIA Public Liaisons report to the Agency's Chief FOIA Officer
                and you can raise concerns to them about the service you have received.
                 (c) FOIA Public Liaisons are responsible for assisting in reducing
                delays, increasing transparency and understanding of the status of
                requests, and assisting in resolving disputes.
                 (d) A list of the Agency's FOIA Public Liaisons is available at
                https://www.cfa.gov/foia.
                Sec. 2105.64 When will the Agency make records available without a
                FOIA request?
                 (a) Each Agency must:
                 (1) Determine which of its records must be made publicly available
                under the FOIA (for example, certain frequently requested records);
                 (2) Identify additional records of interest to the public that are
                appropriate for public disclosure; and
                 (3) Post those records in FOIA libraries.
                 (b) Because of these proactive disclosures, you are encouraged to
                review the Agency's FOIA libraries before filing a FOIA request. The
                material you seek may be immediately available electronically at no
                cost.
                Sec. 2105.65 How will FOIA materials be preserved?
                 (a) Each Agency must preserve all correspondence pertaining to the
                requests that it receives under subpart B of this part, as well as
                copies of all requested records, until disposition or destruction is
                authorized by the General Records Schedule 4.2 of the National Archives
                and Records Administration (NARA) or another NARA-approved records
                schedule.
                 (b) Materials that are identified as responsive to a FOIA request
                will not be disposed of or destroyed while the request or a related
                appeal or lawsuit is pending. This is true even if they would otherwise
                be authorized for disposition or destruction under the General Records
                Schedule 4.2 of NARA or another NARA-approved records schedule.
                Sec. 2105.66 How will an Agency handle a request for federally-
                funded research data?
                 (a) If you request research data that were used by the Federal
                Government in developing certain kinds of agency actions, and the
                research data relate to published research findings produced under an
                award, in accordance with OMB Circular A-110:
                 (1) If the Agency was the awarding agency, it will request the
                research data from the recipient;
                 (2) The recipient must provide the research data within a
                reasonable time; and
                 (3) The Agency will review the research data to see if it can be
                released under the FOIA.
                 (b) If the Agency obtains the research data solely in response to
                your FOIA request, the Agency may charge you a reasonable fee equaling
                the full incremental cost of obtaining the research data.
                 (1) This fee should reflect costs incurred by the Agency, the
                recipient, and applicable subrecipients.
                 (2) This fee is in addition to any fees the Agency may assess under
                the FOIA.
                 (c) The Agency will forward a copy of the request to the recipient,
                who is responsible for searching for and reviewing the requested
                information in accordance with these FOIA regulations. The recipient
                will forward a copy of any responsive records that are located, along
                with any recommendations concerning the releasability of the data, and
                the total cost incurred in searching for, reviewing, and providing the
                data.
                 (d) The Agency will review and consider the recommendations of the
                recipient regarding the releasability of the requested research data.
                However, the Agency, not the recipient, is responsible for deciding
                whether the research data will be released or withheld.
                Sec. 2105.67 What definitions apply to this part?
                 For the purposes of this part, the following definitions apply:
                 Agency means the Commission of Fine Arts.
                 Commercial interest means a commercial, trade, or profit interest
                as these terms are commonly understood. Your status as profitmaking or
                non-profitmaking is not the deciding factor in determining whether you
                have a commercial interest.
                 Commercial use means a use that furthers your commercial, trade or
                profit interests or that of the person on whose behalf the request is
                made.
                 Confidential information means trade secrets or commercial or
                financial information (that is privileged or confidential and obtained
                by the Agency from a person) that may be protected from disclosure
                under Exemption 4 of the FOIA.
                 Direct costs means those resources that the Agency expends in
                searching for and duplicating (and, in the case of commercial-use
                requests, reviewing) records to respond to a FOIA request. For example,
                direct costs include 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 duplicating machinery, such
                as photocopiers and scanners. Direct costs do not include overhead
                expenses such as the costs of space and of heating or lighting a
                facility.
                 Duplication means reproducing a copy of a record or of the
                information contained in it necessary to respond to a FOIA request.
                Copies can take the form of paper, audiovisual materials, or electronic
                records, among others.
                 Educational institution means any school that operates a program of
                scholarly research. In order to fall within this category, you 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 rather are sought to further scholarly research.
                 Exceptional circumstances means a delay that does not result from a
                predictable workload of requests (unless the Agency demonstrates
                reasonable progress in reducing its backlog of pending requests).
                 Exempt means the record in question, or a portion thereof, is not
                subject to disclosure due to one or more of the FOIA's nine statutory
                exemptions, found at 5 U.S.C. 552(b)(1)-(9).
                 Exemption means one or more of the FOIA's nine statutory
                exemptions, found at 5 U.S.C. 552(b)(1)-(9).
                 Expedited processing means giving a FOIA request priority and
                processing it ahead of other requests pending in the Agency because you
                have shown a compelling need for the records.
                 Fee category means one of the three categories, discussed in
                Sec. Sec. 2105.36 and 2105.37, that agencies place you in for the
                purpose of determining whether you will be charged fees for search,
                review, and duplication.
                [[Page 27733]]
                 FOIA means the Freedom of Information Act, 5 U.S.C. 552, as
                amended.
                 FOIA libraries means a physical or electronic compilation of
                records required to be made available to the public for inspection and
                copying under 5 U.S.C. 552(a)(2). It also includes a physical or
                electronic compilation of records that the Agency, at its discretion,
                makes available to the public for inspection and copying.
                 Frequently requested records means records that have been released
                to any person in response to a FOIA request and that have been
                requested, or that the Agency anticipates will be requested, at least
                two more times under the FOIA.
                 Multitrack processing means placing simple requests, requiring
                relatively minimal review, in one processing track and more voluminous
                and complex requests in one or more other tracks. Requests in each
                track are ordinarily processed on a first-in/first-out basis.
                 Noncommercial scientific institution means an institution that is
                not operated for commerce, trade or profit, 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. To be
                in this category, you must show that the request is authorized by and
                is made under the auspices of a qualifying institution and that the
                records are not sought for a commercial use but are sought to further
                scientific research.
                 OMB Fee Guidelines means the Uniform Freedom of Information Fee
                Schedule and Guidelines published by the Office of Management and
                Budget on March 27, 1987.
                 Published means, for the purposes of Sec. 2105.66 only, when:
                 (1) Research findings are published in a peer-reviewed scientific
                or technical journal; or
                 (2) A Federal agency publicly and officially cites the research
                findings in support of an agency action that has the force and effect
                of law.
                 Recipient means, for the purposes of Sec. 2105.66 only, an
                organization receiving financial assistance directly from Federal
                awarding agencies to carry out a project or program. The term includes
                public and private institutions of higher education, public and private
                hospitals, and other quasi-public and private non-profit organizations.
                The term may include commercial organizations, foreign or international
                organizations (such as agencies of the United Nations) which are
                recipients, subrecipients, or contractors or subcontractors of
                recipients or subrecipients at the discretion of the Federal awarding
                agency. The term does not include Government-owned contractor-operated
                facilities or research centers providing continued support for mission-
                oriented, large-scale programs that are Government-owned or controlled,
                or are designated as federally-funded research and development centers.
                 Record means an agency record that is either created or obtained by
                an agency and is under agency possession and control at the time of the
                FOIA request, or is maintained by an entity under Government contract
                for the purposes of records management.
                 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 as used
                in this definition means information that is about current events or
                that would be of current interest to the public. Examples of news media
                entities are newspapers, television, websites, 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 by or subscription by or free
                distribution to the general public. These examples are not all
                inclusive. As methods of news delivery evolve, alternative
                representatives of news media may come into being. A freelance
                journalist will qualify as a news-media entity if he or she can
                demonstrate a solid basis for expecting publication through that
                entity, whether or not the journalist is actually employed by that
                entity (for example, a publication contract would present a solid basis
                for such an expectation).
                 Research data means, for the purposes of Sec. 2105.66 only, the
                recorded factual material commonly accepted in the historic and/or
                architectural communities as necessary to validate research findings,
                but not any of the following: Preliminary analyses, drafts of
                scientific papers, plans for future research, peer reviews, or
                communications with colleagues. The term recorded as used in this
                definition excludes physical objects (e.g., laboratory samples).
                Research data also do not include:
                 (1) Trade secrets, commercial information, materials necessary to
                be held confidential by a researcher until they are published, or
                similar information which is protected under law; and
                 (2) Personnel and medical information and similar information the
                disclosure of which would constitute a clearly unwarranted invasion of
                personal privacy, such as information that could be used to identify a
                particular person in a research study.
                 Review means the examination of a record located in response to a
                request to determine whether any portion of it is exempt from
                disclosure. Review time includes processing any record for disclosure,
                such as doing all that is necessary to prepare the record for
                disclosure, including the process of redacting the record and marking
                the appropriate exemptions. Review time also includes time spent both
                obtaining and considering any formal objection to disclosure made by a
                confidential information submitter under subpart G of this part, but it
                excludes time spent resolving general legal or policy issues regarding
                the application of FOIA exemptions.
                 Search means the process of looking for and retrieving records
                responsive to a request. Search time includes page-by-page or line-by-
                line identification of information within records; and the reasonable
                efforts expended to locate and retrieve electronic records.
                 Submitter means any person or entity outside the Federal Government
                from whom the Agency obtains confidential information, directly or
                indirectly. The term includes, but is not limited to individuals,
                corporations, and state, local, tribal, and foreign governments.
                 Unusual circumstances means the need to search for and collect
                requested records from field facilities or other establishments that
                are separate from the office processing the request; the need to search
                for, collect, and examine a voluminous amount of separate and distinct
                records which are demanded in a single request; or the need for
                consultation, which shall be conducted with all practicable speed, with
                another agency, or among two or more components of the Agency, having a
                substantial interest in the determination of the request.
                 Workday means a regular Federal workday. It excludes Saturdays,
                Sundays, or Federal legal public holidays. Items arriving or delivered
                after 5 p.m. Eastern Time will be deemed received on the next workday.
                 You means a person requesting records, or filing an appeal, under
                the FOIA.
                [[Page 27734]]
                Appendix A to Part 2105--Fee Schedule
                ------------------------------------------------------------------------
                 Types of records Fee
                ------------------------------------------------------------------------
                (1) Physical records:
                 Pages no larger than 8.5 x 14 inches, $.15 per page ($.30 for
                 when reproduced by standard office double-sided copying).
                 copying machines or scanned into an
                 electronic format.
                 Color copies of pages no larger than $.90 per page.
                 8.5 x 11 inches.
                 Pages larger than 8.5 x 14 inches...... Direct cost to CFA.
                 Color copies of pages no larger than 11 $1.50 per page.
                 x 17 inches.
                 Photographs and records requiring Direct cost to CFA.
                 special handling (for example, because
                 of age, size, or format).
                (2) Electronic records:
                 Charges for services related to Direct cost to CFA.
                 processing requests for electronic
                 records.
                (3) Certification:
                 Each certificate of verification $.25.
                 attached to authenticate copies of
                 records.
                (4) Postage:
                 Charges that exceed the cost of first Postage or delivery charge.
                 class postage, such as express mail or
                 overnight delivery.
                (5) Other Services:
                 Cost of special services or materials, Direct cost to CFA.
                 other than those provided for by this
                 fee schedule, when requester is
                 notified of such costs in advance and
                 agrees to pay them.
                ------------------------------------------------------------------------
                 Dated: May 31, 2019.
                Thomas Luebke,
                Secretary.
                [FR Doc. 2019-11775 Filed 6-13-19; 8:45 am]
                 BILLING CODE P
                

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