Public Availability of Agency Records and Informational Materials

• Published date: 29 January 2020
• Citation: 85 FR 5137
• Record Number: 2020-00057
• Section: Rules and Regulations
• Court: General Services Administration

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GENERAL SERVICES

ADMINISTRATION

41 CFR Part 105–60

[GSPMR Case 2016–105–1; Docket No.

2016–0004, Sequence No. 1]

RIN 3090–AJ74

Public Availability of Agency Records

and Informational Materials

AGENCY

: Office of Administrative

Services (OAS), General Services

Administration (GSA).

ACTION

: Final rule.

SUMMARY

: GSA is amending the General

Services Administration’s regulations

implementing the Freedom of

Information Act (FOIA). The regulations

are being updated to incorporate

changes brought about by the

amendments to FOIA under both

statutory and nonstatutory authorities.

Specifically, this rule amends GSA’s

regulations under FOIA to incorporate

certain changes made to FOIA by the

FOIA Improvement Act of 2016.

Additionally, the regulations are being

updated to reflect developments in case

law, recent guidance from the

Department of Justice—Office of

Information Policy for processing FOIA

requests, technological advancements in

how the FOIA is administered, and to

update the cost figures used in

calculating and charging search/or

review fees. Finally, the revisions to the

rule increase the amount of information

that members of the public may receive

from the agency without being charged

processing fees through proactive

agency disclosures.

DATES

: Effective: February 28, 2020.

FOR FURTHER INFORMATION CONTACT

: Mr.

Travis S. Lewis, Director of GSA, OAS,

Freedom of Information Act Requester

Service Center, at 202–219–3078 or via

email at travis.lewis@gsa.gov for

clarification of content. For information

pertaining to status or publication

schedules, contact the Regulatory

Secretariat Division at 202–501–4755.

Please cite GSPMR Case 2016–105–1.

SUPPLEMENTARY INFORMATION

:

I. Background

GSA published a proposed rule in the

Federal Register at 83 FR 28592 on June

20, 2018, to amend the General Services

Administration rule to regulations

implementing the Freedom of

Information Act (FOIA).

The FOIA provides that any person

has a right, enforceable in Federal court,

to obtain access to Federal agency

records, except to the extent that such

records (or portions of them) are

protected from public disclosure by one

of nine exemptions or by one of three

special law enforcement record

exclusions. FOIA thus established a

statutory right of public access to

Executive Branch information in the

Federal Government. Part 105–60 of 41

CFR establishes the policies,

responsibilities, and procedures for the

release of GSA records that are under

the jurisdiction of GSA to members of

the public. These regulations apply to

information found in all GSA agency

organizations and components.

This final rule revises GSA’s

regulations under the FOIA to address

changes to the language of several

procedural provisions and to

incorporate certain changes brought

about by the amendments to FOIA

under the FOIA Improvement Act of

2016 Public Law 114–185, 130 Stat. 538

(June 30, 2016).

The final rule also incorporates

changes to the language and structure of

the current GSA regulations enumerated

in 41 CFR part 105–60 to achieve the

aforementioned updates. Please note

that the final rule that applies to GSA’s

FOIA Fee Schedule can be found in

Subpart J—Fees. The revisions also

increase the amount of information that

members of the public may receive from

the agency without being charged

processing fees through proactive

disclosures of agency records online in

the GSA FOIA Reading Room.

The FOIA Improvement Act of 2016

provides that agencies shall allow a

minimum of 90 days for requesters to

file an administrative appeal. The Act

also requires that agencies notify

requesters of the availability of dispute

resolution services at various times

throughout the FOIA process. Finally,

the Act codifies the ‘‘foreseeable harm’’

standard. Additionally, GSA’s FOIA

regulations are being updated to reflect

developments in case law, technological

changes in the administration of FOIA,

executive guidance from the Department

of Justice, other non-statutory

authorities such as Presidential

Executive Orders, including current cost

figures to be used in calculating and

charging fees.

II. Discussion and Analysis

GSA has reviewed the public

comments in the development of the

final rule. A discussion of the comments

is provided as follows:

A. Summary of Significant Changes

There were no significant changes as

a result of the comments received.

B. Analysis of Public Comments

Comment: The first respondent

expressed that GSA should remove its

references to the Office of Management

and Budget’s (OMB) Uniform Freedom

of Information Act Fee Schedule and

Guidelines (‘‘OMB Guidelines’’) as both

an authority for interpreting the FOIA

and GSA’s implementing regulations,

because the OMB Guidelines are now

outdated.

Response: Per the Freedom of

Information Reform Act of 1986 (Pub. L.

99–570), all federal agencies subject to

the FOIA are required to promulgate

regulations implementing the FOIA’s

amended fee and fee waiver provisions

reflecting the OMB Guidelines. To date,

there has not been a statutory

amendment to the Freedom of

Information Reform Act of 1986 (Pub. L.

99–570) nor any case precedent which

has eliminated GSA’s requirement to

promulgate regulations implementing

the FOIA’s amended fee and fee waiver

provisions reflecting the OMB

Guidelines. GSA will continue to

implement the OMB Guidelines

accordingly.

Comment: The second respondent

expressed that streamlining the National

Environmental Policy Act (NEPA) via a

time/or page limit on NEPA documents

will just create the need for more

administrative paperwork and project

management costs as government

decision-makers struggle to meet these

new requirements. This will thus divert

time from the more important work of

thinking about and discussing proposed

NEPA related projects.

Response: Responder’s comment does

not make mention of nor concerns

GSA’s FOIA regulations. This comment

is not germane to GSA.

III. Executive Orders 12866 and

13563—Regulatory Review

Executive Orders (E.O.) 12866 and

13563 direct agencies to assess all costs

and benefits of available regulatory

alternatives and, if regulation is

necessary, to select regulatory

approaches that maximize net benefits

(including potential economic,

environmental, public health and safety

effects, distributive impacts, and

equity). E.O. 13563 emphasizes the

importance of quantifying both costs

and benefits, of reducing costs, of

harmonizing rules, and of promoting

flexibility. This is not a significant

regulatory action and, therefore, was not

subject to review under Section 6(b) of

E.O. 12866, Regulatory Planning and

Review, dated September 30, 1993. This

rule is not a major rule under 5 U.S.C.

804.

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IV. Executive Order 13771

This rule is not subject to E.O. 13771,

because this rule is not a significant

regulatory action under E.O. 12866.

V. Regulatory Flexibility Act

This final rule will not have a

significant economic impact on a

substantial number of small entities

within the meaning of the Regulatory

Flexibility Act, 5 U.S.C. 601, et seq. This

final rule is also exempt from the

Administrative Procedure Act per 5

U.S.C. 553(a)(2), because it applies to

agency management or personnel.

VI. Small Business Regulatory

Enforcement Fairness Act

This final rule is also exempt from

Congressional review prescribed under

5 U.S.C. 801 since it relates solely to

agency management and personnel.

VII. Paperwork Reduction Act

This final rule does not contain any

information collection requirements that

require approval of the Office of

Management and Budget under the

Paperwork Reduction Act (44 U.S.C.

Chapter 35).

VIII. Unfunded Mandates Reform Act

of 1995

This rule will not result in the

expenditure by State, local, and tribal

governments, in the aggregate, or by the

private sector, of $100 million or more

in any one year, and it will not

significantly or uniquely affect small

governments. Therefore, no actions were

deemed necessary under the provisions

of the Unfunded Mandates Reform Act

of 1995.

List of Subjects in 41 CFR Part 105–60

Administrative practice and

procedure, Records, Information,

Confidential business information,

Freedom of Information Act, Privacy

Act.

Dated: December 23, 2019.

Emily W. Murphy,

Administrator.

■For the reasons stated in the preamble,

GSA revises 41 CFR part 105–60 to read

as follows:

PART 105–60—PUBLIC AVAILABILITY

OF AGENCY RECORDS AND

INFORMATIONAL MATERALS

Sec.

Subpart A—General Policy

105–60.000 Scope of part.

105–60.001 General policy.

Subpart B—Proactive Disclosures

105–60.100 Public availability of

information.

Subpart C—Requirements for Making

Requests

105–60.200 Making a request.

105–60.201 Description of records sought.

Subpart D—Responding to Requests

105–60.300 Responsibility for responding

to requests.

105–60.301 Acknowledging FOIA request

105–60.302 Responding to FOIA requests.

105–60.303 Consolation, referral, and

coordination

105–60.304 Time requirements to respond

to FOIA requests.

105.60.305 Unusual circumstances.

105.60.306 Expedited processing.

Subpart E—Acknowledging the FOIA

Request

105–60.400 Applying FOIA exemptions.

Subpart F—Final Responses to the FOIA

Request

105–60.500 Final response procedures and

rules.

Subpart G—Handling Confidential

Commercial Information

105–60.600 Procedural and lawful

considerations.

105–60.601 Submitter’s opportunity to

object to disclosure.

Subpart I—Appeals

105–60.700 Submitting an appeal.

105–60.701 Adjudication of appeals.

105–60.702 Requirements to preserve FOIA

records.

Subpart J—Fees

105–60.800 General provisions.

105–60.801 Definitions pertaining to fee

assessments.

105–60.802 Fees to be charged.

105–60.803 Restrictions on charging fees.

105–60.804 Fee Schedule.

105–60.805 Anticipated fees.

105–60.806 Advanced payments.

105–60.807 Fee waivers and fee reductions.

Subpart K—Other Rights and Services

105–60.900 Coda.

Authority: 5 U.S.C. 301 and 552; 40 U.S.C.

486(c).

Subpart A—General Policy

§ 105–60.000 Scope of part.

This part contains the rules that the

U.S. General Services Administration,

hereinafter GSA, follows in processing

requests for records under the Freedom

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

552. The rules in this part should be

read in conjunction with the text of the

FOIA and the Uniform Freedom of

Information Fee Schedule and

Guidelines published by the Office of

Management and Budget (‘‘OMB

Guidelines’’). Requests made by

individuals for records about

themselves under the Privacy Act of

1974, 5 U.S.C. 552a, are processed in

accordance with Privacy Act regulations

as well as under this part.

§ 105.60.001 General policy.

(a) In compliance with the Freedom of

Information Act (FOIA), as amended 5

U.S.C. 552, a positive and continuing

obligation exists for GSA to make

available to the fullest extent practicable

upon request by members of the public,

all records and informational materials

that are generated, maintained, and

controlled by GSA.

(b) This subpart also covers

exemptions from disclosure of these

records; procedures for the public to

inspect or obtain copies of GSA records.

(c) The regulations promulgated in

this subpart are consistent with

amendments to 5 U.S.C. 552a as well as

other applicable Federal laws germane

to disclosure of information to the

public.

(d) This subpart applies to all GSA

organizations, portfolios, business lines,

regional offices and components. The

aforementioned units may establish

additional rules for processing FOIA

requests due to unique program

requirements; however, such rules shall

be consistent with these rules and have

the concurrence of the GSA

Administrator and GSA Chief FOIA

Officer.

(e) Any internal GSA policies or

procedures inconsistent with the

policies and procedures promulgated in

this subpart are superseded by this

subpart to the extent of that

inconsistency.

(f) This subpart does not entitle any

person to any service or to the

disclosure of any GSA records that are

not required to be disclosed under the

FOIA.

Subpart B—Proactive Disclosures

§ 105–60.100 Public availability of

information.

Records that FOIA in 5 U.S. Code

section 552(a)(2) requires GSA to make

available for public inspection in an

electronic format can be accessed via

GSA’s website at www.gsa.gov.

Additionally, the GSA FOIA Reading

Room, and the FOIA Online System.

GSA is responsible for determining

which of its records shall be made

publicly available, for identifying

additional records of interest to the

public that are appropriate for public

disclosure, and for posting and indexing

such records. These records shall be

made available electronically via the

GSA FOIA Reading Room. GSA shall

ensure that its online FOIA Library of

posted records and indices is reviewed

and updated on an ongoing basis. GSA

maintains a FOIA Requester Service

Center, the office that oversees FOIA

requests for all of GSA, and a FOIA

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Public Liaison to assist individuals in

locating records particular to an agency.

A list of agency FOIA Public Liaisons is

available at: http://www.foia.gov/.

Subpart C—Requirements for Making

Requests

§ 105–60.200 Making a request.

(a) To make a request for GSA records,

a requester shall file their request to the

GSA FOIA Requester Service Center via

one of the following, via the FOIAonline

website: (https://foiaonline.gov/

foiaonline/action/public/home). From

FOIAonline you can submit FOIA

requests to GSA and other participating

FOIAonline agencies, track the status of

requests, search for requests submitted

by others, access previously released

records, and generate agency-specific

FOIA processing reports.

(b) If it is not reasonably possible for

a requester to submit an electronic

request via FOIAonline, the requester

shall submit their request via U.S. Mail

to the following address: GSA FOIA

Requester Service Center (H3), Room

7308, 1800 F Street NW, Washington,

DC 20405. Fax: 202–501–2727.

Alternatively, a FOIA requester may

email its FOIA request to gsa.foia@

gsa.gov (Subject: FOIA Request via

Email).

(c) FOIA request description

requirements:

(1) The requester shall provide the

following items of contact information

when submitting a request to GSA:

(i) Full name with honorific (Mr., Ms.,

Mrs., Dr., etc.);

(ii) Complete mailing address; and

(iii) Telephone number.

(2) This requirement is applicable to

both FOIA requests submitted

electronically and via U.S. mail,

respectively.

(3) Although it is not a mandatory

requirement, GSA also recommends the

requester provide a personal/business

email address for remittance as well.

(d) A requester who is making a

request for records about himself or

herself shall comply with the

verification of identity requirements as

specified in paragraph (e) of this

section.

(e) Where a request for records

pertains to another individual, a

requester may receive access to the

requested records by submitting: Either

a notarized authorization signed by the

individual permitting that he or she

explicitly grants access to the requested

records pursuant to the requirements set

forth in 28 U.S.C. 1746 or by submitting

proof that the individual is deceased

(e.g., a copy of a death certificate or an

obituary). As an exercise of

administrative discretion, GSA can

require a requester to supply additional

information such as a Certification of

Identity Form in order to sufficiently

verify the individual submitting the

request and/or also verify that a

particular individual has consented to

disclosure.

§ 105–60.201 Description of records

sought.

(a) Requesters shall describe the

records sought in sufficient detail to

enable GSA personnel to locate them

with a reasonable amount of effort. To

the extent possible, requesters should

include the following information in

their FOIA request, which may help

GSA identify the requested records the

date/timeframe the requested

information was created or occurred,

title or name, author, recipient, subject

matter of the record, case number, file

designation, contract number, leasing

identification number, or reference

number and if known, the component of

GSA housing the records.

(b) Before submitting a FOIA request,

requesters may contact the GSA FOIA

Requester Service Center or GSA FOIA

Public Liaison to discuss the records

they seek and to receive assistance in

describing the records. If after receiving

a request, GSA determines that it does

not reasonably describe the records

sought, GSA shall inform the requester

what additional information is needed

or why the request is otherwise

insufficient. Requesters who are

attempting to reformulate or modify

such a request may discuss their request

with their assigned Government

Information Specialist or FOIA Public

Liaison. If a request does not reasonably

describe the records sought, GSA’s

response to the request may be delayed.

(c) In order to efficiently respond to

FOIA requests within the required 20-

business-day timeframe per 5 U.S.C.

552(a)(6)(A), GSA may close an

unperfected request 10 business days

after GSA notifies the requester of the

information needed to perfect the

request. If the request does not

reasonably describe the records sought,

it is unperfected. A perfected FOIA

request is a FOIA request for records

that adequately describes the records

sought, is made in accordance with

GSA’s regulations, has been received by

the GSA FOIA Requester Service center,

and for which there is no remaining

question about the payment or amount

of applicable fees.

(d) Requesters may specify whether

they prefer to receive paper copies of

the records or receive the records

electronically. GSA shall accommodate

the request if the record is readily

reproducible in the requested form.

Subpart D—Responding to Requests

§ 105–60.300 Responsibility for

responding to FOIA requests.

(a) The GSA FOIA Requester Service

Center is responsible for managing all

requests for records submitted to GSA

from initial receipt of the FOIA request

through the agency’s final decision to

release in whole or in part, or withhold

the requested records.

(b) Upon receiving a request for

records, the GSA FOIA Requester

Service Center shall determine whether

the requested records reside within

GSA. If GSA does not have ownership

of the requested records, the GSA FOIA

Requester Service Center shall make a

good faith effort to redirect the requester

to the appropriate record location or/

entity that has control and ownership of

the requested record, if known.

(c) If GSA has possession of the

requested records, the FOIA Requester

Service Center shall work in

coordination with the appropriate GSA

component/or program office to fulfill

the FOIA request in accordance with 5

U.S.C. 552.

§ 105–60.301 Acknowledging FOIA

requests.

(a) To the extent practicable, GSA

shall communicate with requesters

electronically via the FOIAonline web

portal and/or email.

(b) Upon receipt of a request, GSA

shall send requesters an

acknowledgement letter within 2

business days containing a brief

description of the records sought so

requesters may more easily keep track of

their requests.

(c) When a request is submitted via

FOIAonline, the system automatically

generates a tracking number, which

allows for easy identification of each

request. This tracking number shall be

included in the acknowledgement letter.

(d) When GSA receives a request not

directly entered by the requester into

FOIAonline (i.e., email, fax, standard

mail, etc.) the FOIA Requester Service

Center shall immediately upload the

request into the FOIAonline system and

it shall be assigned a tracking number

that shall be communicated to the

requester.

§ 105–60.302 Responding to FOIA

requests.

(a) GSA shall provide an estimated

date by which the agency expects to

provide a response to the requester. If a

request involves a voluminous amount

of material or searches in multiple

locations, GSA may provide an interim

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response, meaning the agency releases

the records on a rolling basis as the

records are located and verified.

(b) In determining which records are

responsive to a request, the agency shall

include only the records in its

possession as of the date the agency

receives the perfected FOIA request. If

any other date is used, GSA shall inform

the requester accordingly. A record that

is excluded from the requirements of the

FOIA pursuant to 5 U.S.C. 552(c) is not

considered responsive to a request.

(c) Pursuant to 5 U.S.C. 552, GSA is

not required to perform the following in

response to a FOIA request:

(1) Answer questions or

interrogatories posed as FOIA requests;

(2) Issue guidance/or opinions;

(3) Analyze and/or interpret

documents for a requester;

(4) Create records;

(5) Conduct research; or

(6) Initiate investigations.

(d) The GSA Administrator and GSA

Chief FOIA Officer and/or their assigned

delegates are authorized to grant or deny

any requests for records or portions

thereof that are generated, maintained,

or controlled by GSA.

§ 105–60.303 Consultation, referral, and

coordination.

(a) All consultations and referrals

received by GSA shall be handled

according to the date the other agency

received the perfected FOIA request.

(b) GSA may establish agreements

with other agencies to eliminate the

need for consultations or referrals with

respect to particular types of records.

(c) When GSA is reviewing records

located in response to a FOIA request,

GSA shall determine whether another

agency of the Federal Government is

better able to determine if the records

are releasable under the FOIA. As to any

such record, GSA shall proceed in one

of the following ways:

(1) Consultation. When GSA receives

a request for records that either

originated with another agency or is a

GSA record that includes information

that originated with another agency,

GSA should typically consult with that

other agency prior to making a release

determination.

(2) Referral. (i) Whenever GSA

receives a request for records that are

known to be the primary responsibility

of another agency, GSA shall refer the

responsibility for responding to the

request regarding records to that agency.

Ordinarily, the agency that created the

records is presumed to be the best

agency to make the disclosure

determination. However, if GSA and the

originating agency jointly agree that

GSA is in the best position to respond

regarding the record, then the

responsive record(s) may be handled as

a consultation.

(ii) Whenever GSA refers any part of

the responsibility for responding to a

record request to another agency, GSA

shall maintain documentation that the

referral to the other agency has

occurred, and shall notify the requester

of the referral. The notification to the

requester shall include both the name of

the agency to which the record request

was referred and the contact

information for the agency’s FOIA

office/or personnel.

(iii) This referral procedure is not

appropriate where disclosure of the

identity of the agency to which the

referral would be made could

reasonably harm an interest protected

by an applicable exemption, such as the

exemptions that protect personal

privacy or national security interests. If

a non-law enforcement agency

responding to a request for records on

a living third party locates within its

files records originating with a law

enforcement agency, and if the existence

of that law enforcement interest in the

third party was not publicly known,

then to disclose that law enforcement

interest could cause an unwarranted

invasion of the personal privacy of the

third party. Similarly, if GSA locates a

record that originates with an

intelligence community agency, and the

involvement of that agency in the matter

is classified and not publicly

acknowledged, then to disclose or give

attribution to the involvement of that

Intelligence Community agency could

cause national security harms. Records

meeting these criteria shall be treated as

a consultation.

(iv) In such instances, in order to

avoid a harm to an interest protected by

an FOIA applicable exemption, GSA

should coordinate with the originating

agency to seek its views on the

disclosability of the record. The release

determination for the record that is the

subject of the coordination should then

be conveyed to the requester by GSA.

(4) Classified information. (i) On

receipt of any request involving

classified information, GSA shall

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, GSA shall refer

request for records to the agency that

classified the information or that should

consider the information for

classification.

(ii) Whenever GSA’s records contain

information that has been derivatively

classified (i.e., it contains information

classified by another agency), GSA shall

refer the responsibility for responding to

that portion of the request to the agency

that classified the information.

§ 105–60.304 Time requirements to

respond to FOIA requests.

(a) Upon receipt of perfected request

via U.S. mail, email, or facsimile, the

GSA FOIA Requester Service Center

shall begin processing the request for

records. Pursuant to 5 U.S.C.

552(a)(6)(A)(i), GSA has 20 business

days (excluding Saturdays, Sundays,

and Federal holidays) to inform the

requester of the agency’s determination

with respect to the request for records,

unless in the alternative, the agency has

negotiated a different timeframe based

on scope and level of effort to prepare

the FOIA request response. If a requester

does not receive a response to their

perfected FOIA request within the

statutory timeframe requester may seek

judicial review in the U.S. District Court

in the district in which the requester

resides or has a principal place of

business, or where the records are

situated, or in the U.S. District Court for

the District of Columbia.

(b) GSA shall to the greatest extent

practicable respond to FOIA requests by

order of receipt of the requests.

(c) GSA shall designate a specific

track for requests that are granted

expedited processing, in accordance

with the standards set forth in this

subpart. GSA may also designate

additional processing tracks that

distinguish between simple and more

complex requests based on the

estimated amount of work or time

needed to process the request. Among

the factors GSA may consider are the

number of records requested, the

number of pages involved in processing

the request, and the need for

consultations or referrals. GSA shall

advise requesters of the track into which

their request falls upon request, and

when appropriate, offer the requester an

opportunity to narrow the scope and/or

modify their requests.

(d) GSA may aggregate requests in

cases where it reasonably appears that

multiple requests for records were

submitted either by a requester or by a

group of requesters acting in concert for

the same, or similar information to

ensure it is fulfilled in a timely manner.

GSA cannot aggregate multiple requests

for unrelated subject matters.

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§ 105–60.305 Unusual circumstances.

Whenever GSA cannot meet the

statutory time limit for processing a

request because of ‘‘unusual

circumstances,’’ as defined at 5 U.S.C.

552(a)(6)(A)(iii), GSA shall, before

expiration of the 20-day statutory time

period to respond to a request for

records, notify the requester in writing

of the unusual circumstances involved

and of the date by which GSA estimates

the processing of the request shall be

completed. Where the extension of time

is anticipated to exceed 10 business

days, GSA shall provide the requester

with an opportunity to modify the

request or arrange an alternative time

period for processing the original or

modified request. GSA shall make

available its FOIA Public Liaison for

this purpose. GSA shall also alert

requesters to the availability of the

Office of Government Information

Services (OGIS) to provide dispute

resolution services.

§ 105–60.306 Expedited processing.

(a) A request for expedited processing

may be made at any time. In order to

qualify for consideration for expedited

processing, the request shall reasonably

describe the records sought. Expedited

requests should be described in

sufficient detail to facilitate expedited

processing.

(b) A requester who seeks expedited

processing shall submit a statement

with their FOIA request, certified to be

true and correct, explaining in detail the

basis for making the request for

expedited processing as described in

paragraphs (c)(1) through (4) of this

section. As a matter of administrative

discretion, GSA may waive the formal

certification requirement.

(c) GSA may process requests and

appeals on an expedited basis whenever

it is determined that they involve:

(1) Circumstances in which the lack of

expedited processing could reasonably

be expected to pose an imminent threat

to the life or physical safety of an

individual;

(2) An urgency to inform the public

about an actual or alleged Federal

Government activity, if made by a

person who is primarily engaged in

disseminating information; or

(3) The loss of substantial due process

rights; or

(4) A matter of widespread and

exceptional media interest in which

there exist possible questions about the

Government’s integrity that affect public

confidence.

(d) GSA shall notify the requester

within 10 calendar days of its receipt of

a request for expedited processing and

of its decision whether to grant or deny

expedited processing. If expedited

processing is granted, the request shall

be given priority, placed in the

processing track for expedited requests,

and processed as soon as practicable. If

a request for expedited processing is

denied, GSA shall act on any appeal of

that decision within 3 business days.

Subpart E—Acknowledging the FOIA

Request

§ 105–60.400 Applying FOIA exemptions.

(a) 5 U.S.C. 552(b)(1)–(9) of the

Freedom of Information Act provides

that the disclosure requirements of

FOIA do not apply to matters that are:

(1) Specifically authorized under the

criteria established by an executive

order to be kept secret in the interest of

national defense or foreign policy and

are in fact properly classified pursuant

to such executive order (see Executive

Order No. 13,526);

(2) Related solely to the internal

personnel rules and practices of an

agency;

(3) Specifically exempted from

disclosure by statute other than 5 U.S.C.

552(b)(1)–(9), provided that such

statute:

(i) Requires that the matters be

withheld from the public in such a

manner as to leave no discretion on the

issue;

(ii) Establishes particular criteria for

withholding or refers to particular types

of matters to be withheld;

(4) Trade secrets and commercial or

financial information that could harm

the competitive posture or business

interests of a company;

(5) Interagency or intra-agency

memorandums or letters that would not

be available by law to a party other than

an agency in litigation with the agency,

provided that the deliberative process

privilege shall not apply to records

created 25 years or more before the date

on which the records were requested;

(6) Personnel and medical files and

similar files the disclosure of which

would constitute a clearly unwarranted

invasion of personal privacy;

(7) Records or information compiled

for law enforcement purposes, but only

to the extent that the production of such

law enforcement records or information:

(i) Could reasonably be expected to

interfere with enforcement proceedings;

(ii) Would deprive a person of a right

to a fair trial or an impartial

adjudication;

(iii) Could reasonably be expected to

constitute an unwarranted invasion of

personal privacy;

(iv) Reasonably be expected to

disclose the identity of a confidential

source, including a State, local, or

foreign agency or authority or any

private institution that furnished

information on a confidential basis, and,

in the case of a record or information

compiled by a criminal law enforcement

authority in the course of a criminal

investigation or by an agency

conducting a lawful national security

intelligence investigation, information

furnished by a confidential source;

(v) Would disclose techniques and

procedures for law enforcement

investigations or prosecutions, or would

disclose guidelines for law enforcement

investigations or prosecutions if such

disclosure could reasonably be expected

to risk circumvention of the law; or

(vi) Could reasonably be expected to

endanger the life or physical safety of

any individual;

(8) Contained in or related to

examination, operating, or condition

reports prepared by, on behalf of, or for

the use of an agency responsible for the

regulation or supervision of financial

institutions; or

(9) Geological and geophysical

information and data, including maps,

concerning wells.

(b) GSA will provide any reasonably

segregable portion of a record to a

requester after redacting the portions of

the requested records that are exempt

under this section.

Subpart F—Final Responses to the

FOIA Request

§ 105–60.500 Final response procedures

and rules.

(a) Once GSA determines that it shall

grant a request in full or in part, the

requester shall be notified of the

decision in writing as well. GSA shall

also inform the requester of any fees

charged under § 105–60.804 of this part

and shall disclose the requested records

to the requester promptly upon payment

of any applicable fees. The agency shall

inform the requester of the availability

of its FOIA Public Liaison to offer

assistance.

(b) If GSA makes an adverse

determination on any part of the FOIA

request, it shall notify the requester of

that determination in writing. Adverse

determinations, or denials of requests,

include determinations that:

(1) The requested record is exempt

from disclosure, in whole or in part;

(2) The FOIA request does not

reasonably describe the records sought;

(3) The information requested is not

subject to FOIA;

(4) The requested record does not

exist, cannot be located, or has been

destroyed; or

(5) The requested record is not readily

reproducible in the form or format

sought by the requester.

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(c) Records disclosed in part in

response to a FOIA request shall be

marked clearly to show the exemption

under which the applicable portions of

the responsive records were redacted

unless doing so would harm an interest

protected by an applicable exemption.

(d) Adverse determinations also

include denials involving fee waiver

requests, denials for expedited

processing, and the administrative

closure of FOIA requests due to

nonpayment of search and review fees

for processing the FOIA request.

(e) Any adverse determination of a

FOIA request, in full or in part, shall be

signed by the Chief FOIA Officer or his

or her designee and shall include:

(1) The name and title or position of

the person responsible for the adverse

determination;

(2) A brief statement of the reasons for

the adverse determination, including

any FOIA exemption that is the basis for

GSA’s decision;

(3) An estimate of the volume of any

records or information withheld, such

as the number of pages or some other

reasonable form of estimation, although

such an estimate is not required if the

volume is otherwise indicated by

deletions marked on records that are

disclosed in part or if providing an

estimate would harm an interest

protected by an applicable exemption;

and

(4) A statement that the denial may be

appealed under subpart I of this part,

and a description of the appeal

requirements.

(5) A statement notifying the requester

of the assistance available from the

agency’s FOIA Public Liaison and the

dispute resolution services offered by

OGIS.

(f) Use of record exclusions pursuant

to 5 U.S.C. 552(c):

(1) In the event that GSA identifies

records that may be subject to exclusion

from the requirements of the FOIA

pursuant to 5 U.S.C. 552(c), GSA shall

confer with Department of Justice,

Office of Information Policy (OIP), to

obtain approval to apply the exclusion.

(2) If GSA invokes an exclusion, it

shall maintain an administrative record

of the process of invocation and

approval of the exclusion by OIP.

Subpart G—Handling Confidential

Commercial Information

§ 105–60.600 Procedural and lawful

considerations.

(a) Confidential commercial

information means commercial or

financial information obtained by GSA

from a submitter that may be protected

from disclosure under Exemption 4 of

the FOIA, 5 U.S.C. 552(b)(4).

(b) Submitter means any person or

entity, including a corporation, State, or

foreign government, but not including

another Federal Government entity, that

provides confidential commercial

information, either directly or indirectly

to the Federal Government.

(c) A submitter of confidential

commercial information shall use good

faith efforts to designate by appropriate

markings/or redact any portion of its

submission that it considers to be

protected from disclosure under

Exemption 4. These designations expire

10 years after the date of the submission

unless the submitter requests and

provides justification for a longer

designation period.

(d) When notice to submitters is

required:

(1) GSA shall promptly provide

written notice to the submitter of

confidential commercial information

whenever records containing such

information are requested under the

FOIA if GSA determines that it may be

required to disclose the records,

provided:

(i) The requested information has

been designated in good faith by the

submitter as information considered

protected from disclosure under

Exemption 4; or

(ii) GSA has a reason to believe that

the requested information may be

protected from disclosure under

Exemption 4, but has not yet

determined whether the information is

protected from disclosure.

(2) The notice shall either describe the

commercial information requested or

include a copy of the requested records

or portions of records containing the

information. In cases involving a

voluminous number of submitters, GSA

may post or publish a notice in a place

or manner reasonably likely to inform

the submitters of the proposed

disclosure, instead of sending

individual notifications.

(e) The notice requirements of this

section do not apply if:

(1) GSA determines that the

information is exempt under the FOIA,

and therefore shall not be disclosed;

(2) The information has been lawfully

published or has been officially made

available to the public;

(3) Disclosure of the information is

required by a statute other than FOIA or

by a regulation issued in accordance

with the requirements of Executive

Order 12,600 of June 23, 1987; or

(4) The designation made by the

submitter under paragraph (c) of this

section appears obviously frivolous. In

such a case, GSA shall give the

submitter written notice of any final

decision to disclose the information

within reasonable time prior to a

specified disclosure date.

§ 105–60.601 Submitters opportunity to

object to disclosure.

(a) GSA shall provide a submitter

with 10 business days, within which the

submitter shall respond to the notice

referenced in § 105–60.600.

(b) If a submitter has any objections to

disclosure, it should provide GSA 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 the basis for

nondisclosure, the submitter shall

explain why the information constitutes

a trade secret or commercial or financial

information that is privileged or

confidential and the harm of the release

of the information to the submitter.

(c) A submitter who fails to respond

within the time period specified in the

notice shall be considered to have no

objection to disclosure of the

information.

(d) GSA is not required to consider

any information received after the date

of any disclosure decision. Any

information provided by a submitter

under this subpart may itself be subject

to disclosure under the FOIA.

(e) GSA shall consider a submitter’s

objections and specific grounds for

nondisclosure in deciding whether to

disclose the requested information.

(f) Whenever GSA decides to disclose

information over the objection of a

submitter, the agency shall provide the

submitter written notice, which shall

include:

(1) A statement of the reasons why

each of the submitter’s disclosure

objections was not sustained;

(2) A description of the information to

be disclosed or copies of the records as

the agency intends to release them; and

(3) The specified disclosure date.

(g) Whenever a requester files a

lawsuit seeking to compel the disclosure

of confidential commercial information,

GSA shall promptly notify the

submitter.

(h) GSA shall notify the requester

whenever it provides the submitter with

notice and an opportunity to object to

disclosure; whenever it notifies the

submitter of its intent to disclose the

requested information; and whenever a

submitter files a lawsuit to prevent the

disclosure of the information.

Subpart I—Appeals

§ 105–60.700 Submitting an appeal.

(a) A requester may appeal any

adverse determination (denial of access

to records, denial of fee waiver, or

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denial of expedited processing, etc.) to

the GSA FOIA Requester Service Center

which is designated as the agency’s

FOIA Appeals Office.

(b) The appeal shall include:

(1) The FOIAonline tracking number;

(2) The basis for disagreement with

GSA’s adverse determination that is

being appealed; and

(3) A brief statement of the reasons he

or she thinks GSA should release the

records or provide expedited processing

and enclose copies of the initial request

and denial.

(c) The requester may submit the

appeal electronically to GSA.FOIA@

gsa.gov. The requester should mark the

subject line of the electronic

transmission, ‘‘Freedom of Information

Act Appeal.’’ In the alternative, the

requester may submit an appeal via

facsimile to 202–501–2727, or via US

mail to U.S. General Services

Administration, FOIA Requester Service

Center (H3), 1800 F Street NW, 7308,

Washington, DC 20405–0001. If the

appeal is submitted via US mail, the

appeal letter must include the words

‘‘Freedom of Information Act Appeal’’

on both the face of the appeal letter and

on the envelope. Failure to follow these

procedures will delay processing of the

appeal.

(d) The GSA FOIA Officer must

receive the requester’s appeal no later

than 90 calendar days after receipt by

the requester of any adverse

determination by GSA with respect to

the FOIA request. GSA has 20 business

days after receipt of a proper appeal to

issue a response to the requester’s

appeal. The 20-workday time limit shall

not begin until the GSA FOIA Officer

receives the appeal. As noted in

§ 105.60.305 of this part, the GSA FOIA

Officer may extend this time limit in

unusual circumstances. GSA will

process appeals of denials of expedited

processing as soon as possible after

receiving them. The GSA FOIA Officer

may also extend the time limit in the

event of unusual circumstances occur

during the processing of appeals as well.

§ 105–60.701 Adjudication of appeals.

(a) The GSA Chief FOIA Officer or his

or her designee shall act on behalf of

GSA on all appeals under this section.

(b) An appeal ordinarily shall not be

adjudicated if the request that is the

subject of the appeal becomes a matter

of FOIA litigation. GSA shall

administratively close the appeal if it

becomes the subject of litigation and

provide this notice to the requester in

writing that the request has been

administratively closed.

(c) On receipt of any appeal involving

classified information, GSA shall take

appropriate action to ensure compliance

with applicable classification rules.

(d) GSA shall provide its review and

decision on any appeal in writing. Any

decision that either upholds GSA’s

original determination in whole or in

part shall contain a statement that

identifies the reasons for the affirmance,

including any FOIA exemptions

applied.

(e) If GSA’s decision is remanded or

modified on appeal, GSA shall notify

the requester of that determination in

writing. GSA shall then further process

the request in accordance with that

appeal determination and shall respond

directly to the requester. If GSA affirms

its original decision after timely receipt

of an appeal, GSA shall inform the

requester via writing as well. GSA shall

inform the requester of their right to

seek judicial review in the U.S. District

Court in the district in which the

requester resides or has a principal

place of business, or where the records

are situated, or in the U.S. District Court

for the District of Columbia. GSA shall

also inform the requester of the

mediation services offered by the Office

of Government Information Services

(OGIS) of the National Archives and

Records Administration (NARA) as a

non-exclusive alternative to litigation.

(f) Engaging in dispute resolution or

mediation services provided by OGIS is

a voluntary process. Mediation is a

voluntary process. If GSA agrees to

participate in the mediation services

provided by OGIS, it will actively

engage as a partner to the process in an

attempt to resolve the dispute.

§ 105–60.702 Requirements to preserve

FOIA records.

GSA shall preserve all

correspondence pertaining to the

requests that it receives under this

subpart, as well as copies of all

requested records, until disposition or

destruction is authorized pursuant to

title 44 of the United States Code or the

General Records Schedule 4.2 of the

NARA. GSA shall not dispose of or

destroy records while they are the

subject of a pending request, appeal, or

lawsuit under FOIA.

Subpart J—Fees

§ 105–60.800 General provisions.

(a) GSA shall charge for processing

requests under the FOIA in accordance

with the provisions of this section and

with OMB Guidelines. For purposes of

assessing fees, FOIA establishes three

categories of requesters:

(1) Commercial use requesters;

(2) Noncommercial scientific or

educational institutions or news media

requesters; and

(3) All other requesters.

(b) Fees are assessed depending on

the category GSA determines the

requester falls under in subpart A of this

part. Requesters may seek a fee waiver.

GSA shall consider requests for fee

waiver in accordance with the

requirements in § 105–60.807 of this

subpart. To resolve any fee issues that

arise under this section, GSA may

contact a requester for additional

information. GSA shall ensure that

searches, review, and duplication of

FOIA records are conducted in the most

efficient and the least expensive

manner.

(c) GSA shall collect all applicable

fees before sending copies of records to

a requester. Requesters pay fees by

check, credit card, or money order made

payable to the U.S. General Services

Administration, or by another method

as determined by GSA.

§ 105–60.801 Definitions pertaining to fee

assessments.

(a) A commercial use request is a

request that asks for information that

furthers a commercial, trade, or profit

interest, which can include furthering

those interests through litigation. GSA’s

decision to place a requester in the

commercial use category shall be made

on a case-by-case basis and is based on

the requester’s intended use of the

information. GSA shall notify requesters

of their placement in this category.

(b) Direct costs are those expenses

that GSA incurs in searching for and

duplicating (and, in the case of

commercial use requests, reviewing)

records in order to respond to a FOIA

request. For example, direct costs

include the salary of the employee

performing the work (i.e., the basic rate

of pay for the employee, plus sixteen

(16) percent of that rate to cover

benefits) and the cost of operating

computers and other electronic

equipment, such as photocopiers and

scanners. Direct costs do not include

overhead expenses such as the costs of

space or the heating or lighting of a

facility.

(c) Duplication is reproducing a

record to respond to a FOIA request.

Duplicating records can occur via paper,

audiovisual materials or electronic

records.

(d) An educational institution is any

school that operates a program of

scholarly research. A requester in this

fee category shall show that the request

is made in connection with his or her

role at the educational institution.

Agencies may seek verification from the

requester that the request is in

furtherance of scholarly research.

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(e) A noncommercial scientific

institution is an institution that is not

operated on a commercial basis. The

term ‘commercial’ for purposes of this

subpart is that which is defined in

paragraph (a) of this section and that is

operated solely for the purpose of

conducting scientific research the

results of which are not intended to

promote any particular product or

industry. A requester in this category

shall show that the request is authorized

by a qualifying noncommercial

institution, or educational institution of

vocational and higher learning and

where the records are sought to further

scientific, or academic scholarly

research, and are not for a commercial

use. GSA shall advise requesters of their

placement in this category.

(f) Representative of the news media

is any person or entity that gathers

information of potential interest to a

segment of the public, uses its editorial

skills to turn the raw materials into a

distinct work, and distributes that work

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

information that is about current events

or that would be of current interest to

the public. Examples of news media

entities include television or radio

stations that broadcast ‘‘news’’ to the

public at large and publishers of

periodicals that disseminate ‘‘news’’

and make their products available

through a variety of means to the

general public, including news

organizations that disseminate solely on

the internet. A request for records

supporting the news-dissemination

function of the requester shall not be

considered to be for a commercial use.

‘‘Freelance’’ journalists who

demonstrate a solid basis for expecting

publication through a news media entity

shall be considered as a representative

of the news media. A publishing

contract would provide the clearest

evidence that publication is expected;

however, GSA can also consider a

requester’s past publication record in

making this determination. GSA shall

advise requesters of their placement in

this category.

(g) Review is the examination of a

record located in response to a request

in order to determine whether any

portion of it is exempt from disclosure.

Review time includes the process of

reviewing each individual record for

possible redactions and marking the

appropriate exemptions. Review costs

are properly charged even if a record

ultimately is not disclosed. Review time

also includes time spent both obtaining

and considering any formal objection to

disclosure made by a confidential

commercial information submitter

under § 105–60.601 of this part. It does

not include time spent resolving general

legal or policy issues regarding the

application of exemptions.

(h) Search is the process of looking for

and retrieving records or information

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

information from electronic records.

§ 105–60.802 Fees to be charged.

In responding to FOIA requests, GSA

shall charge the following fees unless a

waiver or reduction of fees has been

granted under § 105–60.807 of this

subpart. Because the fee amounts

provided below already account for the

direct costs associated with a given fee

type, GSA shall not add any additional

costs to charges calculated under this

section.

(a) Search fees. (1) Requests made by

educational institutions, noncommercial

scientific institutions, or representatives

of the news media are not subject to

search fees. GSA shall charge search

fees for all other requesters, subject to

the rules and restrictions enumerated in

this subpart. GSA may properly charge

for time spent searching even if the GSA

FOIA Requester Service Center does not

locate any responsive records or if they

determine that the records are entirely

exempt from disclosure.

(2) For each half hour (30 minutes)

spent by GSA personnel searching for

requested records, including electronic

searches that do not require new

programming, a $24.50 fee shall be

assessed per the guidelines of the fee

schedule enumerated in § 105–60.804 of

this subpart.

(3) GSA shall charge the direct costs

associated with conducting any search

that requires the creation of a new

computer program to locate the

requested records. GSA shall notify the

requester of the costs associated with

creating such a program, and the

requester shall agree to pay the

associated costs before the costs may be

incurred.

(4) For requests that require the

retrieval of records stored by GSA at a

Federal records center operated by the

NARA, GSA shall charge additional

costs in accordance with the

Transactional Billing Rate Schedule

established by NARA.

(b) Duplication fees. (1) GSA shall

charge duplication fees to all requesters,

subject to the restrictions of § 105–

60.803 of this subpart. GSA shall honor

a requester’s preference for receiving a

record in a particular form or format

where the agency can readily reproduce

it in the form or format requested.

Where photocopies are supplied, GSA

shall provide one copy per request at

the cost of $0.10 per copy. For copies of

records produced on tapes, disks, or

other media, GSA shall charge the direct

costs of producing the copy, including

operator time.

(2) Where paper documents shall be

scanned in order to comply with a

requester’s preference to receive the

records in an electronic format, the

requester shall also pay the direct costs

associated with scanning those

materials. For other forms of

duplication, GSA shall charge the direct

costs.

(3) GSA determines the standard fee

for duplication of records as follows:

(i) Per copy of each page (not larger

than 8.5 x 14 inches) reproduced by

photocopy or similar means (includes

costs of personnel and equipment)—

U.S. $0.10.

(ii) Per copy prepared by any other

method of duplication—actual direct

cost of production.

(c) Review fees. GSA shall charge

review fees to requesters who make

commercial use requests. Review fees

shall be assessed based upon the initial

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

conducted by GSA to determine

whether an exemption applies to a

particular record or portion of a record).

No charge shall be made for review

during the administrative appeal stage

of exemptions applied at the initial

review stage. However, if a particular

exemption is deemed to no longer

apply, any costs associated with GSA or

another agency’s secondary review of

the records in order to consider the use

of other exemptions may be assessed as

review fees. Review fees shall be

charged at the same rates as those

enumerated in the fee schedule of this

section.

§ 105–60.803 Restrictions on charging

fees.

(a) When GSA determines that a

requester is an educational institution,

noncommercial scientific institution, or

representative of the news media, and

that the records are not sought for

commercial use, GSA shall not charge

search fees.

(b) If GSA fails to comply with the

time limits in which to respond to a

request for agency records under FOIA,

it will not charge search fees, or in the

instances of requests from requesters

described in paragraph (a) of this

section, may not charge duplication

fees, except as described in paragraphs

(b)(1) through (3) of this section. GSA

will charge duplication fees in

accordance with § 105–60.802(b)(1)

through (3) of this subpart.

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(1) If GSA has determined that

unusual circumstances, as defined by

FOIA, apply and the agency provided

timely written notice to the requester in

accordance with FOIA, a failure to

comply with the time limit shall be

excused for an additional 10 business

days.

(2) If GSA has determined that

unusual circumstances, as defined by

the FOIA, apply and that more than

5,000 pages are necessary to respond to

the request, GSA may charge search

fees, or, in the case of requesters

described in paragraph (d)(1) of this

section, may charge duplication fees, if

the following steps are taken. GSA shall

have provided timely written notice of

unusual circumstances to the requester

in accordance with FOIA and GSA shall

have discussed with the requester via

written mail, email, or telephone (or

made not less than three good-faith

attempts to do so) how the requester

could effectively limit the scope of the

request in accordance with 5. U.S.C.

552(a)(6)(B)(ii). If this exception is

satisfied, the component may charge all

applicable fees incurred in the

processing of the request.

(3) If a court has determined that

exceptional circumstances exist, as

defined by FOIA, a failure to comply

with the time limits shall be excused for

the length of time provided by the court

order.

(c) No search or review fees shall be

charged for a half-hour period unless

more than half of that period is required

for search or review.

(d) Except for requesters seeking

records for a commercial use, GSA shall

provide without charge:

(1) The first 100 pages of duplication

(or the cost equivalent for other media);

and

(2) The first 2 hours of search time.

(e) No fee shall be charged when the

total fee, after deducting the 100 free

pages (or its cost equivalent) and the

first 2 hours of search, is equal to or less

than $49.00.

§ 105–60.804 Fee schedule.

Table 1 to § 105–60.804 outlines the

basic fee categories and applicable fees:

T

ABLE

1

TO

§ 105–60.804—F

EE

R

EQUESTER

C

ATEGORY

T

ABLE

Requester category Search fees Review fees Duplication fees Amount

(a) Commercial use re-

quester. Yes ................ Yes ................ Yes, first 100 pages, or equivalent volume without charge.

Then, U.S. $0.10. per copy of each page (not larger

than 8.5 x 14 inches) reproduced by photocopy or simi-

lar means (includes costs of personnel and equip-

ment)—OR, per copy prepared by any other method of

duplication—actual direct cost of production.

$49.00/hour plus appli-

cable duplication

costs.

(b) Educational and

noncommercial sci-

entific institutions.

No .................. No .................. Yes, first 100 pages, or equivalent volume without charge.

Then, U.S. $0.10. per copy of each page (not larger

than 8.5 x 14 inches) reproduced by photocopy or simi-

lar means (includes costs of personnel and equip-

ment)—OR, per copy prepared by any other method of

duplication—actual direct cost of production.

Eligible requesters not

subject to fees other

than duplication

costs.

(c) Representative of

news media. No .................. No .................. Yes, first 100 pages, or equivalent volume without charge.

Then, U.S. $0.10. per copy of each page (not larger

than 8.5 x 14 inches) reproduced by photocopy or simi-

lar means (includes costs of personnel and equip-

ment)—OR, per copy prepared by any other method of

duplication—actual direct cost of production.

Eligible requesters not

subject to fees other

than duplication

costs.

(d) All other requesters Yes (first 2

hours with-

out charge).

No .................. Yes, first 100 pages, or equivalent volume without charge.

Then, U.S. $0.10. per copy of each page (not larger

than 8.5 x 14 inches) reproduced by photocopy or simi-

lar means (includes costs of personnel and equip-

ment)—OR, per copy prepared by any other method of

duplication—actual direct cost of production.

$49.00/hour plus appli-

cable duplication

costs.

Note 1 to § 105–60.804: GSA’s calculated

hourly rate for manual search, computer

operator/programmer time, and employee

time spent reviewing records is set at a flat

rate of 49.00 per hour. GSA charges for these

FOIA services by the hour at $49.00 and half

hour at $24.50.

Note 2 to § 105–60.804: The fee schedule

of this section does not apply to fees charged

under any statute that specifically requires

GSA to set and collect fees for particular

types of records. In instances where records

responsive to a request are subject to a

statutorily based fee schedule program, GSA

shall inform the requester of the contact

information for that program.

Note 3 to § 105–60.804: If GSA utilizes a

contractor or agency personnel outside of the

FOIA Requester Service Center to perform

any services described in this subpart, the

standard fee is based on the equivalent

hourly rates.

§ 105–60.805 Anticipated fees.

(a) When GSA determines or

estimates that the fees to be assessed in

accordance with this section shall

exceed $49.00, the agency shall notify

the requester of the actual or estimated

amount of the fees, including a

breakdown of the fees for search, review

or duplication, unless the requester has

indicated a willingness to pay fees as

high as those anticipated via writing. If

only a portion of the fee can be

estimated readily, GSA shall advise the

requester accordingly. If the request is

not for noncommercial use, the notice

shall specify that the requester is

entitled to the statutory entitlements of

100 pages of duplication at no charge

and, if the requester is charged search

fees, 2 hours of search time at no charge,

and shall advise the requester whether

those entitlements have been provided.

(b) If GSA notifies the requester that

the actual or estimated fees are in excess

of $49.00, the request shall not be

considered received and further work

shall not be completed until the

requester commits in writing to pay the

actual or estimated total fee, or

designates some amount of fees the

requester is willing to pay. Or in the

case of a noncommercial use requester

who has not yet been provided with the

requester’s statutory entitlements,

designates that the requester seeks only

that which can be provided by the

statutory entitlements. The requester

shall provide the commitment/or

designate an exact dollar amount in

writing the requester is willing to pay.

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GSA is not required to accept payments

in installments.

(c) If the requester has indicated a

willingness to pay some designated

amount of fees, but the agency estimates

that the total fee shall exceed that

amount, GSA shall toll the processing of

the request when it notifies the

requester of the estimated fees in excess

of the amount the requester has

indicated a willingness to pay. GSA

shall inquire whether the requester

wishes to revise the amount of fees the

requester is willing to pay or modify the

request. Once the requester submits the

new estimated fee, the time to respond

shall resume from where it was at the

date of the notification.

(d) GSA’s FOIA Public Liaison and

other FOIA professionals shall be

available to assist any requester in

reformulating a request to meet the

requester’s needs at a lower cost.

(e) Although not required to provide

special services, if GSA chooses to do so

as a matter of administrative discretion,

the direct costs of providing the service

shall be charged. Examples of such

services include certifying that records

are true copies, providing multiple

copies of the same document, or

sending records by means other than

first class mail.

(f) GSA may charge interest on any

unpaid bill starting on the 31st day

following the date the requester is first

billed. Interest charges shall be assessed

at the rate provided in 31 U.S.C. 3717

and shall accrue from the billing date

until payment is received by the agency.

GSA shall follow the provisions of the

Debt Collection Act of 1982 (Public Law

97–365, 96 Stat. 1749), as amended, and

its administrative procedures, including

the use of consumer reporting agencies,

collection agencies, and offset.

(g) When GSA reasonably believes

that a requester or a group of requesters

acting in concert are attempting to

divide a single request into a series of

requests for the purpose of avoiding

fees, GSA may aggregate those requests

and charge accordingly. GSA may

presume that multiple requests of this

type made within a 30-day period have

been made in order to avoid fees. For

requests separated by a longer period,

GSA shall aggregate them only where

there is a reasonable basis for

determining that aggregation is

warranted in view of all the

circumstances involved. Multiple

requests involving unrelated matters

cannot be aggregated.

§ 105–60.806 Advanced payments.

(a) For requests other than those

described in this subpart, GSA cannot

require the requester to make an

advance payment before work is

commenced or continued on a request.

Payment owed for work already

completed (i.e., payment before copies

are sent to a requester) is not an advance

payment.

(b) When GSA determines or

estimates that a total fee to be charged

under this section shall exceed $250.00,

it may require that the requester make

an advance payment up to the amount

of the entire anticipated fee before

beginning to process the request. GSA

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.

(c) Where a requester has previously

failed to pay a properly charged FOIA

fee to GSA within 30 calendar days of

the billing date, GSA may require that

the delinquent requester pay the full

amount due, plus any applicable

interest on that prior request, and

require that the requester make an

advance payment of the full amount of

any anticipated fee before the agency

begins to process a new request or

continues to process a pending request

or any pending appeal. If GSA has a

reasonable basis to believe that a

requester has misrepresented the

requester’s identity in order to avoid

paying outstanding fees, it may require

that the requester provide proof of

identity.

(d) In cases in which GSA requires

advance payment, the request shall not

be considered received and further work

shall not be completed until the

required payment is received. If the

requester does not pay the advance

payment within 10 business days after

the date of GSA’s fee determination, the

request shall be closed.

§ 105–60.807 Fee waivers and fee

reductions.

(a) Requests for a fee waiver shall be

made when the FOIA request is first

submitted to the agency and should

address the criteria referenced above. A

requester may submit a fee waiver

request at a later time so long as the

underlying record request is pending or

being reviewed per an appeal. When a

requester who has committed to pay

fees subsequently asks for a waiver of

those fees and that waiver is denied, the

requester shall pay any costs incurred

up to the date the fee waiver request

was received.

(b) Requirements for waiver or

reduction of fees:

(1) Requesters may seek a waiver of

fees by submitting a written rationale as

to how disclosure of the requested

information is in the public interest

because it is likely to contribute

significantly to public understanding of

the operations or activities of the

Government and is not primarily in the

commercial interest of the requester;

and

(2) GSA shall furnish records

responsive to a request without charge

or at a reduced rate when it determines,

based on all available information, that

the factors described in paragraphs

(b)(2)(i) through (iii) of this section are

satisfied:

(i) Disclosure of the requested

information would shed light on the

operations or activities of the

Government. The subject of the request

shall concern identifiable operations or

activities of the Federal Government

with a connection that is direct and

clear, not remote or attenuated; and

(ii) Disclosure of the requested

information is likely to contribute

significantly to public understanding of

those operations or activities. This

factor is satisfied when the following

criteria are met; and

(A) Disclosure of the requested

records shall be meaningfully

informative about Government

operations or activities. The disclosure

of information that already is in the

public domain, in either the same or a

substantially identical form, would not

be meaningfully informative if nothing

new would be added to the public’s

understanding.

(B) The disclosure shall contribute to

the understanding of a reasonably broad

audience of persons interested in the

subject, as opposed to the individual

understanding of the requester. A

requester’s expertise in the subject area

as well as the requester’s ability and

intention to effectively convey

information to the public shall be

considered. GSA shall presume that a

representative of the news media shall

satisfy this consideration;

(iii) The disclosure shall not be

primarily in the commercial interest of

the requester. To determine whether

disclosure of the requested information

is primarily in the commercial interest

of the requester, GSA shall consider the

following criteria:

(A) GSA shall identify whether the

requester has any commercial interest

that would be furthered by the

requested disclosure. A commercial

interest includes any commercial, trade,

or profit interest. Requesters shall be

given an opportunity to provide

explanatory information regarding this

consideration.

(B) If there is an identified

commercial interest, GSA shall

determine whether that is the primary

interest furthered by the request. A

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waiver or reduction of fees is justified

when the requirements of paragraphs

(b)(2)(i) and (ii) of this section are

satisfied and any commercial interest is

not the primary interest furthered by the

request. GSA ordinarily shall presume

that, when a news media requester has

satisfied factors in paragraph (b)(1) of

this section and this paragraph (b)(2),

the request is not primarily in the

commercial interest of the requester.

Disclosure to data brokers or others who

merely compile and market Government

information for direct economic return

shall not be presumed to primarily serve

the public interest.

(c) Where only some of the records to

be released satisfy the requirements for

a fee waiver, a waiver shall be granted

for those records.

Subpart K—Other Rights and Services

§ 105–60.900 Coda.

Nothing in this subpart shall be

construed to entitle any person, as of

right, to any service or to the disclosure

of any record to which such person is

not entitled under the FOIA.

[FR Doc. 2020–00057 Filed 1–28–20; 8:45 am]

BILLING CODE 6820–FM–P

FEDERAL COMMUNICATIONS

COMMISSION

47 CFR Parts 1 and 73

[AU Docket No. 19–290; DA 19–1256; DA

19–1265]

Auction of FM Broadcast Construction

Permits Scheduled for April 28, 2020;

Notice of Filing Requirements,

Minimum Opening Bids, Upfront

Payments, and Other Procedures for

Auction 106; Auction 106 Freeze

Announced for FM Minor Change

Applications

AGENCY

: Federal Communications

Commission.

ACTION

: Final action; requirements and

procedures.

SUMMARY

: This document summarizes

public notices that announce the

procedures and upfront payments

amounts and minimum opening bids for

the auction of certain FM broadcast

construction permits as well as a

temporary freeze on the filing of minor

change applications for FM stations.

The Auction 106 Procedures Public

Notice summarized here is intended to

familiarize applicants with the

procedures and other requirements for

participation in Auction 106.

DATES

: Applications to participate in

Auction 106 must be submitted before 6

p.m. Eastern Time (ET) on February 11,

2020. FM commercial and

noncommercial educational minor

change applications may not be filed

during a period starting on January 29,

2020, and ending on February 11, 2020.

Upfront payments for Auction 106 must

be received by 6 p.m. ET on March 20,

2020. Bidding in Auction 106 is

scheduled to start on April 28, 2020.

FOR FURTHER INFORMATION CONTACT

: For

auction legal questions, Lynne Milne or

Daniel Habif in the OEA Auctions

Division at (202) 418–0660. For general

auction questions, the Auction Hotline

at (717) 338–2868. For FM Broadcast

service questions, Lisa Scanlan, Thomas

Nessinger, or James Bradshaw in the MB

Audio Division at (202) 418–2700. To

request materials in accessible formats

(Braille, large print, electronic files, or

audio format) for people with

disabilities, send an email to fcc504@

fcc.gov or call the Consumer and

Governmental Affairs Bureau at (202)

418–0530 or (202) 418–0432 (TTY).

SUPPLEMENTARY INFORMATION

: This is a

summary of the Auction 106 Procedures

Public Notice, released on December 13,

2019, and the Auction 106 Freeze Public

Notice, also released on December 13,

2019. The complete text of the Auction

106 Procedures Public Notice, including

attachments and any related document,

and the complete text of the Auction

106 Freeze Public Notice are available

for public inspection and copying from

8 a.m. to 4:30 p.m. ET Monday through

Thursday or from 8 a.m. to 11:30 a.m.

ET on Fridays in the FCC Reference

Information Center, 445 12th Street SW,

Room CY–A257, Washington, DC 20554.

These public notices and related

documents also are available on the

internet at the Commission’s website:

www.fcc.gov/auction/106, or by using

the search function for DA 19–1256 or

DA 19–1265 on the Commission’s

EDOCS web page at http://www.fcc.gov/

edocs/.

I. General Information

1. Construction Permits in Auction

106. Auction 106 will offer 130

construction permits in the FM

broadcast service for 130 new FM

allotments, including 34 construction

permits that were offered but not sold or

were defaulted upon in prior auctions.

These construction permits are for

vacant FM allotments, reflecting FM

channels added to the Table of FM

Allotments pursuant to the

Commission’s established rulemaking

procedures, and assigned at the

indicated communities specified in 47

CFR 73.202(b). Attachment A of the

Auction 106 Procedures Public Notice

lists the reference coordinates for each

vacant FM allotment offered in Auction

106. Each Auction 106 applicant may

submit in its FCC Form 175 a set of

preferred site coordinates for any of its

selected construction permits as an

alternative to the reference coordinates

for that vacant FM allotment.

2. The set of construction permits

listed in Attachment A of the Auction

106 Procedures Public Notice is

unchanged from the list of construction

permits that were proposed for this

auction in the Auction 106 Comment

Public Notice. Two commenters request

the addition of specific construction

permits in Auction 106. Those requests

cannot be granted because the

underlying allotments must first be

added to the Table of Allotments

through separate administrative

processes. Likewise, a third

commenter’s request to delete a specific

allocation from the Table of Allotments

cannot be granted because it is beyond

the scope of this proceeding.

3. Pursuant to the policies established

in the Broadcast Competitive Bidding

Order, applicants may apply for any

vacant FM allotment listed in

Attachment A. If two or more \FCC

Forms 175 specify the same FM

allotment in Auction 106, mutual

exclusivity exists for auction purposes,

and that construction permit must be

awarded by competitive bidding

procedures. Once mutual exclusivity

exists for auction purposes, even if only

one applicant is qualified to bid for a

particular construction permit in

Auction 106, that applicant is required

to submit a bid in order to obtain the

construction permit.

4. Media Bureau Freeze Public Notice.

Pursuant to the Auction 106 Freeze

Announced for FM Minor Change

Applications Public Notice, DA 19–1265

(Dec. 13, 2019), the Media Bureau (MB)

will not accept FM commercial and

noncommercial educational (NCE)

minor change applications filed during

the Auction 106 short-form application

(FCC Form 175) filing window. This

freeze ensures that there will not be a

mutual exclusivity conflict between

stations proposed in an Auction 106

Form 175 and a minor change

application. Accordingly, this freeze

promotes a more certain and speedier

auction process.

5. Auction Dates and Deadlines. The

following dates and deadlines apply:

Auction Tutorial Available (via

internet): by January 22, 2020

FCC Form 175 Initial Filing Window

Opens: January 29, 2020, 12:00 noon

ET

FCC Form 175 Initial Filing Deadline:

February 11, 2020, 6:00 p.m. ET

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