83 FR 28592 - Public Availability of Agency Records and Informational Materials

GENERAL SERVICES ADMINISTRATION

Federal Register Volume 83, Issue 119 (June 20, 2018)

Page Range		28592-28603
FR Document		2018-13105

The General Services Administration (GSA) is issuing a proposed rule to amend its regulations implementing the Freedom of Information Act (FOIA). The regulations are being revised to update and streamline the language of several procedural provisions and to incorporate certain changes brought about by the amendments to the FOIA under both statutory and nonstatutory authorities. This rule also amends the GSA's regulations under the Freedom of Information Act (FOIA) to incorporate certain changes made to the FOIA by the FOIA Improvement Act of 2016. Additionally, the regulations are being updated to reflect developments in case law, executive guidance from the Department of Justice--Office of Information Policy, technological advancements in how the FOIA is administered, and to include current cost figures to be used in calculating and charging fees. Finally, the revisions increase the amount of information that members of the public may receive from the Agency without being charged processing fees through proactive disclosures.

Federal Register, Volume 83 Issue 119 (Wednesday, June 20, 2018)

[Federal Register Volume 83, Number 119 (Wednesday, June 20, 2018)]
[Proposed Rules]
[Pages 28592-28603]
From the Federal Register Online [www.thefederalregister.org]
[FR Doc No: 2018-13105]

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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: Proposed rule.

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SUMMARY: The General Services Administration (GSA) is issuing a
proposed rule to amend its regulations implementing the Freedom of
Information Act (FOIA). The regulations are being revised to update and
streamline the language of several procedural provisions and to
incorporate certain changes brought about by the amendments to the FOIA
under both statutory and nonstatutory authorities. This rule also
amends the GSA's regulations under the Freedom of Information Act
(FOIA) to incorporate certain changes made to the FOIA by the FOIA
Improvement Act of 2016. Additionally, the regulations are being
updated to reflect developments in case law, executive guidance from
the Department of Justice--Office of Information Policy, technological
advancements in how the FOIA is administered, and to include current
cost figures to be used in calculating and charging fees. Finally, the
revisions increase the amount of information that members of the public
may receive from the Agency without being charged processing fees
through proactive disclosures.

DATES: Interested parties should submit written comments to the
Regulatory Secretariat Division at one of the addresses shown below on
or before August 20, 2018 to be considered in the formation of the
final rule.

ADDRESSES: Submit comments in response to GSPMR case 2016-105-1 by any
of the following methods:
Regulations.gov: http://www.regulations.gov. Submit
comments via the Federal eRulemaking portal by searching for ``GSPMR
Case 2016-105-1''. Select the link ``Comment Now'' that corresponds
with ``GPSMR Case 2016-105-1.'' Follow the instructions provided on the
screen. Please include your name, company name (if any), and ``GSPMR
Case 2016-105-1'' on your attached document.
Mail: General Services Administration, Regulatory
Secretariat Division (MVCB), ATTN: Ms. Lois Mandell, 1800 F Street NW,
2nd Floor, Washington, DC 20405.
Instructions: Please submit comments only and cite GSPMR Case 2016-
105-1, in all correspondence related to this case. All comments
received will be posted without change to http://www.regulations.gov,
including any personal and/or business confidential information
provided. To confirm receipt of your comment(s), please check
www.regulations.gov, approximately two to three days after submission
to verify posting (except allow 30 days for posting of comments
submitted by mail).

FOR FURTHER INFORMATION CONTACT: Mr. Travis S. Lewis, Director of GSA,
OAS, Freedom of Information Act and Records Management Division, at
202-219-3078 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.

[[Page 28593]]

SUPPLEMENTARY INFORMATION:

I. Background

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. The FOIA thus established a
statutory right of public access to Executive Branch information in the
Federal Government. 41 CFR part 105-60 establishes the policies,
responsibilities and procedures for the release of GSA records, which
are under the jurisdiction of GSA, to members of the public. These
regulations apply to information found in all GSA organizations,
portfolios, business lines, regional offices, and components. This rule
proposes revisions to GSA's regulations under the FOIA to update and
streamline the language of several procedural provisions and to
incorporate certain of the changes brought about by the amendments to
the FOIA under the FOIA Improvement Act of 2016, the OPEN FOIA Act of
2009, the OPEN Government Act of 2007, and the Electronic Freedom of
Information Act Amendments of 1996. With respect to the FOIA
Improvement Act of 2016, Public Law 114-185, 130 Stat. 538 (June 30,
2016). The FOIA Improvement Act of 2016 provides that agencies must
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. This proposed rule updates the GSA's regulations in 41 CFR
part 105-60 to reflect those statutory changes.
Additionally, the regulations are being updated to reflect
developments in case law, technological changes in the administration
of the FOIA, executive guidance from the Department of Justice, other
nonstatutory authorities such as Presidential Executive Orders, and to
include current cost figures to be used in calculating and charging
fees. The proposed revisions incorporate 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 proposed
revisions 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. All substantive changes to GSA's FOIA regulations in
this proposed rule will be effective upon final publication of this
rule in the Federal Register.

II. Executive Orders 12866 and 13563--Regulatory Review

Executive Orders (E.O.s) 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 proposed rule is not a major
rule under 5 U.S.C. 804.

III. 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.

IV. Regulatory Flexibility Act

This proposed 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 proposed rule is
also exempt from Administrative Procedure Act per 5 U.S.C. 553(a)(2),
because it applies to agency management or personnel.

V. Small Business Regulatory Enforcement Fairness Act

This proposed rule is also exempt from Congressional review
prescribed under 5 U.S.C. 801 since it relates solely to agency
management and personnel.

VI. Paperwork Reduction Act

This proposed 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).

VII. 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: June 12, 2018.
Robert Stafford,
Chief Administrative Services Officer, General Services Administration.

0
For the reasons stated in the preamble, GSA proposes to revise 41 CFR
part 105-60 to read as follows:

PART 105-60--PUBLIC AVAILABILITY OF AGENCY RECORDS AND
INFORMATIONAL MATERIALS

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 Consultation, referral, and coordination.
105-60.302 Time requirements to respond to FOIA requests.
105-60.303 Unusual circumstances.
105-60.304 Expedited processing.
Subpart E--Acknowledging the FOIA Request
105-60.400 Acknowledgement procedures.
Subpart F--FOIA Exemptions
105-60.500 Applying FOIA exemptions.
Subpart G--Final Responses to the FOIA Request
105-60.600 Final response procedures and rules.
Subpart H--Handling Confidential Commercial Information
105-60.700 Procedural and lawful considerations.
105-60.701 Opportunity to object to disclosure.
Subpart I--Appeals
105-60.800 Submitting an appeal.
105-60.801 Adjudication.
105-60.802 Requirements to preserve FOIA records.

[[Page 28594]]

Subpart J--Fees
105-60.900 General provisions.
105-60.901 Definitions.
105-60.902 Fees to be charged.
105-60.903 Restrictions on charging fees.
105-60.905 Anticipated fees.
105-60.906 Advanced payments.
105-60.907 Fee waivers and fee reductions.
Subpart K--Other Rights and Services
105-60.1000 Coda.
Subpart L--Definitions
105-60.1100 Definitions.

Authority: 5 U.S.C. 301 and 552; 40 U.S.C. 486(c).

Subpart A--General Policy

Sec. 105-60.000 Scope of part.

This part of the Code of Federal Regulations contains the rules
that the United States General Services Administration, hereinafter
GSA, follows in processing requests for records under the Freedom of
Information Act (``FOIA''), 5 U.S.C. 552. These rules 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.

Sec. 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
the 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 due to unique program
requirements; however, such rules must 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

Sec. 105-60.100 Public availability of information.

Records that the FOIA requires GSA to make available for public
inspection in an electronic format can be accessed through the GSA FOIA
Reading Room, and the FOIA Online System. The GSA is responsible for
determining which of its records must 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. GSA shall ensure that its online FOIA Library of posted
records and indices is reviewed and updated on an ongoing basis. GSA
has a FOIA Requester Service Center and FOIA Public Liaison who can
assist individuals in locating records particular to an agency. A list
of agency FOIA Public Liaisons is available at: http://www.foia.gov/report-makerequest.html.

Subpart C--Requirements for Making Requests

Sec. 105-60.200 Making a request.

(a) To make a request for GSA records, a requester should file
their request directly to the GSA FOIA Requester Service Center, the
office that oversees FOIA requests for all of GSA. A request shall
receive the quickest possible response if it is filed online via the
FOIAonline website: (https://foiaonline.regulations.gov/foia/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 possible for a requester to submit an electronic
request via FOIAonline, there are several alternatives to submit FOIA
requests to GSA: Standard Mail: GSA FOIA Requester Service Center
(H1F), Room 7308, 1800 F. Street NW, Washington, DC 20405. Fax: 202-
501-2727. Email: gsa.foia@gsa.gov (Subject: Request via Email).
(c) Additional requirements for submitting a request to GSA
include:
(1) The requester must provide the following items of contact
information:
(i) Full name with surname (Mr., Ms., Mrs., Dr., etc.);
(ii) Complete mailing address;
(iii) Telephone number.
(2) Although it is not a mandatory requirement, GSA also recommends
the requester provide a personal/business email address.
(3) Requesters must provide their contact information to assist the
agency in communicating with them and providing released records. These
requirements apply to both electronic FOIA requests as well as those
filed via standard mail.
(d) A perfected FOIA request is a FOIA request for records which
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.
(e) Agency records are those created or received in the course of
conducting agency business, including, but not limited to: Paper,
electronic or other physical forms for records. These may include
reports, letters, photographs, audio recordings and emails. A record
must exist and be in the possession and control of the GSA before it is
considered for release.
(f) GSA is not required to:
(1) Answer questions or interrogatories posed as FOIA requests;
(2) Issue opinions;
(3) Analyze and/or interpret documents for a requester;
(4) Create records;
(5) Conduct research; or
(6) Initiate investigations;
(g) A requester who is making a request for records about himself
or herself must comply with the verification of identity requirements
as determined by the Agency.
(h) Where a request for records pertains to another individual, a
requester may receive greater access by submitting either a notarized
authorization signed by that individual or a declaration made in
compliance with the requirements set forth in 28 U.S.C. 1746 by that
individual authorizing disclosure of the records to the requester, 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, the GSA can require a requester to supply additional
information such as a ``Certification of Identity Form'' in order to
sufficiently

[[Page 28595]]

verify the individual submitting the request and/or also verify that a
particular individual has consented to disclosure.

Sec. 105-60.201 Description of records sought.

(a) Requesters must 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 that may help the 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 their requests, 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, the 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, the GSA's response to
the request may be delayed.
(c) In order to efficiently respond to FOIA requests within the
required twenty business day timeframe per 5 U.S.C. 552, GSA may close
an unperfected request ten business days after the 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.
(d) Requesters may specify their preferred form or format
(including electronic formats) for the records they seek. GSA shall
accommodate the request if the record is readily reproducible in that
form or format.

Subpart D--Responding to Requests

Sec. 105-60.300 Responsibility for responding to requests.

(a) GSA is responsible for responding to all requests for records
under the FOIA 5 U.S.C. 552. GSA is responsible for releasing records
only when the requested records are generated, maintained and
controlled by GSA. GSA will only release records after the appropriate
exemptions, redactions, and other legal considerations have been
applied per 5 U.S.C. 552 In determining which records are responsive to
a request, the Agency shall include only the records in its possession
as of the date that it begins its search. If any other date is used,
GSA must inform the requester of that date. 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.
(b) The GSA Administrator and GSA Chief FOIA Officer are authorized
to grant or deny any requests for records that are generated,
maintained and controlled by GSA.
(c) The GSA FOIA Requester Service Center is responsible for
managing requests from the time the request is received until the time
a response is provided to the requester.
(d) Upon receiving a request, the GSA FOIA Requester Service Center
determines whether the information resides within GSA. If GSA is not
the owner of the information, then the GSA FOIA Requester Service
Center will make a good faith effort to redirect the requester to the
appropriate record location or entity that controls the record, if
known.
(e) If GSA has the records, then the FOIA Requester Service Center
shall work in coordination with the appropriate GSA component to
fulfill the FOIA request in compliance with 5 U.S.C. 552a.

Sec. 105-60.301 Consultation, referral, and coordination.

(a) 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, the GSA shall proceed in one of
the following ways:
(1) Consultation. When the requested records originate with GSA,
but contain within them information of interest to another agency or
other Federal Government office, GSA should typically consult with that
other entity prior to making a release determination.
(2) Referral. (i) When GSA believes that a different agency or
component is best able to determine whether to disclose the record, GSA
should refer the responsibility for responding to the request regarding
that record to that agency. Ordinarily, the agency that created the
record 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 record may be handled as a consultation.
(ii) Whenever GSA refers any part of the responsibility for
responding to a request to another agency, it must document the
referral, maintain a copy of the record that it refers, and notify the
requester of the referral- informing the requester of the name(s) of
the agency to which the record was referred, including that agency's
FOIA contact information.
(3) Coordination. (i) This 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.
(ii) For example, 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.
(iii) In such instances, in order to avoid harm to an interest
protected by an 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 must 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 must refer the
responsibility for responding to the request regarding this information
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

[[Page 28596]]

classified (meaning it contains information classified by another
agency), GSA must refer the responsibility for responding to that
portion of the request to the agency that classified the underlying
information.
(b) All consultations and referrals received by GSA shall be
handled according to the date the other agency received the perfected
FOIA request.
(c) GSA may establish agreements with other agencies to eliminate
the need for consultations or referrals with respect to particular
types of records.

Sec. 105-60.302 Time requirements to respond to FOIA requests.

(a) Once a perfected request is received, it can begin to be
processed by the GSA FOIA Requester Service Center. Pursuant to the
FOIA, GSA generally has twenty (20) business days to make a
determination on the request, excluding Saturdays, Sundays, and federal
holidays. This time period begins when the request is received by the
GSA FOIA Requester Service Center via U.S. Mail, email or facsimile.
(b) GSA shall respond to requests by order of receipt.
(c) GSA will inform the FOIA requester of GSA's decision and send
the requester the responsive documents within a reasonable timeframe
and or negotiated timeframe based on scope and level of effort to
prepare the FOIA request response.
(d) GSA must designate a specific track for requests that are
granted expedited processing, in accordance with the standards set
forth in Sec. 105-60.304 Expedited Processing of this part. 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 or modify their request to ensure it is
fulfilled in a timely manner.

Sec. 105-60.303 Unusual circumstances.

(a) Whenever GSA cannot meet the statutory time limit for
processing a request because of ``unusual circumstances,'' as defined
in 5 U.S.C. 552, and GSA extends the time limit on that basis, GSA
must, before expiration of the 20-day period to respond, 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 exceeds ten (10) business days, GSA
must, as described by the FOIA, provide the requester with an
opportunity to modify the request or arrange an alternative time period
for processing the original or modified request. GSA must make
available its FOIA Public Liaison for this purpose. GSA must also alert
requesters to the availability of the Office of Government Information
Services (OGIS) to provide dispute resolution services.
(b) To satisfy unusual circumstances under the FOIA, GSA may
aggregate requests in cases where it reasonably appears that multiple
requests, submitted either by a requester or by a group of requesters
acting in concert, constitute a single request that would otherwise
involve unusual circumstances. GSA cannot aggregate multiple requests
that involve unrelated matters.

Sec. 105-60.304 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 must reasonably describe the records sought. Expedited requests
should be described in sufficient detail to facilitate expedited
processing.
(b) A requester who seeks expedited processing must submit a
statement, certified to be true and correct, explaining in detail the
basis for making the request for expedited processing as described in
(c)(1)-(3). 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 must notify the requester within ten (10) calendar days of
its decision receipt of a request for expedited processing 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 three business days.

Subpart E--Acknowledging the FOIA Request

Sec. 105-60.400 Acknowledgement procedures.

(a) GSA to the extent practicable, 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 two 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 is 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 which
shall be communicated to the requester.
(e) Upon request, 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 response, meaning the agency
releases the records on a rolling basis as the records are located and
verified.

Sec. 105-60.500 Applying FOIA exemptions.

(a) 5 U.S.C. 552(b)(1)-(9) of the Freedom of Information Act
provides that the disclosure requirements of the 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; and
(3) Specifically exempted from disclosure by statute other than 5
U.S.C. 552(b)(1)-(9), provided that such statute:

[[Page 28597]]

(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;
(iii) Trade secrets and commercial or financial information which
could harm the competitive posture or business interests of a company;
(iv) 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;
(v) Personnel and medical files and similar files the disclosure of
which would constitute a clearly unwarranted invasion of personal
privacy; or
(vi) Records or information compiled for law enforcement purposes,
but only to the extent that the production of such law enforcement
records or information:
(A) Could reasonably be expected to interfere with enforcement
proceedings;
(B) Would deprive a person of a right to a fair trial or an
impartial adjudication;
(C) Could reasonably be expected to constitute an unwarranted
invasion of personal privacy;
(D) Reasonably be expected to disclose the identity of a
confidential source, including a State, local, or foreign agency or
authority or any private institution which furnished information on a
confidential basis, and, in the case of a record or information
compiled by 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;
(E) 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
(F) Could reasonably be expected to endanger the life or physical
safety of any individual;
(G) 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
(H) 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 G--Final Responses to the FOIA Request

Sec. 105-60.600 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. GSA
shall also inform the requester of any fees charged under Sec. 105-
60.904 Fee Schedule of this part and must disclose the requested
records to the requester promptly upon payment of any applicable fees.
The agency must inform the requester of the availability of its FOIA
Public Liaison to offer assistance.
(b) If GSA makes an adverse determination denying any part of the
request, it shall notify the requester of that determination in
writing. Adverse determinations, or denials of requests, include
decisions that:
(1) The requested record is exempt, in whole or in part;
(2) The request does not reasonably describe the records sought;
(3) The information requested is not a record subject to the 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.
(c) Records disclosed in part shall be marked clearly to show the
amount of information deleted and the exemption under which the
deletion was made unless doing so would harm an interest protected by
an applicable exemption. The location of the information deleted shall
also be indicated on the record, if technically feasible.
(d) Adverse determinations also include denials involving fees
waiver requests, denials for expedited processing or closure of
requests due to nonpayment.
(e) The denial, in full or in part, must be signed by the Chief
FOIA Officer or designee and shall include:
(1) The name and title or position of the person responsible for
the denial;
(2) A brief statement of the reasons for the denial, including any
FOIA exemption applied by the GSA in denying the request;
(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--
Appeals 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:
(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 must confer with Department of Justice, Office of
Information Policy (OIP), to obtain approval to apply the exclusion.
(2) If GSA invokes an exclusion, it must maintain an administrative
record of the process of invocation and approval of the exclusion by
OIP.

Subpart H--Handling Confidential Commercial Information

Sec. 105-60.700 Procedural and lawful considerations.

(a) Confidential commercial information means commercial or
financial information obtained by the 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 must 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 must 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

[[Page 28598]]

(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 the 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.

Sec. 105-60.701 Opportunity to object to disclosure.

(a) GSA shall provide a submitter with ten business days, within
which the submitter must respond to the notice referenced above.
(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 must explain why the information constitutes a trade secret
or commercial or financial information that is privileged or
confidential.
(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 must 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 must provide the submitter written notice,
which must 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 must promptly
notify the submitter.
(h) GSA must 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

Sec. 105-60.800 Submitting an appeal.

(a) Before seeking review by a court of an adverse GSA FOIA request
determination, a requester must first submit a timely administrative
appeal per the rules of this subpart.
(b) A requester may appeal any adverse determinations to the GSA
FOIA Requester Service Center which is designated as the agency's FOIA
Appeals Office. Examples of adverse determinations are provided in
Sec. Sec. 105-60.600(b) and (d) of this part. Requesters can submit
appeals in accordance with the following requirements:
(1) The requester must submit the appeal in writing and to be
considered timely it must be postmarked, or in the case of electronic
submissions, transmitted, within ninety calendar days after the date of
the response;
(2) The appeal must contain the basis for disagreement with the
initial denial, i.e., the appeal should clearly identify the agency
determination that is being appealed;
(3) The appeal must include the associated FOIAonline tracking
number; and
(4) To facilitate handling, the requester should mark both the
appeal letter and envelope, or subject line of the electronic
transmission, ``Freedom of Information Act Appeal.''

Sec. 105-60.801 Adjudication.

(a) The GSA Chief FOIA Officer or a designee shall act on behalf of
the GSA on all appeals under this section.
(b) An appeal ordinarily shall not be adjudicated if the request
becomes a matter of FOIA litigation.
(c) On receipt of any appeal involving classified information, the
GSA must take appropriate action to ensure compliance with applicable
classification rules.
(d) GSA must provide its decision on an appeal in writing. A
decision that upholds GSA's original determination in whole or in part
must contain a statement that identifies the reasons for the
affirmance, including any FOIA exemptions applied.
(e) The decision must provide the requester with notification of
the statutory right to file a lawsuit and shall inform the requester of
the mediation services offered by the Office of Government Information
Services of the National Archives and Records Administration as a non-
exclusive alternative to litigation. 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.
(f) Engaging in dispute resolution services provided by OGIS.
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.

Sec. 105-60.802 Requirements to preserve FOIA records.

(a) GSA must 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 (U.S.C) or the General Records
Schedule 14 of the National Archives and Records Administration (NARA).
GSA must not dispose of or destroy records while they are the subject
of a pending request, appeal, or lawsuit under the FOIA.

Subpart J--Fees

Sec. 105-60.900 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, the FOIA establishes three categories
of requesters:
(1) Commercial use requesters;

[[Page 28599]]

(2) Non-commercial scientific or educational institutions or news
media requesters; and
(3) All other requesters.
(b) Different fees are assessed depending on the category.
Requesters may seek a fee waiver. GSA must consider requests for fee
waiver in accordance with the requirements in Sec. 105-60.907 Fee
Waivers and Fee Reductions of this subpart. To resolve any fee issues
that arise under this section, GSA may contact a requester for
additional information. GSA must ensure that searches, review, and
duplication 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 must pay fees by check, credit card,
or money order made payable to the United States General Services
Administration, or by another method as determined by GSA.

Sec. 105-60.901 Definitions.

(a) Commercial use request is a request that asks for information
for use or purpose 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 copy of a record, or of the
information contained in it, necessary to respond to a FOIA request.
Copies here can take the form of paper, audiovisual materials, or
electronic records.
(d) Educational institution is any school that operates a program
of scholarly research. A requester in this fee category must 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. The
examples below serve to further clarify:
(1) Example 1. A request from a professor of geology at a
university for records relating to soil erosion, written on letterhead
of the Department of Geology, would be presumed to be from an
educational institution.
(2) Example 2. A request from the same professor of geology seeking
drug information from the Food and Drug Administration in furtherance
of a murder mystery he is writing would not be presumed to be an
institutional request, regardless of whether it was written on
institutional stationery.
(3) Example 3. A student who makes a request in furtherance of
their coursework or other school-sponsored activities and provides a
copy of a course syllabus or other reasonable documentation to indicate
the research purpose for the request, would qualify as part of this fee
category.
(e) Noncommercial scientific institution is an institution that is
not operated on a ``commercial'' basis, as defined in paragraph (b)(1)
of this section and that is operated solely for the purpose of
conducting scientific research the results of which are not intended to
promote any particular product or industry. A requester in this
category must show that the request is authorized by and is made under
the auspices of a qualifying institution and that the records are
sought to further scientific research and 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 Sec. 105-60.701--
Opportunity to Object to Disclosure 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.

Sec. 105-60.902 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 Sec. 105-
60.907 Fee Waivers and Fee Reductions 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 Sec. 105-60.904 Fee
Schedule of this subpart.
(3) GSA shall charge the direct costs associated with conducting
any search

[[Page 28600]]

that requires the creation of a new computer program to locate the
requested records. GSA must notify the requester of the costs
associated with creating such a program, and the requester must 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 National Archives and
Records Administration (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 Sec. 105-60.903
Restrictions on charging fees of this subpart. GSA must 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 must be scanned in order to comply with a
requester's preference to receive the records in an electronic format,
the requester must 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.

Sec. 105-60.903 Restrictions on charging fees.

(a) When GSA determines that a requester is an educational
institution, non-commercial scientific institution or representative of
the news media, and 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 (a)
of this section, may not charge duplication fees, except as described
in paragraphs (b)(1) through (3) below. GSA will charge duplication
fees in accordance with Sec. Sec. 105-60.902 (b)(1) through (3) of
this part.
(1) If GSA has determined that unusual circumstances as defined by
the FOIA apply and the agency provided timely written notice to the
requester in accordance with the FOIA, a failure to comply with the
time limit shall be excused for an additional 10 days.
(2) If GSA has determined that unusual circumstances, as defined by
the FOIA, apply and 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 must have provided timely
written notice of unusual circumstances to the requester in accordance
with the FOIA and GSA must 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 the 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
must provide without charge:
(1) The first 100 pages of duplication (or the cost equivalent for
other media); and
(2) The first two (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 two hours of
search, is equal to or less than $49.00.

Sec. 105-60.904 Fee schedule.

Table 1--Fee Requester Category Table outlines the basic fee
categories and applicable fees:

(a) Table 1--Fee Requester Category Table
----------------------------------------------------------------------------------------------------------------
Requester category Search fees Review fees Duplication fees Amount
----------------------------------------------------------------------------------------------------------------
Commercial use requester..... Yes................ Yes................ Yes, first 100 pages, $49.00/hour plus
or equivalent volume applicable
without charge. duplication
Then, U.S. $0.10. costs.
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)--OR, per
copy prepared by any
other method of
duplication--actual
direct cost of
production.
Educational and noncommercial No................. No................. Yes, first 100 pages, Eligible
scientific institutions. or equivalent volume requesters not
without charge. subject to fees
Then, U.S. $0.10. other than
per copy of each duplication
page (not larger costs.
than 8.5 x 14
inches) reproduced
by photocopy or
similar means
(includes costs of
personnel and
equipment)--OR, per
copy prepared by any
other method of
duplication--actual
direct cost of
production.
Representative of news media. No................. No................. Yes, first 100 pages, Eligible
or equivalent volume requesters not
without charge. subject to fees
Then, U.S. $0.10. other than
per copy of each duplication
page (not larger costs.
than 8.5 x 14
inches) reproduced
by photocopy or
similar means
(includes costs of
personnel and
equipment)--OR, per
copy prepared by any
other method of
duplication--actual
direct cost of
production.

[[Page 28601]]

All other requesters......... Yes (first two No................. Yes, first 100 pages, $49.00/hour plus
hours without or equivalent volume applicable
charge). without charge. duplication
Then, U.S. $0.10. costs
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)--OR, per
copy prepared by any
other method of
duplication--actual
direct cost of
production.
----------------------------------------------------------------------------------------------------------------
Note 1: 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: 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 must inform the requester of the
contact information for that program.
Note 3: 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.

Sec. 105-60.905 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,
two (2) hours of search time at no charge, and shall advise the
requester whether those entitlements have been provided.
(b) If the 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 must provide the commitment/or designate an
exact dollar amount in writing the requester is willing to pay. 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) If the total fees due are over $250.00, the processing of the
request shall stop until the requester pays the fees. Once the
materials are ready for response, the GSA FOIA Requester Service Center
must receive payment prior to releasing the response to the requester.
(f) 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.
(g) 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 must 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.
(h) 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 thirty (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.

Sec. 105-60.906 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
the GSA's fee determination, the request shall be closed.

[[Page 28602]]

Sec. 105-60.907 Fee waivers and fee reductions.

(a) Requests for a fee waiver shall be made when the 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 on
administrative 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 must 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
must 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 must 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 must contribute to the understanding of a
reasonably broad audience of persons interested in the subject, as
opposed to the individual understanding of the requester. A requester's
expertise in the subject area as well as the requester's ability and
intention to effectively convey information to the public must be
considered. GSA shall presume that a representative of the news media
shall satisfy this consideration;
(iii) The disclosure must 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 must 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 must be given an opportunity to provide explanatory
information regarding this consideration.
(B) If there is an identified commercial interest, GSA must
determine whether that is the primary interest furthered by the
request. A 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 (b)(1) and (2) of this section,
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

Sec. 105-60.1000 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.

Subpart L--Definitions

Sec. 105-60.1100 Definitions.

Agency records are those created or received in the course of
conducting agency business, including, but not limited to: Paper,
electronic or other physical forms for records. These may include
reports, letters, photographs, audio recordings and emails. A record
must exist and be in the possession and control of the GSA before it is
considered for release.
Commercial use request. A request that asks for information for a
use or a purpose 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 based on the requester's intended use of
the information. GSA shall notify requesters of their placement in this
category.
Complex Request. A FOIA request that an agency using multi-track
processing places in a slower track based on the volume and/or
complexity of records requested.
Confidential commercial information. Commercial or financial
information obtained by the GSA from a submitter that may be protected
from disclosure under Exemption 4 of the FOIA, 5 U.S.C. 552(b)(4).
Consultation. When the requested records originate with the agency
processing the request, but contain within them information of interest
to another agency or other Federal Government office, the agency
processing the request should typically consult with that other entity
prior to making a release determination.
Coordination. This 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.
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.
Duplication. Reproducing a copy of a record, or of the information
contained in it, necessary to respond to a FOIA request. Copies here
can take the form of paper, audiovisual materials, or electronic
records.
Duplication Fees. Reasonable direct costs of making copies of
documents. Copies can take various forms, including paper copies,
microforms or machine-readable documentation.
Educational institution. Any school that operates a program of
scholarly research. A requester in this fee category must show that the
request is made in connection with his or her role at the educational
institution. Agencies may

[[Page 28603]]

seek verification from the requester that the request is in furtherance
of scholarly research.
Exempt means the record in question, or a portion thereof, is not
subject to disclosure due to one or more of the nine statutory FOIA
exemptions, found at 5 U.S.C. 552(b)(1) through (9).
Exemption refers to one or more of the FOIA's nine statutory
exemptions, found at 5 U.S.C. 552(b)(1) through (9).
FOIA Requester Service Center is the office that oversees FOIA
requests for all of GSA.
Interim response is when the agency releases the records on a
rolling basis, as the records are located and verified.
Noncommercial scientific institution is an institution that is not
operated on a ``commercial'' basis, as defined in this section and that
is operated solely for the purpose of conducting scientific research
the results of which are not intended to promote any particular product
or industry. A requester in this category must show that the request is
authorized by and is made under the auspices of a qualifying
institution and that the records are sought to further scientific
research and are not for a commercial use. GSA shall advise requesters
of their placement in this category.
Perfected FOIA Request. A perfected FOIA request is a FOIA request
for records which adequately describes the records sought, is made in
accordance with GSA's regulations, which has been received by the GSA
FOIA Requester Service center the FOIA office of the agency or agency
component in possession of the records, and for which there is no
remaining question about the payment or amount of applicable fees.
Referral. When an agency locates a record that originated with, or
is of otherwise primary interest to another agency, it will forward
that record to the other agency to process the record and to provide
the final determination directly to the requester. This process is
called a ``referral.''
Representative of the news media. 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.
Review. Examination of a record located in response to a request in
order to determine whether any portion of it is exempt from disclosure.
Review time includes processing any record for disclosure, such as
doing all that is necessary to prepare the record for disclosure,
including the process of redacting the record and marking the
appropriate exemptions. Review costs are properly charged even if a
record ultimately is not disclosed. Review time also includes time
spent both obtaining and considering any formal objection to disclosure
made by a confidential commercial information submitter under Sec. 7
of this subpart, but it does not include time spent resolving general
legal or policy issues regarding the application of exemptions.
Review Fees. Costs which may be charged to commercial-use
requesters that consist of direct costs incurred during the initial
examination of a document for the purposes of determining whether the
records must be disclosed under the FOIA. Review time includes
processing the documents for disclosure.
Search. 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.
Search Fees. Charges for document ``search'' that include all the
time spent looking for responsive material, including page-by-page or
line-by-line identification of material within documents. GSA may
charge for search time even when it fails to locate records responsive
to request or even if the records located are subsequently determined
to be exempt from disclosure.
Simple request. A FOIA request that an agency using multi-track
processing places in its fastest (non-expedited) track based on the
volume and/or simplicity of records requested.
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.

[FR Doc. 2018-13105 Filed 6-19-18; 8:45 am]
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28592 Federal Register / Vol. 83, No. 119 / Wednesday, June 20, 2018 / Proposed Rules

a. Alternatives; burdens and delays as much as possible, GSA’s regulations under the Freedom of
b. Purpose and Need; and if so, how? Information Act (FOIA) to incorporate
c. Reasonably Foreseeable; 20. Are there additional ways CEQ’s certain changes made to the FOIA by the
d. Trivial Violation; and NEPA regulations related to mitigation FOIA Improvement Act of 2016.
e. Other NEPA terms. should be revised, and if so, how? Additionally, the regulations are being
9. Should the provisions in CEQ’s (Authority: 42 U.S.C. 4332, 4342, 4344 and updated to reflect developments in case
NEPA regulations relating to any of the 40 CFR parts 1500, 1501, 1502, 1503, 1505, law, executive guidance from the
types of documents listed below be 1506, 1507, and 1508) Department of Justice—Office of
revised, and if so, how? Information Policy, technological
a. Notice of Intent; III. Statutory and Executive Order advancements in how the FOIA is
b. Categorical Exclusions Reviews administered, and to include current
Documentation; Under E.O. 12866, ‘‘Regulatory cost figures to be used in calculating
c. Environmental Assessments; Planning and Review,’’ 58 FR 51735 and charging fees. Finally, the revisions
d. Findings of No Significant Impact; (October 4, 1993), this is a ‘‘significant increase the amount of information that
e. Environmental Impact Statements; regulatory action.’’ Accordingly, CEQ members of the public may receive from
f. Records of Decision; and submitted this action to the Office of the Agency without being charged
g. Supplements. Management and Budget (OMB) for processing fees through proactive
10. Should the provisions in CEQ’s review under E.O. 12866 and any disclosures.
NEPA regulations relating to the timing changes made in response to OMB DATES: Interested parties should submit
of agency action be revised, and if so, recommendations have been
how? written comments to the Regulatory
documented in the docket for this Secretariat Division at one of the
11. Should the provisions in CEQ’s action. Because this action does not
NEPA regulations relating to agency addresses shown below on or before
propose or impose any requirements, August 20, 2018 to be considered in the
responsibility and the preparation of and instead seeks comments and
NEPA documents by contractors and formation of the final rule.
suggestions for CEQ to consider in
project applicants be revised, and if so, ADDRESSES: Submit comments in
possibly developing a subsequent
how? response to GSPMR case 2016–105–1 by
proposed rule, the various statutes and
12. Should the provisions in CEQ’s any of the following methods:
executive orders that normally apply to • Regulations.gov: http://
NEPA regulations relating to rulemaking do not apply in this case. If
programmatic NEPA documents and www.regulations.gov. Submit comments
CEQ decides in the future to pursue a via the Federal eRulemaking portal by
tiering be revised, and if so, how? rulemaking, CEQ will address the
13. Should the provisions in CEQ’s searching for ‘‘GSPMR Case 2016–105–
statutes and executive orders applicable 1’’. Select the link ‘‘Comment Now’’ that
NEPA regulations relating to the to that rulemaking at that time.
appropriate range of alternatives in corresponds with ‘‘GPSMR Case 2016–
NEPA reviews and which alternatives Mary B. Neumayr, 105–1.’’ Follow the instructions
may be eliminated from detailed Chief of Staff, Council on Environmental provided on the screen. Please include
analysis be revised, and if so, how? Quality. your name, company name (if any), and
[FR Doc. 2018–13246 Filed 6–19–18; 8:45 am] ‘‘GSPMR Case 2016–105–1’’ on your
General attached document.
BILLING CODE 3225–F8–P
14. Are any provisions of the CEQ’s • Mail: General Services
NEPA regulations currently obsolete? If Administration, Regulatory Secretariat
so, please provide specific GENERAL SERVICES Division (MVCB), ATTN: Ms. Lois
recommendations on whether they ADMINISTRATION Mandell, 1800 F Street NW, 2nd Floor,
should be modified, rescinded, or Washington, DC 20405.
replaced. 41 CFR Part 105–60 Instructions: Please submit comments
15. Which provisions of the CEQ’s only and cite GSPMR Case 2016–105–1,
[GSPMR Case 2016–105–1; Docket No. in all correspondence related to this
NEPA regulations can be updated to 2016–0004, Sequence No. 1]
reflect new technologies that can be case. All comments received will be
used to make the process more efficient? RIN 3090–AJ74 posted without change to http://
16. Are there additional ways CEQ’s www.regulations.gov, including any
NEPA regulations should be revised to Public Availability of Agency Records personal and/or business confidential
promote coordination of environmental and Informational Materials information provided. To confirm
review and authorization decisions, AGENCY: Office of Administrative receipt of your comment(s), please
such as combining NEPA analysis and Services (OAS), General Services check www.regulations.gov,
other decision documents, and if so, Administration (GSA). approximately two to three days after
how? submission to verify posting (except
ACTION: Proposed rule.
17. Are there additional ways CEQ’s allow 30 days for posting of comments
NEPA regulations should be revised to SUMMARY: The General Services submitted by mail).
improve the efficiency and effectiveness Administration (GSA) is issuing a FOR FURTHER INFORMATION CONTACT: Mr.
of the implementation of NEPA, and if proposed rule to amend its regulations Travis S. Lewis, Director of GSA, OAS,
so, how? implementing the Freedom of Freedom of Information Act and
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18. Are there ways in which the role Information Act (FOIA). The regulations Records Management Division, at 202–
of tribal governments in the NEPA are being revised to update and 219–3078 via email at travis.lewis@
process should be clarified in CEQ’s streamline the language of several gsa.gov for clarification of content. For
NEPA regulations, and if so, how? procedural provisions and to information pertaining to status or
19. Are there additional ways CEQ’s incorporate certain changes brought publication schedules, contact the
NEPA regulations should be revised to about by the amendments to the FOIA Regulatory Secretariat Division at 202–
ensure that agencies apply NEPA in a under both statutory and nonstatutory 501–4755. Please cite GSPMR Case
manner that reduces unnecessary authorities. This rule also amends the 2016–105–1.

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SUPPLEMENTARY INFORMATION: through proactive disclosures of agency significantly or uniquely affect small
records online in the GSA FOIA governments. Therefore, no actions were
I. Background
Reading Room. All substantive changes deemed necessary under the provisions
The FOIA provides that any person to GSA’s FOIA regulations in this of the Unfunded Mandates Reform Act
has a right, enforceable in federal court, proposed rule will be effective upon of 1995.
to obtain access to Federal agency final publication of this rule in the
records, except to the extent that such List of Subjects in 41 CFR Part 105–60
Federal Register.
records (or portions of them) are Administrative practice and
protected from public disclosure by one II. Executive Orders 12866 and 13563—
Regulatory Review procedure, Records, Information,
of nine exemptions or by one of three
Confidential business information,
special law enforcement record Executive Orders (E.O.s) 12866 and Freedom of Information Act, Privacy
exclusions. The FOIA thus established a 13563 direct agencies to assess all costs Act.
statutory right of public access to and benefits of available regulatory
Executive Branch information in the alternatives and, if regulation is Dated: June 12, 2018.
Federal Government. 41 CFR part 105– necessary, to select regulatory Robert Stafford,
60 establishes the policies, approaches that maximize net benefits Chief Administrative Services Officer, General
responsibilities and procedures for the (including potential economic, Services Administration.
release of GSA records, which are under environmental, public health and safety
the jurisdiction of GSA, to members of effects, distributive impacts, and ■ For the reasons stated in the preamble,
the public. These regulations apply to equity). E.O. 13563 emphasizes the GSA proposes to revise 41 CFR part
information found in all GSA importance of quantifying both costs 105–60 to read as follows:
organizations, portfolios, business lines, and benefits, of reducing costs, of
regional offices, and components. This PART 105–60—PUBLIC AVAILABILITY
harmonizing rules, and of promoting OF AGENCY RECORDS AND
rule proposes revisions to GSA’s flexibility. This is not a significant
regulations under the FOIA to update INFORMATIONAL MATERIALS
regulatory action and, therefore, was not
and streamline the language of several subject to review under Section 6(b) of Sec.
procedural provisions and to E.O. 12866, Regulatory Planning and
incorporate certain of the changes Subpart A—General Policy
Review, dated September 30, 1993. This
brought about by the amendments to the proposed rule is not a major rule under 105–60.000 Scope of part.
FOIA under the FOIA Improvement Act 105–60.001 General policy.
5 U.S.C. 804.
of 2016, the OPEN FOIA Act of 2009, Subpart B–Proactive Disclosures
the OPEN Government Act of 2007, and III. Executive Order 13771
105–60.100 Public availability of
the Electronic Freedom of Information This rule is not subject to E.O. 13771, information.
Act Amendments of 1996. With respect because this rule is not a significant
to the FOIA Improvement Act of 2016, Subpart C—Requirements for Making
regulatory action under E.O. 12866.
Public Law 114–185, 130 Stat. 538 (June Requests
30, 2016). The FOIA Improvement Act IV. Regulatory Flexibility Act 105–60.200 Making a request.
of 2016 provides that agencies must This proposed rule will not have a 105–60.201 Description of records sought.
allow a minimum of 90 days for significant economic impact on a Subpart D—Responding to Requests
requesters to file an administrative substantial number of small entities 105–60.300 Responsibility for responding
appeal. The Act also requires that within the meaning of the Regulatory to requests.
agencies notify requesters of the Flexibility Act, 5 U.S.C. 601 et seq. This 105–60.301 Consultation, referral, and
availability of dispute resolution proposed rule is also exempt from coordination.
services at various times throughout the Administrative Procedure Act per 5 105–60.302 Time requirements to respond
FOIA process. Finally, the Act codifies U.S.C. 553(a)(2), because it applies to to FOIA requests.
the ‘‘foreseeable harm’’ standard. This agency management or personnel. 105–60.303 Unusual circumstances.
proposed rule updates the GSA’s 105–60.304 Expedited processing.
regulations in 41 CFR part 105–60 to V. Small Business Regulatory
Subpart E—Acknowledging the FOIA
reflect those statutory changes. Enforcement Fairness Act Request
Additionally, the regulations are This proposed rule is also exempt 105–60.400 Acknowledgement procedures.
being updated to reflect developments from Congressional review prescribed
in case law, technological changes in under 5 U.S.C. 801 since it relates solely Subpart F—FOIA Exemptions
the administration of the FOIA, to agency management and personnel. 105–60.500 Applying FOIA exemptions.
executive guidance from the Department
VI. Paperwork Reduction Act Subpart G—Final Responses to the FOIA
of Justice, other nonstatutory authorities Request
such as Presidential Executive Orders, This proposed rule does not contain
and to include current cost figures to be 105–60.600 Final response procedures and
any information collection requirements rules.
used in calculating and charging fees. that require approval of the Office of
The proposed revisions incorporate Management and Budget under the Subpart H—Handling Confidential
changes to the language and structure of Paperwork Reduction Act (44 U.S.C. Commercial Information
the current GSA regulations enumerated chapter 35). 105–60.700 Procedural and lawful
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in 41 CFR part 105–60 to achieve the considerations.
aforementioned updates. Please note VII. Unfunded Mandates Reform Act of 105–60.701 Opportunity to object to
that proposed revisions to GSA’s FOIA 1995 disclosure.
Fee Schedule can be found in Subpart This rule will not result in the Subpart I—Appeals
J—Fees. The revisions also increase the expenditure by State, local, and tribal 105–60.800 Submitting an appeal.
amount of information that members of governments, in the aggregate, or by the 105–60.801 Adjudication.
the public may receive from the Agency private sector, of $100 million or more 105–60.802 Requirements to preserve FOIA
without being charged processing fees in any one year, and it will not records.

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(i) Requires that the matters be requester after redacting the portions of disclosed in part or if providing an
withheld from the public in such a the requested records that are exempt estimate would harm an interest
manner as to leave no discretion on the under this section. protected by an applicable exemption;
issue; and
(ii) Establishes particular criteria for Subpart G—Final Responses to the (4) A statement that the denial may be
withholding or refers to particular types FOIA Request appealed under Subpart I—Appeals of
of matters to be withheld; this part, and a description of the appeal
§ 105–60.600 Final response procedures
(iii) Trade secrets and commercial or and rules.
requirements.
financial information which could harm (5) A statement notifying the requester
the competitive posture or business (a) Once GSA determines that it shall of the assistance available from the
interests of a company; grant a request in full or in part, the agency’s FOIA Public Liaison and the
(iv) Interagency or intra-agency requester shall be notified of the dispute resolution services offered by
memorandums or letters that would not decision in writing. GSA shall also OGIS.
be available by law to a party other than inform the requester of any fees charged (f) Use of record exclusions:
an agency in litigation with the agency, under § 105–60.904 Fee Schedule of this (1) In the event that GSA identifies
provided that the deliberative process part and must disclose the requested records that may be subject to exclusion
privilege shall not apply to records records to the requester promptly upon from the requirements of the FOIA
created 25 years or more before the date payment of any applicable fees. The pursuant to 5 U.S.C. 552(c), GSA must
on which the records were requested; agency must inform the requester of the confer with Department of Justice,
(v) Personnel and medical files and availability of its FOIA Public Liaison to Office of Information Policy (OIP), to
similar files the disclosure of which offer assistance. obtain approval to apply the exclusion.
would constitute a clearly unwarranted (b) If GSA makes an adverse (2) If GSA invokes an exclusion, it
invasion of personal privacy; or determination denying any part of the must maintain an administrative record
(vi) Records or information compiled request, it shall notify the requester of of the process of invocation and
for law enforcement purposes, but only that determination in writing. Adverse approval of the exclusion by OIP.
to the extent that the production of such determinations, or denials of requests,
include decisions that: Subpart H—Handling Confidential
law enforcement records or information:
(1) The requested record is exempt, in Commercial Information
(A) Could reasonably be expected to
interfere with enforcement proceedings; whole or in part; § 105–60.700 Procedural and lawful
(B) Would deprive a person of a right (2) The request does not reasonably considerations.
to a fair trial or an impartial describe the records sought; (a) Confidential commercial
adjudication; (3) The information requested is not a information means commercial or
(C) Could reasonably be expected to record subject to the FOIA; financial information obtained by the
constitute an unwarranted invasion of (4) The requested record does not GSA from a submitter that may be
personal privacy; exist, cannot be located, or has been protected from disclosure under
(D) Reasonably be expected to destroyed; or Exemption 4 of the FOIA, 5 U.S.C.
disclose the identity of a confidential (5) The requested record is not readily 552(b)(4).
source, including a State, local, or reproducible in the form or format (b) Submitter means any person or
foreign agency or authority or any sought by the requester. entity, including a corporation, State, or
private institution which furnished (c) Records disclosed in part shall be foreign government, but not including
information on a confidential basis, and, marked clearly to show the amount of another Federal Government entity, that
in the case of a record or information information deleted and the exemption provides confidential commercial
compiled by a criminal law enforcement under which the deletion was made information, either directly or indirectly
authority in the course of a criminal unless doing so would harm an interest to the Federal Government.
investigation or by an agency protected by an applicable exemption. (c) A submitter of confidential
conducting a lawful national security The location of the information deleted commercial information must use good
intelligence investigation, information shall also be indicated on the record, if faith efforts to designate by appropriate
furnished by a confidential source; technically feasible. markings/or redact any portion of its
(E) Would disclose techniques and (d) Adverse determinations also submission that it considers to be
procedures for law enforcement include denials involving fees waiver protected from disclosure under
investigations or prosecutions, or would requests, denials for expedited Exemption 4. These designations expire
disclose guidelines for law enforcement processing or closure of requests due to 10 years after the date of the submission
investigations or prosecutions if such nonpayment. unless the submitter requests and
disclosure could reasonably be expected (e) The denial, in full or in part, must provides justification for a longer
to risk circumvention of the law; or be signed by the Chief FOIA Officer or designation period.
(F) Could reasonably be expected to designee and shall include: (d) When notice to submitters is
endanger the life or physical safety of (1) The name and title or position of required. (1) GSA must promptly
any individual; the person responsible for the denial; provide written notice to the submitter
(G) Contained in or related to (2) A brief statement of the reasons for of confidential commercial information
examination, operating, or condition the denial, including any FOIA whenever records containing such
reports prepared by, on behalf of, or for exemption applied by the GSA in information are requested under the
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the use of an agency responsible for the denying the request; FOIA if GSA determines that it may be
regulation or supervision of financial (3) An estimate of the volume of any required to disclose the records,
institutions; or records or information withheld, such provided:
(H) Geological and geophysical as the number of pages or some other (i) The requested information has
information and data, including maps, reasonable form of estimation, although been designated in good faith by the
concerning wells. such an estimate is not required if the submitter as information considered
(b) GSA will provide any reasonably volume is otherwise indicated by protected from disclosure under
segregable portion of a record to a deletions marked on records that are Exemption 4; or

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28602 Federal Register / Vol. 83, No. 119 / Wednesday, June 20, 2018 / Proposed Rules

§ 105–60.907 Fee waivers and fee representative of the news media shall through litigation. GSA’s decision to
reductions. satisfy this consideration; place a requester in the commercial use
(a) Requests for a fee waiver shall be (iii) The disclosure must not be category shall be made on a case-by-case
made when the request is first primarily in the commercial interest of basis based on the requester’s intended
submitted to the agency and should the requester. To determine whether use of the information. GSA shall notify
address the criteria referenced above. A disclosure of the requested information requesters of their placement in this
requester may submit a fee waiver is primarily in the commercial interest category.
request at a later time so long as the of the requester, GSA shall consider the Complex Request. A FOIA request
underlying record request is pending or following criteria: that an agency using multi-track
on administrative appeal. When a (A) GSA must identify whether the processing places in a slower track
requester who has committed to pay requester has any commercial interest based on the volume and/or complexity
fees subsequently asks for a waiver of that would be furthered by the of records requested.
those fees and that waiver is denied, the requested disclosure. A commercial Confidential commercial information.
requester must pay any costs incurred interest includes any commercial, trade, Commercial or financial information
up to the date the fee waiver request or profit interest. Requesters must be obtained by the GSA from a submitter
was received. given an opportunity to provide that may be protected from disclosure
(b) Requirements for waiver or explanatory information regarding this under Exemption 4 of the FOIA, 5
reduction of fees: consideration. U.S.C. 552(b)(4).
(1) Requesters may seek a waiver of (B) If there is an identified Consultation. When the requested
fees by submitting a written rationale as commercial interest, GSA must records originate with the agency
to how disclosure of the requested determine whether that is the primary processing the request, but contain
information is in the public interest interest furthered by the request. A within them information of interest to
because, it is likely to contribute waiver or reduction of fees is justified another agency or other Federal
significantly to public understanding of when the requirements of paragraphs Government office, the agency
the operations or activities of the (b)(2)(i) and (ii) of this section are processing the request should typically
government and is not primarily in the satisfied and any commercial interest is consult with that other entity prior to
commercial interest of the requester; not the primary interest furthered by the making a release determination.
and Coordination. This referral procedure
request. GSA ordinarily shall presume
(2) GSA shall furnish records is not appropriate where disclosure of
that when a news media requester has
responsive to a request without charge the identity of the agency to which the
satisfied factors (b)(1) and (2) of this
or at a reduced rate when it determines, referral would be made could harm an
section, the request is not primarily in
based on all available information, that interest protected by an applicable
the commercial interest of the requester.
the factors described in paragraphs exemption, such as the exemptions that
Disclosure to data brokers or others who
(b)(2)(i) through (iii) of this section are protect personal privacy or national
merely compile and market government
satisfied: security interests.
(i) Disclosure of the requested information for direct economic return Direct costs are those expenses that
information would shed light on the shall not be presumed to primarily serve GSA incurs in searching for and
operations or activities of the the public interest. duplicating (and, in the case of
government. The subject of the request (c) Where only some of the records to commercial use requests, reviewing)
must concern identifiable operations or be released satisfy the requirements for records in order to respond to a FOIA
activities of the Federal Government a fee waiver, a waiver shall be granted request. For example, direct costs
with a connection that is direct and for those records. include the salary of the employee
clear, not remote or attenuated; and Subpart K—Other Rights and Services performing the work (i.e., the basic rate
(ii) Disclosure of the requested of pay for the employee, plus sixteen
information is likely to contribute § 105–60.1000 Coda. (16) percent of that rate to cover
significantly to public understanding of Nothing in this subpart shall be benefits) and the cost of operating
those operations or activities. This construed to entitle any person, as of computers and other electronic
factor is satisfied when the following right, to any service or to the disclosure equipment, such as photocopiers and
criteria are met; and of any record to which such person is scanners. Direct costs do not include
(A) Disclosure of the requested not entitled under the FOIA. overhead expenses such as the costs of
records must be meaningfully space or the heating or lighting of a
informative about government Subpart L—Definitions facility.
operations or activities. The disclosure Duplication. Reproducing a copy of a
of information that already is in the § 105–60.1100 Definitions. record, or of the information contained
public domain, in either the same or a Agency records are those created or in it, necessary to respond to a FOIA
substantially identical form, would not received in the course of conducting request. Copies here can take the form
be meaningfully informative if nothing agency business, including, but not of paper, audiovisual materials, or
new would be added to the public’s limited to: Paper, electronic or other electronic records.
understanding. physical forms for records. These may Duplication Fees. Reasonable direct
(B) The disclosure must contribute to include reports, letters, photographs, costs of making copies of documents.
the understanding of a reasonably broad audio recordings and emails. A record Copies can take various forms,
sradovich on DSK3GMQ082PROD with PROPOSALS

audience of persons interested in the must exist and be in the possession and including paper copies, microforms or
subject, as opposed to the individual control of the GSA before it is machine-readable documentation.
understanding of the requester. A considered for release. Educational institution. Any school
requester’s expertise in the subject area Commercial use request. A request that operates a program of scholarly
as well as the requester’s ability and that asks for information for a use or a research. A requester in this fee category
intention to effectively convey purpose that furthers a commercial, must show that the request is made in
information to the public must be trade, or profit interest, which can connection with his or her role at the
considered. GSA shall presume that a include furthering those interests educational institution. Agencies may

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Document Created: 2018-06-20 00:19:18
Document Modified: 2018-06-20 00:19:18

Category		Regulatory Information
Collection		Federal Register
sudoc Class		AE 2.7: GS 4.107: AE 2.106:
Publisher		Office of the Federal Register, National Archives and Records Administration
Section		Proposed Rules
Action		Proposed rule.
Dates		Interested parties should submit written comments to the
Contact		Mr. Travis S. Lewis, Director of GSA, OAS, Freedom of Information Act and Records Management Division, at 202-219-3078 via email at [email protected] 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.
FR Citation		83 FR 28592
RIN Number		3090-AJ74
CFR Associated		Administrative Practice and Procedure; Records; Information; Confidential Business Information; Freedom of Information Act and Privacy Act