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of the date the request was received at sent within ten working days from the that FOIA Office and that an initial date of receipt by such installation. determination on the request will be (b) If a request is received for agency made within ten working days of that records which exist at two or more indate.

stallations, the FOIA Office receiving (c) If it is determined that the re- the request shall undertake to comply quested record (or portion thereof) with the request, if feasible, or to forwill be made available, and if the ward the request (or portions thereof) charges are under $250, NASA will

promptly to a more appropriate instaleither send a copy of the releasable lation for processing. The requester record and a bill for the fee or send shall be kept informed of the actions the initial determination and a bill for

taken to respond to the request. the fee to the requester. In the latter

(c) If a request is received by a case the documents will be released NASA FOIA Office for a record of anwhen the fee is received. If the fee

other agency, the requester shall

other agency the chargeable is over $250, a request for

promptly be informed of that fact, and payment of the fee will always be sent

the request shall be returned to the with the initial determination, and the

requester, with advice as to where the records will be mailed only upon re

request should be directed. ceipt of payment. When records are sent before payment is received, the

(54 FR 49750, Dec. 1, 1989) fact that interest will be charged from the 31st day after the day of the re

$ 1206.605 Appeals. sponse shall be stated in the response. (a) A member of the public who has The date of the mailing of an initial requested an agency record in accorddetermination, with or without the ance with $ 1206.601 or $ 1206.602, and record(s), shall be deemed to satisfy who has received an initial determinathe time limit for initial determina- tion which does not comply fully with tions.

the request, may appeal such an ad(d) Any notification of an initial de- verse initial determination to the Adtermination that does not comply ministrator, or, for records as specified fully with the request for an agency in | 1206.504, to the Inspector General record shall include a statement of the under the procedures of this section.

asons for the adverse determination, (b) The Appeal must: include the name and title of the (1) Be addressed to the Administraperson making the initial determina tor, NASA Headquarters, Washington, tion, and notify the requestor of the DC 20546, or, for records as specified right to appeal to the Administrator, in $ 1206.504, to the Inspector Generor the Inspector General, as appropri- al. NASA Headquarters, Washington, ate, under $ 1206.605.

DC 20546. (52 FR 41407, Oct. 28, 1987, as amended at

(2) Be identified clearly on the enve54 FR 49750, Dec. 1, 1989)

lope and in the letter as an “Appeal

under the Freedom of Information 8 1206.604 Request for records which exist Act”; elsewhere.

(3) Include a copy of the request for (a) If a request for an agency record the agency record and a copy of the is received by an FOIA Office not adverse initial determination; having cognizance of the record (for (4) To the extent possible, state the example, where a request is submitted reasons why the requester believes the to one NASA installation or Headquar adverse initial determination should ters and the requested record exists be reversed; and only at another NASA installation), (5) Be sent to the Administrator or the FOIA Office receiving the request the Inspector General, as appropriate, shall promptly forward it to the NASA within 30 calendar days of the date of FOIA Office having cognizance of the receipt of the initial determination. record requested. That installation (c) An official authorized to make a shall acknowledge the request and final determination may waive any of inform the requester that an initial the requirements of paragraph (b) of determination on the request will be this section, in which case the time

limit for the final determination (see $ 1206.607(a)) shall run from the date of such waiver.

§ 1206.606 Requests for additional records.

If, upon receipt of a record (or portions thereof) following an initial determination to comply with a request, the requestor believes that the materi. als received do not comply with the request, the requestor may elect either to request additional records under the procedures of $ 1206.601 or $ 1206.602, or to file on appeal under the procedures of $ 1206.605, in which case the appeal must be sent to the Administrator, or to the Inspector General, in the case of records as specified in $ 1206.504, within 30 days of receipt of the record (or portions thereof), unless good cause is shown for any additional delay.

the time limits for an initial determination (see $$1206.603 and 1206.604) and for a final determination (see $ 1206.607) may be extended, but not to exceed a total of ten working days in the aggregate in the processing of any specific request for an agency record.

(b) If an extension of time under this section would be required, the requester shall be promptly notified of the reasons therefor and the date when a determination will be sent.

(c) If a record described in a request cannot be located within the ten-working-day time limit for an initial determination, after consultation with a professional NASA employee who is familiar with the subject area of the request, that fact normally will justify an initial determination that the record requested cannot be identified or located, rather than a decision that an extension of time under this section would be appropriate.

(d) In exceptional circumstances, if it would be impossible to complete a search for or review of agency records within the ten-working-day period for an initial determination, an official authorized to make an initial determination or his designee may seek an extension of time from the requester. If such an extension of time can be agreed upon, that fact should be clearly documented and the initial determination made within the extended time period; if not, ai period; if not, an initial determination that the record cannot be identified or located, or reviewed, within the tenworking-day time limit shall be made under $ 1206.603.

$ 1206.607 Actions on appeals.

(a) Except as provided in § 1206.608, the Administrator or designee, or in the case of records as specified in $ 1206.504, the Inspector General or designee, shall make a final determination on an appeal and notify the requestor thereof, within 20 working days after the receipt of the appeal.

(b) If the final determination reverses in whole or in part the initial determination, the record requested (or portions thereof) shall be made available promptly to the requester, as provided in the final determination.

(c) If the final determination sustains in whole or in part an adverse initial determination, the notification of the final determination shall:

(1) Explain the basis on which the record (or portions thereof) will not be made available:

(2) Include the name and title of the person making the final determina tion;

(3) Include a statement that the final determination is subject to judicial review under 5 U.S.C. 552(a)(4); and

(4) Enclose a copy of 5 U.S.C. 552(a)(4).

81206.609 Litigation.

In any instance in which NASA is sued in connection with a request for an agency record under this part, the matter shall promptly be referred to the General Counsel together with a report on the details and status of the request. In such a case, if a final determination with respect to the request has not been made, such a determination shall be made as soon as possible, under procedures prescribed by the General Counsel in each case.

& 1206.608 Time extensions in unusual cir.

cumstances. (a) In "unusual circumstances" as that term is defined in $ 1206.101(f).

8 1206.610 Notice to submitters of com- spond. If the agency does not receive a mercial information.

response from the submitter within (a) General policy. Upon receipt of a

this period, the agency shall proceed request for commercial information

with its review of the information and pursuant to the Freedom of Informa

initial determination. The submitter's tion Act, the National Aeronautics and response shall include all bases, factuSpace Administration shall provide al or legal, for withholding any of the the submitter with notice of the re information pursuant to Exemption 4. quest in accordance with the require Information provided by a submitter ments of this section.

pursuant to this paragraph may itself (b) Notice to submitters. Except as be subject to disclosure under the provided in paragraph (g) or (h) of FOIA. this section, the agency shall make a (e) Notice of intent to disclose. The good faith effort to provide a submit agency shall carefully consider any obter with prompt notice of a request ap jections of the submitter in the course pearing to encompass its commercial of determining whether to disclose information whenever required under commercial information. Whenever paragraph (c) of this section. Such the agency decides to disclose commernotice shall identify the commercial cial information over the objection of information requested and shall a submitter, the agency shall forward inform the submitter of the opportu

to the submitter a written statement nity to object to its disclosure in ac

which shall include: cordance with paragraph (d) of this

(1) A brief explanation as to why the section. If the submitter would not

agency did not agree with any objecotherwise have access to the document

tions; that contains the information, upon

(2) A description of the commercial the request of the submitter, the

information to be disclosed, sufficient agency shall provide access to, or

to identify the information to the subcopies of the records or portions thereof containing the commercial in

mitter; and formation. This notice shall be provid

(3) A date after which disclosure is ed in writing upon the request of the

expected. Such notice of intent to dissubmitter. Whenever the agency pro

close shall be forwarded a reasonable vides notice pursuant to this section,

number of working days prior to the the agency shall advise the requester

date specified in paragraph (e)(3) of that notice and opportunity to com

this section. A copy of this statement ment are being provided to the sub

shall be forwarded to the requester at mitter.

the same time, unless the description (c) When notice is required. The

required by paragraph (e)(2) of this agency shall provide a submitter with

section would constitute a premature notice of a request whenever the infor

release, in which case the description mation is subject to an understanding

shall be appropriately redacted and of confidentiality between the agency

the requester so advised. and the submitters, or the agency has (f) Notice of FOIA lawsuit. Whenreason to believe that the information ever a requester brings suit seeking to constitutes commercial information.

compel disclosure of commercial infor(d) Opportunity to object to disclo mation covered by paragraph (c) of sure. Through the notice described in this section, the agency shall promptly paragraph (b) of this section, the notify the submitter. Whenever a subagency shall afford a submitter a rea mitter brings suit against the agency sonable period within which to provide in order to prevent disclosure of comthe agency with a detailed statement mercial information, the agency shall of any objection to disclosure. This promptly notify the requester. period shall not exceed 10 working (g) Exceptions to notice require. days from the date after which the ments. The notice requirements of this agency can reasonably assume receipt section shall not apply if: of notice by the submitter, unless the (1) The information has been pubsubmitter provides a reasonable expla lished or otherwise made available to nation justifying additional time to re- the public;

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(2) Disclosure of the information is but only as warranted by an individual required by law (other than 5 U.S.C. FOIA request. 552);

(54 FR 13518, Apr. 4, 1989, as amended at 54 (3) The submitter has received

FR 49750, Dec. 1, 1989) notice of a previous FOIA request which encompassed the information requested in the later request, and the

Subpart 7—Search, Review, and agency intends to withhold informa

Duplication Fees tion in the same manner as in the pre

8 1206.700 Schedule of fees. vious FOIA request;

(4) Upon submitting the information The fees specified in this section or within a reasonable period thereaf- shall be charged for searching for, reter, (i) the submitter reviewed its in- viewing, and/or duplicating agency formation in anticipation of future re- records made available in response to quests pursuant to the FOIA, (ii) pro- a request under this part. vided the agency a statement of its ob (a) Copies. For copies of documents jections to disclosure consistent with such as letters, memoranda, statethat described in paragraph (d) of this ments, reports, contracts, etc., $0.10 section, and (iii) the agency intends to per copy of each page. For copies of release information consistent with oversize documents, such as maps, the submitter's objections; or

charts, etc., $0.15 for each reproduced (5) Notice to the submitter may dis copy per square foot. These charges close information exempt from disclo- for copies include the time spent in sure pursuant to 5 U.S.C. 552(b)(7). duplicating the documents. For copies

(h) An additional limited exception of still photographs, blueprints, videoto the notice requirements of this sec tapes, engineering drawings, hard tion, to be used only when all of the copies of aperture cards, etc., the fee following exceptional circumstances charged will reflect the full direct cost are found to be present, authorizes the to NASA of reproducing or copying agency to withhold information which the record. is the subject of a FOIA request, based (b) Clerical searches. For each one on Exemption 4 (5 U.S.C. 552(b)(4)), quarter hour spent by clerical personwithout providing the submitter indi. nel in searching for an agency record vidual notice:

in response to a request under this (1) The agency would be required to part, $2.25. provide notice to over 10 submitters, in (c) Nonroutine, nonclerical searches. which case, notification may be accom Where a search cannot be performed plished by posting or publishing the by clerical personnel, for example, notice in a place reasonably calculated where the task of determining which to accomplish notification;

records fall within a request and col. (2) Absent any response to the pub- lecting them requires the time of prolished notice, the agency determines fessional or managerial personnel, and that if it provided notice as is other where the amount of time that must wise required by paragraph (c) of this be expended in the search and collecsection, it is reasonable to assume that tion of the requested records by such the submitter would object to disclo- higher level personnel is substantial, sure of the information based on Ex- charges for the search may be made at emption 4; and,

a rate in excess of the clerical rate, (3) If the submitter expressed the namely for each one quarter hour anticipated objections, the agency spent by such higher level personnel would uphold those objections.

in searching for a requested record, This exemption shall be used only $4.50. with the approval of the Chief Coun (d) Review of records. For commersel of the Field Installation, the Attor- cial use requests only, where time is ney-Advisor to the Inspector General, spent reviewing to determine whether or the Associate General Counsel re- they are exempt from mandatory dissponsible for responding to the re- closure, a charge may be made at the quest. This exception shall not be used rate for each one quarter hour spent for a class of documents or requests, by an attorney, $6.25. No charge shall

be made for the time spent in resolv- NASA elects to provide the following ing general legal or policy issues re- services, it will levy a charge equivagarding the application of exemptions. lent to the full cost of the service proThis charge will only be assessed the vided: first time NASA reviews a record and (1) Certifying that records are true not at the administrative appeal level. copies;

(e) Computerized records. Because of (2) Sending records by special meththe diversity in the types and configu. ods such as express mail. rations of computers which may be re

(3) Packaging and mailing bulky quired in responding to requests for

records that will not fit into the larg. agency records maintained in whole or

est envelope carried in the supply inin part in computerized form, it is not ve feasible to establish a uniform sched

(h) Unsuccessful or unproductive ule of fees for search and printout of

searches. Search charges, as set forth such records. In most instances,

in paragraphs (b) and (c) of this secrecords maintained in computer data

tion, may be made even when an banks are available also in printed

agency record which has been requestform and the standard fees specified

ed cannot be identified or located after in paragraph (a) of this section shall

a diligent search and consultation with apply. If the request for an agency

a professional NASA employee familrecord required to be made available

iar with the subject area of the reunder this part requires a computer

quest, or if located, cannot be made ized search or printout, the charge for

available under Subpart 3 of this part. the time of personnel involved shall be

Ordinarily, however, fees will not be at the rates specified in paragraphs (b)

charged in such instances unless they and (c) of this section. The charge for

are substantial (over $50.00) and the the computer time involved and for

requester has consented to the search any special supplies or materials used,

after having been advised that it shall not exceed the direct cost to

cannot be determined in advance NASA. This charge may be as high as

whether any records exist which can $125.00 per quarter hour. Before any

be made available (see § 1206.704) and computer search or printout is under

that search fees will be charged even taken in response to a request for an

if no record can be located and made agency record, the requester shall be

available. notified of the applicable unit costs in

(i) Fees not chargeable. volved and the total estimated cost of

(1) NASA will not charge for the the search and/or printout. (f) Other search and duplication

first 100 pages of duplication and the costs. Reasonable standard fees, other

first 2 hours of search time (meaning than as specified in paragraphs (a)

manual search) except to requesters through (e) of this section, may be

seeking documents for commercial use. charged for additional direct costs in

(2) If the cost to be billed to the recurred in searching for or duplicating

quester is equal to or less than $5.00, an agency record in response to a re

no charges will be billed. quest under this part. Charges which

8 1206.701 Categories of requesters. may be made under this paragraph include, but are not limited to, the trans There are four categories of FOIA portation of NASA personnel to places requesters: Commercial use requesters; of record storage for search purposes educational and noncommercial scienor freight charges for transporting tific institutions; representatives of records to the personnel searching for the news media; and all other requestor duplicating a requested record.

ers. The Act prescribes specific levels (g) Charges for special services. Com of fees for each of these categories: plying with requests for special serv- (a) Commercial use requesters. When ices such as those listed in (g) (1), (2), NASA receives a request for docuand (3) of this section is entirely at ments appearing to be for commercial the discretion of NASA. Neither the use, it will assess charges which recovFOIA nor its fee structure cover these er the full direct costs of searching kinds of services. To the extent that for, reviewing for release, and dupli

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