[Code of Federal Regulations]
[Title 45, Volume 3, Parts 500 to 1199]
[Revised as of October 1, 1997]
From the U.S. Government Printing Office via GPO Access
[CITE: 45CFR1100] TITLE 45--PUBLIC WELFARE
CHAPTER XI--NATIONAL FOUNDATION ON THE ARTS AND THE HUMANITIES
PART 1100--STATEMENT FOR THE GUIDANCE OF THE PUBLIC--ORGANIZATION, PROCEDURE AND AVAILABILITY OF INFORMATION
- 1100.1 Definitions.
- 1100.2 Organization.
- 1100.3 Availability of information to the public.
- 1100.4 Current index.
- 1100.5 Agency procedures for handling requests for documents.
- 1100.6 Fees.
- 1100.7 Foundation report of actions.
Authority: 5 U.S.C. 552, as amended by Pub. L. 99-570, 100 Stat. 3207.
Source: 52 FR 48266, Dec. 21, 1987, unless otherwise noted.
(a) Agency means the National Endownment for the Arts, the National Endowment for the Humanities, the Institute of Museum Services, or the Federal Council on the Arts and the Humanities.
(b) Commercial use request means a request by or on behalf of anyone who seeks information for a use or purpose that furthers the commercial trade or profit interests of the requestor (or the person on whose behalf the request is made.) The agency must determined the use to which a requestor will put the document. Where the agency has reasonable cause to doubt the use to which a requestor will put the records sought or the use is not clear from the request, the agency may seek additional clarification. The requestor fears the burden of demonstrating the use or purpose of the information requested.
(c) Direct costs mens those expenditures which an agency actually incurs in searching for and duplication documents to respond to a Freedom of Information Act (FOIA) request. In the case of commercial use requests, the term shall also include expenditures for reviewing documents.
(d) Duplication means the process of making a copy of a document necessary to respond to a FOIA request. Such copies may be in the form of paper, microfilm, machine readable documents, or other materials.
(e) Educational institution means a preschool, elementary, or secondary school, an institution of graduate or undergraduate higher education, an institution of professional education, or an institution of vocational education, which operates a program or programs of scholarly research.
(f) Non-commercial scientific institution means an institution that is not operated on a "commercial use" basis as defined in paragraph (b) of this section and which is operated solely for the purposes of conducting scientific research the results of which are not intended to promote any particular product or industry.
(g) Representative of the news media means any person actively gathering news for an entity that is organized and operated to publish or broadcast information that is about current events or that would be of current interest to the public. Freelance journalists may be regarded as working for a news organization if they can demonstrate a sound basis for expecting publication though that organization, even though not actually employed by it.
(h) Review means the process of examining a document located in response to a commercial use request to determine whether any portion is permitted to be withheld. Review includes processing documents for disclosure, including all that is necessary to excise them and otherwise prepare them for release. Review does not include time spent resolving general legal or policy issues regarding the application of exemptions.
(i) Search means all the time that is spent looking for material that responds to a request, including page-by-page or line-by-line identification of material in documents. Searches may be done manually or by computer using exisiting programs.
The National Foundation on the Arts and the Humanities was established by the National Foundation on the Arts and the Humanities Act of 1965, 20 U.S.C. 951 et seq. The Foundation is composed of the National Endowment for the Arts, the National Endowment for the Humanities, the Institute of Museum Services, and the Federal Council on the Arts and the Humanities. The Institute of Museum Services became a part of the National Foundation on the Arts and the Humanities pursuant to Pub. L. 97-394 (December 30, 1982) and Pub. L. 98-306 (May 31, 1984). Each Endowment is headed by a Chairman and has an advisory national council composed of 26 presidential appointees. The Institute of Museum Services is headed by a Director and has a National Museum Services Board composed of 15 presidential appointees. The Federal Council on the Arts and the Humanities, comprised of Executive branch officials and appointees of the legislative branch, is authorized to make agreements to indemnify against loss or damage for certain exhibitions and advise on arts and humanities matters.
(a) All inquiries, or requests should be addressed to the appropriate agency. Descriptive brochures of the organization, programs, and function of each agency are available upon request. Inquiries involving work of the National Endowment for the Arts should be addressed to the National Endowment for the Arts, 1100 Pennsylvania Avenue, NW., Washington, DC 20506. The telephone number of the National Endowment for the Arts is (202) 682-5400. Requests or inquiries involving the National Endowment for the Humanities should be addressed to the National Endowment for the Humanities, 1100 Pennsylvania Avenue, NW., Washington, DC 20506. The telephone number of the National Endowment for the Humanities is (202) 786-0310. Requests or inquiries involving the Institute of Museum Services should be addressed to the Institute of Museum Services, 1100 Pennsylvania Avenue, NW., Washington, DC 20506. The telephone number of the Institute of Museum Services is (202) 786-0536.
(b) The head of each agency is responsible for the effective administration of the Freedom of Information Act. The head of each agency pursuant to this responsibility hereby directs that every effort be expended to facilitate service to the public with respect to the obtaining of information and records.
(c) Requests for access to records of the National Endowment for the Arts, the National Endowment for the Humanities, or the Institute of Museum Services may be filed by mail with the General Counsel of the National Endowment for the Arts, the Deputy Chairman of the National Endowment for the Humanities, or the Public Affairs Officer of the Institute of Museum Services, as is appropriate. Requests for access to records of the Federal Council on the Arts and the Humanities should be directed to the attention of the National Endowment for the Humanities. All requests should reasonably describe the record or records sought. Requests submitted should be clearly identified as being made pursuant to the Freedom of Information Act.
Each agency shall maintain and make available for public inspection and copying a current index providing identifying information for the public as to any matter which is issued, adopted, or promulgated and which is required to be made available pursuant to 5 U.S.C. 552(a) (1) and (2). Publication and distribution of such indices has been determined by the Foundation to be unnecessary and impracticable. The indices will be provided upon request at a cost not to exceed the direct cost of the duplication.
(a) Upon receiving a request for documents in accordance with the rules of this part, the General Counsel of the National Endowment for the Arts, Deputy Chairman of the National Endowment for the Humanities, or the Public Affairs Officer of the Institute of Museum Services, as is appropriate, shall determine whether or not the request shall be granted in whole or in part.
(1) The determination shall be made within ten (10) days (excepting Saturdays, Sundays, and legal holidays) after receipt of such request.
(2) The requestor shall be notified of the determination and the reasons that support it. When a request is denied in whole or in part, the requestor, will be notified of his or her rights to appeal the determination to the head of the agency.
(b)(1) Any party whose request for documents has been denied in whole or in part may file an appeal no later than ten (10) working days following receipt of the notification of denial. Appeals must be addressed to the Chairman, National Endowment for the Arts, Washington, DC 20506, the Chairman, National Endowment for the Humanities, Washington, DC 20506, or the Director Institute of Museum Services, Washington, DC 20506, as is appropriate.
(2) The head of the agency or his delegatee shall make a determination with respect to the appeal within twenty (20) days (excepting Saturdays, Sundays, and legal holidays) after the agency has received the appeal, except as provided in paragraph (c) of this section. If, on appeal, the denial is upheld either in whole or in part, the head of the agency shall notify the party submitting the appeal of the judicial review provisions of 5 U.S.C. 552(a)(4)(B).
(c) In unusual circumstances, the time limits prescribed to determine a request for documents with respect to initial actions or actions on appeal may be extended by written notice from the General Counsel of the National Endowment for the Arts, the Deputy Chairman of the National Endowment for the Humanities, or the Public Affairs Officer of the Institute of Museum Services as is appropriate. The notice shall describe the reason for the extension and the date on which the determination is expected to be made. No notice shall specify a date that would result in an extension of more than ten (10) days (excepting Saturdays, Sundays, and legal holidays). As is used in this paragraph, unusual circumstances means:
(1) The need to search for and collect the requested records from field facilities or other establishments that are separate from the office processing the request;
(2) The need to search for, collect, and appropriately examine a volumious amount of separate and distinct records which are demanded in a single request; or
(3) The need for consultation, which shall be conducted with all practicable speed, with another agency having a substantial interest in the determination of the request or among two or more components of the agency having a substantial subject-matter interest in the request.
(a) Categories of fees. Fees will be charged according to the Category of the FOIA request.
(1) i The agency will assess charges to recover the full direct cost of searching for, reviewing, and duplicating the requested document. The agency may recover the cost of searching for and reviewing records even if there is ultimately no disclosure.
(2) Requests from educational and non-commercial scientific institutions. The agency will charge for duplication costs. To qualify for this category the requestor must show:
(i) That requested records are being sought under the auspices of a qualified institution as defined in Sec. 1100.1 (e) or (f) of this part;
(ii) the records are not sought for commercial use; and
(iii) the records are being sought in furtherance of scholarly or scientific research of the institution.
(3) Requests by representatives of the news media. The agency will charge duplication costs for the requests in this category.
(4) All other requests. All other requests shall be charged fees which, recover the full reasonable cost for searching for and duplicating the requested records.
(b) General fee schedule. The agency shall use the most efficient and least costly method to comply with requests for documents made under the FOIA. The agency will charge fees to recover all allowable direct costs incurred. The agency may charge fees for searching for and reviewing requested documents even if the documents are determined to be exempt from disclosure or cannot be located. If search charges are likely to exceed $25, the agency shall notify the requestor, unless the requestor has indicated in advance the willingness to pay higher fees. The following fees shall be charged in accordance with paragraph (a) of this section.
(1) Searches--(i) Manual. The fee charged will be the salary rate(s) (i.e., basic pay plus 16.1 percent) of the employee(s) conducting the search.
(ii) Computer. The fee charged will be the actual direct cost of providing the service including the cost of operating the central processing unit for the operating time that is directly attributed to searching for records responsive to a request and the operator/ programmer salary apportionable to the search.
(2) Review. The fee charged will equal the salary rate(s) (basic pay plus 16.1 percent) of the employee(s) conducting the review.
(3) Duplication. Copies of documents photocopied on one-side of a 8\1/2\ x 11 inch sheet of paper will be provided at $.10 per page. Photocopies on two sides of a single 8\1/2\ x 11 inch sheet of paper will be provided at $.20 per page. For duplication of other materials, the charge will be the direct cost of duplication.
(c) Restrictions on charging fees.
(1) Except for documents provided in response to a commercial use request, the first 100 pages of duplication or the first two (2) hours of search time shall be provided at no charge. For the purposes of this section, two (2) hours of search time by computer entitles the requestor to two (2) hours of computer operator salary translated into computer search costs. Computer search costs consist of operator salary plus central proceeding unit operating time costs for the duration of the search.
(2) Fees shall not be charged to any requestor, including commercial use requestors, if the cost of collecting a fee would be equal to or greater than the fee itself.
(d) Waiver or reduction of fees.
(1) Documents shall be furnished without charge or at reduced charge if disclosure of the information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requestor.
(2) The following factors shall be used to determine whether a fee will be waived or reduced:
(i) The subject of the request. Whether the subject of the requested records concerns "the operations or activities of the government";
(ii) The informative value of the information to be disclosed. Whether the disclosure is "likely to contribute" to an understanding of government operations or activities;
(iii) The contribution to an understanding of the subject by the general public likely to result from disclosure. Whether disclosure of the requested information will contribute to "public understanding";
(iv) The significance of the contribution to public understanding. Whether disclosure is likely to contribute "significantly" to public understanding of government operations or activities;
(v) The existence and magnitude of a commercial interest. Whether the requestor has a commercial interest that would be furthered by the disclosure; and if so
(vi) The primary interest in disclosure. Whether the magnitude of the identified commercial interest of the requestor is sufficiently large in comparison with the public interest in disclosure, that disclosure is "primarily in the commercial interest of the requester."
(e) Assessment and collection of fees.
(1) Interest will accrue from the date the bill is mailed if the fee is not paid within thirty (30) days. Interest will be assessed at the rate prescribed in 31 U.S.C. 3717.
(2) If the agency reasonably believes that a requestor(s) is making multiple requests to avoid the assessment of fees, the agency may aggregate such requests and charge accordingly.
(3) The agency may request an advance payment of the fee if (i) The allowable charges are likely to exceed $250; or (ii) The requestor has failed previously to pay a fee in a timely fashion.
(4) When the agency requests an advance payment, the time limits prescribed in section (a)(6) of the Freedom of Information Act will begin only after the agency has received full payment.
On or before March 1 of each calendar year, each member agency of the National Foundation on the Arts and the Humanities shall submit a report of its activities with regard to public information requests during the preceding calendar year to the Speaker of the House of Representatives and to the President of the Senate. The report shall include:
(a) The number of determinations made by each member agency of the National Foundation on the Arts and the Humanities not to comply with requests for records made to the agency under the provisions of this part and the reasons for each such determination;
(b) The number of appeals made by persons under such provision, the result of such appeals, and the reasons for the action upon each appeal that results in the denial of information;
(c) The names and titles or positions of each person responsible for the denial of records requested under the provisions of this part and the number of instances of participation for each;
(d) The results of each proceeding conducted pursuant to 5 U.S.C. 552(a)(4)(F), as amended, including a report of the disciplinary action taken against the officer of employee who was primarily responsible for improperly withholding records or an explanation of why disciplinary action was not taken;
(e) A copy of every rule made by the Foundation implementing the provisions of the FOIA.
(f) A copy of the fee schedule and the total amount of fees collected by the agency for making records available under this section; and
(g) Such other information as indicates efforts to administer the provisions of the FOIA, as amended.