[Federal Register Volume 79, Number 39 (Thursday, February 27, 2014)]
[Rules and Regulations]
[Pages 10951-10959]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-04180]
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Rules and Regulations
Federal Register
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Federal Register / Vol. 79, No. 39 / Thursday, February 27, 2014 /
Rules and Regulations
[[Page 10951]]
NATIONAL CAPITAL PLANNING COMMISSION
1 CFR Part 456
Freedom of Information Act Regulations
AGENCY: National Capital Planning Commission.
ACTION: Final rule.
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SUMMARY: The National Capital Planning Commission (NCPC or Commission)
revises the current rule the NCPC follows for processing requests for
information under the Freedom of Information Act (FOIA). The revisions
reorganize the rule to focus each section on a discrete topic. The
revisions also incorporate new information in response to changes to
the FOIA since NCPC's adoption of its current FOIA rule in 1982.
Finally, the revisions decrease the cost charged for hard copies and
increase the threshold dollar amount that must be reached before the
NCPC charges members of the public a processing fee for information.
DATES: Effective March 31, 2014.
FOR FURTHER INFORMATION CONTACT: Anne R. Schuyler, (202) 482-7223 or
[email protected].
SUPPLEMENTARY INFORMATION:
I. Description of Changes and Response to Comments
A. Summary of Changes
The two primary changes to the NCPS's current FOIA rule are a
structural reorganization and the addition of five sections addressing
new subject matter. The structural reorganization breaks up larger
sections of the current rule which address multiple, related topics
into individual, discrete sections addressing one individual topic per
section. A second structural reorganization creates a Definition
section (Sec. 456.3) consolidating all defined terms into one section
and the defined terms are then capitalized throughout the document.
These structural changes were done to make the rule more coherent and
user friendly. The new rule also includes six new sections--Definitions
(Sec. 456.3), Multi-track Processing (Sec. 456.8), Expedited
Processing (Sec. 456.9), Consultations and Referrals (Sec. 456.10),
Classified and Controlled Unclassified Information (Sec. 456.11),
Confidential Commercial Information (Sec. 456.12), and FOIA Records
Management Sec. 456.16)--to address issues that have developed and/or
been refined since the adoption of NCPC's current rules. The authority
for the subject matter of the new sections is FOIA case law, other
federal statutes, and Executive Orders. With the addition of the new
sections in the rule, the NCPC's FOIA regulations provide a complete
and current compendium of the rule governing the agency's FOIA
activity. Requesters no longer need to consult multiple sources when
preparing a FOIA Request for submission to the NCPC.
On August 19, 2013, the NCPC published a Notice of Proposed
Rulemaking in the Federal Register (78 FR 50351) and requested comments
during a 60-day period ending October 18, 2013. The NCPC considered all
comments received in drafting the final rule.
B. Discussion and Response to Comments
Two Parties responded to the Notice of Proposed Rulemaking--a
private individual and a subcomponent of a federal agency. Both parties
offered specific recommendations they felt the NCPC should incorporate
into the final rule.
The private individual offered three recommendations as follows:
(1) Reduce duplication fees to reflect the decline in duplication costs
over the years; (2) eliminate reference to central processing time as a
component of fees as this is an outdated, technological term; and (3)
include an express reference to a commitment to release portions of
documents capable of segregation when part of the document is exempt
from release. In response, the final rule establishes a 10 cents
duplication fee for single and double sided copies contrary to the
proposed 15 cents per page and 30 cents for double sided pages (See,
Sec. 456.14(a)(2)); eliminates the cost of operating a central
processing unit as part of Search fees (SeeSec. 456.14(a)(iii)); and
include an express statement that NCPC shall release any portion of a
withheld Record that reasonably can be segregated from the exempt
portion of the record. (See, Sec. 456.7(b)).
The subcomponent of a federal agency offered the following
recommendations: (1) Add additional language clarifying the
intersection between FOIA and the Privacy Act; (2) add three new
defined terms as follows: FOIA Public Liaison, Requestor Category, and
Fee Waiver; (3) use statutory language for the definition of
Representative of the News Media and consider incorporating the term
Freelance Journalist into the definition; (4) clarify that all Records
subject to a FOIA Request must be reviewed regardless of what Requester
Category the Requester falls into by removing the phrase Commercial Use
Request from the definition of Review; (5) eliminate from the
definition of Workday days when the federal government is closed for
any reason because the FOIA statute only excludes Saturdays, Sundays
and legal holidays, and DOJ directs federal agencies to count days for
reporting purposes when federal agencies are closed due to weather
conditions, furloughed employees, or other circumstances; (6) clarify
the language of Sec. 456.4 (General Policy) to indicate NCPC has
administrative discretion to release documents without any charge or at
a reduced rate, or to waive the agency's FOIA request requirements in
the interest of public disclosure of information eligible for
disclosure under the statute; (7) add a section indicating that the
content of denial letters will include a brief description of the
information being withheld and the exemption that provides for the
deletion, provided this can be accomplished without revealing the
deleted information or compromising the interest protected by the
exemption; (8) include, in addition to the name of the agency to which
a request has been referred, a description of the part of the request
referred and the point of contact at the receiving agency; (9) advise
requesters that the Office of Government Information Services (OGIS)
provides mediation services to resolve disputes and include OGIS
contact information; and (10) include information about the
preservation of FOIA records and records management in the rules.
[[Page 10952]]
With one exception, the NCPC agreed to all recommended changes and
incorporated them into the final rule. Thus, in corresponding order to
the above recommendations, the NCPC: (1) Expanded the discussion of the
distinction between a FOIA Request and a request made under the Privacy
Act (See, Sec. 456.1); (2) added new definitions for the terms FOIA
Public Liaison, Fee Waiver, Representative of the News Media, and
Requestor Category (See, Sec. 456.3(l), (k), (t) and (v)); (3)
included the statutory definition of Representative of the News Media
but declined to reference a Freelance Journalist in the definition of
Representative of the News Media since the definition of a Freelance
Journalist states them to be part of this group (See, Sec. Sec.
456.3(t) and (n)); (4) deleted the term Commercial Use Request from the
definition of Review to render it clear all FOIA Requests are subject
to Review (See, Sec. 456.3(w)); (5) removed the reference to days when
the federal government is closed for any reason from the definition of
a Workday (See, Sec. 456(3)(aa)); (6) acknowledged NCPC's
administrative discretion to waive fees and request requirements (See,
Sec. 456.4(b)); (7) included a new section addressing the additional
information to be contained in denial letters (See, Sec. 456.7(b));
(8) added additional content requirements for referral letters (See,
Sec. 456.10(b)); (9) added information regarding OGIS's services and
contact information (See, Sec. 456.13(c)); and (10) added a new
section addressing FOIA Records Management (See, Sec. 456.16).
Finally, in response to an internal agency peer review, the
requirements for a Fee Waiver were removed from the section on fees and
relegated to a separate section. At the same time the previous language
for a Fee Waiver contained in the Notice of Proposed Rulemaking was
simplified to comply with the plain English mandate.
II. Compliance With Laws and Executive Orders
1. Executive Order 12866 (Regulatory Planning and Review) and Executive
Order 13563 (Improving Regulation and Regulatory Review)
By Memorandum dated October 12, 1993 from Sally Katzen,
Administrator, Office of Information and Regulatory Affairs (OIRA) to
Heads of Executive Departments and Agencies and Independent Agencies,
the Office of Management and Budget (OMB) rendered the NCPC exempt from
the requirements of Executive Order 12866 (See, Appendix A of cited
Memorandum). Nonetheless, the NCPC endeavors to adhere to the
provisions of the Executive Order. Accordingly, the NCPC, in
consultation with OIRA, has determined the rule is not a major rule for
purposes of Executive Order 12866. Further, the NCPC developed the rule
in a manner consistent with the requirements of Executive Order 13563.
2. Regulatory Flexibility Act
As required by the Regulatory Flexibility Act (5 U.S.C. 601 et
seq.), the NCPC certifies that the rule will not have a significant
economic effect on a substantial number of small entities.
3. Small Business Regulatory Enforcement Fairness Act
This is not a major rule under 5 U.S.C. 804(2), the Small Business
Regulatory Enforcement Fairness Act. It does not have an annual effect
on the economy of $100 million or more; will not cause a major increase
in costs for individuals, various levels of governments or various
regions; and does not have a significant adverse effect on competition,
employment, investment, productivity, innovation or the competitiveness
of U.S. enterprises with foreign enterprises.
4. Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq.)
A statement required by the Unfunded Mandates Reform Act is not
required. The rule neither imposes an unfunded mandate of more than
$100 million per year nor imposes a significant or unique effect on
state, local or tribal governments or the private sector.
5. Federalism (Executive Order 13132)
In accordance with Executive Order 13132, the rule does not have
sufficient Federalism implications to warrant the preparation of a
Federalism Assessment. The rule does not substantially and directly
affect the relationship between the federal and state governments.
6. Civil Justice Reform (Executive Order 12988)
The General Counsel of the NCPC has determined that the rule does
not unduly burden the judicial system and meets the requirements of
Executive Order 12988 Sec. Sec. 3(a) and 3(b)(2).
7. Paperwork Reduction Act
The rule does not contain information collection requirements, and
it does not require a submission to the OMB under the Paperwork
Reduction Act.
8. National Environmental Policy Act
The rule is of an administrative nature, and its adoption does not
constitute a major federal action significantly affecting the quality
of the human environment. The NCPC's adoption of the rule will have
minimal or no effect on the environment; impose no significant change
to existing environmental conditions; and will have no cumulative
environmental impacts.
9. Clarity of the Regulation
Executive Order 12866, Executive Order 12988, and the Presidential
Memorandum of June 1, 1998 requires the NCPC to write all rules in
plain language. The NCPC maintains the rule meets this requirement, and
there were no comments offered challenging this assertion.
List of Subjects in 1 CFR Part 456
Freedom of Information.
Dated: February 21, 2014.
Anne R. Schuyler,
General Counsel.
For the reasons stated in the preamble, the National Capital
Planning Commission revises 1 CFR Part 456 to read as follows:
PART 456--NATIONAL CAPITAL PLANNING COMMISSION FREEDOM OF
INFORMATION ACT
Sec.
456.1 General information.
456.2 Organization.
456.3 Definitions.
456.4 General policy.
456.5 Public reading rooms and information routinely available.
456.6 FOIA request requirements.
456.7 FOIA response requirements.
456.8 Multi-track processing.
456.9 Expedited processing.
456.10 Consultations and referrals.
456.11 Classified and controlled unclassified information.
456.12 Confidential commercial information.
456.13 Appeals.
456.14 Fees.
456.15 Fee waiver requirements.
456.16 Preservation of FOIA records.
Authority: 40 U.S.C. 8701 et seq., as amended and 5 U.S.C. 552,
as amended.
Sec. 456.1 General information.
This part contains the rules the National Capital Planning
Commission (NCPC or Commission) shall follow in processing third party
Requests for Records concerning the activities of the NCPC under the
Freedom of Information Act (FOIA), 5 U.S.C. 552, as amended. Requests
made by a U.S. citizen or an individual lawfully admitted for permanent
residence to access his or her own records under the Privacy Act, 5
U.S.C. 522a are processed under this
[[Page 10953]]
part and in accordance with part 455 of Title 1 of the Code of Federal
Regulations (CFR) to provide the greatest degree of access while
safeguarding an individual's personal privacy. Information routinely
provided to the public as part of regular NCPC activity shall be
provided to the public without regard to this part.
Sec. 456.2 Organization.
(a) The NCPC serves as the planning agency for the federal
government in the National Capital Region (NCR). The NCR includes the
District of Columbia; Montgomery and Prince George's Counties in
Maryland; Arlington, Fairfax, Loudon, and Prince William Counties in
Virginia; and all cities in Maryland and Virginia in the aforementioned
counties.
(b) Pursuant to the Planning Act, 40 U.S.C. 8701 et seq., the
NCPC's primary mission includes:
(1) Preparation of the ``Comprehensive Plan for the National
Capital: Federal Elements'' (Comprehensive Plan). The Comprehensive
Plan sets forth the principles, goals and planning policies that guide
federal government growth and development of the NCR, and it serves as
the foundation for all other plans prepared by the NCPC.
(2) Review of Federal and District of Columbia Agency Plans and
Projects. The Commission reviews, and takes appropriate action on,
federal and District government agency plans and projects to ensure
compliance with, among others, the Comprehensive Plan, principals of
good planning and urban design, and federal environmental and historic
preservation policies mandated by the National Environmental Policy Act
(NEPA) and the National Historic Preservation Act (NHPA).
(3) Preparation of the ``Federal Capital Improvement Program for
the National Capital Region'' (FCIP). The FCIP is an annual, six year
program of prioritized federal government capital projects prepared by
the NCPC for the Office of Management and Budget (OMB).
(c) The Commission is comprised of five citizen members, three of
whom are appointed by the President of the United States without Senate
approval, including the Chairman, and two of whom are appointed by the
Mayor of the District of Columbia. Ex-officio members of the Commission
include:
(1) The Secretary of Defense;
(2) The Administrator of the General Services Administration;
(3) The Mayor of the District of Columbia;
(4) The Chairman of the Council of the District of Columbia;
(5) The Chairman of the Senate Committee of Homeland Security and
Governmental Affairs; and
(6) The Chairman of the House Committee on Oversight and Government
Reform or their designated alternates.
(d) A professional staff, headed by an Executive Director, assists
the Commission and is organized as described on the NCPC Web site
(www.ncpc.gov).
Sec. 456.3 Definitions.
For purposes of this part, the following definitions shall apply:
(a) Act and FOIA mean the Freedom of Information Act, 5 U.S.C. 552,
as amended.
(b) Adverse Determination or Determination shall include a
determination to withhold, in whole or in part, Records requested in a
FOIA Request; the failure to respond to all aspects of a Request; the
determination to deny a request for a Fee Waiver; or the determination
to deny a request for expedited processing. The term shall also
encompass a challenge to NCPC's determination that Records have not
been described adequately, that there are no responsive Records, or
that an adequate Search has been conducted.
(c) Agency Record or Record means any documentary material which is
either created or obtained by a federal agency (Agency) in the
transaction of Agency business and under Agency control. Agency Records
may include without limitation books; papers; maps; charts; plats;
plans; architectural drawings; photographs and microfilm; machine
readable materials such as magnetic tape, computer disks and electronic
data storage devices; electronic records including email messages; and
audiovisual material such as still pictures, sound, and video
recordings. This definition generally does not cover records of Agency
staff that are created and maintained primarily for a staff member's
convenience, exempt from Agency creation or retention requirements, and
withheld from distribution to other Agency employees for their official
use.
(d) Confidential Commercial Information means commercial or
financial information obtained by the NCPC from a Submitter that may be
protected from disclosure under Exemption 4 of the FOIA. Exemption 4 of
the FOIA protects trade secrets and commercial or financial information
obtained from a person which information is privileged or confidential.
(e) Controlled Unclassified Information means unclassified
information that does not meet the standards for National Security
Classification under Executive Order 13536, as amended, but is
pertinent to the national interests of the United States or to the
important interests of entities outside the federal government, and
under law or policy requires protection from unauthorized disclosure,
special handling safeguards, or prescribed limits on exchange or
dissemination.
(f) Commercial Use Request means a FOIA Request from or on behalf
of one who seeks information for a use or purpose that furthers the
commercial, trade, or profit interests of the Requester or the person
on whose behalf the Request is made.
(g) Direct Costs means those expenditures that the NCPC incurs in
searching for, duplicating, and reviewing documents to respond to a
FOIA Request. Direct Costs include, for example, the salary of the
employee performing the work (the basic rate of pay for the employee
plus 16 percent of the rate to cover benefits) and the cost of
operating duplicating machinery. Direct Costs do not include overhead
expenses such as costs of space, and heating or lighting the facility
in which the Records are stored.
(h) Duplication means the process of making a copy of a document
necessary to respond to a FOIA Request in a form that is reasonably
usable by a Requester. Copies can take the form of, among others, paper
copy, audio-visual materials, or machine readable documents (i.e.,
computer disks or electronic data storage devices).
(i) Educational Institution means a preschool, a public or private
elementary or secondary school, an institution of undergraduate higher
education, an institution of graduate higher education, an institution
of professional education, and an institution of vocational education,
which operates a program or programs of scholarly research. To be
classified in this category, a Requester must show that the Request is
authorized by and is made under the auspices of a qualifying
institution and that the records are not sought for a commercial use
but are sought to further scholarly research.
(j) Expedited Processing means giving a FOIA Request priority
because a Requester has shown a compelling need for the Records.
(k) Fee Waiver means a waiver in whole or in part of fees if a
Requester can demonstrate that certain statutory requirements are
satisfied including that the information is in the public interest and
is not requested for commercial purposes.
[[Page 10954]]
(l) FOIA Public Liaison means an NCPC official who is responsible
for assisting in reducing delays, increasing transparency and
understanding the status of Requests, and assisting in the resolution
of disputes.
(m) FOIA Request or Request means a written Request made by an
entity or member of the public for an Agency Record submitted via the
U.S. Postal Service mail or other delivery means to include without
limitation electronic-mail (email) or facsimile.
(n) Freelance Journalist means a Representative of the News Media
who is able to demonstrate a solid basis for expecting publication
through a news organization, even though not actually employed by that
news organization. A publication contract or past evidence of a
specific freelance assignment from a news organization may indicate a
solid basis for expecting publication.
(o) Frequently Requested Documents means documents that have been
Requested at least three times under the FOIA. It also includes
documents the NCPC anticipates would likely be the subject of multiple
Requests.
(p) Multi-track Processing means placing simple Requests requiring
relatively minimal work and/or review in one processing track, more
complex Requests in one or more other tracks, and expedited Requests in
a separate track. Requests in each track are processed on a first-in/
first-out basis.
(q) Noncommercial Scientific Institution means an institution that
is not operated for commerce, trade or profit, but is operated solely
for the purpose of conducting scientific research the results of which
are not intended to promote any particular product or industry. To be
in this category, a Requester must show that the Request is authorized
by and is made under the auspices of a qualifying institution and that
the Records are not sought for commercial use but are sought to further
scientific research.
(r) Privacy Act Request means a written (paper copy with an
original signature) request made by an individual for information about
himself/herself that is contained in a Privacy Act system of records.
The Privacy Act applies only to U.S. citizens and aliens lawfully
admitted for permanent residence such that only individuals satisfying
these criteria may make Privacy Act Requests.
(s) Reading Room Materials means Records, paper or electronic, that
are required to be made available to the public under 5.U.S.C.
552(a)(2) as well as other Records that the NCPC, at its discretion,
makes available to the public for inspection and copying without
requiring the filing of a FOIA Request.
(t) Representative of the News Media means any person or entity
that gathers information of potential interest to a segment of the
population, uses his/her/its editorial skills to turn raw material into
a distinct work, and distributes that work to an audience. News media
entities include television or radio stations broadcasting to the
public at large; publishers of periodicals that qualify as
disseminators of news and make their products available for purchase or
subscription by the general public; and alternative media to include
electronic dissemination through telecommunication (internet) services.
To be in this category, a Requester must not be seeking the Requested
Records for a commercial use.
(u) Requester means an entity or member of the public submitting a
FOIA Request.
(v) Requester Category means one of the five categories NCPC places
Requesters in for the purpose of determining whether the Requester will
be charged for Search, Review and Duplication, and includes Commercial
Use Requests, Educational Institutions, Noncommercial Scientific
Institutions, Representatives of the News Media, and all other
Requesters.
(w) Review means the examination of Records to determine whether
any portion of the located Record is eligible to be withheld. It also
includes processing any Records for disclosure, i.e., doing all that is
necessary to excise the record and otherwise prepare the Record for
release. Review does not include time spent resolving general legal or
policy issues regarding the application of exemptions.
(x) Search means the process of looking for material, by manual or
electronic means that is responsive to a FOIA Request. The term also
includes page-by-page or line-by-line identification of material within
documents.
(y) Submitter means any person or entity outside the federal
government from whom the NCPC directly or indirectly obtains commercial
or financial information. The term includes, among others,
corporations, banks, state and local governments, and agencies of
foreign governments who provide information to the NCPC.
(z) Unusual Circumstances means, for purposes of Sec. 456.7(c),
and only to the extent reasonably necessary to the proper processing of
a particular Request:
(1) The need to Search for and collect the Requested Agency Records
from establishments that are separate from the Commission's offices;
(2) The need to Search for, collect and appropriately examine and
Review a voluminous amount of separate and distinct Agency Records
which are demanded in a single Request; or
(3) The need for consultation with another Agency having a
substantial interest in the determination of the FOIA Request.
(aa) Workday means a regular Federal workday. It does not include
Saturdays, Sundays, and legal public holidays.
Sec. 456.4 General policy.
(a) It is the NCPC's general policy to facilitate the broadest
possible availability and dissemination of information to the public
through use of the NCPC's Web site, www.ncpc.gov, and physical
distribution of materials not available electronically. The NCPC staff
shall be available to assist the public in obtaining information
formally by using the procedures herein or informally in a manner not
inconsistent with the rule set forth in this part. In addition, to the
extent permitted by other laws, the NCPC will make available Agency
Records of interest to the public that are appropriate for disclosure.
(b) The NCPC possesses the administrative discretion in the context
of individual Requests to release documents for no or reduced fees or
to waive any of the NCPC's FOIA Request requirements in the interest of
public disclosure of information eligible for disclosure under the Act.
Sec. 456.5 Public reading rooms and information routinely available.
(a) The NCPC shall maintain an electronic library at www.ncpc.gov
that makes Reading Room Materials capable of production in electronic
form available for public inspection and downloading. The NCPC shall
also maintain an actual public reading room containing Reading Room
Materials incapable of production in electronic form at NCPC's offices.
The actual reading room shall be available for use on Workdays during
the hours of 9:00 a.m. to 4:00 p.m. Requests for appointments to review
Reading Room Materials in the actual public reading room should be
directed to the NCPC's Information Resources Specialist identified on
the NCPC Web site (www.ncpc.gov).
(b) The following types of Records shall be available routinely
(subject to the fee schedule set forth in Sec. 456.14) without resort
to formal FOIA Request procedures unless such Records fall
[[Page 10955]]
within one of the exemptions listed at 5 U.S.C. 552(b) of the Act:
(1) Commission agendas;
(2) Plans and supporting documentation submitted by applicants to
the Commission to include environmental and historic preservation
reports prepared for a plan or project;
(3) Executive Director's Recommendations;
(4) Commission Memoranda of Action;
(5) Transcripts of Commission proceedings;
(6) ``The Comprehensive Plan for the National Capital: Federal
Elements'' and other plans prepared by the NCPC;
(7) ``Federal Capital Improvements Plan for the National Capital
Region'' following release of the President's Budget;
(8) Policies adopted by the Commission;
(9) Correspondence between the Commission and the Congress, other
federal and local government agencies, and the public; and
(10) Frequently Requested Documents.
Sec. 456.6 FOIA request requirements.
(a) The NCPC shall designate a Chief Freedom of Information Act
Officer who shall be authorized to grant or deny any Request for a
Record of the NCPC.
(b) Requests for a Record or Records that is/are not available in
the actual or electronic reading rooms shall be directed to the Chief
Freedom of Information Act Officer.
(c) All FOIA Requests shall be made in writing. If sent by U.S.
mail, Requests should be sent to NCPC's official business address
contained on the NCPC Web site. If sent via email, they should be
directed to www.ncpc.gov. To expedite internal handling of FOIA
Requests, the words Freedom of Information Act Request shall appear
prominently on the transmittal envelope or the subject line of a
Request sent via email or facsimile.
(d) The FOIA Request shall:
(1) State that the Request is made pursuant to the FOIA;
(2) Describe the Agency Record(s) Requested in sufficient detail
including, without limitation, any specific information known such as
date, title or name, author, recipient, or time frame for which you are
seeking Records, to enable the NCPC personnel to locate the Requested
Agency Records;
(3) State, pursuant to the fee schedule set forth in Sec. 456.14,
a willingness to pay all fees associated with the FOIA Request or the
maximum fee the Requester is willing to pay to obtain the Requested
Records, unless the Requester is seeking a Fee Waiver or placement in a
certain Requester Category;
(4) State the desired form or format of disclosure of Agency
Records with which the NCPC shall endeavor to comply unless compliance
would damage or destroy an original Agency Record or reproduction is
costly and/or requires the acquisition of new equipment; and
(5) Provide a phone number or email address at which the Requester
can be reached to facilitate the handling of the Request.
(e) If a FOIA Request is unclear, overly broad, involves an
extremely voluminous amount of Records or a burdensome Search, or fails
to state a willingness to pay the requisite fees or the maximum fee
which the Requester is willing to pay, the NCPC shall endeavor to
contact the Requester to define the subject matter, identify and
clarify the Records being sought, narrow the scope of the Request, and
obtain assurances regarding payment of fees. The timeframe for a
response set forth in Sec. 456.7(a) shall be tolled (stopped
temporarily) and the NCPC will not begin processing a Request until the
NCPC obtains the information necessary to clarify the Request and/or
clarifies issues pertaining to the fee.
Sec. 456.7 FOIA response requirements.
(a) The Freedom of Information Act Officer, upon receipt of a FOIA
Request made in compliance with these rules, shall determine within 20
Workdays whether to grant or deny the Request. The Freedom of
Information Officer shall within 20 Workdays notify the Requester in
writing of his/her determination and the reasons therefore and of the
right to appeal any Adverse Determination to the head of the NCPC.
(b) If a Request is denied in whole or in part, the Chief FOIA
Officer's written determination shall include, if technically feasible,
the precise amount of information withheld, a brief description of the
information withheld without revealing its content, and the exemption
under which it is being withheld unless revealing the exemption would
harm an interested protected by the exemption. NCPC shall release any
portion of a withheld Record that reasonably can be segregated from the
exempt portion of the Record.
(c) In cases involving Unusual Circumstances, the Chief FOIA
Officer may extend the 20 Workday time limit by written notice to the
Requester. The written notice shall set forth the reasons for the
extension and the date on which a determination is expected to be
dispatched. No such notice shall specify a date that would result in an
extension of more than 10 Working Days unless the Freedom of
Information Act Officer affords the Requester an opportunity to modify
his/her Request or arranges an alternative timeframe with the Requester
for completion of the NCPC's processing.
Sec. 456.8 Multi-track processing.
The NCPC may use multiple tracks for processing FOIA Requests based
on the complexity of Requests and those for which expedited processing
is Requested. Complexity shall be determined based on the amount of
work and/or time needed to process a Request and/or the number of pages
of responsive Records. If the NCPC utilizes Multi-track Processing, it
shall advise a Requester when a Request is placed in a slower track of
the limits associated with a faster track and afford the Requester the
opportunity to limit the scope of its Request to qualify for faster
processing.
Sec. 456.9 Expedited processing.
(a) The NCPC shall provide Expedited Processing of a FOIA Request
if the person making the Request demonstrates that the Request
involves:
(1) Circumstances in which the lack of expedited treatment 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 primarily engaged in
disseminating information;
(3) The loss of substantial due process rights; or
(4) A matter of widespread and exceptional media interest in which
there exists possible questions about the government's integrity which
affect public confidence.
(b) A Request for Expedited Processing may be made at the time of
the initial FOIA Request or at a later time.
(c) A Requester seeking Expedited Processing must submit a detailed
statement setting forth the basis for the Expedited Processing Request.
The Requester must certify in the statement that the need for Expedited
Processing is true and correct to the best of his/her knowledge. To
qualify for Expedited Processing, a Requester relying upon the category
in paragraph (a)(2) of this section must establish:
(1) He/she is a full time Representative of the News Media or
primarily engaged in the occupation of information dissemination,
though it need not be his/her sole occupation;
[[Page 10956]]
(2) A particular urgency to inform the public about the information
sought by the FOIA Request beyond the public's right to know about the
government activity generally; and
(3) The information is of the type that has value that will be lost
if not disseminated quickly such as a breaking news story. Information
of historical interest only or information sought for litigation or
commercial activities will not qualify nor would a news media deadline
unrelated to breaking news.
(d) Within 10 calendar days of receipt of a Request for expedited
processing, the NCPC shall decide whether to grant or deny the Request
and notify the Requester of the decision in writing. If a Request for
Expedited Processing is granted, the Request shall be given priority
and shall be processed in the expedited processing track. If a Request
for Expedited Processing is denied, any appeal of that decision shall
be acted on expeditiously.
Sec. 456.10 Consultations and referrals.
(a) Unless the NCPC determines that it is best able to process a
Record in response to a FOIA Request, the NCPC shall either respond to
the FOIA Request after consultation with the Agency best able to
determine if the Requested Record(s) is/are subject to disclosure; or
refer the responsibility for responding to the FOIA Request to the
Agency responsible for originating the Record(s). Generally, the Agency
originating a Record will be presumed by the NCPC to be the Agency best
qualified to render a decision regarding disclosure or exemption except
for Agency Records submitted to the NCPC pursuant to its authority to
review Agency plans and/or projects.
(b) Upon referral of a FOIA Request to another Agency, the NCPC
shall notify the Requester in writing of the referral, inform the
Requester of the name of the Agency to which all or part of the FOIA
Request has been referred, provide the Requester a description of the
part of the Request referred, and advise the Requester of a point of
contact within the receiving Agency.
(c) The timeframe for a response to a FOIA Request requiring
consultation or referral shall be based on the date the FOIA Request
was initially received by the NCPC and not any later date.
Sec. 456.11 Classified and controlled unclassified information.
(a) For Requests for an Agency Record that has been classified or
may be appropriate for classification by another Agency pursuant to an
Executive Order concerning the classification of Records, the NCPC
shall refer the responsibility for responding to the FOIA Request to
the Agency that either classified the Record, should consider
classifying the Record, or has primary interest in the Record, as
appropriate.
(b) Whenever a Request is made for a Record that is designated
Controlled Unclassified Information by another Agency, the NCPC shall
refer the FOIA Request to the Agency that designated the Record as
Controlled Unclassified Information. Decisions to disclose or withhold
information designated as Controlled Unclassified Information shall be
made based on the applicability of the statutory exemptions contained
in the FOIA, not on a Controlled Unclassified Information marking or
designation.
Sec. 456.12 Confidential commercial information.
(a) Confidential Commercial Information obtained by the NCPC from a
Submitter shall be disclosed under the FOIA only in accordance with the
requirements of this section.
(b) A Submitter of Confidential Commercial Information shall use
good-faith efforts to designate, by appropriate markings, either at the
time of submission or at a reasonable time thereafter, any portions of
its submission that it considers to be protected from disclosure under
Exemption 4 of the FOIA. These designations will expire ten years after
the date of the submission unless the Submitter requests, and provides
justification for, a longer designation period.
(c) Notice shall be given to a Submitter of a FOIA Request for
potential Confidential Commercial Information if:
(1) The requested information has been designated in good faith by
the Submitter as Confidential Commercial Information eligible for
protection from disclosure under Exemption 4 of the FOIA; or
(2) The NCPC has reason to believe the requested information is
Confidential Commercial Information protected from disclosure under
Exemption 4 of the FOIA.
(d) Subject to the requirements of paragraphs (c) and (g) of this
section, the NCPC shall provide a Submitter with prompt written notice
of a FOIA Request or administrative appeal that seeks the Submitter's
Confidential Commercial Information. The notice shall give the
Submitter an opportunity to object to disclosure of any specified
portion of that Confidential Commercial Information pursuant to
paragraph (e) of this section. The notice shall either describe the
Confidential Commercial Information Requested or include copies of the
Requested Records or portions thereof containing the Confidential
Commercial Information. When notice to a large number of Submitters is
required, NCPC may provide notification by posting or publishing the
notice in a place reasonably likely to accomplish the intent of the
notice requirement such as a newspaper, newsletter, the NCPC Web site,
or the Federal Register.
(e) The NCPC shall allow a Submitter a reasonable time to respond
to the notice described in paragraph (d) of this section and shall
specify within the notice the time period for response. If a Submitter
has any objection to disclosure, it shall submit a detailed written
statement. The statement must specify all grounds for withholding any
portion of the Confidential Commercial Information under any exemption
of the FOIA and, in the case of Exemption 4, it must show why the
Confidential Commercial Information is a trade secret or commercial or
financial information that is privileged or confidential. If the
Submitter fails to respond to the notice within the specified time, the
NCPC shall consider this failure to respond as no objection to
disclosure of the Confidential Commercial Information on the part of
the Submitter, and NCPC shall proceed to release the requested
information. A statement provided by the Submitter that is not received
by NCPC until after the NCPC's disclosure decision has been made shall
not be considered by the NCPC. Information provided by a Submitter
under this paragraph may itself be subject to disclosure under the
FOIA.
(f) The NCPC shall consider a Submitter's objections and specific
grounds for nondisclosure in deciding whether to disclose Confidential
Commercial Information. Whenever the NCPC decides to disclose
Confidential Commercial Information over the the objection of a
Submitter, the NCPC shall give the Submitter written notice, which
shall include:
(1) A statement of the reason(s) why each of the Submitter's
disclosure objections was not sustained;
(2) A description of the Confidential Commercial Information to be
disclosed; and
(3) A specified disclosure date, which shall be a reasonable time
subsequent to the notice.
(g) The notice requirements of paragraphs (c) and (d) of this
section shall not apply if:
(1) The NCPC determines that the Confidential Commercial
Information is exempt under FOIA;
[[Page 10957]]
(2) The Confidential Commercial Information has been published
lawfully or has been officially made available to the public;
(3) The Confidential Commercial Information's disclosure is
required by statute (other than the FOIA) or by a regulation issued in
accordance with the requirements of Executive Order 12600
(Predisclosure Notification Procedures for Confidential Commercial
Information); or
(4) The designation made by the Submitter under paragraph (b) of
this section appears obviously frivolous in which case the NCPC shall,
within a reasonable time prior to a specified disclosure date, give the
Submitter written notice of any final decision to disclose the
Confidential Commercial Information.
(h) Whenever a Requester files a lawsuit seeking to compel the
disclosure of Confidential Commercial Information, the NCPC shall
promptly notify the Submitter.
(i) Whenever the NCPC provides a Submitter with notice and an
opportunity to object to disclosure under paragraph (d) of this
section, the NCPC shall also notify the Requester. Whenever the NCPC
notifies a Submitter of its intent to disclose Requested Information
under paragraph (f) of this section, the NCPC shall also notify the
Requester. Whenever a Submitter files a lawsuit seeking to prevent the
disclosure of Confidential Commercial Information, the NCPC shall
notify the Requester.
Sec. 456.13 Appeals.
(a) An appeal of an Adverse Determination shall be made in writing
to the Chairman of the Commission (Chairman). An appeal may be
submitted via U.S. mail or other type of manual delivery service or via
email or facsimile within 30 Workdays of the date of a notice of an
Adverse Determination. To facilitate handling of an appeal, the words
Freedom of Information Act Appeal shall appear prominently on the
transmittal envelope or the subject line of a Request sent via
electronic-mail or facsimile.
(b) An appeal of an Adverse Determination shall include a detailed
statement of the legal, factual or other basis for the Requester's
objections to an Adverse Determination; a daytime phone number or email
address where the Requester can be reached if the NCPC requires
additional information or clarification regarding the appeal; copies of
the initial Request and the NCPC's written response; and for an Adverse
Determination of a Request for Expedited Processing or a Fee Waiver, a
demonstration of compliance with the requirements of Sec. Sec.
456.9(a) and (c) or 456.14(a) through (c) respectively.
(c) The Chairman shall respond to an appeal of an Adverse
Determination in writing within 20 Workdays of receipt. If the Chairman
grants the appeal, the Chairman shall notify the Requester, and the
NCPC shall make available copies of the Requested Records promptly
thereafter upon receipt of the appropriate fee determined in accordance
with Sec. 456.14. If the Chairman denies the appeal in whole or in
part, the letter to the Requester shall state the reason(s) for the
denial, including the FOIA exemptions(s) applied; a statement that the
decision is final; and notification of the Requester's right to seek
judicial review of the denial in the District Court of the United
States in either the locale in which the Requester resides, the locale
in which the Requester has his/her principal place of business, or in
the District of Columbia. The Chairman's letter of denial shall also
advise the Requester that the Office of Government Information Services
(OGIS) offers mediation services to resolve disputes between a
Requester and the NCPC as a non-exclusive alternative to litigation.
Contact information for OGIS can be obtained from the OGIS Web site at
[email protected].
(d) The NCPC shall not act on an appeal of an Adverse Determination
if the underlying FOIA Request becomes the subject of FOIA litigation.
(e) A party seeking court review of an Adverse Determination must
first appeal the decision under this section to NCPC.
Sec. 456.14 Fees.
(a) In responding to FOIA Requests, the NCPC shall charge the
following fees unless a Fee Waiver has been granted under Sec. 456.15.
(1) Search Fees shall be as follows:
(i) Search fees shall be charged for all Requests, subject to the
limitations of paragraph (b) of this section. The NCPC may charge for
time spent conducting a Search even if it fails to locate any
responsive Records or if the NCPC withholds Records located based on a
FOIA exemption.
(ii) For each quarter hour spent by personnel searching for
Requested Records, including electronic searches that do not require
new programming, the fees will be calculated based on the average
hourly General Schedule (GS) base salary, plus the District of Columbia
locality payment, plus 16 percent for benefits, of employees in the
following three categories: Staff Assistant (assigned at the GS 9-11
grades); Professional Personnel (assigned at the GS 11-13 grades); and
Managerial Staff (assigned at the 14-15 grades). For a Staff Assistant
the quarter hour fee to Search for and retrieve a Requested Record
shall be $9.00. If a Search and retrieval cannot be performed entirely
by a Staff Assistant, and the identification of Records within the
scope of a Request requires the use of Professional Personnel, the fee
shall be $12.00 for each quarter hour of Search time spent by
Professional Personnel. If the time of Managerial Personnel is
required, the fee shall be $18.00 for each quarter hour of Search time
spent by Managerial Personnel.
(iii) For a computer Search of Records, Requesters shall be charged
the Direct Costs of creating a computer program, if necessary, and/or
conducting the Search, although certain Requesters (as provided in
paragraph (b)(1) of this section) will be charged no Search fee and
certain other Requesters (as provided in paragraph (b)(3) of this
section) will be entitled to the cost equivalent of two hours of manual
Search time without charge. These Direct Costs for a computer Search
shall include the cost that is directly attributable to a Search for
responsive Records, and the costs of the operator's salary for the time
attributable to the Search.
(2) Duplication fees shall be charged to all Requesters, subject to
the limitations of paragraph (b) of this Section. For a paper photocopy
of a Record (no more than one copy of which shall be supplied), the fee
shall be 10 cents per page for single or double sided copies, 90 cents
per page for 8\1/2\ by 11 inch color copies, and $1.50 per page for
color copies up to 11 x 17 inches per page. For copies produced by
computer, and placed on an electronic data saving device or provided as
a printout, the NCPC shall charge the Direct Costs, including operator
time, of producing the copy. For other forms of Duplication, the NCPC
shall charge the Direct Costs of that Duplication.
(3) Review fees shall be charged to Requesters who make a
Commercial Use Request. Review fees will be charged only for the NCPC
initial Review of a Record to determine whether an exemption applies to
a particular Record or portion thereof. No charge will be made for
Review at the administrative appeal level for an exemption already
applied. However, Records or portions thereof withheld under an
exemption that is subsequently determined not applicable upon appeal
may be reviewed again to determine whether any other exemption not
previously considered applies. If the NCPC determines a different
exemption
[[Page 10958]]
applies, the costs of that Review are chargeable. Review fees will be
charged at the same rates as those charged for a Search under paragraph
(a)(1)(ii) of this section.
(b) The following limitations on fees shall apply:
(1) No Search fee shall be charged for FOIA Requests made by
Educational Institutions, Noncommercial Scientific Institutions, or
Representatives of the News Media.
(2) No Search or Review fees shall be charged for a quarter-hour
period unless more than half of that period is required for Search or
Review.
(3) Except for Requesters of a Commercial Use Request, the NCPC
shall provide without charge the first two hours of Search (or the cost
equivalent) and the first 100 pages of Duplication (or the cost
equivalent); and
(4) Except for Requesters of a Commercial Use Request, no fee shall
be charged for a Request if the total fee calculated under this section
equals $50.00 or less.
(5) The fee provisions of this section shall be cumulative.
Requesters other than those making a Commercial Use Request shall not
be charged a fee unless the total cost of a Search in excess of two
hours plus the cost of Duplication in excess of 100 pages totals more
than $50.00.
(c) If the NCPC determines or estimates fees in excess of $50.00,
the NCPC shall notify the Requester of the actual or estimated amount
of total fees, unless in its initial Request the Requester has
indicated a willingness to pay fees as high as those determined or
estimated. If only a portion of the fee can be estimated, the NCPC
shall advise the Requester that the estimated fee constitutes only a
portion of the total fee. If the NCPC notifies a Requester that actual
or estimated fees amount to more than $50.00, the Request shall not be
considered received for purposes of calculating the timeframe for a
Response, and no further work shall be undertaken on the Request until
the Requester agrees to pay the anticipated total fee. Any such
agreement shall be memorialized in writing. A notice under this
paragraph shall offer the Requester an opportunity to work with the
NCPC to reformulate the Request to meet the Requester's needs at a
lower cost.
(d) Apart from other provisions of this section, if the Requester
asks for or the NCPC chooses as a matter of administrative discretion
to provide a special service--such as certifying that Records are true
copies or sending them by other than ordinary mail--the actual costs of
special service shall be charged.
(e) The NCPC shall charge interest on any unpaid fee starting on
the 31st day following the date of billing the Requester. Interest
charges will be assessed at the rate provided in 31 U.S.C. 3717
(Interest and Penalty on Claims) and will accrue from the date of the
billing until payment is received by the NCPC. The NCPC shall follow
the provisions of the Debt Collection Act of 1982 (Pub. L. No. 97-365,
96 Stat. 1749), as amended, and its administrative procedures,
including the use of consumer reporting agencies, collection agencies,
and offset.
(f) Where the NCPC reasonably believes that one or more Requesters
are acting in concert to subdivide a Request into a series of Requests
to avoid fees, the NCPC may aggregate the Requests and charge
accordingly. The NCPC shall presume that multiple Requests of this type
made within a 30-day period have been made to avoid fees. Where
Requests are separated by a time period in excess of 30 days, the NCPC
shall aggregate the multiple Requests if a solid basis exists for
determining aggregation is warranted under all circumstances involved.
(g) Advance payments shall be treated as follows:
(1) For Requests other than those described in paragraphs (g)(2)
and (3) of this section, the NCPC shall not require an advance payment.
An advance payment refers to a payment made before work on a Request is
begun or continued after being stopped for any reason but does not
extend to payment owed for work already completed but not sent to a
Requester.
(2) If the NCPC determines or estimates a total fee under this
section of more than $250.00, it shall require an advance payment of
all or part of the anticipated fee before beginning to process a
Request, unless the Requester provides satisfactory assurance of full
payment or has a history of prompt payment.
(3) If a Requester previously failed to pay a properly charged FOIA
fee to the NCPC within 30 days of the date of billing, the NCPC shall
require the Requester to pay the full amount due, plus any applicable
interest, and to make an advance payment of the full amount of any
anticipated fee, before the NCPC begins to process a new Request or
continues processing a pending Request from that Requester.
(4) If the NCPC requires advance payment or payment due under
paragraphs (g)(2) or (3) of this section, the Request shall not be
considered received and no further work will be undertaken on the
Request until the required payment is received.
(h) Where Records responsive to Requests are maintained for
distribution by Agencies operating statutorily based fee schedule
programs, the NCPC shall inform Requesters of the steps for obtaining
Records from those sources so that they may do so most economically.
(i) All fees shall be paid by personal check, money order or bank
draft drawn on a bank of the United States, made payable to the order
of the Treasurer of the United States.
Sec. 456.15 Fee waiver requirements.
(a) Records responsive to a Request shall be furnished without
charge or at a charge reduced below that established under Sec. 456.14
if the Requester demonstrates to the NCPC, and the NCPC determines,
based on all available information, that 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 disclosure of the information is not
primarily in the commercial interest of the Requester.
(b) To determine if 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,
the Requester shall demonstrate, and NCPC shall consider, the following
factors:
(1) Whether the subject of the Requested Records concerns the
operations or activities of the government. The subject of the
Requested Records must concern identifiable operations or activities of
the federal government, with a connection that is direct and clear, not
remote or attenuated.
(2) Whether the disclosure is likely to contribute to an
understanding of government operations or activities. The portions of
the Requested Records eligible for disclosure must be meaningfully
informative about government operations or activities. The disclosure
of information that already is in the public domain, in either a
duplicative or a substantially identical form, is not likely to
contribute to an understanding of government operations and activities
because this information is already known.
(3) Whether disclosure of the Requested information will contribute
to public understanding. 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 and ability and
intention to effectively convey
[[Page 10959]]
information to the public shall be considered. It shall be presumed
that a Representative of the News Media satisfies this consideration.
(4) Whether the disclosure is likely to contribute significantly to
public understanding of government operations or activities. The
public's understanding of the subject in question must be enhanced by
the disclosure to a significant extent, as compared to the level of
public understanding existing prior to the disclosure. The NCPC shall
not make value judgments about whether information that would
contribute significantly to public understanding of the operations or
activities of the government is important enough to be made public.
(c) To determine whether disclosure of the information is not
primarily in the commercial interest of the Requester, the Requester
shall demonstrate, and NCPC shall consider, the following factors:
(1) Whether the Requester has a commercial interest that would be
furthered by the Requested disclosure. The NCPC shall consider any
commercial interest of the Requester (with reference to the definition
of Commercial Use Request in Sec. 456.3(f)), or of any person on whose
behalf the Requester may be acting, that would be furthered by the
Requested disclosure. Requesters shall be given an opportunity in the
administrative process to provide explanatory information regarding
this consideration.
(2) Whether any identified commercial interest of the Requester is
sufficiently large in comparison with the public interest in disclosure
that disclosure is primarily in the commercial interest of the
Requester. A Fee Waiver is justified where the public interest standard
of paragraph (b) of this section is satisfied and that public interest
is greater in magnitude than that of any identified commercial interest
in disclosure. The NCPC ordinarily shall presume that a Representative
of the News Media satisfies the public interest standard, and the
public interest will be the interest primarily served by disclosure to
that 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.
(d) Where only some of the Records to be released satisfy the
requirements for a Fee Waiver, a Fee Waiver shall be granted for those
Records.
(e) Requests for a Fee Waiver should address the factors listed in
paragraphs (b) and (c) of this section, insofar as they apply to each
Request. The NCPC shall exercise its discretion to consider the cost-
effectiveness of its investment of administrative resources in this
decision-making process in deciding to grant Fee Waivers.
Sec. 456.16 Preservation of FOIA records.
(a) The NCPC shall preserve all correspondence pertaining to FOIA
Requests received and copies or Records provided until disposition or
destruction is authorized by the NCPC's General Records schedule of the
National Archives and Records Administration (NARA) or other NARA-
approved Schedule.
(b) Materials that are responsive to a FOIA Request shall not be
disposed of or destroyed while the Request or a related lawsuit is
pending even if the Records would otherwise be authorized for
disposition under the NCPC's General Records Schedule or NARA or other
NARA-approved records schedule.
[FR Doc. 2014-04180 Filed 2-26-14; 8:45 am]
BILLING CODE 7520-01-P