Freedom of Information Act Regulations, 50351-50358 [2013-19871]
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50351
Proposed Rules
Federal Register
Vol. 78, No. 160
Monday, August 19, 2013
This section of the FEDERAL REGISTER
contains notices to the public of the proposed
issuance of rules and regulations. The
purpose of these notices is to give interested
persons an opportunity to participate in the
rule making prior to the adoption of the final
rules.
NATIONAL CAPITAL PLANNING
COMMISSION
1 CFR Part 456
Freedom of Information Act
Regulations
National Capital Planning
Commission.
ACTION: Notice of Proposed Rulemaking.
AGENCY:
The National Capital Planning
Commission (‘‘NCPC’’ or
‘‘Commission’’) proposes to revise the
current regulations the NCPC follows for
processing Requests for Information
under the Freedom of Information Act
(FOIA). The revisions reorganize the
regulations to focus each section on a
discrete topic. The revisions also
incorporate new information in
response to changes to the FOIA.
Finally, the revisions increase the
threshold dollar amount that must be
reached before the NCPC charges
members of the public a processing fee
for information.
DATES: Submit comments on or before
October 18, 2013.
ADDRESSES: You may submit comments
on the proposed rule by either of the
methods listed below.
1. U.S. mail, courier, or hand delivery:
General Counsel/Freedom of
Information Officer, National Capital
Planning Commission, 401 9th Street
NW., Suite 500, Washington, DC 20004.
2. Electronically: FOIAComments@
ncpc.gov.
SUMMARY:
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FOR FURTHER INFORMATION CONTACT:
Anne R. Schuyler, General Counsel/
Chief FOIA Officer, 202–482–7223 or
anne.schuyler@ncpc.gov.
SUPPLEMENTARY INFORMATION:
I. Purpose for Revising the NCPC’s
Existing Regulations
The NCPC proposes to revise its
current FOIA regulations to create an
organizational structure that permits
easier use by members of the public. To
achieve this objective, Sections in the
existing regulations that address
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multiple aspects of one issue have been
broken up, and each Section contained
in the revised regulations addresses one
discrete topic identified by its subject
heading. The NCPC also seeks to update
its FOIA regulations to reflect changes
in the law that have occurred since the
NCPC adopted its original FOIA
regulations in 1982 and processed
amendments in 1998. With the addition
of new Sections in the draft rules, the
NCPC’s FOIA regulations provide a
complete compendium of the rules
governing the agency’s FOIA activity.
Members of the public no longer need
to consult multiple sources when
preparing a FOIA Request for
submission to NCPC.
II. Compliance With Laws and
Executive Orders
1. Executive Orders 12866 and 13563
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, 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 proposed rule is not a
major rule for purposes of Executive
Order 12866. Further, the NCPC
developed the proposed 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 proposed 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 completion,
employment, investment, productivity,
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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 proposed 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 proposed rule does not have
sufficient federalism implications to
warrant the preparation of a Federalism
Assessment. The proposed 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 proposed rule does
not unduly burden the judicial system
and meets the requirements of Executive
Order 12988 secs. 3(a) and 3(b)(2).
7. Paperwork Reduction Act
The proposed rule does not contain
information collection requirements,
and it does not require a submission to
the Office of Management and Budget
under the Paperwork Reduction Act.
8. National Environmental Policy Act
The proposed 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 proposed 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
proposed rule meets this requirement.
Those individuals reviewing the
proposed rule who feel otherwise
should submit specific comments to the
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addresses noted above recommending
revised language for those provision or
portions thereof where they feel
compliance is lacking.
10. Public Availability of Comments
Be advised that personal information
such as name, address, phone number
email address, or other identifying
personal information contained in a
comment may be made publically
available. Individuals may ask the NCPC
to withhold the personal information in
their comment, but there is no guarantee
the agency can do so.
List of Subjects in 1 CFR Part 456
Freedom of Information.
Dated: August 12, 2013.
Anne R. Schuyler,
General Counsel.
For the reasons stated in the
preamble, the National Capital Planning
Commission proposes to revise 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 Time-frame for response to FOIA
requests.
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.
Authority: 40 U.S.C. 8701 et seq., as
amended and 5 U.S.C. 552, as amended.
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§ 456.1
General information.
This part contains the rules the
National Capital Planning Commission
(‘‘NCPC’’ or ‘‘Commission’’) shall follow
in processing Requests for Records
under the Freedom of Information Act
(FOIA), 5 U.S.C. 552, as amended.
Privacy Act Requests made by
individuals under the Privacy Act, 5
U.S.C. 522a, which are processed in
accordance with part 455 of Title 1 of
the Code of Federal Regulations, are
processed under this part as well.
Information routinely provided to the
public as part of regular NCPC activity
shall be provided to the public without
regard to this part.
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§ 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. The
Comprehensive Plan 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 and the National Historic
Preservation Act.
(3) Preparation of a Federal Capital
Improvement Plan (FCIP). The FCIP is
an annual, six-year program of
prioritized Federal government capital
projects prepared by the NCPC for use
by the Office of Management and
Budget (‘‘OMB’’) in its preparation of
the President’s Annual Budget.
(c) The Commission is comprised of
five citizen members, three of whom are
appointed by the President of the
United States, including the Chairman,
and two of whom are appointed by the
Mayor of the District of Columbia. Exofficio 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
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Commission. The staff is organized
functionally as follows:
(1) Office of the Executive Director;
(2) Office of the General Counsel;
(3) Office of the Secretariat;
(4) Office of Public Engagement;
(5) Office of Administration;
(6) Physical Planning Division;
(7) Policy and Research Division; and
(8) Urban Design and Plan Review
Division.
§ 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 and disks; electronic
records including email messages; and
audiovisual material such as still
pictures, and 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 and are not subject to
Agency creation or retention
requirements or distributed 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 [that 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:
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(1) Pertinent to the national interests
of the United States or to the important
interests of entities outside the Federal
Government, and
(2) 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 in the
case of commercial Requesters,
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).
(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 commercial use but are
sought to further scholarly research or
for purposes of education.
(j) Expedited Processing means giving
a FOIA Request priority because a
Requester has shown a compelling need
for the Records.
(k) 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 electronicmail (email) or facsimile.
(l) Freelance Journalist means a
representative of the news media who is
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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.
(m) 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.
(n) 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.
(o) 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.
(p) Privacy Act Request means a
written (paper copy with an original
signature) Request made by an
individual for information about him/
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.
(q) 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.
(r) Representative of the News Media
means any person actively gathering
news for an entity that is organized and
operated to publish or broadcast news to
the public. The term news means
information that is about current events
or events that would be of current
interest to the public. 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
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50353
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.
(s) Requester means an entity or
member of the public submitting a FOIA
Request.
(t) Review means the examination of
Records located in response to a
Commercial Use Request 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 them and otherwise
prepare them for release. Review does
not include time spent resolving general
legal or policy issues regarding the
application of exemptions.
(u) Search means the process of
looking for material, by manual or
electronic means that is responsive to a
Request. The term also includes pageby-page or line-by-line identification of
material within documents.
(v) 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.
(w) Unusual Circumstances means,
for purposes of § 456.7(b), 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.
(x) Workday means a regular Federal
workday. It does not include Saturdays,
Sundays, legal public holidays, and
days when the federal government is
closed for any reason.
§ 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.National
Capital Planning Commission.gov, and
physical distribution of materials not
available electronically. The NCPC staff
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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 rules
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) Whenever the waiver of any of the
procedures set forth in §§ 456.6 and
456.14 would further the purposes of
the FOIA by causing public disclosure
of information eligible for disclosure
under the Act and the rules contained
in this part within the time periods
required by the rules contained in this
part, the NCPC may waive the
procedures set forth in the
aforementioned Sections in the context
of individual Requests.
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§ 456.5 Public reading rooms and
information routinely available.
(a) The NCPC shall maintain an
electronic library at www.National
Capital Planning Commission.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 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 NCPC’s Web site.
(b) The following types of Records
shall be available routinely (subject to
the fee schedule set forth in § 456.14)
without resort to formal FOIA Request
procedures unless such Records fall
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) Federal Elements of the
Comprehensive Plan for the National
Capital and other plans prepared by the
NCPC from time to time;
(7) Federal Capital Improvements
Plan for the National Capital Region
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(FCIP) 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.
§ 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 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 as indicated on the
NCPC Web site. To expedite internal
handling of FOIA Requests, the words
‘‘Freedom of Information Act Request’’
shall appear prominently on the
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 § 456.14, a willingness to
pay all fees associated with the FOIA
Request or the maximum fee Requester
is willing to pay to obtain the Requested
Records, unless the Requester is seeking
a fee waiver or placement in a certain
fee 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
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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 § 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.
§ 456.7 Time-frame for response to FOIA
requests.
(a) The Chief 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) In cases involving Unusual
Circumstances, the Chief Freedom of
Information Act 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 Chief 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.
§ 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.
§ 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:
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(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. A Request for
Expedited Processing may be made at
the time of the initial FOIA Request or
at a later time.
(b) 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
paragraph (a)(2) of this section must
establish:
(1) That he/she is a full time member
of the news media or primarily engaged
in the occupation of information
dissemination, though it need not be
his/her sole occupation;
(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.
(c) 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.
§ 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
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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
and inform the Requester of the name of
the Agency to which all or part of the
FOIA Request has been referred.
(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.
§ 456.11 Classified and controlled
unclassified information.
(a) Whenever a Request is made for an
Agency Record that has been classified,
or may be appropriate for classification,
by another Agency under Executive
Order 13526, as amended or any other
executive order concerning the
classification of Records, the NCPC shall
refer the responsibility for responding to
the FOIA Request regarding that Record
to the Agency that either classified the
Record, should consider the Record for
classification, or has the primary
interest in the Record, as appropriate.
(b) Whenever a Request is made for a
Record that is designated Controlled
Unclassified Information (CUI) by
another Agency, the NCPC shall refer
the FOIA Request to the Agency that
designated the Record CUI. Decisions to
disclose or withhold information
designated as CUI shall be made based
on the applicability of the statutory
exemptions contained in the FOIA, not
on a CUI marking or designation.
§ 456.12 Confidential Commercial
Information.
(a) Confidential Commercial
Information obtained by the NCPC from
a Submitter will be disclosed under the
FOIA only in accordance with the
requirements of this section.
(b) A Submitter of Confidential
Commercial Information will use goodfaith 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
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justification for, a longer designation
period.
(c) Subject to the requirements of
paragraphs (d) 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 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.
(d) Notice shall be given to a
Submitter wherever:
(1) The Confidential Commercial
Information has been designated in good
faith by the Submitter as Confidential
Commercial Information considered
protected from disclosure under
Exemption 4 of the FOIA; or
(2) The NCPC has reason to believe
that the Confidential Commercial
Information may be protected from
disclosure under Exemption 4 of the
FOIA.
(e) The NCPC shall allow a Submitter
a reasonable time to respond to the
notice described in paragraph (c) 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 it. 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
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grounds for nondisclosure in deciding
whether to disclose Confidential
Commercial Information. Whenever the
NCPC decides to disclose Confidential
Commercial Information over 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 (d) and (f) of this section
shall not apply if:
(1) The NCPC determines that the
Confidential Commercial Information is
exempt under FOIA;
(2) The Confidential Commercial
Information has been published
lawfully or has been officially made
available to the public;
(3) Disclosure of the Information is
required by statute (other than the
FOIA) or by a regulation issued in
accordance with the requirements of
Executive Order 12600; 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 (c) 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 Business
Information, the NCPC shall notify the
Requester.
§ 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 US mail or other type of
manual delivery service or via email or
facsimile within 30 Workdays of the
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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 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 §§ 456.9(a) or 456.14(i)
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 § 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 district in which the
Requester resides, in which the
Requester has his/her principal place of
business, or in the District of Columbia.
(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.
§ 456.14
Fees.
(a) In responding to FOIA Requests,
the NCPC shall charge the following fees
unless a waiver or reduction of fees has
been granted under paragraph (i) of this
section.
(1) Search fees shall be as follows:
(i) Other than Requests made by
Educational Institutions,
Noncommercial Scientific Institutions,
or Representatives of the News Media,
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
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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 the 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 with an average salary of $63,103
per annum); Professional Personnel
(assigned at the GS 11–13 grades with
an average salary of $86,775 per
annum); and Managerial Staff (assigned
at the 14–15 grades with an average
salary of $152,336 per annum). 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—for example, where
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 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 shall include the cost of
operating a central processing unit for
that portion of operating time 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 15 cents per page for single sided
copies, 30 cents per page for double
sided copies, 90 cents per page for 81⁄2
by 11 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 a disk or provided as a
printout, the NCPC shall charge the
Direct Costs, including operator time, of
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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 are
subsequently determined not applicable
upon appeal may be reviewed again to
determine whether any other exemption
not previously considered applies. If
changed circumstances lead NCPC to
determine a different exemption
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 paragraph (c) of this
section equals $50.00 or less.
(5) The provisions of paragraphs (b)(3)
and (4) 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 $25.00.
(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
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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 longer
period, 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
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50357
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) Requirements for waiver or
reduction of fees shall be as follows:
(1) Records responsive to a Request
shall be furnished without charge or at
a charge reduced below that established
under this section if the Requester
demonstrates to the NCPC, and the
NCPC determines, based on all available
information, that:
(i) 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
(ii) Disclosure of the information is
not primarily in the commercial interest
of the Requester.
(2) To determine whether the fee
waiver requirement of paragraph (i)(1)(i)
of this section is met, the NCPC shall
consider the following factors:
(i) The subject of the Request:
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.
(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. The portions of
the Requested Records eligible for
disclosure must be meaningfully
informative about government
operations or activities in order to be
‘‘likely to contribute’’ to an increased
public understanding of those
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operations or activities. The disclosure
of information that already is in the
public domain, in either a duplicative or
a substantially identical form, would
not be as likely to contribute to such
understanding where nothing new
would be added to the public’s
understanding.
(iii) The contribution to an
understanding of the subject by the
public likely to result from disclosure:
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
information to the public shall be
considered. It shall be presumed that a
representative of the news media will
satisfy this consideration.
(iv) The significance of the
contribution to public understanding:
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.
(3) To determine whether the fee
waiver requirement of paragraph
(i)(1)(ii) of this section is met, the NCPC
shall consider the following factors:
(i) The existence and magnitude of a
commercial interest: 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 § 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.
(ii) The primary interest in disclosure:
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 or
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reduction is justified where the public
interest standard 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 where a
news media Requester has satisfied the
public interest standard, 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.
(4) Where only some of the Records to
be released satisfy the requirements for
a waiver of fees, a waiver shall be
granted for those Records.
(5) Requests for the waiver or
reduction of fees should address the
factors listed in paragraphs (i)(2) and (3)
of this section, insofar as they apply to
each Request. The NCPC shall exercise
its discretion to consider the costeffectiveness of its investment of
administrative resources in this
decision-making process, however, in
deciding to grant waivers or reductions
of fees.
(j) 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.
[FR Doc. 2013–19871 Filed 8–16–13; 8:45 am]
BILLING CODE 7502–02–P
DEPARTMENT OF HEALTH AND
HUMAN SERVICES
Food and Drug Administration
21 CFR Part 112
[Docket No. FDA–2011–N–0921]
RIN 0910–AG35
Notice of Intent To Prepare an
Environmental Impact Statement for
the Proposed Rule, Standards for
Growing, Harvesting, Packing, and
Holding of Produce for Human
Consumption
AGENCY:
Food and Drug Administration,
HHS.
ACTION:
Notice of Intent.
Under the National
Environmental Policy Act of 1969
(NEPA), as implemented by the Council
on Environmental Quality (CEQ)
regulations, the Food and Drug
Administration (FDA) announces its
intent to prepare an Environmental
Impact Statement (EIS) to evaluate the
potential environmental effects of the
SUMMARY:
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proposed rule, Standards for Growing,
Harvesting, Packing, and Holding of
Produce for Human Consumption. By
this notice, FDA is announcing the
beginning of the scoping process to
solicit public comments and identify
issues to be analyzed in an EIS.
Information on the proposed rule may
be accessed using the docket number
found in brackets in the heading of this
document.
DATES: This notice initiates the public
scoping process for the EIS which will
close on November 15, 2013. The
Agency will consider comments in
response to this notice to determine the
need for any public scoping meetings
prior to the preparation of the Draft EIS.
In order to be considered during the
preparation of the Draft EIS, all
comments must be received prior to the
close of the public scoping period. All
relevant and substantive comments
submitted to Docket No. FDA–2011–N–
0921 in response to the proposed rule
will be considered as part of the scoping
process. FDA will provide additional
opportunities for public participation
upon publication of the Draft EIS.
ADDRESSES: You may submit comments,
identified by Docket No. FDA–2011–N–
0921 and/or Regulatory Information
Number (RIN) 0910–AG35, by any of the
following methods.
Electronic Submissions
Submit electronic comments in the
following way:
• Federal eRulemaking Portal: https://
www.regulations.gov. Follow the
instructions for submitting comments.
Written Submissions
Submit written submissions in the
following ways:
• Mail/Hand delivery/Courier (for
paper or CD–ROM submissions):
Division of Dockets Management (HFA–
305), Food and Drug Administration,
5630 Fishers Lane, Rm. 1061, Rockville,
MD 20852.
Instructions: All submissions received
must include the Agency name and
Docket No. FDA–2011–N–0921 and RIN
0910–AG35 for this rulemaking. All
comments received may be posted
without change to https://
www.regulations.gov, including any
personal information provided.
Docket: For access to the docket to
read background documents or
comments received, go to https://
www.regulations.gov and insert the
docket number, found in brackets in the
heading of this document, into the
‘‘Search’’ box and follow the prompts
and/or go to the Division of Dockets
Management, 5630 Fishers Lane, Rm.
1061, Rockville, MD 20852.
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[Federal Register Volume 78, Number 160 (Monday, August 19, 2013)]
[Proposed Rules]
[Pages 50351-50358]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-19871]
========================================================================
Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
========================================================================
Federal Register / Vol. 78, No. 160 / Monday, August 19, 2013 /
Proposed Rules
[[Page 50351]]
NATIONAL CAPITAL PLANNING COMMISSION
1 CFR Part 456
Freedom of Information Act Regulations
AGENCY: National Capital Planning Commission.
ACTION: Notice of Proposed Rulemaking.
-----------------------------------------------------------------------
SUMMARY: The National Capital Planning Commission (``NCPC'' or
``Commission'') proposes to revise the current regulations the NCPC
follows for processing Requests for Information under the Freedom of
Information Act (FOIA). The revisions reorganize the regulations to
focus each section on a discrete topic. The revisions also incorporate
new information in response to changes to the FOIA. Finally, the
revisions increase the threshold dollar amount that must be reached
before the NCPC charges members of the public a processing fee for
information.
DATES: Submit comments on or before October 18, 2013.
ADDRESSES: You may submit comments on the proposed rule by either of
the methods listed below.
1. U.S. mail, courier, or hand delivery: General Counsel/Freedom of
Information Officer, National Capital Planning Commission, 401 9th
Street NW., Suite 500, Washington, DC 20004.
2. Electronically: FOIAComments@ncpc.gov.
FOR FURTHER INFORMATION CONTACT: Anne R. Schuyler, General Counsel/
Chief FOIA Officer, 202-482-7223 or anne.schuyler@ncpc.gov.
SUPPLEMENTARY INFORMATION:
I. Purpose for Revising the NCPC's Existing Regulations
The NCPC proposes to revise its current FOIA regulations to create
an organizational structure that permits easier use by members of the
public. To achieve this objective, Sections in the existing regulations
that address multiple aspects of one issue have been broken up, and
each Section contained in the revised regulations addresses one
discrete topic identified by its subject heading. The NCPC also seeks
to update its FOIA regulations to reflect changes in the law that have
occurred since the NCPC adopted its original FOIA regulations in 1982
and processed amendments in 1998. With the addition of new Sections in
the draft rules, the NCPC's FOIA regulations provide a complete
compendium of the rules governing the agency's FOIA activity. Members
of the public no longer need to consult multiple sources when preparing
a FOIA Request for submission to NCPC.
II. Compliance With Laws and Executive Orders
1. Executive Orders 12866 and 13563
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,
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 proposed rule is not a major rule for purposes of
Executive Order 12866. Further, the NCPC developed the proposed 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 proposed 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 completion,
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 proposed 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 proposed rule does
not have sufficient federalism implications to warrant the preparation
of a Federalism Assessment. The proposed 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 proposed
rule does not unduly burden the judicial system and meets the
requirements of Executive Order 12988 secs. 3(a) and 3(b)(2).
7. Paperwork Reduction Act
The proposed rule does not contain information collection
requirements, and it does not require a submission to the Office of
Management and Budget under the Paperwork Reduction Act.
8. National Environmental Policy Act
The proposed 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 proposed
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 proposed rule meets this
requirement. Those individuals reviewing the proposed rule who feel
otherwise should submit specific comments to the
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addresses noted above recommending revised language for those provision
or portions thereof where they feel compliance is lacking.
10. Public Availability of Comments
Be advised that personal information such as name, address, phone
number email address, or other identifying personal information
contained in a comment may be made publically available. Individuals
may ask the NCPC to withhold the personal information in their comment,
but there is no guarantee the agency can do so.
List of Subjects in 1 CFR Part 456
Freedom of Information.
Dated: August 12, 2013.
Anne R. Schuyler,
General Counsel.
For the reasons stated in the preamble, the National Capital
Planning Commission proposes to revise 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 Time-frame for response to FOIA requests.
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.
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
Requests for Records under the Freedom of Information Act (FOIA), 5
U.S.C. 552, as amended. Privacy Act Requests made by individuals under
the Privacy Act, 5 U.S.C. 522a, which are processed in accordance with
part 455 of Title 1 of the Code of Federal Regulations, are processed
under this part as well. 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. The Comprehensive Plan
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 and the
National Historic Preservation Act.
(3) Preparation of a Federal Capital Improvement Plan (FCIP). The
FCIP is an annual, six-year program of prioritized Federal government
capital projects prepared by the NCPC for use by the Office of
Management and Budget (``OMB'') in its preparation of the President's
Annual Budget.
(c) The Commission is comprised of five citizen members, three of
whom are appointed by the President of the United States, 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. The staff is organized functionally as follows:
(1) Office of the Executive Director;
(2) Office of the General Counsel;
(3) Office of the Secretariat;
(4) Office of Public Engagement;
(5) Office of Administration;
(6) Physical Planning Division;
(7) Policy and Research Division; and
(8) Urban Design and Plan Review Division.
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 and disks; electronic records
including email messages; and audiovisual material such as still
pictures, and 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 and are not subject to
Agency creation or retention requirements or distributed 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 [that 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:
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(1) Pertinent to the national interests of the United States or to
the important interests of entities outside the Federal Government, and
(2) 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 in the case of commercial Requesters,
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).
(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 commercial use but
are sought to further scholarly research or for purposes of education.
(j) Expedited Processing means giving a FOIA Request priority
because a Requester has shown a compelling need for the Records.
(k) 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.
(l) 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.
(m) 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.
(n) 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.
(o) 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.
(p) Privacy Act Request means a written (paper copy with an
original signature) Request made by an individual for information about
him/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.
(q) 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.
(r) Representative of the News Media means any person actively
gathering news for an entity that is organized and operated to publish
or broadcast news to the public. The term news means information that
is about current events or events that would be of current interest to
the public. 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.
(s) Requester means an entity or member of the public submitting a
FOIA Request.
(t) Review means the examination of Records located in response to
a Commercial Use Request 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
them and otherwise prepare them for release. Review does not include
time spent resolving general legal or policy issues regarding the
application of exemptions.
(u) Search means the process of looking for material, by manual or
electronic means that is responsive to a Request. The term also
includes page-by-page or line-by-line identification of material within
documents.
(v) 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.
(w) Unusual Circumstances means, for purposes of Sec. 456.7(b),
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.
(x) Workday means a regular Federal workday. It does not include
Saturdays, Sundays, legal public holidays, and days when the federal
government is closed for any reason.
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.National Capital Planning
Commission.gov, and physical distribution of materials not available
electronically. The NCPC staff
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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 rules 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) Whenever the waiver of any of the procedures set forth in
Sec. Sec. 456.6 and 456.14 would further the purposes of the FOIA by
causing public disclosure of information eligible for disclosure under
the Act and the rules contained in this part within the time periods
required by the rules contained in this part, the NCPC may waive the
procedures set forth in the aforementioned Sections in the context of
individual Requests.
Sec. 456.5 Public reading rooms and information routinely available.
(a) The NCPC shall maintain an electronic library at www.National
Capital Planning Commission.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
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 NCPC's Web site.
(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 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) Federal Elements of the Comprehensive Plan for the National
Capital and other plans prepared by the NCPC from time to time;
(7) Federal Capital Improvements Plan for the National Capital
Region (FCIP) 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 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 as indicated on the NCPC Web site. To expedite internal
handling of FOIA Requests, the words ``Freedom of Information Act
Request'' shall appear prominently on the 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 Requester is willing to pay to obtain the Requested
Records, unless the Requester is seeking a fee waiver or placement in a
certain fee 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 Time-frame for response to FOIA requests.
(a) The Chief 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) In cases involving Unusual Circumstances, the Chief Freedom of
Information Act 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 Chief 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:
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(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. A Request for Expedited Processing may be made at the time
of the initial FOIA Request or at a later time.
(b) 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 paragraph
(a)(2) of this section must establish:
(1) That he/she is a full time member of the news media or
primarily engaged in the occupation of information dissemination,
though it need not be his/her sole occupation;
(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.
(c) 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 and inform the
Requester of the name of the Agency to which all or part of the FOIA
Request has been referred.
(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) Whenever a Request is made for an Agency Record that has been
classified, or may be appropriate for classification, by another Agency
under Executive Order 13526, as amended or any other executive order
concerning the classification of Records, the NCPC shall refer the
responsibility for responding to the FOIA Request regarding that Record
to the Agency that either classified the Record, should consider the
Record for classification, or has the primary interest in the Record,
as appropriate.
(b) Whenever a Request is made for a Record that is designated
Controlled Unclassified Information (CUI) by another Agency, the NCPC
shall refer the FOIA Request to the Agency that designated the Record
CUI. Decisions to disclose or withhold information designated as CUI
shall be made based on the applicability of the statutory exemptions
contained in the FOIA, not on a CUI marking or designation.
Sec. 456.12 Confidential Commercial Information.
(a) Confidential Commercial Information obtained by the NCPC from a
Submitter will be disclosed under the FOIA only in accordance with the
requirements of this section.
(b) A Submitter of Confidential Commercial Information will 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) Subject to the requirements of paragraphs (d) 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 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.
(d) Notice shall be given to a Submitter wherever:
(1) The Confidential Commercial Information has been designated in
good faith by the Submitter as Confidential Commercial Information
considered protected from disclosure under Exemption 4 of the FOIA; or
(2) The NCPC has reason to believe that the Confidential Commercial
Information may be protected from disclosure under Exemption 4 of the
FOIA.
(e) The NCPC shall allow a Submitter a reasonable time to respond
to the notice described in paragraph (c) 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 it. 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
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grounds for nondisclosure in deciding whether to disclose Confidential
Commercial Information. Whenever the NCPC decides to disclose
Confidential Commercial Information over 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 (d) and (f) of this
section shall not apply if:
(1) The NCPC determines that the Confidential Commercial
Information is exempt under FOIA;
(2) The Confidential Commercial Information has been published
lawfully or has been officially made available to the public;
(3) Disclosure of the Information is required by statute (other
than the FOIA) or by a regulation issued in accordance with the
requirements of Executive Order 12600; 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 (c) 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 Business 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 US 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
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) or 456.14(i) 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 district in which the Requester resides, in which
the Requester has his/her principal place of business, or in the
District of Columbia.
(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 waiver or reduction of fees has been granted
under paragraph (i) of this section.
(1) Search fees shall be as follows:
(i) Other than Requests made by Educational Institutions,
Noncommercial Scientific Institutions, or Representatives of the News
Media, 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 the 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 with an average salary of $63,103 per annum); Professional
Personnel (assigned at the GS 11-13 grades with an average salary of
$86,775 per annum); and Managerial Staff (assigned at the 14-15 grades
with an average salary of $152,336 per annum). 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--for example, where 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 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 shall include the cost
of operating a central processing unit for that portion of operating
time 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 15 cents per page for single sided copies, 30 cents per page
for double sided copies, 90 cents per page for 8\1/2\ by 11 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 a disk or provided
as a printout, the NCPC shall charge the Direct Costs, including
operator time, of
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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 are subsequently determined not applicable upon appeal
may be reviewed again to determine whether any other exemption not
previously considered applies. If changed circumstances lead NCPC to
determine a different exemption 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 paragraph
(c) of this section equals $50.00 or less.
(5) The provisions of paragraphs (b)(3) and (4) 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 $25.00.
(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 longer period, 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) Requirements for waiver or reduction of fees shall be as
follows:
(1) Records responsive to a Request shall be furnished without
charge or at a charge reduced below that established under this section
if the Requester demonstrates to the NCPC, and the NCPC determines,
based on all available information, that:
(i) 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
(ii) Disclosure of the information is not primarily in the
commercial interest of the Requester.
(2) To determine whether the fee waiver requirement of paragraph
(i)(1)(i) of this section is met, the NCPC shall consider the following
factors:
(i) The subject of the Request: 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.
(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. The portions of the Requested
Records eligible for disclosure must be meaningfully informative about
government operations or activities in order to be ``likely to
contribute'' to an increased public understanding of those
[[Page 50358]]
operations or activities. The disclosure of information that already is
in the public domain, in either a duplicative or a substantially
identical form, would not be as likely to contribute to such
understanding where nothing new would be added to the public's
understanding.
(iii) The contribution to an understanding of the subject by the
public likely to result from disclosure: 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
information to the public shall be considered. It shall be presumed
that a representative of the news media will satisfy this
consideration.
(iv) The significance of the contribution to public understanding:
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.
(3) To determine whether the fee waiver requirement of paragraph
(i)(1)(ii) of this section is met, the NCPC shall consider the
following factors:
(i) The existence and magnitude of a commercial interest: 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.
(ii) The primary interest in disclosure: 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
or reduction is justified where the public interest standard 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 where a news media Requester has satisfied the
public interest standard, 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.
(4) Where only some of the Records to be released satisfy the
requirements for a waiver of fees, a waiver shall be granted for those
Records.
(5) Requests for the waiver or reduction of fees should address the
factors listed in paragraphs (i)(2) and (3) 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, however, in deciding to
grant waivers or reductions of fees.
(j) 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.
[FR Doc. 2013-19871 Filed 8-16-13; 8:45 am]
BILLING CODE 7502-02-P