Freedom of Information Act Regulations, 10951-10959 [2014-04180]
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10951
Rules and Regulations
Federal Register
Vol. 79, No. 39
Thursday, February 27, 2014
section and the defined terms are then
capitalized throughout the document.
These structural changes were done to
make the rule more coherent and user
friendly. The new rule also includes six
new sections—Definitions (§ 456.3),
Multi-track Processing (§ 456.8),
The Code of Federal Regulations is sold by
Expedited Processing (§ 456.9),
the Superintendent of Documents. Prices of
Consultations and Referrals (§ 456.10),
new books are listed in the first FEDERAL
REGISTER issue of each week.
Classified and Controlled Unclassified
Information (§ 456.11), Confidential
Commercial Information (§ 456.12), and
NATIONAL CAPITAL PLANNING
FOIA Records Management § 456.16)—
COMMISSION
to address issues that have developed
and/or been refined since the adoption
1 CFR Part 456
of NCPC’s current rules. The authority
for the subject matter of the new
Freedom of Information Act
sections is FOIA case law, other federal
Regulations
statutes, and Executive Orders. With the
AGENCY: National Capital Planning
addition of the new sections in the rule,
Commission.
the NCPC’s FOIA regulations provide a
ACTION: Final rule.
complete and current compendium of
the rule governing the agency’s FOIA
SUMMARY: The National Capital Planning
activity. Requesters no longer need to
Commission (NCPC or Commission)
consult multiple sources when
revises the current rule the NCPC
preparing a FOIA Request for
follows for processing requests for
submission to the NCPC.
information under the Freedom of
On August 19, 2013, the NCPC
Information Act (FOIA). The revisions
published a Notice of Proposed
reorganize the rule to focus each section
Rulemaking in the Federal Register (78
on a discrete topic. The revisions also
FR 50351) and requested comments
incorporate new information in
during a 60-day period ending October
response to changes to the FOIA since
18, 2013. The NCPC considered all
NCPC’s adoption of its current FOIA
comments received in drafting the final
rule in 1982. Finally, the revisions
rule.
decrease the cost charged for hard
copies and increase the threshold dollar B. Discussion and Response to
amount that must be reached before the
Comments
NCPC charges members of the public a
Two Parties responded to the Notice
processing fee for information.
of Proposed Rulemaking—a private
DATES: Effective March 31, 2014.
individual and a subcomponent of a
FOR FURTHER INFORMATION CONTACT:
federal agency. Both parties offered
Anne R. Schuyler, (202) 482–7223 or
specific recommendations they felt the
FOIARequests@ncpc.gov.
NCPC should incorporate into the final
SUPPLEMENTARY INFORMATION:
rule.
The private individual offered three
I. Description of Changes and Response
recommendations as follows: (1) Reduce
to Comments
duplication fees to reflect the decline in
A. Summary of Changes
duplication costs over the years; (2)
eliminate reference to central processing
The two primary changes to the
time as a component of fees as this is
NCPS’s current FOIA rule are a
an outdated, technological term; and (3)
structural reorganization and the
addition of five sections addressing new include an express reference to a
commitment to release portions of
subject matter. The structural
reorganization breaks up larger sections documents capable of segregation when
part of the document is exempt from
of the current rule which address
multiple, related topics into individual, release. In response, the final rule
establishes a 10 cents duplication fee for
discrete sections addressing one
single and double sided copies contrary
individual topic per section. A second
to the proposed 15 cents per page and
structural reorganization creates a
30 cents for double sided pages (See,
Definition section (§ 456.3)
consolidating all defined terms into one § 456.14(a)(2)); eliminates the cost of
TKELLEY on DSK3SPTVN1PROD with RULES
This section of the FEDERAL REGISTER
contains regulatory documents having general
applicability and legal effect, most of which
are keyed to and codified in the Code of
Federal Regulations, which is published under
50 titles pursuant to 44 U.S.C. 1510.
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operating a central processing unit as
part of Search fees (See§ 456.14(a)(iii));
and include an express statement that
NCPC shall release any portion of a
withheld Record that reasonably can be
segregated from the exempt portion of
the record. (See, § 456.7(b)).
The subcomponent of a federal agency
offered the following recommendations:
(1) Add additional language clarifying
the intersection between FOIA and the
Privacy Act; (2) add three new defined
terms as follows: FOIA Public Liaison,
Requestor Category, and Fee Waiver; (3)
use statutory language for the definition
of Representative of the News Media
and consider incorporating the term
Freelance Journalist into the definition;
(4) clarify that all Records subject to a
FOIA Request must be reviewed
regardless of what Requester Category
the Requester falls into by removing the
phrase Commercial Use Request from
the definition of Review; (5) eliminate
from the definition of Workday days
when the federal government is closed
for any reason because the FOIA statute
only excludes Saturdays, Sundays and
legal holidays, and DOJ directs federal
agencies to count days for reporting
purposes when federal agencies are
closed due to weather conditions,
furloughed employees, or other
circumstances; (6) clarify the language
of § 456.4 (General Policy) to indicate
NCPC has administrative discretion to
release documents without any charge
or at a reduced rate, or to waive the
agency’s FOIA request requirements in
the interest of public disclosure of
information eligible for disclosure under
the statute; (7) add a section indicating
that the content of denial letters will
include a brief description of the
information being withheld and the
exemption that provides for the
deletion, provided this can be
accomplished without revealing the
deleted information or compromising
the interest protected by the exemption;
(8) include, in addition to the name of
the agency to which a request has been
referred, a description of the part of the
request referred and the point of contact
at the receiving agency; (9) advise
requesters that the Office of Government
Information Services (OGIS) provides
mediation services to resolve disputes
and include OGIS contact information;
and (10) include information about the
preservation of FOIA records and
records management in the rules.
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With one exception, the NCPC agreed
to all recommended changes and
incorporated them into the final rule.
Thus, in corresponding order to the
above recommendations, the NCPC: (1)
Expanded the discussion of the
distinction between a FOIA Request and
a request made under the Privacy Act
(See, § 456.1); (2) added new definitions
for the terms FOIA Public Liaison, Fee
Waiver, Representative of the News
Media, and Requestor Category (See,
§ 456.3(l), (k), (t) and (v)); (3) included
the statutory definition of
Representative of the News Media but
declined to reference a Freelance
Journalist in the definition of
Representative of the News Media since
the definition of a Freelance Journalist
states them to be part of this group (See,
§§ 456.3(t) and (n)); (4) deleted the term
Commercial Use Request from the
definition of Review to render it clear
all FOIA Requests are subject to Review
(See, § 456.3(w)); (5) removed the
reference to days when the federal
government is closed for any reason
from the definition of a Workday (See,
§ 456(3)(aa)); (6) acknowledged NCPC’s
administrative discretion to waive fees
and request requirements (See,
§ 456.4(b)); (7) included a new section
addressing the additional information to
be contained in denial letters (See,
§ 456.7(b)); (8) added additional content
requirements for referral letters (See,
§ 456.10(b)); (9) added information
regarding OGIS’s services and contact
information (See, § 456.13(c)); and (10)
added a new section addressing FOIA
Records Management (See, § 456.16).
Finally, in response to an internal
agency peer review, the requirements
for a Fee Waiver were removed from the
section on fees and relegated to a
separate section. At the same time the
previous language for a Fee Waiver
contained in the Notice of Proposed
Rulemaking was simplified to comply
with the plain English mandate.
TKELLEY on DSK3SPTVN1PROD with RULES
II. Compliance With Laws and
Executive Orders
1. Executive Order 12866 (Regulatory
Planning and Review) and Executive
Order 13563 (Improving Regulation and
Regulatory Review)
By Memorandum dated October 12,
1993 from Sally Katzen, Administrator,
Office of Information and Regulatory
Affairs (OIRA) to Heads of Executive
Departments and Agencies and
Independent Agencies, the Office of
Management and Budget (OMB)
rendered the NCPC exempt from the
requirements of Executive Order 12866
(See, Appendix A of cited
Memorandum). Nonetheless, the NCPC
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endeavors to adhere to the provisions of
the Executive Order. Accordingly, the
NCPC, in consultation with OIRA, has
determined the rule is not a major rule
for purposes of Executive Order 12866.
Further, the NCPC developed the rule in
a manner consistent with the
requirements of Executive Order 13563.
2. Regulatory Flexibility Act
As required by the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.), the
NCPC certifies that the rule will not
have a significant economic effect on a
substantial number of small entities.
3. Small Business Regulatory
Enforcement Fairness Act
This is not a major rule under 5 U.S.C.
804(2), the Small Business Regulatory
Enforcement Fairness Act. It does not
have an annual effect on the economy
of $100 million or more; will not cause
a major increase in costs for individuals,
various levels of governments or various
regions; and does not have a significant
adverse effect on competition,
employment, investment, productivity,
innovation or the competitiveness of
U.S. enterprises with foreign
enterprises.
4. Unfunded Mandates Reform Act (2
U.S.C. 1531 et seq.)
A statement required by the
Unfunded Mandates Reform Act is not
required. The rule neither imposes an
unfunded mandate of more than $100
million per year nor imposes a
significant or unique effect on state,
local or tribal governments or the
private sector.
5. Federalism (Executive Order 13132)
In accordance with Executive Order
13132, the rule does not have sufficient
Federalism implications to warrant the
preparation of a Federalism Assessment.
The rule does not substantially and
directly affect the relationship between
the federal and state governments.
6. Civil Justice Reform (Executive Order
12988)
The General Counsel of the NCPC has
determined that the rule does not
unduly burden the judicial system and
meets the requirements of Executive
Order 12988 §§ 3(a) and 3(b)(2).
7. Paperwork Reduction Act
The rule does not contain information
collection requirements, and it does not
require a submission to the OMB under
the Paperwork Reduction Act.
8. National Environmental Policy Act
The rule is of an administrative
nature, and its adoption does not
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constitute a major federal action
significantly affecting the quality of the
human environment. The NCPC’s
adoption of the rule will have minimal
or no effect on the environment; impose
no significant change to existing
environmental conditions; and will
have no cumulative environmental
impacts.
9. Clarity of the Regulation
Executive Order 12866, Executive
Order 12988, and the Presidential
Memorandum of June 1, 1998 requires
the NCPC to write all rules in plain
language. The NCPC maintains the rule
meets this requirement, and there were
no comments offered challenging this
assertion.
List of Subjects in 1 CFR Part 456
Freedom of Information.
Dated: February 21, 2014.
Anne R. Schuyler,
General Counsel.
For the reasons stated in the
preamble, the National Capital Planning
Commission revises 1 CFR Part 456 to
read as follows:
PART 456—NATIONAL CAPITAL
PLANNING COMMISSION FREEDOM
OF INFORMATION ACT
Sec.
456.1 General information.
456.2 Organization.
456.3 Definitions.
456.4 General policy.
456.5 Public reading rooms and information
routinely available.
456.6 FOIA request requirements.
456.7 FOIA response requirements.
456.8 Multi-track processing.
456.9 Expedited processing.
456.10 Consultations and referrals.
456.11 Classified and controlled
unclassified information.
456.12 Confidential commercial
information.
456.13 Appeals.
456.14 Fees.
456.15 Fee waiver requirements.
456.16 Preservation of FOIA records.
Authority: 40 U.S.C. 8701 et seq., as
amended and 5 U.S.C. 552, as amended.
§ 456.1
General information.
This part contains the rules the
National Capital Planning Commission
(NCPC or Commission) shall follow in
processing third party Requests for
Records concerning the activities of the
NCPC under the Freedom of Information
Act (FOIA), 5 U.S.C. 552, as amended.
Requests made by a U.S. citizen or an
individual lawfully admitted for
permanent residence to access his or her
own records under the Privacy Act, 5
U.S.C. 522a are processed under this
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part and in accordance with part 455 of
Title 1 of the Code of Federal
Regulations (CFR) to provide the
greatest degree of access while
safeguarding an individual’s personal
privacy. Information routinely provided
to the public as part of regular NCPC
activity shall be provided to the public
without regard to this part.
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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, and it
serves as the foundation for all other
plans prepared by the NCPC.
(2) Review of Federal and District of
Columbia Agency Plans and Projects.
The Commission reviews, and takes
appropriate action on, federal and
District government agency plans and
projects to ensure compliance with,
among others, the Comprehensive Plan,
principals of good planning and urban
design, and federal environmental and
historic preservation policies mandated
by the National Environmental Policy
Act (NEPA) and the National Historic
Preservation Act (NHPA).
(3) Preparation of the ‘‘Federal Capital
Improvement Program for the National
Capital Region’’ (FCIP). The FCIP is an
annual, six year program of prioritized
federal government capital projects
prepared by the NCPC for the Office of
Management and Budget (OMB).
(c) The Commission is comprised of
five citizen members, three of whom are
appointed by the President of the
United States without Senate approval,
including the Chairman, and two of
whom are appointed by the Mayor of
the District of Columbia. Ex-officio
members of the Commission include:
(1) The Secretary of Defense;
(2) The Administrator of the General
Services Administration;
(3) The Mayor of the District of
Columbia;
(4) The Chairman of the Council of
the District of Columbia;
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(5) The Chairman of the Senate
Committee of Homeland Security and
Governmental Affairs; and
(6) The Chairman of the House
Committee on Oversight and
Government Reform or their designated
alternates.
(d) A professional staff, headed by an
Executive Director, assists the
Commission and is organized as
described on the NCPC Web site
(www.ncpc.gov).
§ 456.3
Definitions.
For purposes of this part, the
following definitions shall apply:
(a) Act and FOIA mean the Freedom
of Information Act, 5 U.S.C. 552, as
amended.
(b) Adverse Determination or
Determination shall include a
determination to withhold, in whole or
in part, Records requested in a FOIA
Request; the failure to respond to all
aspects of a Request; the determination
to deny a request for a Fee Waiver; or
the determination to deny a request for
expedited processing. The term shall
also encompass a challenge to NCPC’s
determination that Records have not
been described adequately, that there
are no responsive Records, or that an
adequate Search has been conducted.
(c) Agency Record or Record means
any documentary material which is
either created or obtained by a federal
agency (Agency) in the transaction of
Agency business and under Agency
control. Agency Records may include
without limitation books; papers; maps;
charts; plats; plans; architectural
drawings; photographs and microfilm;
machine readable materials such as
magnetic tape, computer disks and
electronic data storage devices;
electronic records including email
messages; and audiovisual material such
as still pictures, sound, and video
recordings. This definition generally
does not cover records of Agency staff
that are created and maintained
primarily for a staff member’s
convenience, exempt from Agency
creation or retention requirements, and
withheld from distribution to other
Agency employees for their official use.
(d) Confidential Commercial
Information means commercial or
financial information obtained by the
NCPC from a Submitter that may be
protected from disclosure under
Exemption 4 of the FOIA. Exemption 4
of the FOIA protects trade secrets and
commercial or financial information
obtained from a person which
information is privileged or
confidential.
(e) Controlled Unclassified
Information means unclassified
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10953
information that does not meet the
standards for National Security
Classification under Executive Order
13536, as amended, but is pertinent to
the national interests of the United
States or to the important interests of
entities outside the federal government,
and under law or policy requires
protection from unauthorized
disclosure, special handling safeguards,
or prescribed limits on exchange or
dissemination.
(f) Commercial Use Request means a
FOIA Request from or on behalf of one
who seeks information for a use or
purpose that furthers the commercial,
trade, or profit interests of the Requester
or the person on whose behalf the
Request is made.
(g) Direct Costs means those
expenditures that the NCPC incurs in
searching for, duplicating, and
reviewing documents to respond to a
FOIA Request. Direct Costs include, for
example, the salary of the employee
performing the work (the basic rate of
pay for the employee plus 16 percent of
the rate to cover benefits) and the cost
of operating duplicating machinery.
Direct Costs do not include overhead
expenses such as costs of space, and
heating or lighting the facility in which
the Records are stored.
(h) Duplication means the process of
making a copy of a document necessary
to respond to a FOIA Request in a form
that is reasonably usable by a Requester.
Copies can take the form of, among
others, paper copy, audio-visual
materials, or machine readable
documents (i.e., computer disks or
electronic data storage devices).
(i) Educational Institution means a
preschool, a public or private
elementary or secondary school, an
institution of undergraduate higher
education, an institution of graduate
higher education, an institution of
professional education, and an
institution of vocational education,
which operates a program or programs
of scholarly research. To be classified in
this category, a Requester must show
that the Request is authorized by and is
made under the auspices of a qualifying
institution and that the records are not
sought for a commercial use but are
sought to further scholarly research.
(j) Expedited Processing means giving
a FOIA Request priority because a
Requester has shown a compelling need
for the Records.
(k) Fee Waiver means a waiver in
whole or in part of fees if a Requester
can demonstrate that certain statutory
requirements are satisfied including that
the information is in the public interest
and is not requested for commercial
purposes.
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(l) FOIA Public Liaison means an
NCPC official who is responsible for
assisting in reducing delays, increasing
transparency and understanding the
status of Requests, and assisting in the
resolution of disputes.
(m) FOIA Request or Request means a
written Request made by an entity or
member of the public for an Agency
Record submitted via the U.S. Postal
Service mail or other delivery means to
include without limitation electronicmail (email) or facsimile.
(n) Freelance Journalist means a
Representative of the News Media who
is able to demonstrate a solid basis for
expecting publication through a news
organization, even though not actually
employed by that news organization. A
publication contract or past evidence of
a specific freelance assignment from a
news organization may indicate a solid
basis for expecting publication.
(o) Frequently Requested Documents
means documents that have been
Requested at least three times under the
FOIA. It also includes documents the
NCPC anticipates would likely be the
subject of multiple Requests.
(p) Multi-track Processing means
placing simple Requests requiring
relatively minimal work and/or review
in one processing track, more complex
Requests in one or more other tracks,
and expedited Requests in a separate
track. Requests in each track are
processed on a first-in/first-out basis.
(q) Noncommercial Scientific
Institution means an institution that is
not operated for commerce, trade or
profit, but is operated solely for the
purpose of conducting scientific
research the results of which are not
intended to promote any particular
product or industry. To be in this
category, a Requester must show that
the Request is authorized by and is
made under the auspices of a qualifying
institution and that the Records are not
sought for commercial use but are
sought to further scientific research.
(r) Privacy Act Request means a
written (paper copy with an original
signature) request made by an
individual for information about
himself/herself that is contained in a
Privacy Act system of records. The
Privacy Act applies only to U.S. citizens
and aliens lawfully admitted for
permanent residence such that only
individuals satisfying these criteria may
make Privacy Act Requests.
(s) Reading Room Materials means
Records, paper or electronic, that are
required to be made available to the
public under 5.U.S.C. 552(a)(2) as well
as other Records that the NCPC, at its
discretion, makes available to the public
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for inspection and copying without
requiring the filing of a FOIA Request.
(t) Representative of the News Media
means any person or entity that gathers
information of potential interest to a
segment of the population, uses his/her/
its editorial skills to turn raw material
into a distinct work, and distributes that
work to an audience. News media
entities include television or radio
stations broadcasting to the public at
large; publishers of periodicals that
qualify as disseminators of news and
make their products available for
purchase or subscription by the general
public; and alternative media to include
electronic dissemination through
telecommunication (internet) services.
To be in this category, a Requester must
not be seeking the Requested Records
for a commercial use.
(u) Requester means an entity or
member of the public submitting a FOIA
Request.
(v) Requester Category means one of
the five categories NCPC places
Requesters in for the purpose of
determining whether the Requester will
be charged for Search, Review and
Duplication, and includes Commercial
Use Requests, Educational Institutions,
Noncommercial Scientific Institutions,
Representatives of the News Media, and
all other Requesters.
(w) Review means the examination of
Records to determine whether any
portion of the located Record is eligible
to be withheld. It also includes
processing any Records for disclosure,
i.e., doing all that is necessary to excise
the record and otherwise prepare the
Record for release. Review does not
include time spent resolving general
legal or policy issues regarding the
application of exemptions.
(x) Search means the process of
looking for material, by manual or
electronic means that is responsive to a
FOIA Request. The term also includes
page-by-page or line-by-line
identification of material within
documents.
(y) Submitter means any person or
entity outside the federal government
from whom the NCPC directly or
indirectly obtains commercial or
financial information. The term
includes, among others, corporations,
banks, state and local governments, and
agencies of foreign governments who
provide information to the NCPC.
(z) Unusual Circumstances means, for
purposes of § 456.7(c), and only to the
extent reasonably necessary to the
proper processing of a particular
Request:
(1) The need to Search for and collect
the Requested Agency Records from
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establishments that are separate from
the Commission’s offices;
(2) The need to Search for, collect and
appropriately examine and Review a
voluminous amount of separate and
distinct Agency Records which are
demanded in a single Request; or
(3) The need for consultation with
another Agency having a substantial
interest in the determination of the
FOIA Request.
(aa) Workday means a regular Federal
workday. It does not include Saturdays,
Sundays, and legal public holidays.
§ 456.4
General policy.
(a) It is the NCPC’s general policy to
facilitate the broadest possible
availability and dissemination of
information to the public through use of
the NCPC’s Web site, www.ncpc.gov,
and physical distribution of materials
not available electronically. The NCPC
staff shall be available to assist the
public in obtaining information formally
by using the procedures herein or
informally in a manner not inconsistent
with the rule set forth in this part. In
addition, to the extent permitted by
other laws, the NCPC will make
available Agency Records of interest to
the public that are appropriate for
disclosure.
(b) The NCPC possesses the
administrative discretion in the context
of individual Requests to release
documents for no or reduced fees or to
waive any of the NCPC’s FOIA Request
requirements in the interest of public
disclosure of information eligible for
disclosure under the Act.
§ 456.5 Public reading rooms and
information routinely available.
(a) The NCPC shall maintain an
electronic library at www.ncpc.gov that
makes Reading Room Materials capable
of production in electronic form
available for public inspection and
downloading. The NCPC shall also
maintain an actual public reading room
containing Reading Room Materials
incapable of production in electronic
form at NCPC’s offices. The actual
reading room shall be available for use
on Workdays during the hours of 9:00
a.m. to 4:00 p.m. Requests for
appointments to review Reading Room
Materials in the actual public reading
room should be directed to the NCPC’s
Information Resources Specialist
identified on the NCPC Web site
(www.ncpc.gov).
(b) The following types of Records
shall be available routinely (subject to
the fee schedule set forth in § 456.14)
without resort to formal FOIA Request
procedures unless such Records fall
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within one of the exemptions listed at
5 U.S.C. 552(b) of the Act:
(1) Commission agendas;
(2) Plans and supporting
documentation submitted by applicants
to the Commission to include
environmental and historic preservation
reports prepared for a plan or project;
(3) Executive Director’s
Recommendations;
(4) Commission Memoranda of
Action;
(5) Transcripts of Commission
proceedings;
(6) ‘‘The Comprehensive Plan for the
National Capital: Federal Elements’’ and
other plans prepared by the NCPC;
(7) ‘‘Federal Capital Improvements
Plan for the National Capital Region’’
following release of the President’s
Budget;
(8) Policies adopted by the
Commission;
(9) Correspondence between the
Commission and the Congress, other
federal and local government agencies,
and the public; and
(10) Frequently Requested
Documents.
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§ 456.6
FOIA request requirements.
(a) The NCPC shall designate a Chief
Freedom of Information Act Officer who
shall be authorized to grant or deny any
Request for a Record of the NCPC.
(b) Requests for a Record or Records
that is/are not available in the actual or
electronic reading rooms shall be
directed to the Chief Freedom of
Information Act Officer.
(c) All FOIA Requests shall be made
in writing. If sent by U.S. mail, Requests
should be sent to NCPC’s official
business address contained on the
NCPC Web site. If sent via email, they
should be directed to www.ncpc.gov. To
expedite internal handling of FOIA
Requests, the words Freedom of
Information Act Request shall appear
prominently on the transmittal envelope
or the subject line of a Request sent via
email or facsimile.
(d) The FOIA Request shall:
(1) State that the Request is made
pursuant to the FOIA;
(2) Describe the Agency Record(s)
Requested in sufficient detail including,
without limitation, any specific
information known such as date, title or
name, author, recipient, or time frame
for which you are seeking Records, to
enable the NCPC personnel to locate the
Requested Agency Records;
(3) State, pursuant to the fee schedule
set forth in § 456.14, a willingness to
pay all fees associated with the FOIA
Request or the maximum fee the
Requester is willing to pay to obtain the
Requested Records, unless the Requester
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is seeking a Fee Waiver or placement in
a certain Requester Category;
(4) State the desired form or format of
disclosure of Agency Records with
which the NCPC shall endeavor to
comply unless compliance would
damage or destroy an original Agency
Record or reproduction is costly and/or
requires the acquisition of new
equipment; and
(5) Provide a phone number or email
address at which the Requester can be
reached to facilitate the handling of the
Request.
(e) If a FOIA Request is unclear,
overly broad, involves an extremely
voluminous amount of Records or a
burdensome Search, or fails to state a
willingness to pay the requisite fees or
the maximum fee which the Requester
is willing to pay, the NCPC shall
endeavor to contact the Requester to
define the subject matter, identify and
clarify the Records being sought, narrow
the scope of the Request, and obtain
assurances regarding payment of fees.
The timeframe for a response set forth
in § 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
FOIA response requirements.
(a) The Freedom of Information Act
Officer, upon receipt of a FOIA Request
made in compliance with these rules,
shall determine within 20 Workdays
whether to grant or deny the Request.
The Freedom of Information Officer
shall within 20 Workdays notify the
Requester in writing of his/her
determination and the reasons therefore
and of the right to appeal any Adverse
Determination to the head of the NCPC.
(b) If a Request is denied in whole or
in part, the Chief FOIA Officer’s written
determination shall include, if
technically feasible, the precise amount
of information withheld, a brief
description of the information withheld
without revealing its content, and the
exemption under which it is being
withheld unless revealing the
exemption would harm an interested
protected by the exemption. NCPC shall
release any portion of a withheld Record
that reasonably can be segregated from
the exempt portion of the Record.
(c) In cases involving Unusual
Circumstances, the Chief FOIA Officer
may extend the 20 Workday time limit
by written notice to the Requester. The
written notice shall set forth the reasons
for the extension and the date on which
a determination is expected to be
dispatched. No such notice shall specify
a date that would result in an extension
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of more than 10 Working Days unless
the Freedom of Information Act Officer
affords the Requester an opportunity to
modify his/her Request or arranges an
alternative timeframe with the
Requester for completion of the NCPC’s
processing.
§ 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:
(1) Circumstances in which the lack of
expedited treatment could reasonably be
expected to pose an imminent threat to
the life or physical safety of an
individual;
(2) An urgency to inform the public
about an actual or alleged federal
government activity, if made by a
person primarily engaged in
disseminating information;
(3) The loss of substantial due process
rights; or
(4) A matter of widespread and
exceptional media interest in which
there exists possible questions about the
government’s integrity which affect
public confidence.
(b) A Request for Expedited
Processing may be made at the time of
the initial FOIA Request or at a later
time.
(c) A Requester seeking Expedited
Processing must submit a detailed
statement setting forth the basis for the
Expedited Processing Request. The
Requester must certify in the statement
that the need for Expedited Processing
is true and correct to the best of his/her
knowledge. To qualify for Expedited
Processing, a Requester relying upon the
category in paragraph (a)(2) of this
section must establish:
(1) He/she is a full time
Representative of the News Media or
primarily engaged in the occupation of
information dissemination, though it
need not be his/her sole occupation;
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(2) A particular urgency to inform the
public about the information sought by
the FOIA Request beyond the public’s
right to know about the government
activity generally; and
(3) The information is of the type that
has value that will be lost if not
disseminated quickly such as a breaking
news story. Information of historical
interest only or information sought for
litigation or commercial activities will
not qualify nor would a news media
deadline unrelated to breaking news.
(d) Within 10 calendar days of receipt
of a Request for expedited processing,
the NCPC shall decide whether to grant
or deny the Request and notify the
Requester of the decision in writing. If
a Request for Expedited Processing is
granted, the Request shall be given
priority and shall be processed in the
expedited processing track. If a Request
for Expedited Processing is denied, any
appeal of that decision shall be acted on
expeditiously.
§ 456.10
Consultations and referrals.
TKELLEY on DSK3SPTVN1PROD with RULES
(a) Unless the NCPC determines that
it is best able to process a Record in
response to a FOIA Request, the NCPC
shall either respond to the FOIA
Request after consultation with the
Agency best able to determine if the
Requested Record(s) is/are subject to
disclosure; or refer the responsibility for
responding to the FOIA Request to the
Agency responsible for originating the
Record(s). Generally, the Agency
originating a Record will be presumed
by the NCPC to be the Agency best
qualified to render a decision regarding
disclosure or exemption except for
Agency Records submitted to the NCPC
pursuant to its authority to review
Agency plans and/or projects.
(b) Upon referral of a FOIA Request to
another Agency, the NCPC shall notify
the Requester in writing of the referral,
inform the Requester of the name of the
Agency to which all or part of the FOIA
Request has been referred, provide the
Requester a description of the part of the
Request referred, and advise the
Requester of a point of contact within
the receiving Agency.
(c) The timeframe for a response to a
FOIA Request requiring consultation or
referral shall be based on the date the
FOIA Request was initially received by
the NCPC and not any later date.
§ 456.11 Classified and controlled
unclassified information.
(a) For Requests for an Agency Record
that has been classified or may be
appropriate for classification by another
Agency pursuant to an Executive Order
concerning the classification of Records,
the NCPC shall refer the responsibility
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for responding to the FOIA Request to
the Agency that either classified the
Record, should consider classifying the
Record, or has primary interest in the
Record, as appropriate.
(b) Whenever a Request is made for a
Record that is designated Controlled
Unclassified Information by another
Agency, the NCPC shall refer the FOIA
Request to the Agency that designated
the Record as Controlled Unclassified
Information. Decisions to disclose or
withhold information designated as
Controlled Unclassified Information
shall be made based on the applicability
of the statutory exemptions contained in
the FOIA, not on a Controlled
Unclassified Information marking or
designation.
§ 456.12 Confidential commercial
information.
(a) Confidential Commercial
Information obtained by the NCPC from
a Submitter shall be disclosed under the
FOIA only in accordance with the
requirements of this section.
(b) A Submitter of Confidential
Commercial Information shall use 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
justification for, a longer designation
period.
(c) Notice shall be given to a
Submitter of a FOIA Request for
potential Confidential Commercial
Information if:
(1) The requested information has
been designated in good faith by the
Submitter as Confidential Commercial
Information eligible for protection from
disclosure under Exemption 4 of the
FOIA; or
(2) The NCPC has reason to believe
the requested information is
Confidential Commercial Information
protected from disclosure under
Exemption 4 of the FOIA.
(d) Subject to the requirements of
paragraphs (c) and (g) of this section, the
NCPC shall provide a Submitter with
prompt written notice of a FOIA
Request or administrative appeal that
seeks the Submitter’s Confidential
Commercial Information. The notice
shall give the Submitter an opportunity
to object to disclosure of any specified
portion of that Confidential Commercial
Information pursuant to paragraph (e) of
this section. The notice shall either
describe the Confidential Commercial
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Information Requested or include copies
of the Requested Records or portions
thereof containing the Confidential
Commercial Information. When notice
to a large number of Submitters is
required, NCPC may provide
notification by posting or publishing the
notice in a place reasonably likely to
accomplish the intent of the notice
requirement such as a newspaper,
newsletter, the NCPC Web site, or the
Federal Register.
(e) The NCPC shall allow a Submitter
a reasonable time to respond to the
notice described in paragraph (d) of this
section and shall specify within the
notice the time period for response. If a
Submitter has any objection to
disclosure, it shall submit a detailed
written statement. The statement must
specify all grounds for withholding any
portion of the Confidential Commercial
Information under any exemption of the
FOIA and, in the case of Exemption 4,
it must show why the Confidential
Commercial Information is a trade secret
or commercial or financial information
that is privileged or confidential. If the
Submitter fails to respond to the notice
within the specified time, the NCPC
shall consider this failure to respond as
no objection to disclosure of the
Confidential Commercial Information
on the part of the Submitter, and NCPC
shall proceed to release the requested
information. A statement provided by
the Submitter that is not received by
NCPC until after the NCPC’s disclosure
decision has been made shall not be
considered by the NCPC. Information
provided by a Submitter under this
paragraph may itself be subject to
disclosure under the FOIA.
(f) The NCPC shall consider a
Submitter’s objections and specific
grounds for nondisclosure in deciding
whether to disclose Confidential
Commercial Information. Whenever the
NCPC decides to disclose Confidential
Commercial Information over the the
objection of a Submitter, the NCPC shall
give the Submitter written notice, which
shall include:
(1) A statement of the reason(s) why
each of the Submitter’s disclosure
objections was not sustained;
(2) A description of the Confidential
Commercial Information to be disclosed;
and
(3) A specified disclosure date, which
shall be a reasonable time subsequent to
the notice.
(g) The notice requirements of
paragraphs (c) and (d) of this section
shall not apply if:
(1) The NCPC determines that the
Confidential Commercial Information is
exempt under FOIA;
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(2) The Confidential Commercial
Information has been published
lawfully or has been officially made
available to the public;
(3) The Confidential Commercial
Information’s disclosure is required by
statute (other than the FOIA) or by a
regulation issued in accordance with the
requirements of Executive Order 12600
(Predisclosure Notification Procedures
for Confidential Commercial
Information); or
(4) The designation made by the
Submitter under paragraph (b) of this
section appears obviously frivolous in
which case the NCPC shall, within a
reasonable time prior to a specified
disclosure date, give the Submitter
written notice of any final decision to
disclose the Confidential Commercial
Information.
(h) Whenever a Requester files a
lawsuit seeking to compel the disclosure
of Confidential Commercial
Information, the NCPC shall promptly
notify the Submitter.
(i) Whenever the NCPC provides a
Submitter with notice and an
opportunity to object to disclosure
under paragraph (d) of this section, the
NCPC shall also notify the Requester.
Whenever the NCPC notifies a
Submitter of its intent to disclose
Requested Information under paragraph
(f) of this section, the NCPC shall also
notify the Requester. Whenever a
Submitter files a lawsuit seeking to
prevent the disclosure of Confidential
Commercial Information, the NCPC
shall notify the Requester.
TKELLEY on DSK3SPTVN1PROD with RULES
§ 456.13
Appeals.
(a) An appeal of an Adverse
Determination shall be made in writing
to the Chairman of the Commission
(Chairman). An appeal may be
submitted via U.S. mail or other type of
manual delivery service or via email or
facsimile within 30 Workdays of the
date of a notice of an Adverse
Determination. To facilitate handling of
an appeal, the words Freedom of
Information Act Appeal shall appear
prominently on the transmittal envelope
or the subject line of a Request sent via
electronic-mail or facsimile.
(b) An appeal of an Adverse
Determination shall include a detailed
statement of the legal, factual or other
basis for the Requester’s objections to an
Adverse Determination; a daytime
phone number or email address where
the Requester can be reached if the
NCPC requires additional information or
clarification regarding the appeal;
copies of the initial Request and the
NCPC’s written response; and for an
Adverse Determination of a Request for
Expedited Processing or a Fee Waiver, a
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demonstration of compliance with the
requirements of §§ 456.9(a) and (c) or
456.14(a) through (c) respectively.
(c) The Chairman shall respond to an
appeal of an Adverse Determination in
writing within 20 Workdays of receipt.
If the Chairman grants the appeal, the
Chairman shall notify the Requester,
and the NCPC shall make available
copies of the Requested Records
promptly thereafter upon receipt of the
appropriate fee determined in
accordance with § 456.14. If the
Chairman denies the appeal in whole or
in part, the letter to the Requester shall
state the reason(s) for the denial,
including the FOIA exemptions(s)
applied; a statement that the decision is
final; and notification of the Requester’s
right to seek judicial review of the
denial in the District Court of the United
States in either the locale in which the
Requester resides, the locale in which
the Requester has his/her principal
place of business, or in the District of
Columbia. The Chairman’s letter of
denial shall also advise the Requester
that the Office of Government
Information Services (OGIS) offers
mediation services to resolve disputes
between a Requester and the NCPC as a
non-exclusive alternative to litigation.
Contact information for OGIS can be
obtained from the OGIS Web site at
ogis@nara.gov.
(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 Fee Waiver has been granted
under § 456.15.
(1) Search Fees shall be as follows:
(i) Search fees shall be charged for all
Requests, subject to the limitations of
paragraph (b) of this section. The NCPC
may charge for time spent conducting a
Search even if it fails to locate any
responsive Records or if the NCPC
withholds Records located based on a
FOIA exemption.
(ii) For each quarter hour spent by
personnel searching for Requested
Records, including electronic searches
that do not require new programming,
the fees will be calculated based on the
average hourly General Schedule (GS)
base salary, plus the District of
Columbia locality payment, plus 16
percent for benefits, of employees in the
following three categories: Staff
Assistant (assigned at the GS 9–11
grades); Professional Personnel
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10957
(assigned at the GS 11–13 grades); and
Managerial Staff (assigned at the 14–15
grades). For a Staff Assistant the quarter
hour fee to Search for and retrieve a
Requested Record shall be $9.00. If a
Search and retrieval cannot be
performed entirely by a Staff Assistant,
and the identification of Records within
the scope of a Request requires the use
of Professional Personnel, the fee shall
be $12.00 for each quarter hour of
Search time spent by Professional
Personnel. If the time of Managerial
Personnel is required, the fee shall be
$18.00 for each quarter hour of Search
time spent by Managerial Personnel.
(iii) For a computer Search of
Records, Requesters shall be charged the
Direct Costs of creating a computer
program, if necessary, and/or
conducting the Search, although certain
Requesters (as provided in paragraph
(b)(1) of this section) will be charged no
Search fee and certain other Requesters
(as provided in paragraph (b)(3) of this
section) will be entitled to the cost
equivalent of two hours of manual
Search time without charge. These
Direct Costs for a computer Search shall
include the cost that is directly
attributable to a Search for responsive
Records, and the costs of the operator’s
salary for the time attributable to the
Search.
(2) Duplication fees shall be charged
to all Requesters, subject to the
limitations of paragraph (b) of this
Section. For a paper photocopy of a
Record (no more than one copy of
which shall be supplied), the fee shall
be 10 cents per page for single or double
sided copies, 90 cents per page for 81⁄2
by 11 inch color copies, and $1.50 per
page for color copies up to 11 x 17
inches per page. For copies produced by
computer, and placed on an electronic
data saving device or provided as a
printout, the NCPC shall charge the
Direct Costs, including operator time, of
producing the copy. For other forms of
Duplication, the NCPC shall charge the
Direct Costs of that Duplication.
(3) Review fees shall be charged to
Requesters who make a Commercial Use
Request. Review fees will be charged
only for the NCPC initial Review of a
Record to determine whether an
exemption applies to a particular
Record or portion thereof. No charge
will be made for Review at the
administrative appeal level for an
exemption already applied. However,
Records or portions thereof withheld
under an exemption that is
subsequently determined not applicable
upon appeal may be reviewed again to
determine whether any other exemption
not previously considered applies. If the
NCPC determines a different exemption
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applies, the costs of that Review are
chargeable. Review fees will be charged
at the same rates as those charged for a
Search under paragraph (a)(1)(ii) of this
section.
(b) The following limitations on fees
shall apply:
(1) No Search fee shall be charged for
FOIA Requests made by Educational
Institutions, Noncommercial Scientific
Institutions, or Representatives of the
News Media.
(2) No Search or Review fees shall be
charged for a quarter-hour period unless
more than half of that period is required
for Search or Review.
(3) Except for Requesters of a
Commercial Use Request, the NCPC
shall provide without charge the first
two hours of Search (or the cost
equivalent) and the first 100 pages of
Duplication (or the cost equivalent); and
(4) Except for Requesters of a
Commercial Use Request, no fee shall be
charged for a Request if the total fee
calculated under this section equals
$50.00 or less.
(5) The fee provisions of this section
shall be cumulative. Requesters other
than those making a Commercial Use
Request shall not be charged a fee
unless the total cost of a Search in
excess of two hours plus the cost of
Duplication in excess of 100 pages totals
more than $50.00.
(c) If the NCPC determines or
estimates fees in excess of $50.00, the
NCPC shall notify the Requester of the
actual or estimated amount of total fees,
unless in its initial Request the
Requester has indicated a willingness to
pay fees as high as those determined or
estimated. If only a portion of the fee
can be estimated, the NCPC shall advise
the Requester that the estimated fee
constitutes only a portion of the total
fee. If the NCPC notifies a Requester that
actual or estimated fees amount to more
than $50.00, the Request shall not be
considered received for purposes of
calculating the timeframe for a
Response, and no further work shall be
undertaken on the Request until the
Requester agrees to pay the anticipated
total fee. Any such agreement shall be
memorialized in writing. A notice under
this paragraph shall offer the Requester
an opportunity to work with the NCPC
to reformulate the Request to meet the
Requester’s needs at a lower cost.
(d) Apart from other provisions of this
section, if the Requester asks for or the
NCPC chooses as a matter of
administrative discretion to provide a
special service—such as certifying that
Records are true copies or sending them
by other than ordinary mail—the actual
costs of special service shall be charged.
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(e) The NCPC shall charge interest on
any unpaid fee starting on the 31st day
following the date of billing the
Requester. Interest charges will be
assessed at the rate provided in 31
U.S.C. 3717 (Interest and Penalty on
Claims) and will accrue from the date of
the billing until payment is received by
the NCPC. The NCPC shall follow the
provisions of the Debt Collection Act of
1982 (Pub. L. No. 97–365, 96 Stat. 1749),
as amended, and its administrative
procedures, including the use of
consumer reporting agencies, collection
agencies, and offset.
(f) Where the NCPC reasonably
believes that one or more Requesters are
acting in concert to subdivide a Request
into a series of Requests to avoid fees,
the NCPC may aggregate the Requests
and charge accordingly. The NCPC shall
presume that multiple Requests of this
type made within a 30-day period have
been made to avoid fees. Where
Requests are separated by a time period
in excess of 30 days, the NCPC shall
aggregate the multiple Requests if a
solid basis exists for determining
aggregation is warranted under all
circumstances involved.
(g) Advance payments shall be treated
as follows:
(1) For Requests other than those
described in paragraphs (g)(2) and (3) of
this section, the NCPC shall not require
an advance payment. An advance
payment refers to a payment made
before work on a Request is begun or
continued after being stopped for any
reason but does not extend to payment
owed for work already completed but
not sent to a Requester.
(2) If the NCPC determines or
estimates a total fee under this section
of more than $250.00, it shall require an
advance payment of all or part of the
anticipated fee before beginning to
process a Request, unless the Requester
provides satisfactory assurance of full
payment or has a history of prompt
payment.
(3) If a Requester previously failed to
pay a properly charged FOIA fee to the
NCPC within 30 days of the date of
billing, the NCPC shall require the
Requester to pay the full amount due,
plus any applicable interest, and to
make an advance payment of the full
amount of any anticipated fee, before
the NCPC begins to process a new
Request or continues processing a
pending Request from that Requester.
(4) If the NCPC requires advance
payment or payment due under
paragraphs (g)(2) or (3) of this section,
the Request shall not be considered
received and no further work will be
undertaken on the Request until the
required payment is received.
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(h) Where Records responsive to
Requests are maintained for distribution
by Agencies operating statutorily based
fee schedule programs, the NCPC shall
inform Requesters of the steps for
obtaining Records from those sources so
that they may do so most economically.
(i) All fees shall be paid by personal
check, money order or bank draft drawn
on a bank of the United States, made
payable to the order of the Treasurer of
the United States.
§ 456.15
Fee waiver requirements.
(a) Records responsive to a Request
shall be furnished without charge or at
a charge reduced below that established
under § 456.14 if the Requester
demonstrates to the NCPC, and the
NCPC determines, based on all available
information, that Disclosure of the
Requested information is in the public
interest because it is likely to contribute
significantly to public understanding of
the operations or activities of the
government, and disclosure of the
information is not primarily in the
commercial interest of the Requester.
(b) To determine if disclosure of the
Requested information is in the public
interest because it is likely to contribute
significantly to public understanding of
the operations or activities of the
government, the Requester shall
demonstrate, and NCPC shall consider,
the following factors:
(1) Whether the subject of the
Requested Records concerns the
operations or activities of the
government. The subject of the
Requested Records must concern
identifiable operations or activities of
the federal government, with a
connection that is direct and clear, not
remote or attenuated.
(2) Whether the disclosure is likely to
contribute to an understanding of
government operations or activities. The
portions of the Requested Records
eligible for disclosure must be
meaningfully informative about
government operations or activities. The
disclosure of information that already is
in the public domain, in either a
duplicative or a substantially identical
form, is not likely to contribute to an
understanding of government operations
and activities because this information
is already known.
(3) Whether disclosure of the
Requested information will contribute
to public understanding. The disclosure
must contribute to the understanding of
a reasonably broad audience of persons
interested in the subject, as opposed to
the individual understanding of the
Requester. A Requester’s expertise in
the subject area and ability and
intention to effectively convey
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information to the public shall be
considered. It shall be presumed that a
Representative of the News Media
satisfies this consideration.
(4) Whether the disclosure is likely to
contribute significantly to public
understanding of government operations
or activities. The public’s understanding
of the subject in question must be
enhanced by the disclosure to a
significant extent, as compared to the
level of public understanding existing
prior to the disclosure. The NCPC shall
not make value judgments about
whether information that would
contribute significantly to public
understanding of the operations or
activities of the government is important
enough to be made public.
(c) To determine whether disclosure
of the information is not primarily in
the commercial interest of the
Requester, the Requester shall
demonstrate, and NCPC shall consider,
the following factors:
(1) Whether the Requester has a
commercial interest that would be
furthered by the Requested disclosure.
The NCPC shall consider any
commercial interest of the Requester
(with reference to the definition of
Commercial Use Request in § 456.3(f)),
or of any person on whose behalf the
Requester may be acting, that would be
furthered by the Requested disclosure.
Requesters shall be given an
opportunity in the administrative
process to provide explanatory
information regarding this
consideration.
(2) Whether any identified
commercial interest of the Requester is
sufficiently large in comparison with
the public interest in disclosure that
disclosure is primarily in the
commercial interest of the Requester. A
Fee Waiver is justified where the public
interest standard of paragraph (b) of this
section is satisfied and that public
interest is greater in magnitude than that
of any identified commercial interest in
disclosure. The NCPC ordinarily shall
presume that a Representative of the
News Media satisfies the public interest
standard, and the public interest will be
the interest primarily served by
disclosure to that Requester. Disclosure
to data brokers or others who merely
compile and market government
information for direct economic return
shall not be presumed to primarily serve
the public interest.
(d) Where only some of the Records
to be released satisfy the requirements
for a Fee Waiver, a Fee Waiver shall be
granted for those Records.
(e) Requests for a Fee Waiver should
address the factors listed in paragraphs
(b) and (c) of this section, insofar as they
VerDate Mar<15>2010
16:18 Feb 26, 2014
Jkt 232001
apply to each Request. The NCPC shall
exercise its discretion to consider the
cost-effectiveness of its investment of
administrative resources in this
decision-making process in deciding to
grant Fee Waivers.
§ 456.16
Preservation of FOIA records.
(a) The NCPC shall preserve all
correspondence pertaining to FOIA
Requests received and copies or Records
provided until disposition or
destruction is authorized by the NCPC’s
General Records schedule of the
National Archives and Records
Administration (NARA) or other NARAapproved Schedule.
(b) Materials that are responsive to a
FOIA Request shall not be disposed of
or destroyed while the Request or a
related lawsuit is pending even if the
Records would otherwise be authorized
for disposition under the NCPC’s
General Records Schedule or NARA or
other NARA-approved records schedule.
[FR Doc. 2014–04180 Filed 2–26–14; 8:45 am]
BILLING CODE 7520–01–P
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 39
[Docket No. FAA–2013–0695; Directorate
Identifier 2011–NM–264–AD; Amendment
39–17726; AD 2014–01–03]
RIN 2120–AA64
Airworthiness Directives; Saab AB,
Saab Aerosystems Airplanes
Federal Aviation
Administration (FAA), DOT.
ACTION: Final rule.
AGENCY:
We are adopting a new
airworthiness directive (AD) for certain
Saab AB, Saab Aerosystems Model 340A
(SAAB/SF340A) and SAAB 340B
airplanes modified by Supplemental
Type Certificate SA7971SW. This AD
was prompted by reports of smoke, a
burning odor, and possible fire in the
flight deck and cabin of the airplane,
which was caused by brushes wearing
beyond their limits in the air
conditioning motor. This AD requires an
inspection to determine if a certain air
compressor motor is installed, an
inspection to determine the age of a
certain compressor hour meter since
new or overhauled, and repetitive
replacement of the brushes on affected
air conditioning compressor motor
units. As an option to the replacement,
this AD allows pulling the air
conditioning circuit breaker and adding
SUMMARY:
PO 00000
Frm 00009
Fmt 4700
Sfmt 4700
10959
a placard. We are issuing this AD to
detect and correct worn brushes
contacting the commutator, which could
result in a fire under the cabin floor
with no means to detect or extinguish
the fire.
DATES: This AD is effective April 3,
2014.
Examining the AD Docket
You may examine the AD docket on
the Internet at https://
www.regulations.gov by searching for
and locating Docket No. FAA–2013–
0695; or in person at the Docket
Management Facility between 9 a.m.
and 5 p.m., Monday through Friday,
except Federal holidays. The AD docket
contains this AD, the regulatory
evaluation, any comments received, and
other information. The address for the
Docket Office (phone: 800–647–5527) is
Docket Management Facility, U.S.
Department of Transportation, Docket
Operations, M–30, West Building
Ground Floor, Room W12–140, 1200
New Jersey Avenue SE., Washington,
DC 20590.
FOR FURTHER INFORMATION CONTACT:
Gregory Thiele, Aerospace Engineer,
Special Certification Office, ASW–190,
FAA, 2601 Meacham Boulevard, Fort
Worth, TX 76137; phone: (817) 222–
5229; fax: (817) 222–5785; email:
gregory.thiele@faa.gov.
SUPPLEMENTARY INFORMATION:
Discussion
We issued a notice of proposed
rulemaking (NPRM) to amend 14 CFR
part 39 by adding an AD that would
apply to certain Saab AB, Saab
Aerosystems Model 340A (SAAB/
SF340A) and SAAB 340B airplanes
modified by Supplemental Type
Certificate SA7971SW (https://
rgl.faa.gov/Regulatory_and_Guidance_
Library/rgstc.nsf/0/CE3676ED
FD53938785256CC20058E501?
OpenDocument&Highlight=sa7971sw).
The NPRM published in the Federal
Register on August 16, 2013 (78 FR
49982). The NPRM was prompted by
reports of smoke, a burning odor, and
possible fire in the flight deck and cabin
of the airplane, which was caused by
brushes wearing beyond their limits in
the air conditioning motor. The NPRM
proposed to require an inspection to
determine if a certain air compressor
motor is installed, an inspection to
determine the age of a certain
compressor hour meter since new or
overhauled, and repetitive replacement
of the brushes on affected air
conditioning compressor motor units.
As an option to the replacement, the
NPRM proposed to allow pulling the air
E:\FR\FM\27FER1.SGM
27FER1
Agencies
[Federal Register Volume 79, Number 39 (Thursday, February 27, 2014)]
[Rules and Regulations]
[Pages 10951-10959]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-04180]
========================================================================
Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
Prices of new books are listed in the first FEDERAL REGISTER issue of each
week.
========================================================================
Federal Register / Vol. 79, No. 39 / Thursday, February 27, 2014 /
Rules and Regulations
[[Page 10951]]
NATIONAL CAPITAL PLANNING COMMISSION
1 CFR Part 456
Freedom of Information Act Regulations
AGENCY: National Capital Planning Commission.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The National Capital Planning Commission (NCPC or Commission)
revises the current rule the NCPC follows for processing requests for
information under the Freedom of Information Act (FOIA). The revisions
reorganize the rule to focus each section on a discrete topic. The
revisions also incorporate new information in response to changes to
the FOIA since NCPC's adoption of its current FOIA rule in 1982.
Finally, the revisions decrease the cost charged for hard copies and
increase the threshold dollar amount that must be reached before the
NCPC charges members of the public a processing fee for information.
DATES: Effective March 31, 2014.
FOR FURTHER INFORMATION CONTACT: Anne R. Schuyler, (202) 482-7223 or
FOIARequests@ncpc.gov.
SUPPLEMENTARY INFORMATION:
I. Description of Changes and Response to Comments
A. Summary of Changes
The two primary changes to the NCPS's current FOIA rule are a
structural reorganization and the addition of five sections addressing
new subject matter. The structural reorganization breaks up larger
sections of the current rule which address multiple, related topics
into individual, discrete sections addressing one individual topic per
section. A second structural reorganization creates a Definition
section (Sec. 456.3) consolidating all defined terms into one section
and the defined terms are then capitalized throughout the document.
These structural changes were done to make the rule more coherent and
user friendly. The new rule also includes six new sections--Definitions
(Sec. 456.3), Multi-track Processing (Sec. 456.8), Expedited
Processing (Sec. 456.9), Consultations and Referrals (Sec. 456.10),
Classified and Controlled Unclassified Information (Sec. 456.11),
Confidential Commercial Information (Sec. 456.12), and FOIA Records
Management Sec. 456.16)--to address issues that have developed and/or
been refined since the adoption of NCPC's current rules. The authority
for the subject matter of the new sections is FOIA case law, other
federal statutes, and Executive Orders. With the addition of the new
sections in the rule, the NCPC's FOIA regulations provide a complete
and current compendium of the rule governing the agency's FOIA
activity. Requesters no longer need to consult multiple sources when
preparing a FOIA Request for submission to the NCPC.
On August 19, 2013, the NCPC published a Notice of Proposed
Rulemaking in the Federal Register (78 FR 50351) and requested comments
during a 60-day period ending October 18, 2013. The NCPC considered all
comments received in drafting the final rule.
B. Discussion and Response to Comments
Two Parties responded to the Notice of Proposed Rulemaking--a
private individual and a subcomponent of a federal agency. Both parties
offered specific recommendations they felt the NCPC should incorporate
into the final rule.
The private individual offered three recommendations as follows:
(1) Reduce duplication fees to reflect the decline in duplication costs
over the years; (2) eliminate reference to central processing time as a
component of fees as this is an outdated, technological term; and (3)
include an express reference to a commitment to release portions of
documents capable of segregation when part of the document is exempt
from release. In response, the final rule establishes a 10 cents
duplication fee for single and double sided copies contrary to the
proposed 15 cents per page and 30 cents for double sided pages (See,
Sec. 456.14(a)(2)); eliminates the cost of operating a central
processing unit as part of Search fees (SeeSec. 456.14(a)(iii)); and
include an express statement that NCPC shall release any portion of a
withheld Record that reasonably can be segregated from the exempt
portion of the record. (See, Sec. 456.7(b)).
The subcomponent of a federal agency offered the following
recommendations: (1) Add additional language clarifying the
intersection between FOIA and the Privacy Act; (2) add three new
defined terms as follows: FOIA Public Liaison, Requestor Category, and
Fee Waiver; (3) use statutory language for the definition of
Representative of the News Media and consider incorporating the term
Freelance Journalist into the definition; (4) clarify that all Records
subject to a FOIA Request must be reviewed regardless of what Requester
Category the Requester falls into by removing the phrase Commercial Use
Request from the definition of Review; (5) eliminate from the
definition of Workday days when the federal government is closed for
any reason because the FOIA statute only excludes Saturdays, Sundays
and legal holidays, and DOJ directs federal agencies to count days for
reporting purposes when federal agencies are closed due to weather
conditions, furloughed employees, or other circumstances; (6) clarify
the language of Sec. 456.4 (General Policy) to indicate NCPC has
administrative discretion to release documents without any charge or at
a reduced rate, or to waive the agency's FOIA request requirements in
the interest of public disclosure of information eligible for
disclosure under the statute; (7) add a section indicating that the
content of denial letters will include a brief description of the
information being withheld and the exemption that provides for the
deletion, provided this can be accomplished without revealing the
deleted information or compromising the interest protected by the
exemption; (8) include, in addition to the name of the agency to which
a request has been referred, a description of the part of the request
referred and the point of contact at the receiving agency; (9) advise
requesters that the Office of Government Information Services (OGIS)
provides mediation services to resolve disputes and include OGIS
contact information; and (10) include information about the
preservation of FOIA records and records management in the rules.
[[Page 10952]]
With one exception, the NCPC agreed to all recommended changes and
incorporated them into the final rule. Thus, in corresponding order to
the above recommendations, the NCPC: (1) Expanded the discussion of the
distinction between a FOIA Request and a request made under the Privacy
Act (See, Sec. 456.1); (2) added new definitions for the terms FOIA
Public Liaison, Fee Waiver, Representative of the News Media, and
Requestor Category (See, Sec. 456.3(l), (k), (t) and (v)); (3)
included the statutory definition of Representative of the News Media
but declined to reference a Freelance Journalist in the definition of
Representative of the News Media since the definition of a Freelance
Journalist states them to be part of this group (See, Sec. Sec.
456.3(t) and (n)); (4) deleted the term Commercial Use Request from the
definition of Review to render it clear all FOIA Requests are subject
to Review (See, Sec. 456.3(w)); (5) removed the reference to days when
the federal government is closed for any reason from the definition of
a Workday (See, Sec. 456(3)(aa)); (6) acknowledged NCPC's
administrative discretion to waive fees and request requirements (See,
Sec. 456.4(b)); (7) included a new section addressing the additional
information to be contained in denial letters (See, Sec. 456.7(b));
(8) added additional content requirements for referral letters (See,
Sec. 456.10(b)); (9) added information regarding OGIS's services and
contact information (See, Sec. 456.13(c)); and (10) added a new
section addressing FOIA Records Management (See, Sec. 456.16).
Finally, in response to an internal agency peer review, the
requirements for a Fee Waiver were removed from the section on fees and
relegated to a separate section. At the same time the previous language
for a Fee Waiver contained in the Notice of Proposed Rulemaking was
simplified to comply with the plain English mandate.
II. Compliance With Laws and Executive Orders
1. Executive Order 12866 (Regulatory Planning and Review) and Executive
Order 13563 (Improving Regulation and Regulatory Review)
By Memorandum dated October 12, 1993 from Sally Katzen,
Administrator, Office of Information and Regulatory Affairs (OIRA) to
Heads of Executive Departments and Agencies and Independent Agencies,
the Office of Management and Budget (OMB) rendered the NCPC exempt from
the requirements of Executive Order 12866 (See, Appendix A of cited
Memorandum). Nonetheless, the NCPC endeavors to adhere to the
provisions of the Executive Order. Accordingly, the NCPC, in
consultation with OIRA, has determined the rule is not a major rule for
purposes of Executive Order 12866. Further, the NCPC developed the rule
in a manner consistent with the requirements of Executive Order 13563.
2. Regulatory Flexibility Act
As required by the Regulatory Flexibility Act (5 U.S.C. 601 et
seq.), the NCPC certifies that the rule will not have a significant
economic effect on a substantial number of small entities.
3. Small Business Regulatory Enforcement Fairness Act
This is not a major rule under 5 U.S.C. 804(2), the Small Business
Regulatory Enforcement Fairness Act. It does not have an annual effect
on the economy of $100 million or more; will not cause a major increase
in costs for individuals, various levels of governments or various
regions; and does not have a significant adverse effect on competition,
employment, investment, productivity, innovation or the competitiveness
of U.S. enterprises with foreign enterprises.
4. Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq.)
A statement required by the Unfunded Mandates Reform Act is not
required. The rule neither imposes an unfunded mandate of more than
$100 million per year nor imposes a significant or unique effect on
state, local or tribal governments or the private sector.
5. Federalism (Executive Order 13132)
In accordance with Executive Order 13132, the rule does not have
sufficient Federalism implications to warrant the preparation of a
Federalism Assessment. The rule does not substantially and directly
affect the relationship between the federal and state governments.
6. Civil Justice Reform (Executive Order 12988)
The General Counsel of the NCPC has determined that the rule does
not unduly burden the judicial system and meets the requirements of
Executive Order 12988 Sec. Sec. 3(a) and 3(b)(2).
7. Paperwork Reduction Act
The rule does not contain information collection requirements, and
it does not require a submission to the OMB under the Paperwork
Reduction Act.
8. National Environmental Policy Act
The rule is of an administrative nature, and its adoption does not
constitute a major federal action significantly affecting the quality
of the human environment. The NCPC's adoption of the rule will have
minimal or no effect on the environment; impose no significant change
to existing environmental conditions; and will have no cumulative
environmental impacts.
9. Clarity of the Regulation
Executive Order 12866, Executive Order 12988, and the Presidential
Memorandum of June 1, 1998 requires the NCPC to write all rules in
plain language. The NCPC maintains the rule meets this requirement, and
there were no comments offered challenging this assertion.
List of Subjects in 1 CFR Part 456
Freedom of Information.
Dated: February 21, 2014.
Anne R. Schuyler,
General Counsel.
For the reasons stated in the preamble, the National Capital
Planning Commission revises 1 CFR Part 456 to read as follows:
PART 456--NATIONAL CAPITAL PLANNING COMMISSION FREEDOM OF
INFORMATION ACT
Sec.
456.1 General information.
456.2 Organization.
456.3 Definitions.
456.4 General policy.
456.5 Public reading rooms and information routinely available.
456.6 FOIA request requirements.
456.7 FOIA response requirements.
456.8 Multi-track processing.
456.9 Expedited processing.
456.10 Consultations and referrals.
456.11 Classified and controlled unclassified information.
456.12 Confidential commercial information.
456.13 Appeals.
456.14 Fees.
456.15 Fee waiver requirements.
456.16 Preservation of FOIA records.
Authority: 40 U.S.C. 8701 et seq., as amended and 5 U.S.C. 552,
as amended.
Sec. 456.1 General information.
This part contains the rules the National Capital Planning
Commission (NCPC or Commission) shall follow in processing third party
Requests for Records concerning the activities of the NCPC under the
Freedom of Information Act (FOIA), 5 U.S.C. 552, as amended. Requests
made by a U.S. citizen or an individual lawfully admitted for permanent
residence to access his or her own records under the Privacy Act, 5
U.S.C. 522a are processed under this
[[Page 10953]]
part and in accordance with part 455 of Title 1 of the Code of Federal
Regulations (CFR) to provide the greatest degree of access while
safeguarding an individual's personal privacy. Information routinely
provided to the public as part of regular NCPC activity shall be
provided to the public without regard to this part.
Sec. 456.2 Organization.
(a) The NCPC serves as the planning agency for the federal
government in the National Capital Region (NCR). The NCR includes the
District of Columbia; Montgomery and Prince George's Counties in
Maryland; Arlington, Fairfax, Loudon, and Prince William Counties in
Virginia; and all cities in Maryland and Virginia in the aforementioned
counties.
(b) Pursuant to the Planning Act, 40 U.S.C. 8701 et seq., the
NCPC's primary mission includes:
(1) Preparation of the ``Comprehensive Plan for the National
Capital: Federal Elements'' (Comprehensive Plan). The Comprehensive
Plan sets forth the principles, goals and planning policies that guide
federal government growth and development of the NCR, and it serves as
the foundation for all other plans prepared by the NCPC.
(2) Review of Federal and District of Columbia Agency Plans and
Projects. The Commission reviews, and takes appropriate action on,
federal and District government agency plans and projects to ensure
compliance with, among others, the Comprehensive Plan, principals of
good planning and urban design, and federal environmental and historic
preservation policies mandated by the National Environmental Policy Act
(NEPA) and the National Historic Preservation Act (NHPA).
(3) Preparation of the ``Federal Capital Improvement Program for
the National Capital Region'' (FCIP). The FCIP is an annual, six year
program of prioritized federal government capital projects prepared by
the NCPC for the Office of Management and Budget (OMB).
(c) The Commission is comprised of five citizen members, three of
whom are appointed by the President of the United States without Senate
approval, including the Chairman, and two of whom are appointed by the
Mayor of the District of Columbia. Ex-officio members of the Commission
include:
(1) The Secretary of Defense;
(2) The Administrator of the General Services Administration;
(3) The Mayor of the District of Columbia;
(4) The Chairman of the Council of the District of Columbia;
(5) The Chairman of the Senate Committee of Homeland Security and
Governmental Affairs; and
(6) The Chairman of the House Committee on Oversight and Government
Reform or their designated alternates.
(d) A professional staff, headed by an Executive Director, assists
the Commission and is organized as described on the NCPC Web site
(www.ncpc.gov).
Sec. 456.3 Definitions.
For purposes of this part, the following definitions shall apply:
(a) Act and FOIA mean the Freedom of Information Act, 5 U.S.C. 552,
as amended.
(b) Adverse Determination or Determination shall include a
determination to withhold, in whole or in part, Records requested in a
FOIA Request; the failure to respond to all aspects of a Request; the
determination to deny a request for a Fee Waiver; or the determination
to deny a request for expedited processing. The term shall also
encompass a challenge to NCPC's determination that Records have not
been described adequately, that there are no responsive Records, or
that an adequate Search has been conducted.
(c) Agency Record or Record means any documentary material which is
either created or obtained by a federal agency (Agency) in the
transaction of Agency business and under Agency control. Agency Records
may include without limitation books; papers; maps; charts; plats;
plans; architectural drawings; photographs and microfilm; machine
readable materials such as magnetic tape, computer disks and electronic
data storage devices; electronic records including email messages; and
audiovisual material such as still pictures, sound, and video
recordings. This definition generally does not cover records of Agency
staff that are created and maintained primarily for a staff member's
convenience, exempt from Agency creation or retention requirements, and
withheld from distribution to other Agency employees for their official
use.
(d) Confidential Commercial Information means commercial or
financial information obtained by the NCPC from a Submitter that may be
protected from disclosure under Exemption 4 of the FOIA. Exemption 4 of
the FOIA protects trade secrets and commercial or financial information
obtained from a person which information is privileged or confidential.
(e) Controlled Unclassified Information means unclassified
information that does not meet the standards for National Security
Classification under Executive Order 13536, as amended, but is
pertinent to the national interests of the United States or to the
important interests of entities outside the federal government, and
under law or policy requires protection from unauthorized disclosure,
special handling safeguards, or prescribed limits on exchange or
dissemination.
(f) Commercial Use Request means a FOIA Request from or on behalf
of one who seeks information for a use or purpose that furthers the
commercial, trade, or profit interests of the Requester or the person
on whose behalf the Request is made.
(g) Direct Costs means those expenditures that the NCPC incurs in
searching for, duplicating, and reviewing documents to respond to a
FOIA Request. Direct Costs include, for example, the salary of the
employee performing the work (the basic rate of pay for the employee
plus 16 percent of the rate to cover benefits) and the cost of
operating duplicating machinery. Direct Costs do not include overhead
expenses such as costs of space, and heating or lighting the facility
in which the Records are stored.
(h) Duplication means the process of making a copy of a document
necessary to respond to a FOIA Request in a form that is reasonably
usable by a Requester. Copies can take the form of, among others, paper
copy, audio-visual materials, or machine readable documents (i.e.,
computer disks or electronic data storage devices).
(i) Educational Institution means a preschool, a public or private
elementary or secondary school, an institution of undergraduate higher
education, an institution of graduate higher education, an institution
of professional education, and an institution of vocational education,
which operates a program or programs of scholarly research. To be
classified in this category, a Requester must show that the Request is
authorized by and is made under the auspices of a qualifying
institution and that the records are not sought for a commercial use
but are sought to further scholarly research.
(j) Expedited Processing means giving a FOIA Request priority
because a Requester has shown a compelling need for the Records.
(k) Fee Waiver means a waiver in whole or in part of fees if a
Requester can demonstrate that certain statutory requirements are
satisfied including that the information is in the public interest and
is not requested for commercial purposes.
[[Page 10954]]
(l) FOIA Public Liaison means an NCPC official who is responsible
for assisting in reducing delays, increasing transparency and
understanding the status of Requests, and assisting in the resolution
of disputes.
(m) FOIA Request or Request means a written Request made by an
entity or member of the public for an Agency Record submitted via the
U.S. Postal Service mail or other delivery means to include without
limitation electronic-mail (email) or facsimile.
(n) Freelance Journalist means a Representative of the News Media
who is able to demonstrate a solid basis for expecting publication
through a news organization, even though not actually employed by that
news organization. A publication contract or past evidence of a
specific freelance assignment from a news organization may indicate a
solid basis for expecting publication.
(o) Frequently Requested Documents means documents that have been
Requested at least three times under the FOIA. It also includes
documents the NCPC anticipates would likely be the subject of multiple
Requests.
(p) Multi-track Processing means placing simple Requests requiring
relatively minimal work and/or review in one processing track, more
complex Requests in one or more other tracks, and expedited Requests in
a separate track. Requests in each track are processed on a first-in/
first-out basis.
(q) Noncommercial Scientific Institution means an institution that
is not operated for commerce, trade or profit, but is operated solely
for the purpose of conducting scientific research the results of which
are not intended to promote any particular product or industry. To be
in this category, a Requester must show that the Request is authorized
by and is made under the auspices of a qualifying institution and that
the Records are not sought for commercial use but are sought to further
scientific research.
(r) Privacy Act Request means a written (paper copy with an
original signature) request made by an individual for information about
himself/herself that is contained in a Privacy Act system of records.
The Privacy Act applies only to U.S. citizens and aliens lawfully
admitted for permanent residence such that only individuals satisfying
these criteria may make Privacy Act Requests.
(s) Reading Room Materials means Records, paper or electronic, that
are required to be made available to the public under 5.U.S.C.
552(a)(2) as well as other Records that the NCPC, at its discretion,
makes available to the public for inspection and copying without
requiring the filing of a FOIA Request.
(t) Representative of the News Media means any person or entity
that gathers information of potential interest to a segment of the
population, uses his/her/its editorial skills to turn raw material into
a distinct work, and distributes that work to an audience. News media
entities include television or radio stations broadcasting to the
public at large; publishers of periodicals that qualify as
disseminators of news and make their products available for purchase or
subscription by the general public; and alternative media to include
electronic dissemination through telecommunication (internet) services.
To be in this category, a Requester must not be seeking the Requested
Records for a commercial use.
(u) Requester means an entity or member of the public submitting a
FOIA Request.
(v) Requester Category means one of the five categories NCPC places
Requesters in for the purpose of determining whether the Requester will
be charged for Search, Review and Duplication, and includes Commercial
Use Requests, Educational Institutions, Noncommercial Scientific
Institutions, Representatives of the News Media, and all other
Requesters.
(w) Review means the examination of Records to determine whether
any portion of the located Record is eligible to be withheld. It also
includes processing any Records for disclosure, i.e., doing all that is
necessary to excise the record and otherwise prepare the Record for
release. Review does not include time spent resolving general legal or
policy issues regarding the application of exemptions.
(x) Search means the process of looking for material, by manual or
electronic means that is responsive to a FOIA Request. The term also
includes page-by-page or line-by-line identification of material within
documents.
(y) Submitter means any person or entity outside the federal
government from whom the NCPC directly or indirectly obtains commercial
or financial information. The term includes, among others,
corporations, banks, state and local governments, and agencies of
foreign governments who provide information to the NCPC.
(z) Unusual Circumstances means, for purposes of Sec. 456.7(c),
and only to the extent reasonably necessary to the proper processing of
a particular Request:
(1) The need to Search for and collect the Requested Agency Records
from establishments that are separate from the Commission's offices;
(2) The need to Search for, collect and appropriately examine and
Review a voluminous amount of separate and distinct Agency Records
which are demanded in a single Request; or
(3) The need for consultation with another Agency having a
substantial interest in the determination of the FOIA Request.
(aa) Workday means a regular Federal workday. It does not include
Saturdays, Sundays, and legal public holidays.
Sec. 456.4 General policy.
(a) It is the NCPC's general policy to facilitate the broadest
possible availability and dissemination of information to the public
through use of the NCPC's Web site, www.ncpc.gov, and physical
distribution of materials not available electronically. The NCPC staff
shall be available to assist the public in obtaining information
formally by using the procedures herein or informally in a manner not
inconsistent with the rule set forth in this part. In addition, to the
extent permitted by other laws, the NCPC will make available Agency
Records of interest to the public that are appropriate for disclosure.
(b) The NCPC possesses the administrative discretion in the context
of individual Requests to release documents for no or reduced fees or
to waive any of the NCPC's FOIA Request requirements in the interest of
public disclosure of information eligible for disclosure under the Act.
Sec. 456.5 Public reading rooms and information routinely available.
(a) The NCPC shall maintain an electronic library at www.ncpc.gov
that makes Reading Room Materials capable of production in electronic
form available for public inspection and downloading. The NCPC shall
also maintain an actual public reading room containing Reading Room
Materials incapable of production in electronic form at NCPC's offices.
The actual reading room shall be available for use on Workdays during
the hours of 9:00 a.m. to 4:00 p.m. Requests for appointments to review
Reading Room Materials in the actual public reading room should be
directed to the NCPC's Information Resources Specialist identified on
the NCPC Web site (www.ncpc.gov).
(b) The following types of Records shall be available routinely
(subject to the fee schedule set forth in Sec. 456.14) without resort
to formal FOIA Request procedures unless such Records fall
[[Page 10955]]
within one of the exemptions listed at 5 U.S.C. 552(b) of the Act:
(1) Commission agendas;
(2) Plans and supporting documentation submitted by applicants to
the Commission to include environmental and historic preservation
reports prepared for a plan or project;
(3) Executive Director's Recommendations;
(4) Commission Memoranda of Action;
(5) Transcripts of Commission proceedings;
(6) ``The Comprehensive Plan for the National Capital: Federal
Elements'' and other plans prepared by the NCPC;
(7) ``Federal Capital Improvements Plan for the National Capital
Region'' following release of the President's Budget;
(8) Policies adopted by the Commission;
(9) Correspondence between the Commission and the Congress, other
federal and local government agencies, and the public; and
(10) Frequently Requested Documents.
Sec. 456.6 FOIA request requirements.
(a) The NCPC shall designate a Chief Freedom of Information Act
Officer who shall be authorized to grant or deny any Request for a
Record of the NCPC.
(b) Requests for a Record or Records that is/are not available in
the actual or electronic reading rooms shall be directed to the Chief
Freedom of Information Act Officer.
(c) All FOIA Requests shall be made in writing. If sent by U.S.
mail, Requests should be sent to NCPC's official business address
contained on the NCPC Web site. If sent via email, they should be
directed to www.ncpc.gov. To expedite internal handling of FOIA
Requests, the words Freedom of Information Act Request shall appear
prominently on the transmittal envelope or the subject line of a
Request sent via email or facsimile.
(d) The FOIA Request shall:
(1) State that the Request is made pursuant to the FOIA;
(2) Describe the Agency Record(s) Requested in sufficient detail
including, without limitation, any specific information known such as
date, title or name, author, recipient, or time frame for which you are
seeking Records, to enable the NCPC personnel to locate the Requested
Agency Records;
(3) State, pursuant to the fee schedule set forth in Sec. 456.14,
a willingness to pay all fees associated with the FOIA Request or the
maximum fee the Requester is willing to pay to obtain the Requested
Records, unless the Requester is seeking a Fee Waiver or placement in a
certain Requester Category;
(4) State the desired form or format of disclosure of Agency
Records with which the NCPC shall endeavor to comply unless compliance
would damage or destroy an original Agency Record or reproduction is
costly and/or requires the acquisition of new equipment; and
(5) Provide a phone number or email address at which the Requester
can be reached to facilitate the handling of the Request.
(e) If a FOIA Request is unclear, overly broad, involves an
extremely voluminous amount of Records or a burdensome Search, or fails
to state a willingness to pay the requisite fees or the maximum fee
which the Requester is willing to pay, the NCPC shall endeavor to
contact the Requester to define the subject matter, identify and
clarify the Records being sought, narrow the scope of the Request, and
obtain assurances regarding payment of fees. The timeframe for a
response set forth in Sec. 456.7(a) shall be tolled (stopped
temporarily) and the NCPC will not begin processing a Request until the
NCPC obtains the information necessary to clarify the Request and/or
clarifies issues pertaining to the fee.
Sec. 456.7 FOIA response requirements.
(a) The Freedom of Information Act Officer, upon receipt of a FOIA
Request made in compliance with these rules, shall determine within 20
Workdays whether to grant or deny the Request. The Freedom of
Information Officer shall within 20 Workdays notify the Requester in
writing of his/her determination and the reasons therefore and of the
right to appeal any Adverse Determination to the head of the NCPC.
(b) If a Request is denied in whole or in part, the Chief FOIA
Officer's written determination shall include, if technically feasible,
the precise amount of information withheld, a brief description of the
information withheld without revealing its content, and the exemption
under which it is being withheld unless revealing the exemption would
harm an interested protected by the exemption. NCPC shall release any
portion of a withheld Record that reasonably can be segregated from the
exempt portion of the Record.
(c) In cases involving Unusual Circumstances, the Chief FOIA
Officer may extend the 20 Workday time limit by written notice to the
Requester. The written notice shall set forth the reasons for the
extension and the date on which a determination is expected to be
dispatched. No such notice shall specify a date that would result in an
extension of more than 10 Working Days unless the Freedom of
Information Act Officer affords the Requester an opportunity to modify
his/her Request or arranges an alternative timeframe with the Requester
for completion of the NCPC's processing.
Sec. 456.8 Multi-track processing.
The NCPC may use multiple tracks for processing FOIA Requests based
on the complexity of Requests and those for which expedited processing
is Requested. Complexity shall be determined based on the amount of
work and/or time needed to process a Request and/or the number of pages
of responsive Records. If the NCPC utilizes Multi-track Processing, it
shall advise a Requester when a Request is placed in a slower track of
the limits associated with a faster track and afford the Requester the
opportunity to limit the scope of its Request to qualify for faster
processing.
Sec. 456.9 Expedited processing.
(a) The NCPC shall provide Expedited Processing of a FOIA Request
if the person making the Request demonstrates that the Request
involves:
(1) Circumstances in which the lack of expedited treatment could
reasonably be expected to pose an imminent threat to the life or
physical safety of an individual;
(2) An urgency to inform the public about an actual or alleged
federal government activity, if made by a person primarily engaged in
disseminating information;
(3) The loss of substantial due process rights; or
(4) A matter of widespread and exceptional media interest in which
there exists possible questions about the government's integrity which
affect public confidence.
(b) A Request for Expedited Processing may be made at the time of
the initial FOIA Request or at a later time.
(c) A Requester seeking Expedited Processing must submit a detailed
statement setting forth the basis for the Expedited Processing Request.
The Requester must certify in the statement that the need for Expedited
Processing is true and correct to the best of his/her knowledge. To
qualify for Expedited Processing, a Requester relying upon the category
in paragraph (a)(2) of this section must establish:
(1) He/she is a full time Representative of the News Media or
primarily engaged in the occupation of information dissemination,
though it need not be his/her sole occupation;
[[Page 10956]]
(2) A particular urgency to inform the public about the information
sought by the FOIA Request beyond the public's right to know about the
government activity generally; and
(3) The information is of the type that has value that will be lost
if not disseminated quickly such as a breaking news story. Information
of historical interest only or information sought for litigation or
commercial activities will not qualify nor would a news media deadline
unrelated to breaking news.
(d) Within 10 calendar days of receipt of a Request for expedited
processing, the NCPC shall decide whether to grant or deny the Request
and notify the Requester of the decision in writing. If a Request for
Expedited Processing is granted, the Request shall be given priority
and shall be processed in the expedited processing track. If a Request
for Expedited Processing is denied, any appeal of that decision shall
be acted on expeditiously.
Sec. 456.10 Consultations and referrals.
(a) Unless the NCPC determines that it is best able to process a
Record in response to a FOIA Request, the NCPC shall either respond to
the FOIA Request after consultation with the Agency best able to
determine if the Requested Record(s) is/are subject to disclosure; or
refer the responsibility for responding to the FOIA Request to the
Agency responsible for originating the Record(s). Generally, the Agency
originating a Record will be presumed by the NCPC to be the Agency best
qualified to render a decision regarding disclosure or exemption except
for Agency Records submitted to the NCPC pursuant to its authority to
review Agency plans and/or projects.
(b) Upon referral of a FOIA Request to another Agency, the NCPC
shall notify the Requester in writing of the referral, inform the
Requester of the name of the Agency to which all or part of the FOIA
Request has been referred, provide the Requester a description of the
part of the Request referred, and advise the Requester of a point of
contact within the receiving Agency.
(c) The timeframe for a response to a FOIA Request requiring
consultation or referral shall be based on the date the FOIA Request
was initially received by the NCPC and not any later date.
Sec. 456.11 Classified and controlled unclassified information.
(a) For Requests for an Agency Record that has been classified or
may be appropriate for classification by another Agency pursuant to an
Executive Order concerning the classification of Records, the NCPC
shall refer the responsibility for responding to the FOIA Request to
the Agency that either classified the Record, should consider
classifying the Record, or has primary interest in the Record, as
appropriate.
(b) Whenever a Request is made for a Record that is designated
Controlled Unclassified Information by another Agency, the NCPC shall
refer the FOIA Request to the Agency that designated the Record as
Controlled Unclassified Information. Decisions to disclose or withhold
information designated as Controlled Unclassified Information shall be
made based on the applicability of the statutory exemptions contained
in the FOIA, not on a Controlled Unclassified Information marking or
designation.
Sec. 456.12 Confidential commercial information.
(a) Confidential Commercial Information obtained by the NCPC from a
Submitter shall be disclosed under the FOIA only in accordance with the
requirements of this section.
(b) A Submitter of Confidential Commercial Information shall use
good-faith efforts to designate, by appropriate markings, either at the
time of submission or at a reasonable time thereafter, any portions of
its submission that it considers to be protected from disclosure under
Exemption 4 of the FOIA. These designations will expire ten years after
the date of the submission unless the Submitter requests, and provides
justification for, a longer designation period.
(c) Notice shall be given to a Submitter of a FOIA Request for
potential Confidential Commercial Information if:
(1) The requested information has been designated in good faith by
the Submitter as Confidential Commercial Information eligible for
protection from disclosure under Exemption 4 of the FOIA; or
(2) The NCPC has reason to believe the requested information is
Confidential Commercial Information protected from disclosure under
Exemption 4 of the FOIA.
(d) Subject to the requirements of paragraphs (c) and (g) of this
section, the NCPC shall provide a Submitter with prompt written notice
of a FOIA Request or administrative appeal that seeks the Submitter's
Confidential Commercial Information. The notice shall give the
Submitter an opportunity to object to disclosure of any specified
portion of that Confidential Commercial Information pursuant to
paragraph (e) of this section. The notice shall either describe the
Confidential Commercial Information Requested or include copies of the
Requested Records or portions thereof containing the Confidential
Commercial Information. When notice to a large number of Submitters is
required, NCPC may provide notification by posting or publishing the
notice in a place reasonably likely to accomplish the intent of the
notice requirement such as a newspaper, newsletter, the NCPC Web site,
or the Federal Register.
(e) The NCPC shall allow a Submitter a reasonable time to respond
to the notice described in paragraph (d) of this section and shall
specify within the notice the time period for response. If a Submitter
has any objection to disclosure, it shall submit a detailed written
statement. The statement must specify all grounds for withholding any
portion of the Confidential Commercial Information under any exemption
of the FOIA and, in the case of Exemption 4, it must show why the
Confidential Commercial Information is a trade secret or commercial or
financial information that is privileged or confidential. If the
Submitter fails to respond to the notice within the specified time, the
NCPC shall consider this failure to respond as no objection to
disclosure of the Confidential Commercial Information on the part of
the Submitter, and NCPC shall proceed to release the requested
information. A statement provided by the Submitter that is not received
by NCPC until after the NCPC's disclosure decision has been made shall
not be considered by the NCPC. Information provided by a Submitter
under this paragraph may itself be subject to disclosure under the
FOIA.
(f) The NCPC shall consider a Submitter's objections and specific
grounds for nondisclosure in deciding whether to disclose Confidential
Commercial Information. Whenever the NCPC decides to disclose
Confidential Commercial Information over the the objection of a
Submitter, the NCPC shall give the Submitter written notice, which
shall include:
(1) A statement of the reason(s) why each of the Submitter's
disclosure objections was not sustained;
(2) A description of the Confidential Commercial Information to be
disclosed; and
(3) A specified disclosure date, which shall be a reasonable time
subsequent to the notice.
(g) The notice requirements of paragraphs (c) and (d) of this
section shall not apply if:
(1) The NCPC determines that the Confidential Commercial
Information is exempt under FOIA;
[[Page 10957]]
(2) The Confidential Commercial Information has been published
lawfully or has been officially made available to the public;
(3) The Confidential Commercial Information's disclosure is
required by statute (other than the FOIA) or by a regulation issued in
accordance with the requirements of Executive Order 12600
(Predisclosure Notification Procedures for Confidential Commercial
Information); or
(4) The designation made by the Submitter under paragraph (b) of
this section appears obviously frivolous in which case the NCPC shall,
within a reasonable time prior to a specified disclosure date, give the
Submitter written notice of any final decision to disclose the
Confidential Commercial Information.
(h) Whenever a Requester files a lawsuit seeking to compel the
disclosure of Confidential Commercial Information, the NCPC shall
promptly notify the Submitter.
(i) Whenever the NCPC provides a Submitter with notice and an
opportunity to object to disclosure under paragraph (d) of this
section, the NCPC shall also notify the Requester. Whenever the NCPC
notifies a Submitter of its intent to disclose Requested Information
under paragraph (f) of this section, the NCPC shall also notify the
Requester. Whenever a Submitter files a lawsuit seeking to prevent the
disclosure of Confidential Commercial Information, the NCPC shall
notify the Requester.
Sec. 456.13 Appeals.
(a) An appeal of an Adverse Determination shall be made in writing
to the Chairman of the Commission (Chairman). An appeal may be
submitted via U.S. mail or other type of manual delivery service or via
email or facsimile within 30 Workdays of the date of a notice of an
Adverse Determination. To facilitate handling of an appeal, the words
Freedom of Information Act Appeal shall appear prominently on the
transmittal envelope or the subject line of a Request sent via
electronic-mail or facsimile.
(b) An appeal of an Adverse Determination shall include a detailed
statement of the legal, factual or other basis for the Requester's
objections to an Adverse Determination; a daytime phone number or email
address where the Requester can be reached if the NCPC requires
additional information or clarification regarding the appeal; copies of
the initial Request and the NCPC's written response; and for an Adverse
Determination of a Request for Expedited Processing or a Fee Waiver, a
demonstration of compliance with the requirements of Sec. Sec.
456.9(a) and (c) or 456.14(a) through (c) respectively.
(c) The Chairman shall respond to an appeal of an Adverse
Determination in writing within 20 Workdays of receipt. If the Chairman
grants the appeal, the Chairman shall notify the Requester, and the
NCPC shall make available copies of the Requested Records promptly
thereafter upon receipt of the appropriate fee determined in accordance
with Sec. 456.14. If the Chairman denies the appeal in whole or in
part, the letter to the Requester shall state the reason(s) for the
denial, including the FOIA exemptions(s) applied; a statement that the
decision is final; and notification of the Requester's right to seek
judicial review of the denial in the District Court of the United
States in either the locale in which the Requester resides, the locale
in which the Requester has his/her principal place of business, or in
the District of Columbia. The Chairman's letter of denial shall also
advise the Requester that the Office of Government Information Services
(OGIS) offers mediation services to resolve disputes between a
Requester and the NCPC as a non-exclusive alternative to litigation.
Contact information for OGIS can be obtained from the OGIS Web site at
ogis@nara.gov.
(d) The NCPC shall not act on an appeal of an Adverse Determination
if the underlying FOIA Request becomes the subject of FOIA litigation.
(e) A party seeking court review of an Adverse Determination must
first appeal the decision under this section to NCPC.
Sec. 456.14 Fees.
(a) In responding to FOIA Requests, the NCPC shall charge the
following fees unless a Fee Waiver has been granted under Sec. 456.15.
(1) Search Fees shall be as follows:
(i) Search fees shall be charged for all Requests, subject to the
limitations of paragraph (b) of this section. The NCPC may charge for
time spent conducting a Search even if it fails to locate any
responsive Records or if the NCPC withholds Records located based on a
FOIA exemption.
(ii) For each quarter hour spent by personnel searching for
Requested Records, including electronic searches that do not require
new programming, the fees will be calculated based on the average
hourly General Schedule (GS) base salary, plus the District of Columbia
locality payment, plus 16 percent for benefits, of employees in the
following three categories: Staff Assistant (assigned at the GS 9-11
grades); Professional Personnel (assigned at the GS 11-13 grades); and
Managerial Staff (assigned at the 14-15 grades). For a Staff Assistant
the quarter hour fee to Search for and retrieve a Requested Record
shall be $9.00. If a Search and retrieval cannot be performed entirely
by a Staff Assistant, and the identification of Records within the
scope of a Request requires the use of Professional Personnel, the fee
shall be $12.00 for each quarter hour of Search time spent by
Professional Personnel. If the time of Managerial Personnel is
required, the fee shall be $18.00 for each quarter hour of Search time
spent by Managerial Personnel.
(iii) For a computer Search of Records, Requesters shall be charged
the Direct Costs of creating a computer program, if necessary, and/or
conducting the Search, although certain Requesters (as provided in
paragraph (b)(1) of this section) will be charged no Search fee and
certain other Requesters (as provided in paragraph (b)(3) of this
section) will be entitled to the cost equivalent of two hours of manual
Search time without charge. These Direct Costs for a computer Search
shall include the cost that is directly attributable to a Search for
responsive Records, and the costs of the operator's salary for the time
attributable to the Search.
(2) Duplication fees shall be charged to all Requesters, subject to
the limitations of paragraph (b) of this Section. For a paper photocopy
of a Record (no more than one copy of which shall be supplied), the fee
shall be 10 cents per page for single or double sided copies, 90 cents
per page for 8\1/2\ by 11 inch color copies, and $1.50 per page for
color copies up to 11 x 17 inches per page. For copies produced by
computer, and placed on an electronic data saving device or provided as
a printout, the NCPC shall charge the Direct Costs, including operator
time, of producing the copy. For other forms of Duplication, the NCPC
shall charge the Direct Costs of that Duplication.
(3) Review fees shall be charged to Requesters who make a
Commercial Use Request. Review fees will be charged only for the NCPC
initial Review of a Record to determine whether an exemption applies to
a particular Record or portion thereof. No charge will be made for
Review at the administrative appeal level for an exemption already
applied. However, Records or portions thereof withheld under an
exemption that is subsequently determined not applicable upon appeal
may be reviewed again to determine whether any other exemption not
previously considered applies. If the NCPC determines a different
exemption
[[Page 10958]]
applies, the costs of that Review are chargeable. Review fees will be
charged at the same rates as those charged for a Search under paragraph
(a)(1)(ii) of this section.
(b) The following limitations on fees shall apply:
(1) No Search fee shall be charged for FOIA Requests made by
Educational Institutions, Noncommercial Scientific Institutions, or
Representatives of the News Media.
(2) No Search or Review fees shall be charged for a quarter-hour
period unless more than half of that period is required for Search or
Review.
(3) Except for Requesters of a Commercial Use Request, the NCPC
shall provide without charge the first two hours of Search (or the cost
equivalent) and the first 100 pages of Duplication (or the cost
equivalent); and
(4) Except for Requesters of a Commercial Use Request, no fee shall
be charged for a Request if the total fee calculated under this section
equals $50.00 or less.
(5) The fee provisions of this section shall be cumulative.
Requesters other than those making a Commercial Use Request shall not
be charged a fee unless the total cost of a Search in excess of two
hours plus the cost of Duplication in excess of 100 pages totals more
than $50.00.
(c) If the NCPC determines or estimates fees in excess of $50.00,
the NCPC shall notify the Requester of the actual or estimated amount
of total fees, unless in its initial Request the Requester has
indicated a willingness to pay fees as high as those determined or
estimated. If only a portion of the fee can be estimated, the NCPC
shall advise the Requester that the estimated fee constitutes only a
portion of the total fee. If the NCPC notifies a Requester that actual
or estimated fees amount to more than $50.00, the Request shall not be
considered received for purposes of calculating the timeframe for a
Response, and no further work shall be undertaken on the Request until
the Requester agrees to pay the anticipated total fee. Any such
agreement shall be memorialized in writing. A notice under this
paragraph shall offer the Requester an opportunity to work with the
NCPC to reformulate the Request to meet the Requester's needs at a
lower cost.
(d) Apart from other provisions of this section, if the Requester
asks for or the NCPC chooses as a matter of administrative discretion
to provide a special service--such as certifying that Records are true
copies or sending them by other than ordinary mail--the actual costs of
special service shall be charged.
(e) The NCPC shall charge interest on any unpaid fee starting on
the 31st day following the date of billing the Requester. Interest
charges will be assessed at the rate provided in 31 U.S.C. 3717
(Interest and Penalty on Claims) and will accrue from the date of the
billing until payment is received by the NCPC. The NCPC shall follow
the provisions of the Debt Collection Act of 1982 (Pub. L. No. 97-365,
96 Stat. 1749), as amended, and its administrative procedures,
including the use of consumer reporting agencies, collection agencies,
and offset.
(f) Where the NCPC reasonably believes that one or more Requesters
are acting in concert to subdivide a Request into a series of Requests
to avoid fees, the NCPC may aggregate the Requests and charge
accordingly. The NCPC shall presume that multiple Requests of this type
made within a 30-day period have been made to avoid fees. Where
Requests are separated by a time period in excess of 30 days, the NCPC
shall aggregate the multiple Requests if a solid basis exists for
determining aggregation is warranted under all circumstances involved.
(g) Advance payments shall be treated as follows:
(1) For Requests other than those described in paragraphs (g)(2)
and (3) of this section, the NCPC shall not require an advance payment.
An advance payment refers to a payment made before work on a Request is
begun or continued after being stopped for any reason but does not
extend to payment owed for work already completed but not sent to a
Requester.
(2) If the NCPC determines or estimates a total fee under this
section of more than $250.00, it shall require an advance payment of
all or part of the anticipated fee before beginning to process a
Request, unless the Requester provides satisfactory assurance of full
payment or has a history of prompt payment.
(3) If a Requester previously failed to pay a properly charged FOIA
fee to the NCPC within 30 days of the date of billing, the NCPC shall
require the Requester to pay the full amount due, plus any applicable
interest, and to make an advance payment of the full amount of any
anticipated fee, before the NCPC begins to process a new Request or
continues processing a pending Request from that Requester.
(4) If the NCPC requires advance payment or payment due under
paragraphs (g)(2) or (3) of this section, the Request shall not be
considered received and no further work will be undertaken on the
Request until the required payment is received.
(h) Where Records responsive to Requests are maintained for
distribution by Agencies operating statutorily based fee schedule
programs, the NCPC shall inform Requesters of the steps for obtaining
Records from those sources so that they may do so most economically.
(i) All fees shall be paid by personal check, money order or bank
draft drawn on a bank of the United States, made payable to the order
of the Treasurer of the United States.
Sec. 456.15 Fee waiver requirements.
(a) Records responsive to a Request shall be furnished without
charge or at a charge reduced below that established under Sec. 456.14
if the Requester demonstrates to the NCPC, and the NCPC determines,
based on all available information, that Disclosure of the Requested
information is in the public interest because it is likely to
contribute significantly to public understanding of the operations or
activities of the government, and disclosure of the information is not
primarily in the commercial interest of the Requester.
(b) To determine if disclosure of the Requested information is in
the public interest because it is likely to contribute significantly to
public understanding of the operations or activities of the government,
the Requester shall demonstrate, and NCPC shall consider, the following
factors:
(1) Whether the subject of the Requested Records concerns the
operations or activities of the government. The subject of the
Requested Records must concern identifiable operations or activities of
the federal government, with a connection that is direct and clear, not
remote or attenuated.
(2) Whether the disclosure is likely to contribute to an
understanding of government operations or activities. The portions of
the Requested Records eligible for disclosure must be meaningfully
informative about government operations or activities. The disclosure
of information that already is in the public domain, in either a
duplicative or a substantially identical form, is not likely to
contribute to an understanding of government operations and activities
because this information is already known.
(3) Whether disclosure of the Requested information will contribute
to public understanding. The disclosure must contribute to the
understanding of a reasonably broad audience of persons interested in
the subject, as opposed to the individual understanding of the
Requester. A Requester's expertise in the subject area and ability and
intention to effectively convey
[[Page 10959]]
information to the public shall be considered. It shall be presumed
that a Representative of the News Media satisfies this consideration.
(4) Whether the disclosure is likely to contribute significantly to
public understanding of government operations or activities. The
public's understanding of the subject in question must be enhanced by
the disclosure to a significant extent, as compared to the level of
public understanding existing prior to the disclosure. The NCPC shall
not make value judgments about whether information that would
contribute significantly to public understanding of the operations or
activities of the government is important enough to be made public.
(c) To determine whether disclosure of the information is not
primarily in the commercial interest of the Requester, the Requester
shall demonstrate, and NCPC shall consider, the following factors:
(1) Whether the Requester has a commercial interest that would be
furthered by the Requested disclosure. The NCPC shall consider any
commercial interest of the Requester (with reference to the definition
of Commercial Use Request in Sec. 456.3(f)), or of any person on whose
behalf the Requester may be acting, that would be furthered by the
Requested disclosure. Requesters shall be given an opportunity in the
administrative process to provide explanatory information regarding
this consideration.
(2) Whether any identified commercial interest of the Requester is
sufficiently large in comparison with the public interest in disclosure
that disclosure is primarily in the commercial interest of the
Requester. A Fee Waiver is justified where the public interest standard
of paragraph (b) of this section is satisfied and that public interest
is greater in magnitude than that of any identified commercial interest
in disclosure. The NCPC ordinarily shall presume that a Representative
of the News Media satisfies the public interest standard, and the
public interest will be the interest primarily served by disclosure to
that Requester. Disclosure to data brokers or others who merely compile
and market government information for direct economic return shall not
be presumed to primarily serve the public interest.
(d) Where only some of the Records to be released satisfy the
requirements for a Fee Waiver, a Fee Waiver shall be granted for those
Records.
(e) Requests for a Fee Waiver should address the factors listed in
paragraphs (b) and (c) of this section, insofar as they apply to each
Request. The NCPC shall exercise its discretion to consider the cost-
effectiveness of its investment of administrative resources in this
decision-making process in deciding to grant Fee Waivers.
Sec. 456.16 Preservation of FOIA records.
(a) The NCPC shall preserve all correspondence pertaining to FOIA
Requests received and copies or Records provided until disposition or
destruction is authorized by the NCPC's General Records schedule of the
National Archives and Records Administration (NARA) or other NARA-
approved Schedule.
(b) Materials that are responsive to a FOIA Request shall not be
disposed of or destroyed while the Request or a related lawsuit is
pending even if the Records would otherwise be authorized for
disposition under the NCPC's General Records Schedule or NARA or other
NARA-approved records schedule.
[FR Doc. 2014-04180 Filed 2-26-14; 8:45 am]
BILLING CODE 7520-01-P