Freedom of Information Act, Privacy Act, and Government in the Sunshine Act Procedures, 33199-33208 [2015-14121]
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33199
Proposed Rules
Federal Register
Vol. 80, No. 112
Thursday, June 11, 2015
This section of the FEDERAL REGISTER
contains notices to the public of the proposed
issuance of rules and regulations. The
purpose of these notices is to give interested
persons an opportunity to participate in the
rule making prior to the adoption of the final
rules.
NATIONAL COUNCIL ON DISABILITY
5 CFR Chapter C
RIN 3480–AA00
Freedom of Information Act, Privacy
Act, and Government in the Sunshine
Act Procedures
National Council on Disability.
Notice of proposed rulemaking
(NPRM).
AGENCY:
ACTION:
The National Council on
Disability is proposing regulations to
implement the Freedom of Information
Act, the Privacy Act of 1974, and the
Government in the Sunshine Act. This
proposed rulemaking describes the
procedures for members of the public to
request access to records. In addition,
this document also proposes procedures
for the Council’s responses to these
requests, including the timeframe for
response and applicable fees. These
rules should be read in conjunction
with the text of the Freedom of
Information Act, the Privacy Act of
1974, the Government in the Sunshine
Act, and the Uniform Freedom of
Information Fee Schedule and
Guidelines published by the Office of
Management and Budget.
DATES: You must submit comments on
or before August 10, 2015.
ADDRESSES: You may submit comments,
identified by the docket number in the
heading of this document, by the
following methods:
• Federal eRulemaking Portal: Go to
https://www.regulations.gov. Follow the
online instructions for submitting
comments.
• Mail: Written comments may be
submitted by mail to: National Council
on Disability, ATTN: Joan Durocher,
1331 F Street NW., Suite 850,
Washington, DC 20004.
To ensure proper handling, please
include the docket number on your
correspondence. See SUPPLEMENTARY
INFORMATION for further information
about submitting comments.
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SUMMARY:
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Joan
Durocher, General Counsel, National
Council on Disability, at 202–272–2004
or jdurocher@ncd.gov.
SUPPLEMENTARY INFORMATION: Please
note that all comments received are
considered part of the public record and
made available for public inspection
online at https://www.regulations.gov.
Information made available to the
public includes personally identifying
information (such as your name,
address, etc.) voluntarily submitted by
the commenter. Additional information
about the handling of personally
identifiable information submitted for
the public record is available in the
system of records notice for the federal
dockets management system, EPA–
GOVT–2, published in the Federal
Register at 70 FR 15086 (March 24,
2005).
FOR FURTHER INFORMATION CONTACT:
I. Background
The National Council on Disability
(Council) was statutorily created in 1978
through amendment to the
Rehabilitation Act of 1973 (29 U.S.C.
780 et seq.). The statute was amended
by the Workforce Innovation and
Opportunity Act (Pub. L. 113–128) in
2014. Since 1984, the Council has been
an independent agency outside
Executive departments that neither
regulates nor adjudicates. The Council
is charged with advising the President,
Congress, and other federal agencies
regarding policies, programs, practices,
and procedures that affect people with
disabilities.
This rulemaking action would
implement the Council’s procedures
required under the Freedom of
Information Act (FOIA), 5 U.S.C. 552, as
amended; the Privacy Act of 1974
(Privacy Act), 5 U.S.C. 552a, as
amended; and the Government in the
Sunshine Act (Sunshine Act), 5 U.S.C.
552b, as amended. The FOIA requires
agencies to implement procedures for
public access to records. This proposed
rulemaking describes the procedures for
members of the public to request access
to records. In addition, this document
also proposes procedures for the
Council’s responses to these requests,
including the timeframe for response
and applicable fees.
The Privacy Act imposes
requirements on agencies that maintain
systems of records pertaining to
individuals. These requirements include
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procedures for an individual to request
access to or amendment of information
about him or herself maintained in a
system of records. This proposed
rulemaking describes the Council’s
procedures for providing individuals
access to their records or to request
amendment of those records, including
the timeframes for response and any
applicable fees.
The Sunshine Act requires public
meetings for the deliberations of federal
agencies headed by collegial bodies
comprised of members. Agencies subject
to the Sunshine Act must publish
procedures for such public meetings. As
an agency headed by a Council
comprised entirely of individuals
appointed by the President and
Congress, the Council is subject to the
Sunshine Act and must publish a
rulemaking to implement its public
meeting procedures, including
procedures to close meetings when
permitted by the Sunshine Act.
Most of the proposed regulatory
provisions contained in this notice of
proposed rulemaking are drawn directly
from requirements specified in the
FOIA, Privacy Act, and Sunshine Act. In
addition, the Council modeled its
proposed procedures on those already
adopted by other federal agencies to
incorporate for its own use those
practices that represent ‘‘best practices’’
for FOIA, Privacy Act, and Sunshine
Act administration.
II. Regulatory Analysis and Notices
Executive Order 12866
This proposal is not a ‘‘significant
regulatory action’’ within the meaning
of Executive Order 12866. The
economic impact of these regulations
should be minimal, therefore, further
economic evaluation is not necessary.
Regulatory Flexibility Act, as Amended
The Regulatory Flexibility Act, as
amended by the Small Business
Regulatory Enforcement Act of 1996 (5
U.S.C. 601 et seq.), generally requires an
agency to prepare a regulatory flexibility
analysis for any rule subject to notice
and comment rulemaking under the
Administrative Procedure Act or any
other statute, unless the agency certifies
that the rule will not have a significant
economic impact on a number of small
entities. Small entities include small
businesses, small organizations, and
small government jurisdictions. The
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Federal Register / Vol. 80, No. 112 / Thursday, June 11, 2015 / Proposed Rules
Council considered the effects on this
proposed rulemaking on small entities
and certifies that these proposed rules
will not have a significant impact on a
substantial number of small entities.
Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act
of 1995 (UMRA), Public Law 104–4,
requires each agency to assess the
effects of its regulatory actions on state,
local, and tribal governments, and the
private sector. Agencies must prepare a
written statement of economic and
regulatory alternatives anytime a
proposed or final rule imposes a new or
additional enforceable duty on any
state, local, or tribal government or the
private sector that causes those entities
to spend, in aggregate, $100 million or
more (adjusted for inflation) in any one
year (defined in UMRA as a ‘‘federal
mandate’’). The Council determined that
such a written statement is not required
in connection with these proposed rules
because they will not impose a federal
mandate, as defined in UMRA.
National Environmental Policy Act
The Council analyzed this action for
purposes of the National Environmental
Policy Act of 1969, 42 U.S.C. 4321 et
seq., and determined that it would not
significantly affect the environment;
therefore, an environmental impact
statement is not required.
Paperwork Reduction Act
Under the Paperwork Reduction Act
of 1995 (PRA), 44 U.S.C. 3501 et seq.,
federal agencies must obtain approval
from the Office of Management and
Budget for each collection of
information they conduct, sponsor, or
require through regulations. This
proposed action does not include an
information collection for purposes of
the PRA.
Executive Order 13132 (Federalism)
This action has been analyzed in
accordance with the principles and
criteria contained in Executive Order
13132, dated August 4, 1999, and the
Council determined that it does not
have sufficient implications for
federalism to warrant the preparation of
a Federalism Assessment.
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List of Subjects
5 CFR Part 10000
Administrative practice and
procedure, Freedom of information,
Confidential business information,
Privacy.
5 CFR Part 10001
Administrative practice and
procedure, Privacy.
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5 CFR Part 10002
Administrative practice and
procedure, Public availability of
information, Meetings.
In consideration of the foregoing, the
Council proposes to amend title 5, Code
of Federal Regulations, by establishing
chapter C, consisting of parts 10000–
10049, to read as follows:
CHAPTER C—NATIONAL COUNCIL ON
DISABILITY
PART 10000—PROCEDURES FOR
DISCLOSURE OF RECORDS UNDER
THE FREEDOM OF INFORMATION ACT
Sec.
10000.1 Purpose and scope.
10000.2 Definitions.
10000.3 Availability of records.
10000.4 Categories of exemptions.
10000.5 Requests for records.
10000.6 Responsibility for responding to
requests.
10000.7 Administrative appeals.
10000.8 Timeframe for Council’s response
to a FOIA request or administrative
appeal.
10000.9 Business information.
10000.10 Fees.
Authority: 5 U.S.C. 552, as amended;
Executive Order 12600, 52 FR 23781, 3 CFR,
1987 Comp., p. 235.
§ 10000.1
Purpose and scope.
The regulations in this part
implement the provisions of the FOIA.
§ 10000.2
Definitions.
The following definitions apply to
this part:
Chairperson means the Chairperson of
the Council, as appointed by the
President, or any person to whom the
Council has delegated authority for the
matter concerned.
Chief FOIA Officer means the senior
official to whom the Council delegated
responsibility for efficient and
appropriate compliance with the FOIA,
currently delegated to the General
Counsel.
Commercial use request means a
FOIA request from or on behalf of a
requester that seeks information for a
use or purpose that furthers their
commercial, trade, or profit interests,
including pursuit of those interests
through litigation.
Confidential business information
means trade secrets or confidential or
privileged commercial or financial
information submitted to the Council by
a person that may be protected from
disclosure under Exemption 4 of the
FOIA.
Council means the National Council
on Disability, established by the
Rehabilitation Act of 1973 (29 U.S.C.
780 et seq.), as amended, and amended
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by the Workforce Innovation and
Opportunity Act (Pub. L. 113–128) in
2014.
Direct costs are those expenses that an
agency incurs in searching for and
duplicating (and, in the case of
commercial use requests, reviewing)
records in order to respond to a FOIA
request. For example, direct costs
include the salary of the employee
performing the work (i.e., the basic rate
of pay for the employee, plus 16 percent
of that rate to cover benefits) and the
cost of operating computers and other
electronic equipment, such as
photocopiers and scanners. Direct costs
do not include overhead expenses such
as the costs of space, and of heating or
lighting a facility.
Educational institution means a
preschool, a public or private
elementary or secondary school, an
institution of undergraduate or graduate
higher education, an institution of
professional education, or an institution
of vocational education, which operates
a program or programs of scholarly
research. A requester in this fee category
must show that the request is authorized
by, and is made under the auspices of,
an educational institution and that the
records are not sought for a commercial
use, but rather are sought to further
scholarly research. To fall within this
fee category, the request must serve the
scholarly research goals of the
institution rather than an individual
research goal.
(1) Example 1. A request from a
professor of geology at a university for
records relating to soil erosion, written
on letterhead of the Department of
Geology, would be presumed to be from
an educational institution.
(2) Example 2. A request from the
same professor of geology seeking drug
information from the Food and Drug
Administration in furtherance of a
murder mystery he is writing would not
be presumed to be an institutional
request, regardless of whether it was
written on institutional stationery.
(3) Example 3. A student who makes
a request in furtherance of the
completion of a course of instruction
would be presumed to be carrying out
an individual research goal, rather than
a scholarly research goal of the
institution and would not qualify as part
of this fee category.
Fee waiver means the waiver or
reduction of fees if a requester can
demonstrate meeting the statutory
standard that the information is in the
public interest because it is likely to
contribute significantly to public
understanding of the operations or
activities of the government and is not
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primarily in the commercial interest of
the requester.
FOIA means the Freedom of
Information Act, 5 U.S.C. 552, as
amended. The FOIA applies to requests
for agency records.
FOIA Officer means the individual to
whom the Council has delegated
authority to carry out the Council’s dayto-day FOIA administration, currently
delegated to the Council’s Attorney
Advisor.
FOIA Public Liaison means the
individual designated by the
Chairperson to assist FOIA requesters
with concerns about the Council’s
processing of their FOIA request,
including assistance in resolving
disputes, currently delegated to the
Council’s Attorney Advisor.
Non-commercial scientific institution
means an organization operated solely
for the purpose of conducting scientific
research, the results of which are not
intended to promote any product or
research, and not operated on a
commercial basis.
Person includes an individual,
partnership, corporation, association, or
public or private organization other than
an agency.
Record means any writing, drawing,
map, recording, diskette, DVD, CD–
ROM, tape, film, photograph, or other
documentary material, regardless of
medium, by which information is
preserved, including documentary
material stored electronically.
Redact means delete or mark over.
Representative of the news media is
any person or entity organized and
operated to publish or broadcast news to
the public that actively gathers
information of potential interest to a
segment of the public, uses its editorial
skills to turn the raw materials into a
distinct work, and distributes that work
to an audience. The term ‘‘news’’ means
information that is about current events
or that would be of current interest to
the public. Examples of news media
entities include television or radio
stations that broadcast ‘‘news’’ to the
public at large and publishers of
periodicals that disseminate ‘‘news’’
and make their products available
through a variety of means to the
general public, including news
organizations that disseminate solely on
the Internet. A request for records
supporting the news-dissemination
function of the requester shall not be
considered to be for a commercial use.
‘‘Freelance’’ journalists who
demonstrate a solid basis for expecting
publication through a news media entity
shall be considered as a representative
of the news media. A publishing
contract would provide the clearest
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evidence that publication is expected;
however, components shall also
consider a requester’s past publication
record in making this determination.
Requester category means one of the
three categories defined by the Uniform
Freedom of Information Fee Schedule
and Guidelines published by the Office
of Management and Budget (OMB Fee
Guidelines) in which requesters will be
placed for the purpose of determining
what if any fees for search, review, or
duplication may be assessed. They are:
(1) Commercial requestors;
(2) Non-commercial scientific or
educational institutions or
representatives of the news media; and
(3) All other requestors.
Submitter means any person or entity
from whom the Council obtains
confidential or privileged business
information, directly or indirectly.
Unusual circumstances exist when:
(1) The need to search for and collect
the requested records from physically
separate facilities;
(2) The need to search for, collect and
appropriately examine a voluminous
amount of separate and distinct records
which are demanded in a single request;
or
(3) The need for consultation, which
shall be conducted with all practicable
speed, with another agency having a
substantial interest in the determination
of the request.
§ 10000.3
Availability of records.
Records that are required by the FOIA
to be made available for public
inspection and copying may be accessed
through the Agency’s Web site at
www.ncd.gov. The Council is
responsible for determining which of its
records are required to be made publicly
available, as well as identifying
additional records of interest to the
public that are appropriate for public
disclosure, and for posting and indexing
such records. The Council shall ensure
that its Web site of posted records and
indices is reviewed and updated on an
ongoing basis. The Council’s FOIA
Public Liaison can assist individuals in
locating records particular to a
component.
§ 10000.4
Categories of exemptions.
(a) The FOIA does not require
disclosure of matters that are:
(1) Specifically authorized under
criteria established by an executive
order to be kept secret in the interest of
national defense or foreign policy and
are, in fact, properly classified under
executive order;
(2) Related solely to the internal
personnel rules and practices of the
Council;
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(3) Specifically exempted from
disclosure by statute (other than the
Government in the Sunshine Act, 5
U.S.C. 552b, as amended), provided that
such statute:
(i)(A) Requires that the matters be
withheld from the public in such a
manner as to leave no discretion on the
issue; or
(B) establishes particular criteria for
withholding or refers to particular types
of matters to be withheld; and
(ii) If enacted after October 28, 2009,
specifically cites to Exemption 3 of the
FOIA, 5 U.S.C. 552(b)(3);
(4) Trade secrets and commercial or
financial information obtained from a
person and privileged or confidential;
(5) Inter-agency or intra-agency
memoranda or letters, which would not
be available at law to a party other than
an agency in litigation with the Council;
(6) Personnel and medical files and
similar files the disclosure of which
would constitute a clearly unwarranted
invasion of personal privacy;
(7) Records or information compiled
for law enforcement purposes, but only
to the extent that the production of such
law enforcement records or information:
(i) Could reasonably be expected to
interfere with enforcement proceedings;
(ii) Would deprive a person of a right
to a fair trial or impartial adjudication;
(iii) Could reasonably be expected to
constitute an unwarranted invasion of
personal privacy;
(iv) Could reasonably be expected to
disclose the identity of a confidential
source, including a state, local, or
foreign agency or authority or any
private institution that furnished
information on a confidential basis, and,
in the case of a record or information
compiled by a criminal investigation, or
by an agency conducting a lawful
national security intelligence
investigation, information furnished by
a confidential source;
(v) Would disclose techniques and
procedures for law enforcement
investigations or prosecutions or would
disclose guidelines for law enforcement
investigations or prosecutions if such
disclosure could reasonably be expected
to risk circumvention of the law; or
(vi) Could reasonably be expected to
endanger the life or physical safety of
any individual.
(8) Contained in or related to
examination, operating, or condition
reports prepared by, on behalf of, or for
the use of an agency responsible for the
regulation or supervision of financial
institutions; or
(9) Geological and geophysical
information and data, including maps,
concerning wells.
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§ 10000.5
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Request for records.
(a) You may request copies of records
under this part by email to FOIA@
ncd.gov or in writing addressed to FOIA
Officer, National Council on Disability,
1331 F Street NW., Suite 850,
Washington, DC 20004.
(b) Your request shall reasonably
describe the records sought with
sufficient specificity, and when
possible, include names, dates, and
subject matter, in order to permit the
FOIA Officer to locate the records with
a reasonable amount of effort. If the
FOIA Officer cannot locate responsive
records based on your written
description, you will be notified and
advised that further identifying
information is necessary before the
request can be fulfilled. Although
requests are considered either FOIA or
Privacy Act requests, the Council
processes requests for records in
accordance with both laws so as to
provide the greatest degree of lawful
access while safeguarding an
individual’s personal privacy.
(c) Your request should specify your
preferred form or format (including
electronic formats) for the records you
seek. We will accommodate your
request if the record is readily available
in that form or format. When you do not
specify the form or format of the
response, we will provide responsive
records in the form or format most
convenient to us.
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§ 10000.6 Responsibility for responding to
requests.
(a) In general. The Council delegates
authority to grant or deny FOIA requests
in whole or in part to the Chief FOIA
Officer. When conducting a search for
responsive records, the FOIA Officer
generally will search for records in
existence on the date of the search. If
another date is used, the FOIA Officer
shall inform the requester of the date
used.
(b) Responses. The Chief FOIA Officer
will notify you of his or her
determination to grant or deny your
FOIA request in the time frame stated in
§ 10000.8. The Council will release
reasonably segregable non-exempt
information. For any adverse
determination, including those
regarding any disputed fee matter; a
denial of a request for a fee waiver; or
a determination to withhold a record, in
whole or in part, that a record does not
exist or cannot be located; or to deny a
request for expedited processing; the
notice shall include the following
information:
(1) The name(s) of any person
responsible for the determination to
deny the request in whole or in part;
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(2) A brief statement of the reason(s)
for the denial, including any FOIA
exemption applied in denying the
request. The FOIA Officer will indicate,
if technically feasible, the amount of
information deleted and the exemption
under which a deletion is made on the
released portion of the record, unless
including that indication would harm
an interest protected by the exemption;
(3) An estimate of the volume of
information withheld, if applicable.
This estimate does not need to be
provided if it is ascertainable based on
redactions in partially disclosed records
or if the disclosure of the estimate
would harm an interest protected by an
applicable FOIA exemption; and
(4) A statement that the adverse
determination may be appealed and a
description of the requirements for an
appeal under § 10000.7.
(c) Consultation, referral, and
coordination. When reviewing records
located by the Council in response to a
request, the Council shall determine
whether another agency of the Federal
Government is better able to determine
whether the record is exempt from
disclosure under the FOIA and, if so,
whether it should be released as a
matter of discretion. As to any such
record, the Council shall proceed in one
of the following ways:
(1) Consultation. When records
originated with the Council, but contain
within them information of interest to
another agency, the Council should
typically consult with that other agency
prior to making a release determination.
(2) Referral. (i) When the Council
believes that a different agency is best
able to determine whether to disclose
the record, the Council typically should
refer the responsibility for responding to
the request regarding that record, as
long as the referral is to an agency that
is subject to the FOIA. Ordinarily, the
agency that originated the record will be
presumed to be best able to make the
disclosure determination. However, if
the Council and the originating agency
jointly agree that the former is in the
best position to respond regarding the
record, then the record may be handled
as a consultation.
(ii) Whenever the Council refers any
part of the responsibility for responding
to a request to another agency, it shall
document the referral, maintain a copy
of the record that it refers, and notify the
requester of the referral and inform the
requester of the name(s) of the agency to
which the record was referred,
including that agency’s FOIA contact
information.
(3) Coordination. The standard
referral procedure is not appropriate
where disclosure of the identity of the
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agency to which the referral would be
made could harm an interest protected
by an applicable exemption, such as the
exemptions that protect personal
privacy or national security interests.
For example, if the Council responding
to a request for records on a living third
party locates within its files records
originating with a law enforcement
agency, and if the existence of that law
enforcement interest in the third party
was not publicly known, then to
disclose that law enforcement interest
could cause an unwarranted invasion of
the personal privacy of the third party.
Similarly, if the Council locates within
its files material originating with an
Intelligence Community agency, and the
involvement of that agency in the matter
is classified and not publicly
acknowledged, then to disclose or give
attribution to the involvement of that
Intelligence Community agency could
cause national security harms. In such
instances, in order to avoid harm to an
interest protected by an applicable
exemption, the Council should
coordinate with the originating agency
to seek its views on the disclosability of
the record. The release determination
for the record that is the subject of the
coordination should then be conveyed
to the requester by the Council.
§ 10000.7
Administrative appeals.
(a) You may appeal an adverse
determination related to your FOIA
request, or the Council’s failure to
respond to your FOIA request within
the prescribed time limits, to the
Executive Director, National Council on
Disability, 1331 F Street NW., Suite 850,
Washington, DC 20004.
(b) Your appeal must be in writing
and must be postmarked or
electronically received by the Executive
Director within 60 days of the date of
the letter denying your request, in
whole or in part. For the most
expeditious handling, your appeal letter
and envelope should be marked
‘‘Freedom of Information Act Appeal’’
and reference the request number.
(c) The Executive Director shall
respond to all administrative appeals in
writing and within the time frame stated
in § 10000.8(d). If the decision affirms,
in whole or in part, the Chief FOIA
Officer’s determination, the letter shall
contain a statement of the reasons for
the affirmance, including any FOIA
exemption(s) applied, and will inform
you of the FOIA’s provisions for court
review. If the Executive Director
reverses or modifies the Chief FOIA
Officer’s determination, in whole or in
part, you will be notified in writing and
your request will be reprocessed in
accordance with that decision. The
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Council may work with Office of
Government Information Services
(OGIS) to resolve disputes between
FOIA requestors and the Council. A
requester may also contact OGIS in the
following ways: Via mail to OGIS,
National Archives and Records
Administration, 8601 Adelphi Road—
OGIS, College Park, MD 20740
(ogis.archives.gov), via email at ogis@
nara.gov, or via the telephone at 202–
741–5770 or 877–684–6448. Facsimile is
also available at 202–741–5769.
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§ 10000.8 Timeframe for Council’s
response to a FOIA request or
administrative appeal.
(a) In general. The Council ordinarily
shall respond to requests according to
their order of receipt.
(b) Multi-track processing. (1) The
Council may use two or more processing
tracks by distinguishing between simple
and more complex requests based on the
amount of work and/or time needed to
process the request, including through
limits based on the number of pages
involved. If the Council does so, it shall
advise requesters in its slower track(s) of
the limits of its faster track(s).
(2) Using multitrack processing, the
Council may provide requesters in its
slower track(s) with an opportunity to
limit the scope of their requests in order
to qualify for faster processing within
the specified limits of the Council’s
faster track(s). In doing so, the Council
will contact the requester by telephone,
letter, or email, whichever is more
efficient in each case.
(c) Initial decisions. The Council shall
determine whether to comply with a
FOIA request within 20 working days
after our receipt of the request, unless
the time frame for response is extended
due to unusual circumstances as further
described in paragraph (f) of this
section. A request is received by the
Council, for purposes of commencing
the 20-day timeframe for its response,
on the day it is properly received by the
FOIA Officer. The request must meet all
requirements described by these
regulations and the FOIA before the 20day timeframe commences.
(d) Administrative appeals. The
Executive Director shall determine
whether to affirm or overturn a decision
subject to administrative appeal within
20 working days after receipt of the
appeal, unless the time frame for
response is extended in accordance with
paragraph (e) of this section.
(e) Tolling timelines. We may toll the
20-day timeframe set forth in paragraphs
(c) or (d) of this section:
(1) One time to await information that
we reasonably requested from you, as
permitted by 5 U.S.C. 552(a)(6)(A)(iii)(I);
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(2) As necessary to clarify with you
any fee-related issue.
(3) If we toll the time frame for
response under paragraphs (e)(1) or (2)
of this section, the tolling period ends
upon our receipt of your response.
(f) Unusual circumstances. In the
event of unusual circumstances, we may
extend the time frame for response
provided in paragraphs (c) or (d) of this
section by providing you with written
notice of the unusual circumstances and
the date on which a determination is
expected to be made. Where the
extension is for more than ten working
days, we will provide you with an
opportunity either to modify your
request so that it may be processed
within the statutorily-prescribed time
limits or to arrange an alternative time
period for processing your request or
modified request.
(g) Aggregating requests. When we
reasonably believe that multiple
requests submitted by a requester, or by
a group of requesters acting in concert,
involving clearly related matters, can be
viewed as a single request that involves
unusual circumstances, we may
aggregate the requests for the purposes
of fees and processing activities.
(h) Expedited processing. You may
request that the Council expedite
processing of your FOIA request. To
receive expedited processing, you must
demonstrate a compelling need for such
processing.
(1) For requests for expedited
processing, a ‘‘compelling need’’
involves:
(i) 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; or
(ii) A request made by a person
primarily engaged in disseminating
information, with a time urgency to
inform the public of actual or alleged
federal government activity.
(2) Your request for expedited
processing must be in writing and may
be made at the time of the initial FOIA
request or at any later time.
(3) Your request for expedited
processing must include a statement,
certified to be true and correct to the
best of your knowledge and belief,
explaining in detail the basis for
requesting expedited processing. If you
are a person primarily engaged in
disseminating information, you must
establish a particular urgency to inform
the public about the federal government
activity involved in the request.
(4) The FOIA Officer will decide
whether to grant or deny your request
for expedited processing and notify the
requester within ten calendar days of
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receipt. You will be notified in writing
of the determination. Appeals of adverse
decisions regarding expedited
processing shall be processed
expeditiously.
§ 10000.9
Business information.
(a) Designation of confidential
business information. In the event a
FOIA request is made for confidential
business information previously
submitted to the Government by a
commercial entity or on behalf of it
(hereinafter ‘‘submitter’’), the
regulations in this section apply. When
submitting confidential business
information, you must use a good-faith
effort to designate, by use of appropriate
markings, at the time of submission or
at a reasonable time thereafter, any
portions of your submission that you
consider to be exempt from disclosure
under FOIA Exemption 4, 5 U.S.C.
552(b)(4). Your designation will expire
ten years after the date of submission
unless you request, and provide
justification for, a longer designation
period.
(b) Notice to submitters. (1) Whenever
you designate confidential business
information as provided in paragraph (a)
of this section, or the Council has reason
to believe that your submission may
contain confidential business
information, we will provide you with
prompt written notice of a FOIA request
that seeks your business information.
The notice shall:
(i) Give you an opportunity to object
to disclosure of your information, in
whole or in part;
(ii) Describe the business information
requested or include copies of the
requested records or record portions
containing the information; and
(iii) Inform you of the time frame in
which you must respond to the notice.
(2) In cases involving a voluminous
number of submitters, notice may be
made by posting or publishing the
notice in a place or manner reasonably
likely to accomplish it.
(c) Opportunity to object to disclosure.
The Council shall allow you a
reasonable time to respond to the notice
described in paragraph (b) of this
section. If you object to the disclosure
of your information, in whole or in part,
you must provide us with a detailed
written statement of your objection. The
statement must specify all grounds for
withholding any portion of the
information under any FOIA exemption
and, when relying on FOIA Exemption
4, it must explain why the information
is a trade secret or commercial or
financial information that is privileged
and confidential. If you fail to respond
within the time frame specified in the
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notice, the Council will conclude that
you have no objection to disclosure of
your information. The Council will only
consider information that we receive
within the time frame specified in the
notice.
(d) Notice of intent to disclose. The
Council will consider your objection
and specific grounds for non-disclosure
in deciding whether to disclose business
information. Whenever the Council
decides to disclose business information
over your objection, we will provide
you with written notice that includes:
(1) A statement of the reasons why
each of your bases for withholding were
not sustained;
(2) A description of the business
information to be disclosed; and
(3) A specified disclosure date, which
shall be a reasonable time after the
notice.
(e) Exceptions to the notice
requirement. The notice requirements of
paragraphs (c) and (d) of this section
shall not apply if:
(1) The Council determines that the
information is exempt under the FOIA;
(2) The information lawfully has been
published or has been officially made
available to the public;
(3) Disclosure of the information is
required by statute (other than the
FOIA) or by a regulation issued in
accordance with the requirements of
Executive Order 12600;
(4) The designation made by the
submitter under paragraph (a) of this
section appears obviously frivolous,
except that, in such a case, the Council
shall, within a reasonable time prior to
the date the disclosure will be made,
give the submitter written notice of the
final decision to disclose the
information.
(f) Requester notification. The Council
shall notify a requester whenever it
provides the submitter with notice and
an opportunity to object to disclosure;
whenever it notifies the submitter of its
intent to disclose the requested
information; and whenever a submitter
files a lawsuit to prevent the disclosure
of the information.
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§ 10000.10
Fees.
(a) We will charge fees that recoup the
full allowable direct costs we incur in
processing your FOIA request. Fees may
be charged for search, review or
duplication. We will use the most
efficient and least costly methods to
comply with your request.
(b) With regard to manual searches for
records, we will charge the salary rate(s)
(calculated as the basic rate of pay plus
16 percent of that basic rate to cover
benefits) of the employee(s) performing
the search.
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(c) In calculating charges for computer
searches for records, we will charge at
the actual direct cost of providing the
service, including the cost of operating
the central processing unit directly
attributable to searching for records
potentially responsive to your FOIA
request and the portion of the salary of
the operators/programmers performing
the search.
(d) Review fees shall be charged for
requesters who make commercial use
requests. Review fees shall be assessed
only for the initial review—that is the
review undertaken the first time we
analyze the applicability of a specific
exemption to a particular record or
portion of a record. Records or portions
of records withheld in full under an
exemption that is subsequently
determined not to apply may be
reviewed again to determine the
applicability of other exemptions not
previously considered. We may assess
the costs for such subsequent review.
Review fees are charged at the same
rates as those charged for a search.
(e) Notice of anticipated fees in excess
of $25.00. (1) When the Council
determines or estimates that the fees to
be assessed in accordance with this
section will exceed $25.00, the Council
shall notify the requester of the actual
or estimated amount of the fees,
including a breakdown of the fees for
search, review or duplication, unless the
requester has indicated a willingness to
pay fees as high as those anticipated. If
only a portion of the fee can be
estimated readily, the Council shall
advise the requester accordingly. If the
requester is a noncommercial use
requester, the notice shall specify that
the requester is entitled to the statutory
entitlements of 100 pages of duplication
at no charge and, if the requester is
charged search fees, two hours of search
time at no charge, and shall advise the
requester whether those entitlements
have been provided.
(2) In cases in which a requester has
been notified that the actual or
estimated fees are in excess of $25.00,
the request shall not be considered
received and further work will not be
completed until the requester commits
in writing to pay the actual or estimated
total fee, or designates some amount of
fees the requester is willing to pay, or
in the case of a noncommercial use
requester who has not yet been provided
with the requester’s statutory
entitlements, designates that the
requester seeks only that which can be
provided by the statutory entitlements.
The requester must provide the
commitment or designation in writing,
and must, when applicable, designate
an exact dollar amount the requester is
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willing to pay. The Council is not
required to accept payments in
installments.
(3) If the requester has indicated a
willingness to pay some designated
amount of fees, but the Council
estimates that the total fee will exceed
that amount, the Council shall toll the
processing of the request when it
notifies the requester of the estimated
fees in excess of the amount the
requester has indicated a willingness to
pay. The Council shall inquire whether
the requester wishes to revise the
amount of fees the requester is willing
to pay or modify the request. Once the
requester responds, the time to respond
will resume from where it was at the
date of the notification.
(4) The Council shall make available
its FOIA Public Liaison or other FOIA
professional to assist any requester in
reformulating a request to meet the
requester’s needs at a lower cost.
(f) We will charge you the full costs
of providing you with the following
services:
(1) Certifying that records are true
copies; or
(2) Sending records by special
methods such as express or certified
mail.
(g) We may assess interest charges on
an unpaid bill starting on the 31st
calendar day following the day on
which the billing was sent. Interest shall
be at the rate prescribed in 31 U.S.C.
3717 and will accrue from the date of
the billing.
(h) We will not charge a search fee for
requests by educational institutions,
non-commercial scientific institutions,
or representatives of the news media. A
search fee will be charged for a
commercial use requests.
(i) Except for a commercial use
request, we will not charge you for the
first 100 pages of duplication and the
first two hours of search.
(j) If the Council fails to comply with
the time limits in which to respond to
a request, and if no unusual or
exceptional circumstances, as those
terms are defined by the FOIA, apply to
the processing of the request, it may not
charge search fees, or, in the instances
of requests from requesters requests by
educational institutions (unless the
records are sought for a commercial
use), noncommercial scientific
institutions, or representatives of the
news media, may not charge duplication
fees.
(k) After processing, actual fees must
be equal to or exceed $25, for the
Council to require payment of fees.
(l) You may not file multiple requests,
each seeking portions of a document or
documents, solely for the purpose of
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avoiding payment of fees. When the
Council reasonably believes that a
requester, or a group of requesters acting
in concert, has submitted requests that
constitute a single request involving
clearly related matters, we may
aggregate those requests and charge
accordingly.
(m) We may not require you to make
payment before we begin work to satisfy
the request or to continue work on a
request, unless:
(1) We estimate or determine that the
allowable charges that you may be
required to pay are likely to exceed
$250; or
(2) You have previously failed to pay
a fee charged within 30 days of the date
of billing.
(n) Upon written request, we may
waive or reduce fees that are otherwise
chargeable under this part. If you
request a waiver or reduction in fees,
you must demonstrate that a waiver or
reduction in fees is in the public interest
because disclosure of the requested
records is likely to contribute
significantly to the public
understanding of the operations or
activities of the government and is not
primarily in your commercial interest.
(1) In deciding whether disclosure of
the requested information is in the
public interest because it is likely to
contribute significantly to public
understanding of operations or activities
of the government, the Council shall
consider all four of the following
factors:
(i) The subject of the request must
concern identifiable operations or
activities of the Federal Government,
with a connection that is direct and
clear, not remote or attenuated.
(ii) Disclosure of the requested
records must be meaningfully
informative about government
operations or activities in order to be
‘‘likely to contribute’’ to an increased
public understanding of those
operations or activities. The disclosure
of information that already is in the
public domain, in either the same or a
substantially identical form, would not
contribute to such understanding where
nothing new would be added to the
public’s understanding.
(iii) 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
as well as the requester’s ability and
intention to effectively convey
information to the public shall be
considered. It shall be presumed that a
representative of the news media will
satisfy this consideration.
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(iv) The public’s understanding of the
subject in question must be enhanced by
the disclosure to a significant extent.
However, components shall not make
value judgments about whether the
information at issue is ‘‘important’’
enough to be made public.
(2) To determine whether disclosure
of the requested information is
primarily in the commercial interest of
the requester, the Council shall consider
the following factors:
(i) The Council shall identify any
commercial interest of the requester, as
defined in § 10000.2, that would be
furthered by the requested disclosure.
Requesters shall be given an
opportunity to provide explanatory
information regarding this
consideration.
(ii) A waiver or reduction of fees is
justified where the public interest is
greater than any identified commercial
interest in disclosure. The Council
ordinarily shall presume that where a
news media requester has satisfied the
public interest standard, the public
interest will be the interest primarily
served by disclosure to that requester.
Disclosure to data brokers or others who
merely compile and market government
information for direct economic return
shall not be presumed to primarily serve
the public interest.
(3) Where only some of the records to
be released satisfy the requirements for
a waiver of fees, a waiver shall be
granted for those records.
(4) Requests for a waiver or reduction
of fees should be made when the request
is first submitted to the component and
should address the criteria referenced
above. A requester may submit a fee
waiver request at a later time so long as
the underlying record request is
pending or on administrative appeal.
When a requester who has committed to
pay fees subsequently asks for a waiver
of those fees and that waiver is denied,
the requester shall be required to pay
any costs incurred up to the date the fee
waiver request was received.
PART 10001—IMPLEMENTATION OF
THE PRIVACY ACT OF 1974
Sec.
10001.1
10001.2
10001.3
10001.4
10001.5
10001.6
10001.7
Purpose and scope.
Definitions.
Privacy Act requests.
Responses to Privacy Act requests.
Administrative appeals.
Fees.
Penalties.
Authority: 5 U.S.C. 552a.
§ 10001.1
Purpose and scope.
The regulations in this part
implement the provisions of the Privacy
Act.
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§ 10001.2
33205
Definitions.
The following terms used in this part
are defined in the Privacy Act:
Individual, maintain, record, system of
records, statistical record, and routine
use. The following definitions also
apply in this part:
Chairperson means the Chairperson of
the Council, as appointed by the
President, or any person to whom the
Council has delegated authority for the
matter concerned.
Council means the National Council
on Disability, established by the
Rehabilitation Act of 1973 (29 U.S.C.
780 et seq.), as amended, and amended
by the Workforce Innovation and
Opportunity Act (Pub. L. 113–128) in
2014.
General Counsel means the Council’s
principal legal advisor, or his or her
designee.
Privacy Act means the Privacy Act of
1974, 5 U.S.C. 552a, as amended.
Privacy Act Officer means the person
designated by the Council to be
responsible for the day-to-day
administration of the Privacy Act,
currently delegated to the Council’s
Management Analyst.
§ 10001.3
Privacy Act requests.
(a) Requests to determine if you are
the subject of a record. You may request
that the Council inform you if we
maintain a system of records that
contains records about you. Your
request must follow the procedures
described in paragraph (b) of this
section.
(b) Requests for access. You may
request access to a Council record about
you in writing or by appearing in
person. You should direct your request
to the Privacy Act Officer. Written
requests may be sent to: Privacy Act
Officer, National Council on Disability,
1331 F Street NW., Suite 850,
Washington, DC 20004. Your request
should include the following
information:
(1) Your name, address, and
telephone number;
(2) The system(s) of records in which
the requested information is contained;
and
(3) At your option, authorization for
copying expenses.
(4) Written requests. In addition to the
information described in paragraphs
(b)(1) through (3) of this section, written
requests must include a statement
affirming your identity, signed by you
and witnessed by two persons
(including witnesses’ addresses) or
notarized.
(i) Witnessed. If your statement is
witnessed, it must include a sentence
above the witnesses’ signatures attesting
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that they personally know you or that
you have provided satisfactory proof of
your identity.
(ii) Notarized. If your statement is
notarized, you must provide the notary
with adequate proof of your identity in
the form of a drivers’ license, passport,
or other identification acceptable to the
notary.
(iii) The Council, in its discretion,
may require additional proof of
identification depending on the nature
and sensitivity of the records in the
system of records.
(iv) For the quickest possible
handling, your letter and envelope
should be marked ‘‘Privacy Act
Request.’’
(5) In person requests. In addition to
the information described in paragraphs
(b)(1) through (3) of this section, if you
make your request in person, you must
provide adequate proof of identification
at the time of your request. Adequate
proof of identification includes a valid
drivers’ license, valid passport, or other
current identification that includes your
address and photograph.
(c) Requests for amendment or
correction of records. You may request
an amendment to or correction of a
record about you in person or by writing
to the Privacy Act Officer following the
procedures described in paragraph (b) of
this section. Your request for
amendment or correction should
identify each particular record at issue,
state the amendment or correction
sought, and describe why the record is
not accurate, relevant, timely, or
complete.
(d) Requests for an accounting of
disclosures. Except for those disclosures
for which the Privacy Act does not
require an accounting, you may request
an accounting of any disclosure by the
Council of a record about you. Your
request for an accounting of disclosures
must be made in writing following the
procedures described in paragraph (b) of
this section.
(e) Requests for access on behalf of
someone else. (1) If you are making a
request on behalf of someone else, your
request must include a statement from
that individual verifying his or her
identity, as provided in paragraph (b)(4)
of this section. Your request also must
include a statement certifying that
individual’s agreement that records
about him or her may be released to
you.
(2) If you are the parent or guardian
of the individual to whom the requested
record pertains, or the individual to
whom the record pertains has been
deemed incompetent by a court, your
request for access to records about that
individual must include:
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(i) The identity of the individual who
is the subject of the record, including
his or her name, current address, and
date and place of birth;
(ii) Verification of your identity in
accordance with paragraph (b)(4) of this
section;
(iii) Verification that you are the
subject’s parent or guardian, which may
be established by a copy of the subject’s
birth certificate identifying you as his or
her parent, or a court order establishing
you as guardian; and
(iv) A statement certifying that you
are making the request on the subject’s
behalf.
§ 10001.4 Responses to Privacy Act
requests.
(a) Acknowledgement. The Privacy
Act Officer shall provide you with a
written acknowledgment of your written
request under section 3 within ten
business days of our receipt of your
request.
(b) Grants of requests. If you make
your request in person, the Privacy Act
Officer shall respond to your request
directly, either by granting you access to
the requested records, upon payment of
any applicable fee and with a written
record of the grant of your request and
receipt of the records, or by informing
you when a response may be expected.
If you are accompanied by another
person, you must authorize in writing
any discussion of the records in the
presence of the third person. If your
request is in writing, the Privacy Act
Officer shall provide you with written
notice of the Council’s decision to grant
your request and the amount of any
applicable fee. The Privacy Act Officer
shall disclose the records to you
promptly, upon payment of any
applicable fee.
(c) Denials of requests in whole or in
part. The Privacy Act Officer shall
notify you in writing of his or her
determination to deny, in whole or in
part, your request. This writing shall
include the following information:
(1) The name and title or position of
the person responsible for the denial;
(2) A brief statement of the reason for
the denial(s), including any applicable
Privacy Act exemption;
(3) A statement that you may appeal
the denial and a brief description of the
requirements for appeal under
§ 10001.5.
(d) Request for records not covered by
the Privacy Act or subject to Privacy Act
exemption. If the Privacy Act Officer
determines that a requested record is
not subject to the Privacy Act or the
records are subject to Privacy Act
exemption, your request will be
processed in accordance with the
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Council’s Freedom of Information Act
procedures at 5 CFR part 10000.
§ 10001.5
Administrative appeals.
(a) Appeal procedures. (1) You may
appeal any decision by the Council to
deny, in whole or in part, your request
under § 10001.3 no later than 60 days
after the decision is rendered.
(2) Your appeal must be in writing,
sent to the General Counsel at the
address specified in § 10001.3(b) and
contain the following information:
(i) Your name;
(ii) Description of the record(s) at
issue;
(iii) The system of records in which
the record(s) is contained;
(iv) A statement of why your request
should be granted.
(3) The General Counsel shall
determine whether to uphold or reverse
the initial determination within 30
working days of our receipt of your
appeal. The General Counsel shall
notify you of his or her decision,
including a brief statement of the
reasons for the decision, in writing. The
General Counsel’s decision will be the
final action of the Council.
(b) Statement of disagreement. If your
appeal of our determination related to
your request for amendment or
correction is denied in whole or in part,
you may file a Statement of
Disagreement that states the basis for
your disagreement with the denial.
Statements of Disagreement must be
concise and must clearly identify each
part of any record that is disputed. The
Privacy Act Officer will place your
Statement of Disagreement in the system
of records in which the disputed record
is maintained and shall mark the
disputed record to indicate that a
Statement of Disagreement has been
filed and where it may be found.
(c) Notification of amendment,
correction, or disagreement. Within 30
working days of the amendment or
correction of a record, the Privacy Act
Officer shall notify all persons,
organizations, or agencies to which the
Council previously disclosed the record,
if an accounting of that disclosure was
made, that the record has been corrected
or amended. If you filed a Statement of
Disagreement, the Privacy Act Officer
shall append a copy of it to the disputed
record whenever it is disclosed and also
may append a concise statement of its
reason(s) for denying the request to
amend or correct the record.
§ 10001.6
Fees.
We will not charge a fee for search or
review of records requested under this
part, or for the correction of records. If
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you request copies of records, we may
charge a fee of $.10 per page.
§ 10001.7
Penalties.
Any person who makes a false
statement in connection with any
request for a record or an amendment or
correction thereto under this part is
subject to the penalties prescribed in 18
U.S.C. 494 and 495 and 5 U.S.C.
552a(i)(3).
PART 10002—IMPLEMENTATION OF
THE GOVERNMENT IN THE SUNSHINE
ACT
Sec.
10002.1 Purpose and scope.
10002.2 Definitions.
10002.3 Open meetings.
10002.4 Procedures for public
announcement of meetings.
10002.5 Grounds on which meetings may
be closed or information withheld.
10002.6 Procedures for closing meetings or
withholding information, and requests
by affected persons to close a meeting.
10002.7 Changes following public
announcement.
10002.8 Transcripts, recordings, or minutes
of closed meetings.
10002.9 Public availability and retention of
transcripts, recordings, and minutes, and
applicable fees.
Authority: 5 U.S.C. 552b.
§ 10002.1
Purpose and scope.
(a) The regulations in this part
implement the provisions of the
Sunshine Act.
(b) Requests for all records other than
those described in § 10002.9, shall be
governed by the Council’s Freedom of
Information Act procedures at 5 CFR
part 10001.
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§ 10002.2
Definitions.
The following definitions apply in
this part:
Chairperson means the Chairperson of
the Council, as appointed by the
President, or any person to whom the
Council has delegated authority for the
matter concerned.
Council means the National Council
on Disability, established by the
Rehabilitation Act of 1973 (29 U.S.C.
780 et seq.), as amended, and amended
by the Workforce Innovation and
Opportunity Act (Pub. L. 113–128) in
2014.
General Counsel means the Council’s
principal legal advisor, or his or her
designee.
Meeting means the deliberations of
five or more Council members that
determine or result in the joint conduct
or disposition of official Council
business. A meeting does not include:
(1) Notational voting or similar
consideration of business for the
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purpose of recording votes, whether by
circulation of material to members’
individually in writing or by a polling
of the members individually by phone
or email.
(2) Action by five or more members
to:
(i) Open or close a meeting or to
release or withhold information
pursuant to § 10002.6;
(ii) Set an agenda for a proposed
meeting;
(iii) Call a meeting on less than seven
days’ notice, as permitted by § 10002.4;
or
(iv) Change the subject matter or the
determination to open or to close a
publicly announced meeting under
§ 10002.7.
(3) A session attended by five or more
members for the purpose of having the
Council’s staff or expert consultants,
another federal agency, or other persons
or organizations brief or otherwise
provide information to the Council
concerning any matters within the
purview of the Council, provided that
the members do not engage in
deliberations that determine or result in
the joint conduct or disposition of
official business on such matters.
(4) A gathering of members for the
purpose of holding informal,
preliminary discussions or exchanges of
views which do not effectively
predetermine official action. Member
means an individual duly appointed
and confirmed to the Council. Public
observation means attendance by the
public at a meeting of the Council, but
does not include public participation.
Public participation means the
presentation or discussion of
information, raising of questions, or
other manner of involvement in a
meeting of the Council by the public in
a manner that contributes to the
disposition of official Council business.
Sunshine Act means the Government
in the Sunshine Act, 5 U.S.C. 552b.
§ 10002.3
Open meetings.
(a) Except as otherwise provided in
this part, every portion of a Council
meeting shall be open to public
observation.
(b) Council meetings, or portions
thereof, shall be open to public
participation when an announcement to
that effect is published under § 10002.4.
Public participation shall be conducted
in an orderly, non-disruptive manner
and in accordance with any procedures
the Chairperson may establish. Public
participation may be terminated for
good cause as determined by the
Council upon the advice of the General
Counsel based on unanticipated
developments.
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33207
§ 10002.4 Procedures for public
announcement of meetings.
(a) Except as otherwise provided in
this section, the Council shall make a
public announcement at least seven
days prior to a meeting. The public
announcement shall include:
(1) The time and place of the meeting;
(2) The subject matter of the meeting;
(3) Whether the meeting is to be open,
closed, or portions of a meeting will be
closed;
(4) Whether public participation will
be allowed;
(5) The name and telephone number
of the person who will respond to
requests for information about the
meeting;
(b) The seven-day prior notice
required by paragraph (a) of this section
may be reduced only if:
(1) A majority of all members
determine by recorded vote that Council
business requires that such meeting be
scheduled in less than seven days; and
(2) The public announcement
required by this section is made at the
earliest practicable time.
(c) If public notice is provided by
means other than publication in the
Federal Register, notice will be
promptly submitted to the Federal
Register for publication.
§ 10002.5 Grounds on which meetings
may be closed or information withheld.
A meeting, or portion thereof, may be
closed and information pertinent to
such meeting withheld if the Council
determines that the meeting or release of
information is likely to disclose matters
that are:
(a) Specifically authorized under
criteria established by an executive
order to be kept secret in the interests
of national defense or foreign policy;
and, in fact, are properly classified
pursuant to such executive order. In
making the determination that this
exemption applies, the Council shall
rely on the classification assigned to the
document or assigned to the information
from the federal agency from which the
document was received.
(b) Related solely to the internal
personnel rules and practices of the
Council;
(c) Specifically exempt from
disclosure by statute (other than 5
U.S.C. 552), provided that such statute:
(1) Requires that the matters be
withheld from the public in such a
manner as to leave no discretion on the
issue; or
(2) Establishes particular criteria for
withholding or refers to particular types
of matters to be withheld;
(d) Trade secrets and commercial or
financial information obtained from a
person and privileged or confidential;
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(e) Involved with accusing any person
of a crime or formally censuring any
person;
(f) Of a personal nature, if disclosure
would constitute a clearly unwarranted
invasion of personal privacy;
(g) Either investigatory records
compiled for law enforcement purposes
or information which, if written, would
be contained in such records, but only
to the extent that the production of
records or information would:
(1) Interfere with enforcement
proceedings;
(2) Deprive a person of a right to
either a fair trial or an impartial
adjudication;
(3) Constitute an unwarranted
invasion of personal privacy;
(4) Disclose the identity of a
confidential source or sources and, in
the case of a record compiled either by
a criminal law enforcement authority or
by an agency conducting a lawful
national security intelligence
investigation, confidential information
furnished only by the confidential
source(s);
(5) Disclose investigative techniques
and procedures; or
(6) Endanger the life or physical safety
of law enforcement personnel;
(h) Contained in or relating to
examination, operating, or condition
reports prepared by, on behalf of, or for
the use of an agency responsible for the
regulation or supervision of financial
institutions;
(i) If prematurely disclosed, likely to
significantly frustrate implementation of
a proposed action of the Council, except
that this subsection shall not apply in
any instance where the Council has
already disclosed to the public the
content or nature of its proposed action
or is required by law to make such
disclosure on its own initiative prior to
taking final action on such proposal;
and
(j) Specifically concerned with the
Council’s issuance of a subpoena, or its
participation in a civil action or
proceeding, an action in a foreign court
or international tribunal, or an
arbitration, or the initiation, conduct, or
disposition by the Council of a
particular case or formal agency
adjudication pursuant to the procedures
in 5 U.S.C. 554 or otherwise involving
a determination on the record after
opportunity for a hearing.
§ 10002.6 Procedures for closing meetings
or withholding information, and requests by
affected persons to close a meeting.
(a) A meeting or portion of a meeting
may be closed and information
pertaining to a meeting withheld under
§ 10002.5 only by vote of a majority of
members.
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(b) A separate vote of the members
shall be taken with respect to each
meeting or portion of a meeting
proposed to be closed and with respect
to information which is proposed to be
withheld. A single vote may be taken
with respect to a series of meetings or
portions of a meeting that are proposed
to be closed, so long as each meeting or
portion thereof in the series involves the
same particular matter and is scheduled
to be held no more than 30 days after
the initial meeting in the series. The
vote of each member shall be recorded
and no proxies shall be allowed.
(c) A person whose interests may be
directly affected by a portion of a
meeting may request in writing that the
Council close that portion for any of the
reasons referred to in § 10002.5(e), (f),
and (g). Upon the request of a member,
a recorded vote shall be taken whether
to close such meeting or portion thereof.
(d) For every meeting closed, the
General Counsel shall publicly certify
that, in his or her opinion, the meeting
may be closed to the public and shall
state each relevant basis for closing the
meeting. If the General Counsel invokes
the bases set forth in § 10002.5(a) or (c),
he or she shall rely upon the
classification or designation assigned to
the information by the originating
agency. A copy of such certification,
together with a statement by the
presiding officer setting forth the time
and place of the meeting and the
persons present, shall be retained by the
Council as part of the transcript,
recording, or minutes required by
§ 10002.8.
§ 10002.7 Changes following public
announcement.
(a) The time or place of a meeting may
be changed following the public
announcement described in § 10002.4.
The Council must publicly announce
such change at the earliest practicable
time.
(b) The subject matter of a meeting or
the determination of the Council to
open or close a meeting, or a portion
thereof, to the public may be changed
following public announcement only if:
(1) A majority of all members
determine by recorded vote that Council
business so requires and that no earlier
announcement of the change was
possible; and
(2) The Council publicly announces
such change and the vote of each
member thereon at the earliest
practicable time.
§ 10002.8 Transcripts, recordings, or
minutes of closed meetings.
Along with the General Counsel’s
certification and presiding officer’s
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Sfmt 4702
statement referred to in § 10002.6(d), the
Council shall maintain a complete
transcript or electronic recording
adequate to record fully the proceedings
of each meeting, or a portion thereof,
closed to the public. Alternatively, for
any meeting closed pursuant to
§ 10002.5(h) or (j), the Council may
maintain a set of minutes adequate to
record fully the proceedings, including
a description of each of the views
expressed on any item and the record of
any roll call vote.
§ 10002.9 Public availability and retention
of transcripts, recordings, and minutes, and
applicable fees.
(a) The Council shall make available,
in a place easily accessible, such as
www.ncd.gov, to the public the
transcript, electronic recording, or
minutes of a meeting, except for items
of discussion or testimony related to
matters the Council determines may be
withheld under § 10002.6.
(b) Copies of the nonexempt portions
of the transcripts or minutes shall be
provided upon receipt of the actual
costs of the transcription or duplication.
(c) The Council shall maintain
meeting transcripts, recordings, or
minutes of each meeting closed to the
public for a period ending at the later of
two years following the date of the
meeting, or one year after the
conclusion of any Council proceeding
with respect to the closed meeting.
PARTS 10003–10049 [RESERVED]
Dated: June 4, 2015.
Rebecca Cokley,
Executive Director.
[FR Doc. 2015–14121 Filed 6–10–15; 8:45 am]
BILLING CODE 8421–03–P
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 39
[Docket No. FAA–2015–2047; Directorate
Identifier 2015–CE–013–AD]
RIN 2120–AA64
Airworthiness Directives; SOCATA
Airplanes
Federal Aviation
Administration (FAA), Department of
Transportation (DOT).
ACTION: Supplemental notice of
proposed rulemaking (NPRM);
reopening of the comment period.
AGENCY:
We are revising an NPRM for
SOCATA Model TBM 700 airplaness
SUMMARY:
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Agencies
[Federal Register Volume 80, Number 112 (Thursday, June 11, 2015)]
[Proposed Rules]
[Pages 33199-33208]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-14121]
========================================================================
Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
========================================================================
Federal Register / Vol. 80, No. 112 / Thursday, June 11, 2015 /
Proposed Rules
[[Page 33199]]
NATIONAL COUNCIL ON DISABILITY
5 CFR Chapter C
RIN 3480-AA00
Freedom of Information Act, Privacy Act, and Government in the
Sunshine Act Procedures
AGENCY: National Council on Disability.
ACTION: Notice of proposed rulemaking (NPRM).
-----------------------------------------------------------------------
SUMMARY: The National Council on Disability is proposing regulations to
implement the Freedom of Information Act, the Privacy Act of 1974, and
the Government in the Sunshine Act. This proposed rulemaking describes
the procedures for members of the public to request access to records.
In addition, this document also proposes procedures for the Council's
responses to these requests, including the timeframe for response and
applicable fees. These rules should be read in conjunction with the
text of the Freedom of Information Act, the Privacy Act of 1974, the
Government in the Sunshine Act, and the Uniform Freedom of Information
Fee Schedule and Guidelines published by the Office of Management and
Budget.
DATES: You must submit comments on or before August 10, 2015.
ADDRESSES: You may submit comments, identified by the docket number in
the heading of this document, by the following methods:
Federal eRulemaking Portal: Go to https://www.regulations.gov. Follow the online instructions for submitting
comments.
Mail: Written comments may be submitted by mail to:
National Council on Disability, ATTN: Joan Durocher, 1331 F Street NW.,
Suite 850, Washington, DC 20004.
To ensure proper handling, please include the docket number on your
correspondence. See SUPPLEMENTARY INFORMATION for further information
about submitting comments.
FOR FURTHER INFORMATION CONTACT: Joan Durocher, General Counsel,
National Council on Disability, at 202-272-2004 or jdurocher@ncd.gov.
SUPPLEMENTARY INFORMATION: Please note that all comments received are
considered part of the public record and made available for public
inspection online at https://www.regulations.gov. Information made
available to the public includes personally identifying information
(such as your name, address, etc.) voluntarily submitted by the
commenter. Additional information about the handling of personally
identifiable information submitted for the public record is available
in the system of records notice for the federal dockets management
system, EPA-GOVT-2, published in the Federal Register at 70 FR 15086
(March 24, 2005).
I. Background
The National Council on Disability (Council) was statutorily
created in 1978 through amendment to the Rehabilitation Act of 1973 (29
U.S.C. 780 et seq.). The statute was amended by the Workforce
Innovation and Opportunity Act (Pub. L. 113-128) in 2014. Since 1984,
the Council has been an independent agency outside Executive
departments that neither regulates nor adjudicates. The Council is
charged with advising the President, Congress, and other federal
agencies regarding policies, programs, practices, and procedures that
affect people with disabilities.
This rulemaking action would implement the Council's procedures
required under the Freedom of Information Act (FOIA), 5 U.S.C. 552, as
amended; the Privacy Act of 1974 (Privacy Act), 5 U.S.C. 552a, as
amended; and the Government in the Sunshine Act (Sunshine Act), 5
U.S.C. 552b, as amended. The FOIA requires agencies to implement
procedures for public access to records. This proposed rulemaking
describes the procedures for members of the public to request access to
records. In addition, this document also proposes procedures for the
Council's responses to these requests, including the timeframe for
response and applicable fees.
The Privacy Act imposes requirements on agencies that maintain
systems of records pertaining to individuals. These requirements
include procedures for an individual to request access to or amendment
of information about him or herself maintained in a system of records.
This proposed rulemaking describes the Council's procedures for
providing individuals access to their records or to request amendment
of those records, including the timeframes for response and any
applicable fees.
The Sunshine Act requires public meetings for the deliberations of
federal agencies headed by collegial bodies comprised of members.
Agencies subject to the Sunshine Act must publish procedures for such
public meetings. As an agency headed by a Council comprised entirely of
individuals appointed by the President and Congress, the Council is
subject to the Sunshine Act and must publish a rulemaking to implement
its public meeting procedures, including procedures to close meetings
when permitted by the Sunshine Act.
Most of the proposed regulatory provisions contained in this notice
of proposed rulemaking are drawn directly from requirements specified
in the FOIA, Privacy Act, and Sunshine Act. In addition, the Council
modeled its proposed procedures on those already adopted by other
federal agencies to incorporate for its own use those practices that
represent ``best practices'' for FOIA, Privacy Act, and Sunshine Act
administration.
II. Regulatory Analysis and Notices
Executive Order 12866
This proposal is not a ``significant regulatory action'' within the
meaning of Executive Order 12866. The economic impact of these
regulations should be minimal, therefore, further economic evaluation
is not necessary.
Regulatory Flexibility Act, as Amended
The Regulatory Flexibility Act, as amended by the Small Business
Regulatory Enforcement Act of 1996 (5 U.S.C. 601 et seq.), generally
requires an agency to prepare a regulatory flexibility analysis for any
rule subject to notice and comment rulemaking under the Administrative
Procedure Act or any other statute, unless the agency certifies that
the rule will not have a significant economic impact on a number of
small entities. Small entities include small businesses, small
organizations, and small government jurisdictions. The
[[Page 33200]]
Council considered the effects on this proposed rulemaking on small
entities and certifies that these proposed rules will not have a
significant impact on a substantial number of small entities.
Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4,
requires each agency to assess the effects of its regulatory actions on
state, local, and tribal governments, and the private sector. Agencies
must prepare a written statement of economic and regulatory
alternatives anytime a proposed or final rule imposes a new or
additional enforceable duty on any state, local, or tribal government
or the private sector that causes those entities to spend, in
aggregate, $100 million or more (adjusted for inflation) in any one
year (defined in UMRA as a ``federal mandate''). The Council determined
that such a written statement is not required in connection with these
proposed rules because they will not impose a federal mandate, as
defined in UMRA.
National Environmental Policy Act
The Council analyzed this action for purposes of the National
Environmental Policy Act of 1969, 42 U.S.C. 4321 et seq., and
determined that it would not significantly affect the environment;
therefore, an environmental impact statement is not required.
Paperwork Reduction Act
Under the Paperwork Reduction Act of 1995 (PRA), 44 U.S.C. 3501 et
seq., federal agencies must obtain approval from the Office of
Management and Budget for each collection of information they conduct,
sponsor, or require through regulations. This proposed action does not
include an information collection for purposes of the PRA.
Executive Order 13132 (Federalism)
This action has been analyzed in accordance with the principles and
criteria contained in Executive Order 13132, dated August 4, 1999, and
the Council determined that it does not have sufficient implications
for federalism to warrant the preparation of a Federalism Assessment.
List of Subjects
5 CFR Part 10000
Administrative practice and procedure, Freedom of information,
Confidential business information, Privacy.
5 CFR Part 10001
Administrative practice and procedure, Privacy.
5 CFR Part 10002
Administrative practice and procedure, Public availability of
information, Meetings.
In consideration of the foregoing, the Council proposes to amend
title 5, Code of Federal Regulations, by establishing chapter C,
consisting of parts 10000-10049, to read as follows:
CHAPTER C--NATIONAL COUNCIL ON DISABILITY
PART 10000--PROCEDURES FOR DISCLOSURE OF RECORDS UNDER THE FREEDOM
OF INFORMATION ACT
Sec.
10000.1 Purpose and scope.
10000.2 Definitions.
10000.3 Availability of records.
10000.4 Categories of exemptions.
10000.5 Requests for records.
10000.6 Responsibility for responding to requests.
10000.7 Administrative appeals.
10000.8 Timeframe for Council's response to a FOIA request or
administrative appeal.
10000.9 Business information.
10000.10 Fees.
Authority: 5 U.S.C. 552, as amended; Executive Order 12600, 52
FR 23781, 3 CFR, 1987 Comp., p. 235.
Sec. 10000.1 Purpose and scope.
The regulations in this part implement the provisions of the FOIA.
Sec. 10000.2 Definitions.
The following definitions apply to this part:
Chairperson means the Chairperson of the Council, as appointed by
the President, or any person to whom the Council has delegated
authority for the matter concerned.
Chief FOIA Officer means the senior official to whom the Council
delegated responsibility for efficient and appropriate compliance with
the FOIA, currently delegated to the General Counsel.
Commercial use request means a FOIA request from or on behalf of a
requester that seeks information for a use or purpose that furthers
their commercial, trade, or profit interests, including pursuit of
those interests through litigation.
Confidential business information means trade secrets or
confidential or privileged commercial or financial information
submitted to the Council by a person that may be protected from
disclosure under Exemption 4 of the FOIA.
Council means the National Council on Disability, established by
the Rehabilitation Act of 1973 (29 U.S.C. 780 et seq.), as amended, and
amended by the Workforce Innovation and Opportunity Act (Pub. L. 113-
128) in 2014.
Direct costs are those expenses that an agency incurs in searching
for and duplicating (and, in the case of commercial use requests,
reviewing) records in order to respond to a FOIA request. For example,
direct costs include the salary of the employee performing the work
(i.e., the basic rate of pay for the employee, plus 16 percent of that
rate to cover benefits) and the cost of operating computers and other
electronic equipment, such as photocopiers and scanners. Direct costs
do not include overhead expenses such as the costs of space, and of
heating or lighting a facility.
Educational institution means a preschool, a public or private
elementary or secondary school, an institution of undergraduate or
graduate higher education, an institution of professional education, or
an institution of vocational education, which operates a program or
programs of scholarly research. A requester in this fee category must
show that the request is authorized by, and is made under the auspices
of, an educational institution and that the records are not sought for
a commercial use, but rather are sought to further scholarly research.
To fall within this fee category, the request must serve the scholarly
research goals of the institution rather than an individual research
goal.
(1) Example 1. A request from a professor of geology at a
university for records relating to soil erosion, written on letterhead
of the Department of Geology, would be presumed to be from an
educational institution.
(2) Example 2. A request from the same professor of geology seeking
drug information from the Food and Drug Administration in furtherance
of a murder mystery he is writing would not be presumed to be an
institutional request, regardless of whether it was written on
institutional stationery.
(3) Example 3. A student who makes a request in furtherance of the
completion of a course of instruction would be presumed to be carrying
out an individual research goal, rather than a scholarly research goal
of the institution and would not qualify as part of this fee category.
Fee waiver means the waiver or reduction of fees if a requester can
demonstrate meeting the statutory standard that the information is in
the public interest because it is likely to contribute significantly to
public understanding of the operations or activities of the government
and is not
[[Page 33201]]
primarily in the commercial interest of the requester.
FOIA means the Freedom of Information Act, 5 U.S.C. 552, as
amended. The FOIA applies to requests for agency records.
FOIA Officer means the individual to whom the Council has delegated
authority to carry out the Council's day-to-day FOIA administration,
currently delegated to the Council's Attorney Advisor.
FOIA Public Liaison means the individual designated by the
Chairperson to assist FOIA requesters with concerns about the Council's
processing of their FOIA request, including assistance in resolving
disputes, currently delegated to the Council's Attorney Advisor.
Non-commercial scientific institution means an organization
operated solely for the purpose of conducting scientific research, the
results of which are not intended to promote any product or research,
and not operated on a commercial basis.
Person includes an individual, partnership, corporation,
association, or public or private organization other than an agency.
Record means any writing, drawing, map, recording, diskette, DVD,
CD-ROM, tape, film, photograph, or other documentary material,
regardless of medium, by which information is preserved, including
documentary material stored electronically.
Redact means delete or mark over.
Representative of the news media is any person or entity organized
and operated to publish or broadcast news to the public that actively
gathers information of potential interest to a segment of the public,
uses its editorial skills to turn the raw materials into a distinct
work, and distributes that work to an audience. The term ``news'' means
information that is about current events or that would be of current
interest to the public. Examples of news media entities include
television or radio stations that broadcast ``news'' to the public at
large and publishers of periodicals that disseminate ``news'' and make
their products available through a variety of means to the general
public, including news organizations that disseminate solely on the
Internet. A request for records supporting the news-dissemination
function of the requester shall not be considered to be for a
commercial use. ``Freelance'' journalists who demonstrate a solid basis
for expecting publication through a news media entity shall be
considered as a representative of the news media. A publishing contract
would provide the clearest evidence that publication is expected;
however, components shall also consider a requester's past publication
record in making this determination.
Requester category means one of the three categories defined by the
Uniform Freedom of Information Fee Schedule and Guidelines published by
the Office of Management and Budget (OMB Fee Guidelines) in which
requesters will be placed for the purpose of determining what if any
fees for search, review, or duplication may be assessed. They are:
(1) Commercial requestors;
(2) Non-commercial scientific or educational institutions or
representatives of the news media; and
(3) All other requestors.
Submitter means any person or entity from whom the Council obtains
confidential or privileged business information, directly or
indirectly.
Unusual circumstances exist when:
(1) The need to search for and collect the requested records from
physically separate facilities;
(2) The need to search for, collect and appropriately examine a
voluminous amount of separate and distinct records which are demanded
in a single request; or
(3) The need for consultation, which shall be conducted with all
practicable speed, with another agency having a substantial interest in
the determination of the request.
Sec. 10000.3 Availability of records.
Records that are required by the FOIA to be made available for
public inspection and copying may be accessed through the Agency's Web
site at www.ncd.gov. The Council is responsible for determining which
of its records are required to be made publicly available, as well as
identifying additional records of interest to the public that are
appropriate for public disclosure, and for posting and indexing such
records. The Council shall ensure that its Web site of posted records
and indices is reviewed and updated on an ongoing basis. The Council's
FOIA Public Liaison can assist individuals in locating records
particular to a component.
Sec. 10000.4 Categories of exemptions.
(a) The FOIA does not require disclosure of matters that are:
(1) Specifically authorized under criteria established by an
executive order to be kept secret in the interest of national defense
or foreign policy and are, in fact, properly classified under executive
order;
(2) Related solely to the internal personnel rules and practices of
the Council;
(3) Specifically exempted from disclosure by statute (other than
the Government in the Sunshine Act, 5 U.S.C. 552b, as amended),
provided that such statute:
(i)(A) Requires that the matters be withheld from the public in
such a manner as to leave no discretion on the issue; or
(B) establishes particular criteria for withholding or refers to
particular types of matters to be withheld; and
(ii) If enacted after October 28, 2009, specifically cites to
Exemption 3 of the FOIA, 5 U.S.C. 552(b)(3);
(4) Trade secrets and commercial or financial information obtained
from a person and privileged or confidential;
(5) Inter-agency or intra-agency memoranda or letters, which would
not be available at law to a party other than an agency in litigation
with the Council;
(6) Personnel and medical files and similar files the disclosure of
which would constitute a clearly unwarranted invasion of personal
privacy;
(7) Records or information compiled for law enforcement purposes,
but only to the extent that the production of such law enforcement
records or information:
(i) Could reasonably be expected to interfere with enforcement
proceedings;
(ii) Would deprive a person of a right to a fair trial or impartial
adjudication;
(iii) Could reasonably be expected to constitute an unwarranted
invasion of personal privacy;
(iv) Could reasonably be expected to disclose the identity of a
confidential source, including a state, local, or foreign agency or
authority or any private institution that furnished information on a
confidential basis, and, in the case of a record or information
compiled by a criminal investigation, or by an agency conducting a
lawful national security intelligence investigation, information
furnished by a confidential source;
(v) Would disclose techniques and procedures for law enforcement
investigations or prosecutions or would disclose guidelines for law
enforcement investigations or prosecutions if such disclosure could
reasonably be expected to risk circumvention of the law; or
(vi) Could reasonably be expected to endanger the life or physical
safety of any individual.
(8) Contained in or related to examination, operating, or condition
reports prepared by, on behalf of, or for the use of an agency
responsible for the regulation or supervision of financial
institutions; or
(9) Geological and geophysical information and data, including
maps, concerning wells.
[[Page 33202]]
Sec. 10000.5 Request for records.
(a) You may request copies of records under this part by email to
FOIA@ncd.gov or in writing addressed to FOIA Officer, National Council
on Disability, 1331 F Street NW., Suite 850, Washington, DC 20004.
(b) Your request shall reasonably describe the records sought with
sufficient specificity, and when possible, include names, dates, and
subject matter, in order to permit the FOIA Officer to locate the
records with a reasonable amount of effort. If the FOIA Officer cannot
locate responsive records based on your written description, you will
be notified and advised that further identifying information is
necessary before the request can be fulfilled. Although requests are
considered either FOIA or Privacy Act requests, the Council processes
requests for records in accordance with both laws so as to provide the
greatest degree of lawful access while safeguarding an individual's
personal privacy.
(c) Your request should specify your preferred form or format
(including electronic formats) for the records you seek. We will
accommodate your request if the record is readily available in that
form or format. When you do not specify the form or format of the
response, we will provide responsive records in the form or format most
convenient to us.
Sec. 10000.6 Responsibility for responding to requests.
(a) In general. The Council delegates authority to grant or deny
FOIA requests in whole or in part to the Chief FOIA Officer. When
conducting a search for responsive records, the FOIA Officer generally
will search for records in existence on the date of the search. If
another date is used, the FOIA Officer shall inform the requester of
the date used.
(b) Responses. The Chief FOIA Officer will notify you of his or her
determination to grant or deny your FOIA request in the time frame
stated in Sec. 10000.8. The Council will release reasonably segregable
non-exempt information. For any adverse determination, including those
regarding any disputed fee matter; a denial of a request for a fee
waiver; or a determination to withhold a record, in whole or in part,
that a record does not exist or cannot be located; or to deny a request
for expedited processing; the notice shall include the following
information:
(1) The name(s) of any person responsible for the determination to
deny the request in whole or in part;
(2) A brief statement of the reason(s) for the denial, including
any FOIA exemption applied in denying the request. The FOIA Officer
will indicate, if technically feasible, the amount of information
deleted and the exemption under which a deletion is made on the
released portion of the record, unless including that indication would
harm an interest protected by the exemption;
(3) An estimate of the volume of information withheld, if
applicable. This estimate does not need to be provided if it is
ascertainable based on redactions in partially disclosed records or if
the disclosure of the estimate would harm an interest protected by an
applicable FOIA exemption; and
(4) A statement that the adverse determination may be appealed and
a description of the requirements for an appeal under Sec. 10000.7.
(c) Consultation, referral, and coordination. When reviewing
records located by the Council in response to a request, the Council
shall determine whether another agency of the Federal Government is
better able to determine whether the record is exempt from disclosure
under the FOIA and, if so, whether it should be released as a matter of
discretion. As to any such record, the Council shall proceed in one of
the following ways:
(1) Consultation. When records originated with the Council, but
contain within them information of interest to another agency, the
Council should typically consult with that other agency prior to making
a release determination.
(2) Referral. (i) When the Council believes that a different agency
is best able to determine whether to disclose the record, the Council
typically should refer the responsibility for responding to the request
regarding that record, as long as the referral is to an agency that is
subject to the FOIA. Ordinarily, the agency that originated the record
will be presumed to be best able to make the disclosure determination.
However, if the Council and the originating agency jointly agree that
the former is in the best position to respond regarding the record,
then the record may be handled as a consultation.
(ii) Whenever the Council refers any part of the responsibility for
responding to a request to another agency, it shall document the
referral, maintain a copy of the record that it refers, and notify the
requester of the referral and inform the requester of the name(s) of
the agency to which the record was referred, including that agency's
FOIA contact information.
(3) Coordination. The standard referral procedure is not
appropriate where disclosure of the identity of the agency to which the
referral would be made could harm an interest protected by an
applicable exemption, such as the exemptions that protect personal
privacy or national security interests. For example, if the Council
responding to a request for records on a living third party locates
within its files records originating with a law enforcement agency, and
if the existence of that law enforcement interest in the third party
was not publicly known, then to disclose that law enforcement interest
could cause an unwarranted invasion of the personal privacy of the
third party. Similarly, if the Council locates within its files
material originating with an Intelligence Community agency, and the
involvement of that agency in the matter is classified and not publicly
acknowledged, then to disclose or give attribution to the involvement
of that Intelligence Community agency could cause national security
harms. In such instances, in order to avoid harm to an interest
protected by an applicable exemption, the Council should coordinate
with the originating agency to seek its views on the disclosability of
the record. The release determination for the record that is the
subject of the coordination should then be conveyed to the requester by
the Council.
Sec. 10000.7 Administrative appeals.
(a) You may appeal an adverse determination related to your FOIA
request, or the Council's failure to respond to your FOIA request
within the prescribed time limits, to the Executive Director, National
Council on Disability, 1331 F Street NW., Suite 850, Washington, DC
20004.
(b) Your appeal must be in writing and must be postmarked or
electronically received by the Executive Director within 60 days of the
date of the letter denying your request, in whole or in part. For the
most expeditious handling, your appeal letter and envelope should be
marked ``Freedom of Information Act Appeal'' and reference the request
number.
(c) The Executive Director shall respond to all administrative
appeals in writing and within the time frame stated in Sec.
10000.8(d). If the decision affirms, in whole or in part, the Chief
FOIA Officer's determination, the letter shall contain a statement of
the reasons for the affirmance, including any FOIA exemption(s)
applied, and will inform you of the FOIA's provisions for court review.
If the Executive Director reverses or modifies the Chief FOIA Officer's
determination, in whole or in part, you will be notified in writing and
your request will be reprocessed in accordance with that decision. The
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Council may work with Office of Government Information Services (OGIS)
to resolve disputes between FOIA requestors and the Council. A
requester may also contact OGIS in the following ways: Via mail to
OGIS, National Archives and Records Administration, 8601 Adelphi Road--
OGIS, College Park, MD 20740 (ogis.archives.gov), via email at
ogis@nara.gov, or via the telephone at 202-741-5770 or 877-684-6448.
Facsimile is also available at 202-741-5769.
Sec. 10000.8 Timeframe for Council's response to a FOIA request or
administrative appeal.
(a) In general. The Council ordinarily shall respond to requests
according to their order of receipt.
(b) Multi-track processing. (1) The Council may use two or more
processing tracks by distinguishing between simple and more complex
requests based on the amount of work and/or time needed to process the
request, including through limits based on the number of pages
involved. If the Council does so, it shall advise requesters in its
slower track(s) of the limits of its faster track(s).
(2) Using multitrack processing, the Council may provide requesters
in its slower track(s) with an opportunity to limit the scope of their
requests in order to qualify for faster processing within the specified
limits of the Council's faster track(s). In doing so, the Council will
contact the requester by telephone, letter, or email, whichever is more
efficient in each case.
(c) Initial decisions. The Council shall determine whether to
comply with a FOIA request within 20 working days after our receipt of
the request, unless the time frame for response is extended due to
unusual circumstances as further described in paragraph (f) of this
section. A request is received by the Council, for purposes of
commencing the 20-day timeframe for its response, on the day it is
properly received by the FOIA Officer. The request must meet all
requirements described by these regulations and the FOIA before the 20-
day timeframe commences.
(d) Administrative appeals. The Executive Director shall determine
whether to affirm or overturn a decision subject to administrative
appeal within 20 working days after receipt of the appeal, unless the
time frame for response is extended in accordance with paragraph (e) of
this section.
(e) Tolling timelines. We may toll the 20-day timeframe set forth
in paragraphs (c) or (d) of this section:
(1) One time to await information that we reasonably requested from
you, as permitted by 5 U.S.C. 552(a)(6)(A)(iii)(I);
(2) As necessary to clarify with you any fee-related issue.
(3) If we toll the time frame for response under paragraphs (e)(1)
or (2) of this section, the tolling period ends upon our receipt of
your response.
(f) Unusual circumstances. In the event of unusual circumstances,
we may extend the time frame for response provided in paragraphs (c) or
(d) of this section by providing you with written notice of the unusual
circumstances and the date on which a determination is expected to be
made. Where the extension is for more than ten working days, we will
provide you with an opportunity either to modify your request so that
it may be processed within the statutorily-prescribed time limits or to
arrange an alternative time period for processing your request or
modified request.
(g) Aggregating requests. When we reasonably believe that multiple
requests submitted by a requester, or by a group of requesters acting
in concert, involving clearly related matters, can be viewed as a
single request that involves unusual circumstances, we may aggregate
the requests for the purposes of fees and processing activities.
(h) Expedited processing. You may request that the Council expedite
processing of your FOIA request. To receive expedited processing, you
must demonstrate a compelling need for such processing.
(1) For requests for expedited processing, a ``compelling need''
involves:
(i) 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; or
(ii) A request made by a person primarily engaged in disseminating
information, with a time urgency to inform the public of actual or
alleged federal government activity.
(2) Your request for expedited processing must be in writing and
may be made at the time of the initial FOIA request or at any later
time.
(3) Your request for expedited processing must include a statement,
certified to be true and correct to the best of your knowledge and
belief, explaining in detail the basis for requesting expedited
processing. If you are a person primarily engaged in disseminating
information, you must establish a particular urgency to inform the
public about the federal government activity involved in the request.
(4) The FOIA Officer will decide whether to grant or deny your
request for expedited processing and notify the requester within ten
calendar days of receipt. You will be notified in writing of the
determination. Appeals of adverse decisions regarding expedited
processing shall be processed expeditiously.
Sec. 10000.9 Business information.
(a) Designation of confidential business information. In the event
a FOIA request is made for confidential business information previously
submitted to the Government by a commercial entity or on behalf of it
(hereinafter ``submitter''), the regulations in this section apply.
When submitting confidential business information, you must use a good-
faith effort to designate, by use of appropriate markings, at the time
of submission or at a reasonable time thereafter, any portions of your
submission that you consider to be exempt from disclosure under FOIA
Exemption 4, 5 U.S.C. 552(b)(4). Your designation will expire ten years
after the date of submission unless you request, and provide
justification for, a longer designation period.
(b) Notice to submitters. (1) Whenever you designate confidential
business information as provided in paragraph (a) of this section, or
the Council has reason to believe that your submission may contain
confidential business information, we will provide you with prompt
written notice of a FOIA request that seeks your business information.
The notice shall:
(i) Give you an opportunity to object to disclosure of your
information, in whole or in part;
(ii) Describe the business information requested or include copies
of the requested records or record portions containing the information;
and
(iii) Inform you of the time frame in which you must respond to the
notice.
(2) In cases involving a voluminous number of submitters, notice
may be made by posting or publishing the notice in a place or manner
reasonably likely to accomplish it.
(c) Opportunity to object to disclosure. The Council shall allow
you a reasonable time to respond to the notice described in paragraph
(b) of this section. If you object to the disclosure of your
information, in whole or in part, you must provide us with a detailed
written statement of your objection. The statement must specify all
grounds for withholding any portion of the information under any FOIA
exemption and, when relying on FOIA Exemption 4, it must explain why
the information is a trade secret or commercial or financial
information that is privileged and confidential. If you fail to respond
within the time frame specified in the
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notice, the Council will conclude that you have no objection to
disclosure of your information. The Council will only consider
information that we receive within the time frame specified in the
notice.
(d) Notice of intent to disclose. The Council will consider your
objection and specific grounds for non-disclosure in deciding whether
to disclose business information. Whenever the Council decides to
disclose business information over your objection, we will provide you
with written notice that includes:
(1) A statement of the reasons why each of your bases for
withholding were not sustained;
(2) A description of the business information to be disclosed; and
(3) A specified disclosure date, which shall be a reasonable time
after the notice.
(e) Exceptions to the notice requirement. The notice requirements
of paragraphs (c) and (d) of this section shall not apply if:
(1) The Council determines that the information is exempt under the
FOIA;
(2) The information lawfully has been published or has been
officially made available to the public;
(3) Disclosure of the information is required by statute (other
than the FOIA) or by a regulation issued in accordance with the
requirements of Executive Order 12600;
(4) The designation made by the submitter under paragraph (a) of
this section appears obviously frivolous, except that, in such a case,
the Council shall, within a reasonable time prior to the date the
disclosure will be made, give the submitter written notice of the final
decision to disclose the information.
(f) Requester notification. The Council shall notify a requester
whenever it provides the submitter with notice and an opportunity to
object to disclosure; whenever it notifies the submitter of its intent
to disclose the requested information; and whenever a submitter files a
lawsuit to prevent the disclosure of the information.
Sec. 10000.10 Fees.
(a) We will charge fees that recoup the full allowable direct costs
we incur in processing your FOIA request. Fees may be charged for
search, review or duplication. We will use the most efficient and least
costly methods to comply with your request.
(b) With regard to manual searches for records, we will charge the
salary rate(s) (calculated as the basic rate of pay plus 16 percent of
that basic rate to cover benefits) of the employee(s) performing the
search.
(c) In calculating charges for computer searches for records, we
will charge at the actual direct cost of providing the service,
including the cost of operating the central processing unit directly
attributable to searching for records potentially responsive to your
FOIA request and the portion of the salary of the operators/programmers
performing the search.
(d) Review fees shall be charged for requesters who make commercial
use requests. Review fees shall be assessed only for the initial
review--that is the review undertaken the first time we analyze the
applicability of a specific exemption to a particular record or portion
of a record. Records or portions of records withheld in full under an
exemption that is subsequently determined not to apply may be reviewed
again to determine the applicability of other exemptions not previously
considered. We may assess the costs for such subsequent review. Review
fees are charged at the same rates as those charged for a search.
(e) Notice of anticipated fees in excess of $25.00. (1) When the
Council determines or estimates that the fees to be assessed in
accordance with this section will exceed $25.00, the Council shall
notify the requester of the actual or estimated amount of the fees,
including a breakdown of the fees for search, review or duplication,
unless the requester has indicated a willingness to pay fees as high as
those anticipated. If only a portion of the fee can be estimated
readily, the Council shall advise the requester accordingly. If the
requester is a noncommercial use requester, the notice shall specify
that the requester is entitled to the statutory entitlements of 100
pages of duplication at no charge and, if the requester is charged
search fees, two hours of search time at no charge, and shall advise
the requester whether those entitlements have been provided.
(2) In cases in which a requester has been notified that the actual
or estimated fees are in excess of $25.00, the request shall not be
considered received and further work will not be completed until the
requester commits in writing to pay the actual or estimated total fee,
or designates some amount of fees the requester is willing to pay, or
in the case of a noncommercial use requester who has not yet been
provided with the requester's statutory entitlements, designates that
the requester seeks only that which can be provided by the statutory
entitlements. The requester must provide the commitment or designation
in writing, and must, when applicable, designate an exact dollar amount
the requester is willing to pay. The Council is not required to accept
payments in installments.
(3) If the requester has indicated a willingness to pay some
designated amount of fees, but the Council estimates that the total fee
will exceed that amount, the Council shall toll the processing of the
request when it notifies the requester of the estimated fees in excess
of the amount the requester has indicated a willingness to pay. The
Council shall inquire whether the requester wishes to revise the amount
of fees the requester is willing to pay or modify the request. Once the
requester responds, the time to respond will resume from where it was
at the date of the notification.
(4) The Council shall make available its FOIA Public Liaison or
other FOIA professional to assist any requester in reformulating a
request to meet the requester's needs at a lower cost.
(f) We will charge you the full costs of providing you with the
following services:
(1) Certifying that records are true copies; or
(2) Sending records by special methods such as express or certified
mail.
(g) We may assess interest charges on an unpaid bill starting on
the 31st calendar day following the day on which the billing was sent.
Interest shall be at the rate prescribed in 31 U.S.C. 3717 and will
accrue from the date of the billing.
(h) We will not charge a search fee for requests by educational
institutions, non-commercial scientific institutions, or
representatives of the news media. A search fee will be charged for a
commercial use requests.
(i) Except for a commercial use request, we will not charge you for
the first 100 pages of duplication and the first two hours of search.
(j) If the Council fails to comply with the time limits in which to
respond to a request, and if no unusual or exceptional circumstances,
as those terms are defined by the FOIA, apply to the processing of the
request, it may not charge search fees, or, in the instances of
requests from requesters requests by educational institutions (unless
the records are sought for a commercial use), noncommercial scientific
institutions, or representatives of the news media, may not charge
duplication fees.
(k) After processing, actual fees must be equal to or exceed $25,
for the Council to require payment of fees.
(l) You may not file multiple requests, each seeking portions of a
document or documents, solely for the purpose of
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avoiding payment of fees. When the Council reasonably believes that a
requester, or a group of requesters acting in concert, has submitted
requests that constitute a single request involving clearly related
matters, we may aggregate those requests and charge accordingly.
(m) We may not require you to make payment before we begin work to
satisfy the request or to continue work on a request, unless:
(1) We estimate or determine that the allowable charges that you
may be required to pay are likely to exceed $250; or
(2) You have previously failed to pay a fee charged within 30 days
of the date of billing.
(n) Upon written request, we may waive or reduce fees that are
otherwise chargeable under this part. If you request a waiver or
reduction in fees, you must demonstrate that a waiver or reduction in
fees is in the public interest because disclosure of the requested
records is likely to contribute significantly to the public
understanding of the operations or activities of the government and is
not primarily in your commercial interest.
(1) In deciding whether disclosure of the requested information is
in the public interest because it is likely to contribute significantly
to public understanding of operations or activities of the government,
the Council shall consider all four of the following factors:
(i) The subject of the request must concern identifiable operations
or activities of the Federal Government, with a connection that is
direct and clear, not remote or attenuated.
(ii) Disclosure of the requested records must be meaningfully
informative about government operations or activities in order to be
``likely to contribute'' to an increased public understanding of those
operations or activities. The disclosure of information that already is
in the public domain, in either the same or a substantially identical
form, would not contribute to such understanding where nothing new
would be added to the public's understanding.
(iii) 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 as well as the requester's ability and
intention to effectively convey information to the public shall be
considered. It shall be presumed that a representative of the news
media will satisfy this consideration.
(iv) The public's understanding of the subject in question must be
enhanced by the disclosure to a significant extent. However, components
shall not make value judgments about whether the information at issue
is ``important'' enough to be made public.
(2) To determine whether disclosure of the requested information is
primarily in the commercial interest of the requester, the Council
shall consider the following factors:
(i) The Council shall identify any commercial interest of the
requester, as defined in Sec. 10000.2, that would be furthered by the
requested disclosure. Requesters shall be given an opportunity to
provide explanatory information regarding this consideration.
(ii) A waiver or reduction of fees is justified where the public
interest is greater than any identified commercial interest in
disclosure. The Council ordinarily shall presume that where a news
media requester has satisfied the public interest standard, the public
interest will be the interest primarily served by disclosure to that
requester. Disclosure to data brokers or others who merely compile and
market government information for direct economic return shall not be
presumed to primarily serve the public interest.
(3) Where only some of the records to be released satisfy the
requirements for a waiver of fees, a waiver shall be granted for those
records.
(4) Requests for a waiver or reduction of fees should be made when
the request is first submitted to the component and should address the
criteria referenced above. A requester may submit a fee waiver request
at a later time so long as the underlying record request is pending or
on administrative appeal. When a requester who has committed to pay
fees subsequently asks for a waiver of those fees and that waiver is
denied, the requester shall be required to pay any costs incurred up to
the date the fee waiver request was received.
PART 10001--IMPLEMENTATION OF THE PRIVACY ACT OF 1974
Sec.
10001.1 Purpose and scope.
10001.2 Definitions.
10001.3 Privacy Act requests.
10001.4 Responses to Privacy Act requests.
10001.5 Administrative appeals.
10001.6 Fees.
10001.7 Penalties.
Authority: 5 U.S.C. 552a.
Sec. 10001.1 Purpose and scope.
The regulations in this part implement the provisions of the
Privacy Act.
Sec. 10001.2 Definitions.
The following terms used in this part are defined in the Privacy
Act: Individual, maintain, record, system of records, statistical
record, and routine use. The following definitions also apply in this
part:
Chairperson means the Chairperson of the Council, as appointed by
the President, or any person to whom the Council has delegated
authority for the matter concerned.
Council means the National Council on Disability, established by
the Rehabilitation Act of 1973 (29 U.S.C. 780 et seq.), as amended, and
amended by the Workforce Innovation and Opportunity Act (Pub. L. 113-
128) in 2014.
General Counsel means the Council's principal legal advisor, or his
or her designee.
Privacy Act means the Privacy Act of 1974, 5 U.S.C. 552a, as
amended.
Privacy Act Officer means the person designated by the Council to
be responsible for the day-to-day administration of the Privacy Act,
currently delegated to the Council's Management Analyst.
Sec. 10001.3 Privacy Act requests.
(a) Requests to determine if you are the subject of a record. You
may request that the Council inform you if we maintain a system of
records that contains records about you. Your request must follow the
procedures described in paragraph (b) of this section.
(b) Requests for access. You may request access to a Council record
about you in writing or by appearing in person. You should direct your
request to the Privacy Act Officer. Written requests may be sent to:
Privacy Act Officer, National Council on Disability, 1331 F Street NW.,
Suite 850, Washington, DC 20004. Your request should include the
following information:
(1) Your name, address, and telephone number;
(2) The system(s) of records in which the requested information is
contained; and
(3) At your option, authorization for copying expenses.
(4) Written requests. In addition to the information described in
paragraphs (b)(1) through (3) of this section, written requests must
include a statement affirming your identity, signed by you and
witnessed by two persons (including witnesses' addresses) or notarized.
(i) Witnessed. If your statement is witnessed, it must include a
sentence above the witnesses' signatures attesting
[[Page 33206]]
that they personally know you or that you have provided satisfactory
proof of your identity.
(ii) Notarized. If your statement is notarized, you must provide
the notary with adequate proof of your identity in the form of a
drivers' license, passport, or other identification acceptable to the
notary.
(iii) The Council, in its discretion, may require additional proof
of identification depending on the nature and sensitivity of the
records in the system of records.
(iv) For the quickest possible handling, your letter and envelope
should be marked ``Privacy Act Request.''
(5) In person requests. In addition to the information described in
paragraphs (b)(1) through (3) of this section, if you make your request
in person, you must provide adequate proof of identification at the
time of your request. Adequate proof of identification includes a valid
drivers' license, valid passport, or other current identification that
includes your address and photograph.
(c) Requests for amendment or correction of records. You may
request an amendment to or correction of a record about you in person
or by writing to the Privacy Act Officer following the procedures
described in paragraph (b) of this section. Your request for amendment
or correction should identify each particular record at issue, state
the amendment or correction sought, and describe why the record is not
accurate, relevant, timely, or complete.
(d) Requests for an accounting of disclosures. Except for those
disclosures for which the Privacy Act does not require an accounting,
you may request an accounting of any disclosure by the Council of a
record about you. Your request for an accounting of disclosures must be
made in writing following the procedures described in paragraph (b) of
this section.
(e) Requests for access on behalf of someone else. (1) If you are
making a request on behalf of someone else, your request must include a
statement from that individual verifying his or her identity, as
provided in paragraph (b)(4) of this section. Your request also must
include a statement certifying that individual's agreement that records
about him or her may be released to you.
(2) If you are the parent or guardian of the individual to whom the
requested record pertains, or the individual to whom the record
pertains has been deemed incompetent by a court, your request for
access to records about that individual must include:
(i) The identity of the individual who is the subject of the
record, including his or her name, current address, and date and place
of birth;
(ii) Verification of your identity in accordance with paragraph
(b)(4) of this section;
(iii) Verification that you are the subject's parent or guardian,
which may be established by a copy of the subject's birth certificate
identifying you as his or her parent, or a court order establishing you
as guardian; and
(iv) A statement certifying that you are making the request on the
subject's behalf.
Sec. 10001.4 Responses to Privacy Act requests.
(a) Acknowledgement. The Privacy Act Officer shall provide you with
a written acknowledgment of your written request under section 3 within
ten business days of our receipt of your request.
(b) Grants of requests. If you make your request in person, the
Privacy Act Officer shall respond to your request directly, either by
granting you access to the requested records, upon payment of any
applicable fee and with a written record of the grant of your request
and receipt of the records, or by informing you when a response may be
expected. If you are accompanied by another person, you must authorize
in writing any discussion of the records in the presence of the third
person. If your request is in writing, the Privacy Act Officer shall
provide you with written notice of the Council's decision to grant your
request and the amount of any applicable fee. The Privacy Act Officer
shall disclose the records to you promptly, upon payment of any
applicable fee.
(c) Denials of requests in whole or in part. The Privacy Act
Officer shall notify you in writing of his or her determination to
deny, in whole or in part, your request. This writing shall include the
following information:
(1) The name and title or position of the person responsible for
the denial;
(2) A brief statement of the reason for the denial(s), including
any applicable Privacy Act exemption;
(3) A statement that you may appeal the denial and a brief
description of the requirements for appeal under Sec. 10001.5.
(d) Request for records not covered by the Privacy Act or subject
to Privacy Act exemption. If the Privacy Act Officer determines that a
requested record is not subject to the Privacy Act or the records are
subject to Privacy Act exemption, your request will be processed in
accordance with the Council's Freedom of Information Act procedures at
5 CFR part 10000.
Sec. 10001.5 Administrative appeals.
(a) Appeal procedures. (1) You may appeal any decision by the
Council to deny, in whole or in part, your request under Sec. 10001.3
no later than 60 days after the decision is rendered.
(2) Your appeal must be in writing, sent to the General Counsel at
the address specified in Sec. 10001.3(b) and contain the following
information:
(i) Your name;
(ii) Description of the record(s) at issue;
(iii) The system of records in which the record(s) is contained;
(iv) A statement of why your request should be granted.
(3) The General Counsel shall determine whether to uphold or
reverse the initial determination within 30 working days of our receipt
of your appeal. The General Counsel shall notify you of his or her
decision, including a brief statement of the reasons for the decision,
in writing. The General Counsel's decision will be the final action of
the Council.
(b) Statement of disagreement. If your appeal of our determination
related to your request for amendment or correction is denied in whole
or in part, you may file a Statement of Disagreement that states the
basis for your disagreement with the denial. Statements of Disagreement
must be concise and must clearly identify each part of any record that
is disputed. The Privacy Act Officer will place your Statement of
Disagreement in the system of records in which the disputed record is
maintained and shall mark the disputed record to indicate that a
Statement of Disagreement has been filed and where it may be found.
(c) Notification of amendment, correction, or disagreement. Within
30 working days of the amendment or correction of a record, the Privacy
Act Officer shall notify all persons, organizations, or agencies to
which the Council previously disclosed the record, if an accounting of
that disclosure was made, that the record has been corrected or
amended. If you filed a Statement of Disagreement, the Privacy Act
Officer shall append a copy of it to the disputed record whenever it is
disclosed and also may append a concise statement of its reason(s) for
denying the request to amend or correct the record.
Sec. 10001.6 Fees.
We will not charge a fee for search or review of records requested
under this part, or for the correction of records. If
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you request copies of records, we may charge a fee of $.10 per page.
Sec. 10001.7 Penalties.
Any person who makes a false statement in connection with any
request for a record or an amendment or correction thereto under this
part is subject to the penalties prescribed in 18 U.S.C. 494 and 495
and 5 U.S.C. 552a(i)(3).
PART 10002--IMPLEMENTATION OF THE GOVERNMENT IN THE SUNSHINE ACT
Sec.
10002.1 Purpose and scope.
10002.2 Definitions.
10002.3 Open meetings.
10002.4 Procedures for public announcement of meetings.
10002.5 Grounds on which meetings may be closed or information
withheld.
10002.6 Procedures for closing meetings or withholding information,
and requests by affected persons to close a meeting.
10002.7 Changes following public announcement.
10002.8 Transcripts, recordings, or minutes of closed meetings.
10002.9 Public availability and retention of transcripts,
recordings, and minutes, and applicable fees.
Authority: 5 U.S.C. 552b.
Sec. 10002.1 Purpose and scope.
(a) The regulations in this part implement the provisions of the
Sunshine Act.
(b) Requests for all records other than those described in Sec.
10002.9, shall be governed by the Council's Freedom of Information Act
procedures at 5 CFR part 10001.
Sec. 10002.2 Definitions.
The following definitions apply in this part:
Chairperson means the Chairperson of the Council, as appointed by
the President, or any person to whom the Council has delegated
authority for the matter concerned.
Council means the National Council on Disability, established by
the Rehabilitation Act of 1973 (29 U.S.C. 780 et seq.), as amended, and
amended by the Workforce Innovation and Opportunity Act (Pub. L. 113-
128) in 2014.
General Counsel means the Council's principal legal advisor, or his
or her designee.
Meeting means the deliberations of five or more Council members
that determine or result in the joint conduct or disposition of
official Council business. A meeting does not include:
(1) Notational voting or similar consideration of business for the
purpose of recording votes, whether by circulation of material to
members' individually in writing or by a polling of the members
individually by phone or email.
(2) Action by five or more members to:
(i) Open or close a meeting or to release or withhold information
pursuant to Sec. 10002.6;
(ii) Set an agenda for a proposed meeting;
(iii) Call a meeting on less than seven days' notice, as permitted
by Sec. 10002.4; or
(iv) Change the subject matter or the determination to open or to
close a publicly announced meeting under Sec. 10002.7.
(3) A session attended by five or more members for the purpose of
having the Council's staff or expert consultants, another federal
agency, or other persons or organizations brief or otherwise provide
information to the Council concerning any matters within the purview of
the Council, provided that the members do not engage in deliberations
that determine or result in the joint conduct or disposition of
official business on such matters.
(4) A gathering of members for the purpose of holding informal,
preliminary discussions or exchanges of views which do not effectively
predetermine official action. Member means an individual duly appointed
and confirmed to the Council. Public observation means attendance by
the public at a meeting of the Council, but does not include public
participation.
Public participation means the presentation or discussion of
information, raising of questions, or other manner of involvement in a
meeting of the Council by the public in a manner that contributes to
the disposition of official Council business.
Sunshine Act means the Government in the Sunshine Act, 5 U.S.C.
552b.
Sec. 10002.3 Open meetings.
(a) Except as otherwise provided in this part, every portion of a
Council meeting shall be open to public observation.
(b) Council meetings, or portions thereof, shall be open to public
participation when an announcement to that effect is published under
Sec. 10002.4. Public participation shall be conducted in an orderly,
non-disruptive manner and in accordance with any procedures the
Chairperson may establish. Public participation may be terminated for
good cause as determined by the Council upon the advice of the General
Counsel based on unanticipated developments.
Sec. 10002.4 Procedures for public announcement of meetings.
(a) Except as otherwise provided in this section, the Council shall
make a public announcement at least seven days prior to a meeting. The
public announcement shall include:
(1) The time and place of the meeting;
(2) The subject matter of the meeting;
(3) Whether the meeting is to be open, closed, or portions of a
meeting will be closed;
(4) Whether public participation will be allowed;
(5) The name and telephone number of the person who will respond to
requests for information about the meeting;
(b) The seven-day prior notice required by paragraph (a) of this
section may be reduced only if:
(1) A majority of all members determine by recorded vote that
Council business requires that such meeting be scheduled in less than
seven days; and
(2) The public announcement required by this section is made at the
earliest practicable time.
(c) If public notice is provided by means other than publication in
the Federal Register, notice will be promptly submitted to the Federal
Register for publication.
Sec. 10002.5 Grounds on which meetings may be closed or information
withheld.
A meeting, or portion thereof, may be closed and information
pertinent to such meeting withheld if the Council determines that the
meeting or release of information is likely to disclose matters that
are:
(a) Specifically authorized under criteria established by an
executive order to be kept secret in the interests of national defense
or foreign policy; and, in fact, are properly classified pursuant to
such executive order. In making the determination that this exemption
applies, the Council shall rely on the classification assigned to the
document or assigned to the information from the federal agency from
which the document was received.
(b) Related solely to the internal personnel rules and practices of
the Council;
(c) Specifically exempt from disclosure by statute (other than 5
U.S.C. 552), provided that such statute:
(1) Requires that the matters be withheld from the public in such a
manner as to leave no discretion on the issue; or
(2) Establishes particular criteria for withholding or refers to
particular types of matters to be withheld;
(d) Trade secrets and commercial or financial information obtained
from a person and privileged or confidential;
[[Page 33208]]
(e) Involved with accusing any person of a crime or formally
censuring any person;
(f) Of a personal nature, if disclosure would constitute a clearly
unwarranted invasion of personal privacy;
(g) Either investigatory records compiled for law enforcement
purposes or information which, if written, would be contained in such
records, but only to the extent that the production of records or
information would:
(1) Interfere with enforcement proceedings;
(2) Deprive a person of a right to either a fair trial or an
impartial adjudication;
(3) Constitute an unwarranted invasion of personal privacy;
(4) Disclose the identity of a confidential source or sources and,
in the case of a record compiled either by a criminal law enforcement
authority or by an agency conducting a lawful national security
intelligence investigation, confidential information furnished only by
the confidential source(s);
(5) Disclose investigative techniques and procedures; or
(6) Endanger the life or physical safety of law enforcement
personnel;
(h) Contained in or relating to examination, operating, or
condition reports prepared by, on behalf of, or for the use of an
agency responsible for the regulation or supervision of financial
institutions;
(i) If prematurely disclosed, likely to significantly frustrate
implementation of a proposed action of the Council, except that this
subsection shall not apply in any instance where the Council has
already disclosed to the public the content or nature of its proposed
action or is required by law to make such disclosure on its own
initiative prior to taking final action on such proposal; and
(j) Specifically concerned with the Council's issuance of a
subpoena, or its participation in a civil action or proceeding, an
action in a foreign court or international tribunal, or an arbitration,
or the initiation, conduct, or disposition by the Council of a
particular case or formal agency adjudication pursuant to the
procedures in 5 U.S.C. 554 or otherwise involving a determination on
the record after opportunity for a hearing.
Sec. 10002.6 Procedures for closing meetings or withholding
information, and requests by affected persons to close a meeting.
(a) A meeting or portion of a meeting may be closed and information
pertaining to a meeting withheld under Sec. 10002.5 only by vote of a
majority of members.
(b) A separate vote of the members shall be taken with respect to
each meeting or portion of a meeting proposed to be closed and with
respect to information which is proposed to be withheld. A single vote
may be taken with respect to a series of meetings or portions of a
meeting that are proposed to be closed, so long as each meeting or
portion thereof in the series involves the same particular matter and
is scheduled to be held no more than 30 days after the initial meeting
in the series. The vote of each member shall be recorded and no proxies
shall be allowed.
(c) A person whose interests may be directly affected by a portion
of a meeting may request in writing that the Council close that portion
for any of the reasons referred to in Sec. 10002.5(e), (f), and (g).
Upon the request of a member, a recorded vote shall be taken whether to
close such meeting or portion thereof.
(d) For every meeting closed, the General Counsel shall publicly
certify that, in his or her opinion, the meeting may be closed to the
public and shall state each relevant basis for closing the meeting. If
the General Counsel invokes the bases set forth in Sec. 10002.5(a) or
(c), he or she shall rely upon the classification or designation
assigned to the information by the originating agency. A copy of such
certification, together with a statement by the presiding officer
setting forth the time and place of the meeting and the persons
present, shall be retained by the Council as part of the transcript,
recording, or minutes required by Sec. 10002.8.
Sec. 10002.7 Changes following public announcement.
(a) The time or place of a meeting may be changed following the
public announcement described in Sec. 10002.4. The Council must
publicly announce such change at the earliest practicable time.
(b) The subject matter of a meeting or the determination of the
Council to open or close a meeting, or a portion thereof, to the public
may be changed following public announcement only if:
(1) A majority of all members determine by recorded vote that
Council business so requires and that no earlier announcement of the
change was possible; and
(2) The Council publicly announces such change and the vote of each
member thereon at the earliest practicable time.
Sec. 10002.8 Transcripts, recordings, or minutes of closed meetings.
Along with the General Counsel's certification and presiding
officer's statement referred to in Sec. 10002.6(d), the Council shall
maintain a complete transcript or electronic recording adequate to
record fully the proceedings of each meeting, or a portion thereof,
closed to the public. Alternatively, for any meeting closed pursuant to
Sec. 10002.5(h) or (j), the Council may maintain a set of minutes
adequate to record fully the proceedings, including a description of
each of the views expressed on any item and the record of any roll call
vote.
Sec. 10002.9 Public availability and retention of transcripts,
recordings, and minutes, and applicable fees.
(a) The Council shall make available, in a place easily accessible,
such as www.ncd.gov, to the public the transcript, electronic
recording, or minutes of a meeting, except for items of discussion or
testimony related to matters the Council determines may be withheld
under Sec. 10002.6.
(b) Copies of the nonexempt portions of the transcripts or minutes
shall be provided upon receipt of the actual costs of the transcription
or duplication.
(c) The Council shall maintain meeting transcripts, recordings, or
minutes of each meeting closed to the public for a period ending at the
later of two years following the date of the meeting, or one year after
the conclusion of any Council proceeding with respect to the closed
meeting.
PARTS 10003-10049 [RESERVED]
Dated: June 4, 2015.
Rebecca Cokley,
Executive Director.
[FR Doc. 2015-14121 Filed 6-10-15; 8:45 am]
BILLING CODE 8421-03-P