80 FR 49117 - Freedom of Information Act, Privacy Act, and Government in the Sunshine Act Procedures

NATIONAL COUNCIL ON DISABILITY

Federal Register Volume 80, Issue 158 (August 17, 2015)

The National Council on Disability is finalizing regulations which implement the Freedom of Information Act, the Privacy Act of 1974, and the Government in the Sunshine Act. This rule describes the procedures for members of the public to request access to records. In addition, this document also describes 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.

[Federal Register Volume 80, Number 158 (Monday, August 17, 2015)]
[Rules and Regulations]
[Pages 49117-49127]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2015-20140]



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Rules and Regulations
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Federal Register / Vol. 80, No. 158 / Monday, August 17, 2015 / Rules 
and Regulations

[[Page 49117]]



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: Final rule.

-----------------------------------------------------------------------

SUMMARY: The National Council on Disability is finalizing regulations 
which implement the Freedom of Information Act, the Privacy Act of 
1974, and the Government in the Sunshine Act. This rule describes the 
procedures for members of the public to request access to records. In 
addition, this document also describes 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: Effective September 16, 2015.

FOR FURTHER INFORMATION CONTACT: Joan Durocher, General Counsel, 
National Council on Disability, at 202-272-2004 or [email protected]. 
To ensure proper handling, please include the docket number on your 
correspondence.

SUPPLEMENTARY INFORMATION: These regulations in a proposed rule were 
published for public comment in the Federal Register on June 11, 2015 
(80 FR 33199), the comment period ended on August 10, 2015, and one 
commenter provided input. He is a private citizen and submitted his 
comments by mail.

I. Background

    The commenter provided various comments on the proposed Freedom of 
Information Act procedures at part 10000. First, the commenter 
recommended that Sec.  10000.6(b) should state that responses to a FOIA 
request should include the case number and the date of the original 
request. Reasoning that the absence of this information can cause 
confusion and wasted effort should an administrative appeal be 
necessary. We agree with the suggestion and Sec.  10000.6(b) has been 
modified to reflect that correspondence responding to FOIA requests 
should include the case number and date of the original request.
    In addition, the commenter had several comments about the proposed 
Sec.  10000.10 concerning fees. The commenter stated that a page 
duplication fee of $.10 per page should be identified. The commenter 
states that the fee is supposed to be a proxy based on actual 
duplication costs. The commenter states actual duplication costs are 
substantially less than $.10 per page, but the standard rate for most 
agencies is $.10. FOIA regulation 5 U.S.C. 552(a)(4)(A)(ii) states fees 
shall be limited to reasonable standard charges for document search, 
duplication, and review. No specific fee scale was applied in the 
regulation, the Council does not intend to cite a specific cost for 
duplication. Not having specific rates listed in the regulation allows 
the Council to adjust costs accordingly when a price fluctuation exists 
which allows the Council flexibility to adjust rates without first 
necessitating a change in the regulation.
    In addition, the commenter states in Sec.  10000.10(c) the 
reference to the operating costs for a central processing unit is 
obsolete as well as the reference to the salary of the operators 
performing the search. FOIA regulation 28 CFR 16.10(a)(2) defines 
direct costs as 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. The Council 
did not find it necessary to make changes to the section, the Council 
will adhere to all applicable statutes when assessing direct costs.
    The commenter states in Sec.  100000.10(d) the rules are ambiguous 
and should clearly state unambiguously that noncommercial requesters 
are not charged review fees. The commenter added that OMB guidance is 
quite clear that noncommercial requesters are not charged. The 
commenter also stated charging review fees following the results of an 
appeal in which the written initial determination was reversed or 
remanded is procedurally unfair and could impose needless hurdles. 
Council maintains there is sufficient clarity in the current language 
``review fees shall be charged for requesters who make commercial use 
requests''. As to the assessment of review fees post an appeal, Council 
followed OMB guidelines when proposing review fees be assessed. We 
appreciate the commenter's perspective, the Council has decided to 
retain the language which mirrors the FOIA statute. Such fees are 
allowable under the FOIA regulations and therefore current language 
will remain unchanged.
    Additionally, in Sec.  10000.10(e) the commenter suggests changing 
the wording of ``statutory entitlements of 100 pages of duplication . . 
.'' To ``statutory entitlements of 100 pages of duplication or 
equivalent'', so that other types of duplicated media can be 
accommodated. With the ever-changing nature in which data is collected 
the Council agrees with the commenter and will add specific language to 
the final rule indicating that duplication costs equivalent of 100 
pages in print or equivalent will be processed at no charge.

II. Regulatory Analysis and Notices

Executive Order 12866

    This final rule 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

[[Page 49118]]

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 Council 
considered the effects on this final rule on small entities and 
certifies that these final 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 
final 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 final rule 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 amends 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

PART 10001--IMPLEMENTATION OF THE PRIVACY ACT OF 1974

PART 10002--IMPLEMENTATION OF THE GOVERNMENT IN THE SUNSHINE ACT

PARTS 10003-10049 [RESERVED]

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; E.O. 12600, 52 FR 23781, 3 
CFR 1987, 1987 Comp., p. 235; 3 CFR 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

[[Page 49119]]

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 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

[[Page 49120]]

    (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.


Sec.  10000.5  Request for records.

    (a) You may request copies of records under this part by email to 
[email protected] 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) FOIA case number and date of the original request;
    (2) The name(s) of any person responsible for the determination to 
deny the request in whole or in part;
    (3) 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;
    (4) 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
    (5) 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.

[[Page 49121]]

    (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 
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 
[email protected], 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 paragraph (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 paragraph (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.

[[Page 49122]]

    (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 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 or equivalent at no charge. For example, 100 
pages burned to a single CD would be considered equivalent to 100 pages 
of duplication. 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

[[Page 49123]]

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 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, routine use, statistical record, 
system of records. 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

[[Page 49124]]

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 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

[[Page 49125]]

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 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

[[Page 49126]]

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;
    (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) through (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.

[[Page 49127]]

PARTS 10003-10049--[RESERVED]

    Dated: August 11, 2015.
Rebecca Cokley,
Executive Director.
[FR Doc. 2015-20140 Filed 8-14-15; 8:45 am]
BILLING CODE 8421-03-P