82 FR 35689 - Freedom of Information Act Regulations

NATIONAL CAPITAL PLANNING COMMISSION

Federal Register Volume 82, Issue 146 (August 1, 2017)

Page Range		35689-35697
FR Document		2017-15887
The National Capital Planning Commission (NCPC or Commission) proposes to revise its current Freedom of Information Act (FOIA) Regulations. NCPC must comply with the requirements of FOIA when it process requests for Information submitted pursuant to FOIA.
Federal Register, Volume 82 Issue 146 (Tuesday, August 1, 2017)
[Federal Register Volume 82, Number 146 (Tuesday, August 1, 2017)]
[Proposed Rules]
[Pages 35689-35697]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2017-15887]


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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.

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Federal Register / Vol. 82, No. 146 / Tuesday, August 1, 2017 / 
Proposed Rules

[[Page 35689]]



NATIONAL CAPITAL PLANNING COMMISSION

1 CFR Chapters IV and VI


Freedom of Information Act Regulations

AGENCY: National Capital Planning Commission.

ACTION: Proposed rule

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SUMMARY: The National Capital Planning Commission (NCPC or Commission) 
proposes to revise its current Freedom of Information Act (FOIA) 
Regulations. NCPC must comply with the requirements of FOIA when it 
process requests for Information submitted pursuant to FOIA.

DATES: Submit comments on or before August 31, 2017.

ADDRESSES: You may submit comments on the proposed rule by either of 
the methods listed below.
    1. U.S. mail, courier, or hand delivery: General Counsel/Freedom of 
Information Officer, National Capital Planning Commission, 401 9th 
Street NW., Suite 500, Washington, DC 20004.
    2. Electronically: [email protected].

FOR FURTHER INFORMATION CONTACT: Anne R. Schuyler, General Counsel and 
Chief FOIA Officer, 202-482-7223, [email protected].

SUPPLEMENTARY INFORMATION: On June 30, 2016, President Obama signed 
into law the FOIA Improvement Act of 2016 (Pub. L. 114-185). The FOIA 
Improvement Act of 2016 addresses a range of procedural issues, 
including, among others, the requirement that agencies establish a 
minimum of 90 days for requesters to file an administrative appeal; 
provide dispute resolution services at various times throughout the 
FOIA process; refrain from charging fees for failure to comply with 
mandated time limits; engage in proactive disclosure of records of 
general interest or use to the public that are appropriate for such 
disclosure; and apply the Department of Justice's ``foreseeable harm'' 
standard as the basis for withholding information pursuant to an 
exemption contained in FOIA.
    NCPC adopted updated FOIA regulations in February 2014. As a 
result, NCPC included many of the Department of Justice, Office of 
Information Policy (OIP) policies into its existing regulations some of 
which are now incorporated as law into the FOIA Improvement Act of 
2016. As a result, the proposed regulations require only a few changes 
to comply with the requirements of the FOIA Improvement Act of 2016.
    NCPC published its existing FOIA regulations under Title 1, Chapter 
400, Part 456 of the Code of Federal Regulations (CFR). Historically, 
Title 1, Chapter IV (Miscellaneous Agencies), Parts 455, 456, and 457 
of the CFR contained NCPC regulations (Privacy, FOIA, and 
Nondiscrimination respectively). However, as there were no additional 
Parts within Chapter IV to accommodate NCPC's National Environmental 
Policy Act (NEPA) Regulations, the Office of the Federal Register 
recently assigned NCPC a new Chapter--Chapter VI--within Title 1 for 
consolidation of all current and future NCPC regulations. As NCPC 
revises its existing regulations and prepares new ones, each revised 
and new regulation will be published in the next sequential Part of 
Chapter VI. The next sequential Part available for NCPC's proposed FOIA 
regulations is Part 602. Thus, the proposed FOIA regulations are 
advertised as Part 602.

Key Changes Incorporated into NCPC's Proposed Freedom of Information 
Act Regulations

1. Time Limits

    The FOIA Improvement Act of 2016 requires agencies to establish a 
minimum of 90 days for requesters to file an administrative appeal. 
NCPC's proposed FOIA regulations incorporate this requirement in Sec.  
602.12(a) (Appeals of Adverse Determinations). Section 602.12(g) 
enumerates the ability to extend time limits for responding to a FOIA 
request (20 days) and the process to be followed by NCPC to extend the 
time limits.

2. Assistance From NCPC's FOIA Public Liaison and the National Archives 
Record Administration's (NARA), Office of Government Information (OGIS)

    The FOIA Improvement Act of 2016 requires agencies to advise 
Requesters of the availability of dispute resolution services at 
various times throughout the FOIA process. The Act provides for these 
services to be offered by an Agency's FOIA Public Liaison and OGIS. 
NCPC's proposed regulations reference these services in Sec. Sec.  
602.5 (FOIA Request requirements), 602.6 (FOIA Response requirements), 
and 602.12 (Appeals of Adverse Determinations).

3. Changes to Fee Structure

    The FOIA Improvement Act of 2016 precludes the collection of fees 
if an agency fails to meet mandated FOIA time limits. NCPC's proposed 
FOIA regulations contain this limitation in Sec.  602(f)(1). Section 
602(f)(2) introduces a new fee construct contained in the FOIA 
Improvements Act of 2016 for Requests that generate 5000 pages of 
responsive records.
    As a general matter, the proposed FOIA regulations contain a 
reorganized fee section. The current regulations organize the fee 
section based on types of fees, e.g., Search, Review and Duplication. 
The proposed regulations organize the fee section based three 
categories of Requesters, e.g., Commercial Use Requesters; 
Noncommercial Scientific Institutions, Educational Institutions, and 
News Media Requesters; and all other Requesters. NCPC adopted this new 
organizational structure to improve the clarity of the fee section. 
Other than the reorganized structure and the two additions necessitated 
by the FOIA Improvements Act of 2016, the content of the fee section in 
the proposed regulations remains unchanged from that of the existing 
regulations.

4. Standard for Release of Records

    The FOIA Improvement Act of 2016 requires agencies to proactively 
disclose in electronic format records that have been requested three or 
more times. It also requires application of the Department of Justice's 
``foreseeable harm'' standard as the basis for withholding information 
pursuant to an exemption contained in FOIA. The concept of proactive 
disclosure is

[[Page 35690]]

already contained in NCPC's current regulations and is carried over in 
NCPC's proposed regulations at Sec. Sec.  602.2(b) (Policy) and 
602.4(b)(10) (Information Available without a FOIA Request). The 
foreseeable harm standard is incorporated in Sec.  602.6(c).

5. Elimination of a Description of NCPC's Organizational Structure

    NCPC's existing regulations contain an entire section devoted to a 
description of the Agency organizational structure and the Commission's 
composition (See, 1 CFR 456.2). As this information is readily 
available on NCPC's Web site, the referenced section has been removed 
from the proposed regulations. As a consequence, the remaining sections 
of the proposed regulations have been renumbered. Moreover, the Policy 
section has been moved. It now follows the Purpose section (renamed 
from General Information) and proceeds the Definition section. This 
appeared to be a move logical organizational structure.

Compliance with Laws and Executive Orders

1. Executive Orders 12866 and 13563

    By Memorandum dated October 12, 1993 from Sally Katzen, 
Administrator, Office of Information and Regulatory Affairs (OIRA) to 
Heads of Executive Departments and Agencies, and Independent Agencies, 
OMB rendered the NCPC exempt from the requirements of Executive Order 
12866 (See, Appendix A of cited Memorandum). Nonetheless, NCPC 
endeavors to adhere to the provisions of Executive Orders and developed 
this proposed rule in a manner consistent with the requirements of 
Executive Order 13563.

2. Executive Order 13771

    By virtue of its exemption from the requirements of EO 12866, NCPC 
is exemption from this Executive Order. NCPC confirmed this fact with 
OIRA.

3. Regulatory Flexibility Act

    As required by the Regulatory Flexibility Act (5 U.S.C. 601 et 
seq.), the NCPC certifies that the proposed rule will not have a 
significant economic effect on a substantial number of small entities.

4. Small Business Regulatory Enforcement Fairness Act

    This is not a major rule under 5 U.S.C. 804(2), the Small Business 
Regulatory Enforcement Fairness Act. It does not have an annual effect 
on the economy of $100 million or more; will not cause a major increase 
in costs for individuals, various levels of governments or various 
regions; and does not have a significant adverse effect on completion, 
employment, investment, productivity, innovation or the competitiveness 
of U.S. enterprises with foreign enterprises.

5. Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq.)

    A statement regarding the Unfunded Mandates Reform Act is not 
required. The proposed rule neither imposes an unfunded mandate of more 
than $100 million per year nor imposes a significant or unique effect 
on State, local or tribal governments or the private sector.

6. Federalism (Executive Order 13132)

    In accordance with Executive Order 13132, the proposed rule does 
not have sufficient federalism implications to warrant the preparation 
of a Federalism Assessment. The proposed rule does not substantially 
and directly affect the relationship between the Federal and state 
governments.

7. Civil Justice Reform (Executive Order 12988)

    The General Counsel of NCPC has determined that the proposed rule 
does not unduly burden the judicial system and meets the requirements 
of Executive Order 12988 3(a) and 3(b)(2).

8. Paperwork Reduction Act

    The proposed rule does not contain information collection 
requirements, and it does not require a submission to the Office of 
Management and Budget under the Paperwork Reduction Act.

9. National Environmental Policy Act

    The proposed rule is of an administrative nature, and its adoption 
does not constitute a major federal action significantly affecting the 
quality of the human environment. NCPC's adoption of the proposed rule 
will have minimal or no effect on the environment; impose no 
significant change to existing environmental conditions; and will have 
no cumulative environmental impacts.

10. Clarity of the Regulation

    Executive Order 12866, Executive Order 12988, and the Presidential 
Memorandum of June 1, 1998 requires the NCPC to write all rules in 
plain language. NCPC maintains the proposed rule meets this 
requirement. Those individuals reviewing the proposed rule who believe 
otherwise should submit specific comments to the addresses noted above 
recommending revised language for those provision or portions thereof 
where they believe compliance is lacking.

11. Public Availability of Comments

    Be advised that personal information such as name, address, phone 
number electronic address, or other identifying personal information 
contained in a comment may be made publically available. Individuals 
may ask NCPC to withhold the personal information in their comment, but 
there is no guarantee the agency can do so.

List of Subjects in 1 CFR Part 602

    National Capital Planning Commission Freedom of Information Act 
Regulations.

    For the reasons stated in the preamble, the National Capital 
Planning Commission proposes to amend 1 CFR chapters IV and VI as 
proposed to be established at 82 FR 24570 to read as follows:

CHAPTER IV--MISCELLANEOUS AGENCIES

PART 456 [Removed]

0
1. Under the authority of 40 U.S.C. 8711(a) remove part 456.
0
2. Add part 602 to read as follows.

CHAPTER VI--NATIONAL CAPITAL PLANNING COMMISSION

PART 602--NATIONAL CAPITAL PLANNING COMMISSION FREEDOM OF 
INFORMATION ACT REGULATIONS

Sec.
602.1 Purpose.
602.2 Policy.
602.3 Definitions.
602.4 Information Available without a FOIA Request.
602.5 FOIA Request requirements.
602.6 FOIA Response requirements.
602.7 Multi-track processing.
602.8 Expedited processing.
602.9 Consultations and referrals.
602.10 Classified and controlled unclassified information.
602.11 Confidential Commercial Information.
602.12 Appeals of Adverse Determinations.
602.13 Fees.
 602.14 Fee waiver requirements.
 602.15 Preservation of FOIA records.

    Authority: 5 U.S.C. 552, as amended.


Sec.  602.1  Purpose.

    This part contains the rules the National Capital Planning 
Commission (NCPC or Commission) shall follow in processing third party 
Requests for Records concerning the activities of the NCPC under the 
Freedom of Information Act (FOIA), 5 U.S.C. 552, as amended. Requests 
made by a U.S. citizen or an individual lawfully admitted for permanent 
residence to access his or her

[[Page 35691]]

own records under the Privacy Act, 5 U.S.C. 522a are processed under 
this part and in accordance with part 602 of Title 1 of the Code of 
Federal Regulations (CFR) to provide the greatest degree of access 
while safeguarding an individual's personal privacy. Information 
routinely provided to the public as part of regular NCPC activity shall 
be provided to the public without regard to this part.


Sec.  602.2  Policy.

    (a) It is the NCPC's policy to facilitate the broadest possible 
availability and dissemination of information to the public through use 
of the NCPC's Web site, www.ncpc.gov, and physical distribution of 
materials not available electronically. The NCPC staff shall be 
available to assist the public in obtaining information formally by 
using the procedures herein or informally in a manner not inconsistent 
with the rule set forth in this part.
    (b) To the maximum extent possible, the NCPC shall make available 
agency Records of interest to the public that are appropriate for 
disclosure.


Sec.  602.3  Definitions.

    For purposes of this part, the following definitions shall apply:
    Act and FOIA mean the Freedom of Information Act, 5 U.S.C. 552, as 
amended.
    Adverse Determination or Determination shall include a 
determination to withhold, in whole or in part, Records requested in a 
FOIA Request; the failure to respond to all aspects of a Request; the 
determination to deny a request for a Fee Waiver; or the determination 
to deny a request for expedited processing. The term shall also 
encompass a challenge to NCPC's determination that Records have not 
been described adequately, that there are no responsive Records, or 
that an adequate Search has been conducted.
    Agency Record or Record means any documentary material which is 
either created or obtained by a federal agency (Agency) in the 
transaction of Agency business and under Agency control. Agency Records 
may include without limitation books; papers; maps; charts; plats; 
plans; architectural drawings; photographs and microfilm; machine 
readable materials such as magnetic tape, computer disks and electronic 
data storage devices; electronic records including email messages; and 
audiovisual material such as still pictures, sound, and video 
recordings. This definition generally does not cover records of Agency 
staff that are created and maintained primarily for a staff member's 
convenience, exempt from Agency creation or retention requirements, and 
withheld from distribution to other Agency employees for their official 
use.
    Confidential Commercial Information means commercial or financial 
information obtained by the NCPC from a Submitter that may be protected 
from disclosure under Exemption 4 of the FOIA. Exemption 4 of the FOIA 
protects trade secrets and commercial or financial information obtained 
from a person which information is privileged or confidential.
    Controlled Unclassified Information means unclassified information 
that does not meet the standards for National Security Classification 
under Executive Order 13536, as amended, but is pertinent to the 
national interests of the United States or to the important interests 
of entities outside the federal government, and under law or policy 
requires protection from unauthorized disclosure, special handling 
safeguards, or prescribed limits on exchange or dissemination.
    Commercial Use Request means a FOIA Request from or on behalf of 
one who seeks information for a use or purpose that furthers the 
commercial, trade, or profit interests of the Requester or the person 
on whose behalf the Request is made.
    Direct Costs means those expenditures that the NCPC incurs in 
searching for, duplicating, and reviewing documents to respond to a 
FOIA Request. Direct Costs include, for example, the salary of the 
employee performing the work (the basic rate of pay for the employee 
plus 16 percent of the rate to cover benefits) and the cost of 
operating duplicating machinery. Direct Costs do not include overhead 
expenses such as costs of space, and heating or lighting the facility 
in which the Records are stored.
    Duplication means the process of making a copy of a document 
necessary to respond to a FOIA Request in a form that is reasonably 
usable by a Requester. Copies can take the form of, among others, paper 
copy, audio-visual materials, or machine readable documents (i.e., 
computer disks or electronic data storage devices).
    Educational Institution means a preschool, a public or private 
elementary or secondary school, an institution of undergraduate higher 
education, an institution of graduate higher education, an institution 
of professional education, and an institution of vocational education, 
which operates a program or programs of scholarly research. To be 
classified in this category, a Requester must show that the Request is 
authorized by and is made under the auspices of a qualifying 
institution and that the records are not sought for a commercial use 
but are sought to further scholarly research.
    Expedited Processing means giving a FOIA Request priority because a 
Requester has shown a compelling need for the Records.
    Fee Waiver means a waiver in whole or in part of fees if a 
Requester can demonstrate that certain statutory requirements are 
satisfied including that the information is in the public interest and 
is not requested primarily for commercial purposes.
    FOIA Public Liaison means an NCPC official who is responsible for 
assisting in reducing delays, increasing transparency and understanding 
the status of Requests, and assisting in the resolution of disputes.
    FOIA Request or Request means a written Request made by an entity 
or member of the public for an Agency Record submitted via the U.S. 
Postal Service mail or other delivery means to include without 
limitation electronic-mail (email) or facsimile.
    Frequently Requested Documents means documents that have been 
Requested at least three times under the FOIA. It also includes 
documents the NCPC anticipates would likely be the subject of multiple 
Requests.
    Multi-track Processing means placing requests in multiple tracks 
based on the amount of work or time (or both) needed to process the 
request. Simple Requests requiring relatively minimal work and/or 
review are placed in one processing track, more complex Requests are 
placed in one or more other tracks, and expedited Requests are placed 
in a separate track. Requests in each track are processed on a first-
in/first-out basis.
    Noncommercial Scientific Institution means an institution that is 
not operated for commerce, trade or profit, but is operated solely for 
the purpose of conducting scientific research the results of which are 
not intended to promote any particular product or industry. To be in 
this category, a Requester must show that the Request is authorized by 
and is made under the auspices of a qualifying institution and that the 
Records are not sought for commercial use but are sought to further 
scientific research.
    Privacy Act Request means, in accordance with NCPC's Privacy Act 
Regulations (1 CFR part 603) a written (paper copy with an original 
signature) request made by an individual for information about himself/
herself that is contained in a Privacy Act system of records. The 
Privacy Act applies only to U.S. citizens and aliens lawfully

[[Page 35692]]

admitted for permanent residence such that only individuals satisfying 
these criteria may make Privacy Act Requests.
    Reading Room Materials means Records, paper or electronic, that are 
required to be made available to the public under 5.U.S.C. 552(a)(2) as 
well as other Records that the NCPC, at its discretion, makes available 
to the public for inspection and copying without requiring the filing 
of a FOIA Request.
    Representative of the News Media means any person or entity that 
gathers information of potential interest to a segment of the 
population, uses his/her/its editorial skills to turn raw material into 
a distinct work, and distributes that work to an audience. News media 
entities include television or radio stations broadcasting to the 
public at large; publishers of periodicals that qualify as 
disseminators of news and make their products available for purchase or 
subscription by the general public; and alternative media to include 
electronic dissemination through telecommunication (internet) services. 
To be in this category, a Requester must not be seeking the Requested 
Records for a commercial use. A Freelance Journalist is a 
Representative of the News Media who is able to demonstrate a solid 
basis for expecting publication through a news organization, even 
though not actually employed by that news organization. A publication 
contract or past evidence of a specific freelance assignment from a 
news organization may indicate a solid basis for expecting publication.
    Requester means an entity or member of the public submitting a FOIA 
Request.
    Requester Category means one of the five categories NCPC places 
Requesters in for the purpose of determining whether the Requester will 
be charged for Search, Review and Duplication, and includes Commercial 
Use Requests, Educational Institutions, Noncommercial Scientific 
Institutions, Representatives of the News Media, and all other 
Requesters.
    Review means the examination of Records to determine whether any 
portion of the located Record is eligible to be withheld. It also 
includes processing any Records for disclosure, i.e., doing all that is 
necessary to excise the record and otherwise prepare the Record for 
release. Review does not include time spent resolving general legal or 
policy issues regarding the application of exemptions.
    Search means the process of looking for material, by manual or 
electronic means that is responsive to a FOIA Request. The term also 
includes page-by-page or line-by-line identification of material within 
documents.
    Submitter means any person or entity outside the federal government 
from whom the NCPC directly or indirectly obtains commercial or 
financial information. The term includes, among others, corporations, 
banks, state and local governments, and agencies of foreign governments 
who provide information to the NCPC.
    Unusual Circumstances means, for purposes of Sec.  602.7(c), and 
only to the extent reasonably necessary to the proper processing of a 
particular Request:
    (1) The need to Search for and collect the Requested Agency Records 
from establishments that are separate from the Commission's offices;
    (2) The need to Search for, collect and appropriately examine and 
Review a voluminous amount of separate and distinct Agency Records 
which are demanded in a single Request; or
    (3) The need for consultation with another Agency having a 
substantial interest in the determination of the FOIA Request.
    Workday means a regular Federal workday. It does not include 
Saturdays, Sundays, and legal public holidays.


Sec.  602.4  Information available without a FOIA Request.

    (a) The NCPC shall maintain an electronic library at www.ncpc.gov 
that makes Reading Room Materials capable of production in electronic 
form available for public inspection and downloading. The NCPC shall 
also maintain an actual public reading room containing Reading Room 
Materials incapable of production in electronic form at NCPC's offices. 
The actual reading room shall be available for use on Workdays during 
the hours of 9:00 a.m. to 4:00 p.m. Requests for appointments to review 
Reading Room Materials in the actual public reading room should be 
directed to the NCPC's Information Resources Specialist identified on 
the NCPC Web site (www.ncpc.gov).
    (b) The following types of Records shall be available routinely 
without resort to formal FOIA Request procedures unless such Records 
fall within one of the exemptions listed at 5 U.S.C. 552(b) of the Act:
    (1) Commission agendas;
    (2) Plans and supporting documentation submitted by applicants to 
the Commission to Include environmental and historic preservation 
reports prepared for a plan or project;
    (3) Executive Director's Recommendations;
    (4) Commission Memoranda of Action;
    (5) Transcripts of Commission proceedings;
    (6) The Comprehensive Plan for the National Capital: Federal 
Elements and other plans prepared by the NCPC;
    (7) Federal Capital Improvements Plan for the National Capital 
Region following release of the President's Budget;
    (8) Policies adopted by the Commission;
    (9) Correspondence between the Commission and the Congress, other 
federal and local government agencies, and the public; and
    (10) Frequently Requested Documents.


Sec.  602.5  FOIA request requirements.

    (a) The NCPC shall designate a Chief Freedom of Information Act 
Officer who shall be authorized to grant or deny any Request for a 
Record of the NCPC.
    (b) Requests for a Record or Records that is/are not available in 
the actual or electronic reading rooms shall be directed to the Chief 
Freedom of Information Act Officer.
    (c) All FOIA Requests shall be made in writing. If sent by U.S. 
mail, Requests should be sent to NCPC's official business address 
contained on the NCPC Web site. If sent via email, they should be 
directed to [email protected]. To expedite internal handling of FOIA 
Requests, the words Freedom of Information Act Request shall appear 
prominently on the transmittal envelope or the subject line of a 
Request sent via email or facsimile.
    (d) The FOIA Request shall:
    (1) State that the Request is made pursuant to the FOIA;
    (2) Describe the Agency Record(s) Requested in sufficient detail 
including, without limitation, any specific information known such as 
date, title or name, author, recipient, or time frame for which you are 
seeking Records, to enable the NCPC personnel to locate the Requested 
Agency Records;
    (3) State, pursuant to the fee schedule set forth in Sec.  602.14, 
a willingness to pay all fees associated with the FOIA Request or the 
maximum fee the Requester is willing to pay to obtain the Requested 
Records, unless the Requester is seeking a Fee Waiver or placement in a 
certain Requester Category;
    (4) State, if desired, the preferred form or format of disclosure 
of Agency Records with which the NCPC shall endeavor to comply unless 
compliance would damage or destroy an original Agency Record or 
reproduction is costly and/or requires the acquisition of new 
equipment; and
    (5) Provide a phone number, email address or mailing address at 
which the

[[Page 35693]]

Requester can be reached to facilitate the handling of the Request.
    (e) If a FOIA Request is unclear, overly broad, involves an 
extremely voluminous amount of Records or a burdensome Search, or fails 
to state a willingness to pay the requisite fees or the maximum fee 
which the Requester is willing to pay, the NCPC shall endeavor to 
contact the Requester to define the subject matter, identify and 
clarify the Records being sought, narrow the scope of the Request, and 
obtain assurances regarding payment of fees. The timeframe for a 
response set forth in Sec.  602.6(a) shall be tolled (stopped 
temporarily) and the NCPC will not begin processing a Request until the 
NCPC obtains the information necessary to clarify the Request and/or 
clarifies issues pertaining to the fee.
    (f) NCPC shall designate a FOIA Public Liaison to assist a 
Requester in making a Request or to assist a Requester in correcting a 
Request that does not reasonably describe the Records sought or to 
correct other deficiencies described in paragraph (e) of this section 
that necessitate follow-up with the Requester.


Sec.  602.6  FOIA response requirements.

    (a) The Freedom of Information Act Officer, upon receipt of a FOIA 
Request made in compliance with these rules, shall determine whether to 
grant or deny the Request. The Freedom of Information Officer shall 
notify the Requester in writing within 20 Workdays of receipt of a 
perfected the Request of his/her determination and the reasons 
therefore and of the right to appeal any Adverse Determination to the 
head of the NCPC.
    (b) In cases involving Unusual Circumstances, the agency may extend 
the 20 Workday time limit by written notice to the Requester. The 
written notice shall set forth the reasons for the extension and the 
date on which a determination is expected to be dispatched. No such 
notice shall specify a date that would result in an extension of more 
than 10 Working Days unless the agency affords the Requester an 
opportunity to modify his/her Request or arranges an alternative 
timeframe with the Requester for completion of the NCPC's processing. 
The agency shall also advise the Requester of his/her right to seek 
assistance from the FOIA Public Liaison or OGIS to resolve time limit 
disputes arising under this paragraph.
    (c) NCPC shall deny a Request based on an exemption contained in 
the FOIA and withhold information from disclosure pursuant to an 
exemption only if NCPC reasonably foresees that disclosure would harm 
an interest protected by an exemption or if disclosure is prohibited by 
law. If a Request is denied based on an exemption, NCPC's response 
shall comply with the requirements of paragraph (d) below.
    (d) If a Request is denied in whole or in part, the Chief FOIA 
Officer's written determination shall include, if technically feasible, 
the precise amount of information withheld, and the exemption under 
which it is being withheld unless revealing the exemption would harm an 
interested protected by the exemption. NCPC shall release any portion 
of a withheld Record that reasonably can be segregated from the exempt 
portion of the Record.


Sec.  602.7   Multi-track processing.

    The NCPC may use multiple tracks for processing FOIA Requests based 
on the complexity of Requests and those for which expedited processing 
is Requested. Complexity shall be determined based on the amount of 
work and/or time needed to process a Request and/or the number of pages 
of responsive Records. If the NCPC utilizes Multi-track Processing, it 
shall advise a Requester when a Request is placed in a slower track of 
the limits associated with a faster track and afford the Requester the 
opportunity to limit the scope of its Request to qualify for faster 
processing.


Sec.  602.8   Expedited processing.

    (a) The NCPC shall provide Expedited Processing of a FOIA Request 
if the person making the Request demonstrates that the Request 
involves:
    (1) Circumstances in which the lack of expedited treatment could 
reasonably be expected to pose an imminent threat to the life or 
physical safety of an individual;
    (2) An urgency to inform the public about an actual or alleged 
federal government activity, if made by a person primarily engaged in 
disseminating information;
    (3) The loss of substantial due process rights; or
    (4) A matter of widespread and exceptional media interest in which 
there exists possible questions about the government's integrity which 
affect public confidence.
    (b) A Request for Expedited Processing may be made at the time of 
the initial FOIA Request or at a later time.
    (c) A Requester seeking Expedited Processing must submit a detailed 
statement setting forth the basis for the Expedited Processing Request. 
The Requester must certify in the statement that the need for Expedited 
Processing is true and correct to the best of his/her knowledge. To 
qualify for Expedited Processing, a Requester relying upon the category 
in paragraph (a)(2) of this section must establish:
    (1) He/She is a full time Representative of the News Media or 
primarily engaged in the occupation of information dissemination, 
though it need not be his/her sole occupation;
    (2) A particular urgency to inform the public about the information 
sought by the FOIA Request beyond the public's right to know about the 
government activity generally; and
    (3) The information is of the type that has value that will be lost 
if not disseminated quickly such as a breaking news story. Information 
of historical interest only or information sought for litigation or 
commercial activities will not qualify nor would a news media deadline 
unrelated to breaking news.
    (d) Within 10 calendar days of receipt of a Request for expedited 
processing, the NCPC shall decide whether to grant or deny the Request 
and notify the Requester of the decision in writing. If a Request for 
Expedited Processing is granted, the Request shall be given priority 
and shall be processed in the expedited processing track as fast as 
practicable. If a Request for Expedited Processing is denied, any 
appeal of that decision shall be acted on expeditiously.


Sec.  602.9   Consultations and referrals.

    (a) If a Requester seeks a Record in which another agency of the 
Federal Government is better able to determine whether the record is 
exempt from disclosure under the FOIA, NCPC shall either respond to the 
FOIA Request after consultation with the Agency best able to determine 
if the Requested Record(s) is/are subject to disclosure or refer the 
responsibility for responding to the FOIA Request to the Agency 
responsible for originating the Record(s). Generally, the Agency 
originating a Record will be presumed by the NCPC to be the Agency best 
qualified to render a decision regarding disclosure or exemption except 
for Agency Records submitted to the NCPC pursuant to its authority to 
review Agency plans and/or projects.
    (b) Upon referral of Records to another Agency, the NCPC shall 
notify the Requester in writing of the referral, inform the Requester 
of the name of the Agency to which all or part of the responsive 
records have been referred, provide the Requester a description of the 
part of the Request referred, and advise the Requester of a point of 
contact within the receiving Agency.

[[Page 35694]]

    (c) The timeframe for a response to a FOIA Request requiring 
consultation or referral shall be based on the date the FOIA Request 
was initially received by the NCPC and not any later date.


Sec.  602.10   Classified and Controlled Unclassified Information.

    (a) For Requests for an Agency Record that has been classified or 
may be appropriate for classification by another Agency pursuant to an 
Executive Order concerning the classification of Records, the NCPC 
shall refer the responsibility for responding to the FOIA Request to 
the Agency that either classified the Record, should consider 
classifying the Record, or has primary interest in the Record, as 
appropriate.
    (b) Whenever a Request is made for a Record that is designated 
Controlled Unclassified Information by another Agency, the NCPC shall 
refer the FOIA Request to the Agency that designated the Record as 
Controlled Unclassified Information. Decisions to disclose or withhold 
information designated as Controlled Unclassified Information shall be 
made based on the applicability of the statutory exemptions contained 
in the FOIA, not on a Controlled Unclassified Information marking or 
designation.


Sec.  602.11   Confidential Commercial Information.

    (a) Confidential Commercial Information obtained by the NCPC from a 
Submitter shall be disclosed under the FOIA only in accordance with the 
requirements of this section.
    (b) A Submitter of Confidential Commercial Information shall use 
good-faith efforts to designate, by appropriate markings, either at the 
time of submission or at a reasonable time thereafter, any portions of 
its submission that it considers to be protected from disclosure under 
Exemption 4 of the FOIA. These designations will expire ten years after 
the date of the submission unless the Submitter requests, and provides 
justification for, a longer designation period.
    (c) Notice shall be given to a Submitter of a FOIA Request for 
potential Confidential Commercial Information if:
    (1) The requested information has been designated in good faith by 
the Submitter as Confidential Commercial Information eligible for 
protection from disclosure under Exemption 4 of the FOIA; or
    (2) The NCPC has reason to believe the requested information is 
Confidential Commercial Information protected from disclosure under 
Exemption 4 of the FOIA.
    (d) Subject to the requirements of paragraphs (c) and (g) of this 
section, the NCPC shall provide a Submitter with prompt written notice 
of a FOIA Request or administrative appeal that seeks the Submitter's 
Confidential Commercial Information. The notice shall give the 
Submitter an opportunity to object to disclosure of any specified 
portion of that Confidential Commercial Information pursuant to 
paragraph (e) of this section. The notice shall either describe the 
Confidential Commercial Information Requested or include copies of the 
Requested Records or portions thereof containing the Confidential 
Commercial Information. When notice to a large number of Submitters is 
required, NCPC may provide notification by posting or publishing the 
notice in a place reasonably likely to accomplish the intent of the 
notice requirement such as a newspaper, newsletter, the NCPC Web site, 
or the Federal Register.
    (e) The NCPC shall allow a Submitter a reasonable time to respond 
to the notice described in paragraph (d) of this section and shall 
specify within the notice the time period for response. If a Submitter 
has any objection to disclosure, it shall submit a detailed written 
statement. The statement must specify all grounds for withholding any 
portion of the Confidential Commercial Information under any exemption 
of the FOIA and, in the case of Exemption 4, it must show why the 
Confidential Commercial Information is a trade secret or commercial or 
financial information that is privileged or confidential. If the 
Submitter fails to respond to the notice within the specified time, the 
NCPC shall consider this failure to respond as no objection to 
disclosure of the Confidential Commercial Information on the part of 
the Submitter, and NCPC shall proceed to release the requested 
information. A statement provided by the Submitter that is not received 
by NCPC until after the NCPC's disclosure decision has been made shall 
not be considered by the NCPC. Information provided by a Submitter 
under this paragraph may itself be subject to disclosure under the 
FOIA.
    (f) The NCPC shall consider a Submitter's objections and specific 
grounds for nondisclosure in deciding whether to disclose Confidential 
Commercial Information. Whenever the NCPC decides to disclose 
Confidential Commercial Information over the objection of a Submitter, 
the NCPC shall give the Submitter written notice, which shall include:
    (1) A statement of the reason(s) why each of the Submitter's 
disclosure objections was not sustained;
    (2) A description of the Confidential Commercial Information to be 
disclosed; and
    (3) A specified disclosure date, which shall be a reasonable time 
subsequent to the notice.
    (g) The notice requirements of paragraphs (c) and (d) of this 
section shall not apply if:
    (1) The NCPC determines that the Confidential Commercial 
Information is exempt under FOIA;
    (2) The Confidential Commercial Information has been published 
lawfully or has been officially made available to the public;
    (3) The Confidential Commercial Information's disclosure is 
required by statute (other than the FOIA) or by a regulation issued in 
accordance with the requirements of Executive Order 12600 
(Predisclosure Notification Procedures for Confidential Commercial 
Information); or
    (4) The designation made by the Submitter under paragraph (b) of 
this section appears obviously frivolous in which case the NCPC shall, 
within a reasonable time prior to a specified disclosure date, give the 
Submitter written notice of any final decision to disclose the 
Confidential Commercial Information.
    (h) Whenever a Requester files a lawsuit seeking to compel the 
disclosure of Confidential Commercial Information, the NCPC shall 
promptly notify the Submitter.
    (i) Whenever the NCPC provides a Submitter with notice and an 
opportunity to object to disclosure under paragraph (d) of this 
section, the NCPC shall also notify theRequester. Whenever the NCPC 
notifies a Submitter of its intent to disclose RequestedInformation 
under paragraph (f) of this section, the NCPC shall also notify the 
Requester. Whenever a Submitter files a lawsuit seeking to prevent the 
disclosure ofConfidential Commercial Information, the NCPC shall notify 
the Requester.


Sec.  456.12   Appeals of Adverse Determinations.

    (a) An appeal of an Adverse Determination shall be made in writing 
to the Chairman of the Commission (Chairman). An appeal may be 
submitted via U.S. mail or other type of manual delivery service or via 
email or facsimile within 90 Workdays of the date of a notice of an 
Adverse Determination. To facilitate handling of an appeal, the words 
Freedom of Information Act Appeal shall appear

[[Page 35695]]

prominently on the transmittal envelope or the subject line of a 
Request sent via electronic-mail or facsimile.
    (b) An appeal of an Adverse Determination shall include a detailed 
statement of the legal, factual or other basis for the Requester's 
objections to an Adverse Determination; a daytime phone number or email 
address where the Requester can be reached if the NCPC requires 
additional information or clarification regarding the appeal; copies of 
the initial Request and the NCPC's written response; and for an Adverse 
Determination of a Request for Expedited Processing or a Fee Waiver, a 
demonstration of compliance with the requirements of Sec. Sec.  
602.8(a) and (c) or 602.13(a) through (c) respectively.
    (c) The Chairman shall respond to an appeal of an Adverse 
Determination in writing within 20 Workdays of receipt.
    (1) If the Chairman grants the appeal, the Chairman shall notify 
the Requester, and the NCPC shall make available copies of the 
Requested Records promptly thereafter upon receipt of the appropriate 
fee determined in accordance with Sec.  602.13.
    (2) If the Chairman denies the appeal in whole or in part, the 
letter to the Requester shall state
    (i) The reason(s) for the denial, including the FOIA exemptions(s) 
applied;
    (ii) A statement that the decision is final;
    (iii) A notice of the Requester's right to seek judicial review of 
the denial in the District Court of the United States in either the 
locale in which the Requester resides, the locale in which the 
Requester has his/her principal place of business, or in the District 
of Columbia; and
    (iv) A notice that the Requester may seek dispute resolution 
services from either the NCPC FOIA Public Liaison or the Office of 
Government Information Services (OGIS) to resolve disputes between a 
Requester and the NCPC as a non-exclusive alternative to litigation. 
Contact information for OGIS can be obtained from the OGIS Web site at 
[email protected].
    (d) The NCPC shall not act on an appeal of an Adverse Determination 
if the underlying FOIA Request becomes the subject of FOIA litigation.
    (e) A party seeking court review of an Adverse Determination must 
first appeal the decision under this section to NCPC.


Sec.  602.13  Fees.

    (a) NCPC shall charge fees for processing FOIA requests in 
accordance with the provisions of this section and OMB Guidelines.
    (b) For purposes of assessing fees, NCPC shall categorize 
Requesters into three categories: Commercial Use Requesters; 
Noncommercial Scientific Institution, Educational Institution, and News 
Media Requesters; and all other Requesters. Different fees shall be 
charged depending upon the category into which a Requester falls. If 
fees apply, a Requesters may seek a fee waiver in accordance with the 
requirements of Sec.  602.14.
    (c) Search Fees shall be charged as follows:
    (1) NCPC shall not charge Search fees to Requests made by 
Educational Institutions, Noncommercial Scientific Institutions, or 
Representatives of the New Media. NCPC shall charge Search fees to all 
other Requesters subject to the restrictions of paragraph (f) of this 
section even if NCPC fails to locate any responsive Records or if the 
NCPC withholds Records located based on a FOIA exemption
    (2) For each quarter hour spent by personnel searching for 
Requested Records, including electronic searches that do not require 
new programming, the Search fees shall be calculated based on the 
average hourly General Schedule (GS) base salary, plus the District of 
Columbia locality payment, plus 16 percent for benefits of employees in 
the following three categories: Staff Assistant (assigned at the GS 9-
11 grades); Professional Personnel (assigned at the GS 11-13 grades); 
and Managerial Staff (assigned at the 14-15 grades). For a Staff 
Assistant the quarter hour fee to Search for and retrieve a Requested 
Record shall be $9.00. If a Search and retrieval cannot be performed 
entirely by a Staff Assistant, and the identification of Records within 
the scope of a Request requires the use of Professional Personnel, the 
fee shall be $12.00 for each quarter hour of Search time spent by 
Professional Personnel. If the time of Managerial Personnel is 
required, the fee shall be $18.00 for each quarter hour of Search time 
spent by Managerial Personnel.
    (3) For a computer Search of Records, Requesters shall be charged 
the Direct Costs of creating a computer program, if necessary, and/or 
conducting the Search. Direct Costs for a computer Search shall include 
the cost that is directly attributable to the Search for responsive 
Records and the costs of the operator's salary for the time 
attributable to the Search.
    (d) Duplication fees shall be charged to all Requesters, subject to 
the limitations of paragraph (f)(5) of this section. For a paper 
photocopy of a Record (no more than one copy of which shall be 
supplied), the fee shall be 10 cents per page for single or double 
sided copies, 90 cents per page for 8 \1/2\ by 11 inch color copies, 
and $1.50 per page for color copies up to 11 x 17 inches per page. For 
copies produced by computer, and placed on an electronic data saving 
device or provided as a printout, the NCPC shall charge the Direct 
Costs, including operator time, of producing the copy. For other forms 
of Duplication, the NCPC shall charge the Direct Costs of that 
Duplication.
    (e) Review fees shall be charged to only those Requesters who make 
a Commercial Use Request. Review fees will be charged only for the NCPC 
initial Review of a Record to determine whether an exemption applies to 
a particular Record or portion thereof. No charge will be made for 
Review at the administrative appeal level for an exemption already 
applied. However, Records or portions thereof withheld under an 
exemption that is subsequently determined not applicable upon appeal 
may be reviewed again to determine whether any other exemption not 
previously considered applies. If the NCPC determines a different 
exemption applies, the costs of that Review are chargeable. Review fees 
will be charged at the same rates as those charged for a Search under 
paragraph (c)(2) of this section.
    (f) The following limitations on fees shall apply:
    (1) If NCPC fails to comply with the time limits in which to 
respond to a request, shall not charge Search fees or, in the case of 
Educational Institutions, Noncommercial Scientific Institutions, or 
Representatives of the News Media, duplication fees, except as 
described in (f)(2)-(4).
    (2) If NCPC has determined that unusual circumstances as defined by 
the FOIA apply, and the agency provided timely written notice to the 
requester in accordance with the FOIA, a failure to comply with the 
time limit shall be excused for an additional 10 days.
    (3) If NCPC determines that Unusual Circumstances exist, and more 
than 5000 pages of responsive records are necessary to respond to the 
Request, NCPC may charge Search fees. NCPC may also charge duplication 
fees in the case of Educational Institutions, Noncommercial Scientific 
Institutions, or Representatives of the News Media. The provisions of 
this paragraph shall only apply if NCPC provides timely written notice 
of the Unusual Circumstances to the Requester and discusses with the 
Requester via mail, email and phone (or made at least three good faith 
efforts to do so) how to effectively limit the scope of the Request.

[[Page 35696]]

    (4) If a court has determined that exceptional circumstances exist, 
as defined by the FOIA, a failure to comply with the time limits shall 
be excused for the length of time provided by the court order.
    (5) No Search or Review fees shall be charged for a quarter-hour 
period unless more than half of that period is required for Search or 
Review.
    (6) Except for Requesters of a Commercial Use Request, the NCPC 
shall provide without charge the first two hours of Search (or the cost 
equivalent) and the first 100 pages of Duplication (or the cost 
equivalent);
    (7) Except for Requesters of a Commercial Use Request, no fee shall 
be charged for a Request if the total fee calculated under this section 
equals $50.00 or less.
    (8) Requesters other than those making a Commercial Use Request 
shall not be charged a fee unless the total cost of a Search in excess 
of two hours plus the cost of Duplication in excess of 100 pages totals 
more than $50.00.
    (h) If the NCPC determines or estimates fees in excess of $50.00, 
the NCPC shall notify the Requester of the actual or estimated amount 
of total fees, unless in its initial Request the Requester has 
indicated a willingness to pay fees as high as those determined or 
estimated. If only a portion of the fee can be estimated, the NCPC 
shall advise the Requester that the estimated fee constitutes only a 
portion of the total fee. If the NCPC notifies a Requester that actual 
or estimated fees amount to more than $50.00, the Request shall not be 
considered received for purposes of calculating the timeframe for a 
Response, and no further work shall be undertaken on the Request until 
the Requester agrees to pay the anticipated total fee. Any such 
agreement shall be memorialized in writing. A notice under this 
paragraph shall offer the Requester an opportunity to work with the 
NCPC to reformulate the Request to meet the Requester's needs at a 
lower cost.
    (i) Apart from other provisions of this section, if the Requester 
asks for or the NCPC chooses as a matter of administrative discretion 
to provide a special service--such as certifying that Records are true 
copies or sending them by other than ordinary mail--the actual costs of 
special service shall be charged.
    (j) The NCPC shall charge interest on any unpaid fee starting on 
the 31st day following the date of billing the Requester. Interest 
charges will be assessed at the rate provided in 31 U.S.C. 3717 
(Interest and Penalty on Claims) and will accrue from the date of the 
billing until payment is received by the NCPC. The NCPC shall follow 
the provisions of the Debt Collection Act of 1982 (Pub. L. 97-365, 96 
Stat. 1749), as amended, and its administrative procedures, including 
the use of consumer reporting agencies, collection agencies, and 
offset.
    (k) Where the NCPC reasonably believes that one or more Requesters 
are acting in concert to subdivide a Request into a series of Requests 
to avoid fees, the NCPC may aggregate the Requests and charge 
accordingly. The NCPC shall presume that multiple Requests of this type 
made within a 30-day period have been made to avoid fees. Where 
Requests are separated by a time period in excess of 30 days, the NCPC 
shall aggregate the multiple Requests if a solid basis exists for 
determining aggregation is warranted under all circumstances involved.
    (l) Advance payments shall be treated as follows:
    (1) For Requests other than those described in paragraphs (2) and 
(3) of this section, the NCPC shall not require an advance payment. An 
advance payment refers to a payment made before work on a Request is 
begun or continued after being stopped for any reason but does not 
extend to payment owed for work already completed but not sent to a 
Requester.
    (2) If the NCPC determines or estimates a total fee under this 
section of more than $250.00, it shall require an advance payment of 
all or part of the anticipated fee before beginning to process a 
Request, unless the Requester provides satisfactory assurance of full 
payment or has a history of prompt payment.
    (3) If a Requester previously failed to pay a properly charged FOIA 
fee to the NCPC within 30 days of the date of billing, the NCPC shall 
require the Requester to pay the full amount due, plus any applicable 
interest, and to make an advance payment of the full amount of any 
anticipated fee, before the NCPC begins to process a new Request or 
continues processing a pending Request from that Requester.
    (4) If the NCPC requires advance payment or payment due under 
paragraphs (2) or (3) of this section, the Request shall not be 
considered received and no further work will be undertaken on the 
Request until the required payment is received.
    (m) Where Records responsive to Requests are maintained for 
distribution by Agencies operating statutorily based fee schedule 
programs, the NCPC shall inform Requesters of the steps for obtaining 
Records from those sources so that they may do so most economically.
    (n) All fees shall be paid by personal check, money order or bank 
draft drawn on a bank of the United States, made payable to the order 
of the Treasurer of the United States.


Sec.  602.15  Fee waiver requirements.

    (a) Records responsive to a Request shall be furnished without 
charge or at a charge reduced below that established under Sec.  602.14 
if the Requester demonstrates to the NCPC, and the NCPC determines, 
based on all available information, that Disclosure of the Requested 
information is in the public interest because it is likely to 
contribute significantly to public understanding of the operations or 
activities of the government, and disclosure of the information is not 
primarily in the commercial interest of the Requester.
    (b) To determine if disclosure of the Requested information is in 
the public interest because it is likely to contribute significantly to 
public understanding of the operations or activities of the government, 
the Requester shall demonstrate, and NCPC shall consider, the following 
factors:
    (1) Whether the subject of the Requested Records concerns the 
operations or activities of the government. The subject of the 
Requested Records must concern identifiable operations or activities of 
the federal government, with a connection that is direct and clear, not 
remote or attenuated.
    (2) Whether the disclosure is likely to contribute to an 
understanding of government operations or activities. The portions of 
the Requested Records eligible for disclosure must be meaningfully 
informative about government operations or activities. The disclosure 
of information that already is in the public domain, in either a 
duplicative or a substantially identical form, is not likely to 
contribute to an understanding of government operations and activities 
because this information is already known.
    (3) Whether disclosure of the Requested information will contribute 
to public understanding. The disclosure must contribute to the 
understanding of a reasonably broad audience of persons interested in 
the subject, as opposed to the individual understanding of the 
Requester. A Requester's expertise in the subject area and ability and 
intention to effectively convey information to the public shall be 
considered. It shall be presumed that a Representative of the News 
Media satisfies this consideration.
    (4) Whether the disclosure is likely to contribute significantly to 
public understanding of government operations or activities. The 
public's understanding of the subject in question must be

[[Page 35697]]

enhanced by the disclosure to a significant extent, as compared to the 
level of public understanding existing prior to the disclosure. The 
NCPC shall not make value judgments about whether information that 
would contribute significantly to public understanding of the 
operations or activities of the government is important enough to be 
made public.
    (c) To determine whether disclosure of the information is not 
primarily in the commercial interest of the Requester, the Requester 
shall demonstrate, and NCPC shall consider, the following factors:
    (1) Whether the Requester has a commercial interest that would be 
furthered by the Requested disclosure. The NCPC shall consider any 
commercial interest of the Requester (with reference to the definition 
of Commercial Use Request in Sec.  456.3(f)), or of any person on whose 
behalf the Requester may be acting, that would be furthered by the 
Requested disclosure. Requesters shall be given an opportunity in the 
administrative process to provide explanatory information regarding 
this consideration.
    (2) Whether any identified commercial interest of the Requester is 
sufficiently large in comparison with the public interest in disclosure 
that disclosure is primarily in the commercial interest of the 
Requester. A Fee Waiver is justified where the public interest standard 
of paragraph (b) of this section is satisfied and that public interest 
is greater in magnitude than that of any identified commercial interest 
in disclosure. The NCPC ordinarily shall presume that a Representative 
of the News Media satisfies the public interest standard, and the 
public interest will be the interest primarily served by disclosure to 
that Requester. Disclosure to data brokers or others who merely compile 
and market government information for direct economic return shall not 
be presumed to primarily serve the public interest.
    (d) Where only some of the Records to be released satisfy the 
requirements for a Fee Waiver, a Fee Waiver shall be granted for those 
Records.
    (e) Requests for a Fee Waiver should address the factors listed in 
paragraphs (b) and (c) of this section, insofar as they apply to each 
Request. The NCPC shall exercise its discretion to consider the cost-
effectiveness of its investment of administrative resources in this 
decision-making process in deciding to grant Fee Waivers.


Sec.  456.16  Preservation of FOIA records.

    (a) The NCPC shall preserve all correspondence pertaining to FOIA 
Requests received and copies or Records provided until disposition or 
destruction is authorized by the NCPC's General Records schedule 
established in accordance with the National Archives and Records 
Administration (NARA) approved schedule.
    (b) Materials that are responsive to a FOIA Request shall not be 
disposed of or destroyed while the Request or a related lawsuit is 
pending even if the Records would otherwise be authorized for 
disposition under the NCPC's General Records Schedule or NARA or other 
NARA-approved records schedule.

    Dated: July 24, 2017.
Anne R. Schuyler,
General Counsel.
[FR Doc. 2017-15887 Filed 7-31-17; 8:45 am]
BILLING CODE 7502-02-P
35690 Federal Register / Vol. 82, No. 146 / Tuesday, August 1, 2017 / Proposed Rules

already contained in NCPC’s current regions; and does not have a significant thereof where they believe compliance
regulations and is carried over in adverse effect on completion, is lacking.
NCPC’s proposed regulations at employment, investment, productivity,
11. Public Availability of Comments
§§ 602.2(b) (Policy) and 602.4(b)(10) innovation or the competitiveness of
(Information Available without a FOIA U.S. enterprises with foreign Be advised that personal information
Request). The foreseeable harm standard enterprises. such as name, address, phone number
is incorporated in § 602.6(c). electronic address, or other identifying
5. Unfunded Mandates Reform Act (2 personal information contained in a
5. Elimination of a Description of U.S.C. 1531 et seq.) comment may be made publically
NCPC’s Organizational Structure available. Individuals may ask NCPC to
A statement regarding the Unfunded
NCPC’s existing regulations contain Mandates Reform Act is not required. withhold the personal information in
an entire section devoted to a The proposed rule neither imposes an their comment, but there is no guarantee
description of the Agency organizational unfunded mandate of more than $100 the agency can do so.
structure and the Commission’s million per year nor imposes a
composition (See, 1 CFR 456.2). As this List of Subjects in 1 CFR Part 602
significant or unique effect on State,
information is readily available on local or tribal governments or the National Capital Planning
NCPC’s Web site, the referenced section private sector. Commission Freedom of Information
has been removed from the proposed Act Regulations.
regulations. As a consequence, the 6. Federalism (Executive Order 13132) For the reasons stated in the
remaining sections of the proposed In accordance with Executive Order preamble, the National Capital Planning
regulations have been renumbered. 13132, the proposed rule does not have Commission proposes to amend 1 CFR
Moreover, the Policy section has been chapters IV and VI as proposed to be
sufficient federalism implications to
moved. It now follows the Purpose established at 82 FR 24570 to read as
warrant the preparation of a Federalism
section (renamed from General follows:
Assessment. The proposed rule does not
Information) and proceeds the
substantially and directly affect the CHAPTER IV—MISCELLANEOUS
Definition section. This appeared to be
relationship between the Federal and AGENCIES
a move logical organizational structure.
state governments.
Compliance with Laws and Executive PART 456 [Removed]
7. Civil Justice Reform (Executive Order
Orders
12988) ■ 1. Under the authority of 40 U.S.C.
1. Executive Orders 12866 and 13563 8711(a) remove part 456.
The General Counsel of NCPC has ■ 2. Add part 602 to read as follows.
By Memorandum dated October 12, determined that the proposed rule does
1993 from Sally Katzen, Administrator, not unduly burden the judicial system CHAPTER VI—NATIONAL CAPITAL
Office of Information and Regulatory and meets the requirements of Executive PLANNING COMMISSION
Affairs (OIRA) to Heads of Executive Order 12988 3(a) and 3(b)(2).
Departments and Agencies, and PART 602—NATIONAL CAPITAL
Independent Agencies, OMB rendered 8. Paperwork Reduction Act PLANNING COMMISSION FREEDOM
the NCPC exempt from the requirements OF INFORMATION ACT REGULATIONS
The proposed rule does not contain
of Executive Order 12866 (See, information collection requirements, Sec.
Appendix A of cited Memorandum). and it does not require a submission to 602.1 Purpose.
Nonetheless, NCPC endeavors to adhere the Office of Management and Budget 602.2 Policy.
to the provisions of Executive Orders under the Paperwork Reduction Act. 602.3 Definitions.
and developed this proposed rule in a 602.4 Information Available without a
manner consistent with the 9. National Environmental Policy Act FOIA Request.
requirements of Executive Order 13563. 602.5 FOIA Request requirements.
The proposed rule is of an 602.6 FOIA Response requirements.
2. Executive Order 13771 administrative nature, and its adoption 602.7 Multi-track processing.
By virtue of its exemption from the does not constitute a major federal 602.8 Expedited processing.
action significantly affecting the quality 602.9 Consultations and referrals.
requirements of EO 12866, NCPC is 602.10 Classified and controlled
exemption from this Executive Order. of the human environment. NCPC’s
adoption of the proposed rule will have unclassified information.
NCPC confirmed this fact with OIRA. 602.11 Confidential Commercial
minimal or no effect on the Information.
3. Regulatory Flexibility Act environment; impose no significant 602.12 Appeals of Adverse Determinations.
As required by the Regulatory change to existing environmental 602.13 Fees.
Flexibility Act (5 U.S.C. 601 et seq.), the conditions; and will have no cumulative 602.14 Fee waiver requirements.
NCPC certifies that the proposed rule environmental impacts. 602.15 Preservation of FOIA records.
will not have a significant economic 10. Clarity of the Regulation Authority: 5 U.S.C. 552, as amended.
effect on a substantial number of small
entities. Executive Order 12866, Executive § 602.1 Purpose.
Order 12988, and the Presidential This part contains the rules the
4. Small Business Regulatory Memorandum of June 1, 1998 requires National Capital Planning Commission
mstockstill on DSK30JT082PROD with PROPOSALS

Enforcement Fairness Act the NCPC to write all rules in plain (NCPC or Commission) shall follow in
This is not a major rule under 5 U.S.C. language. NCPC maintains the proposed processing third party Requests for
804(2), the Small Business Regulatory rule meets this requirement. Those Records concerning the activities of the
Enforcement Fairness Act. It does not individuals reviewing the proposed rule NCPC under the Freedom of Information
have an annual effect on the economy who believe otherwise should submit Act (FOIA), 5 U.S.C. 552, as amended.
of $100 million or more; will not cause specific comments to the addresses Requests made by a U.S. citizen or an
a major increase in costs for individuals, noted above recommending revised individual lawfully admitted for
various levels of governments or various language for those provision or portions permanent residence to access his or her

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Federal Register / Vol. 82, No. 146 / Tuesday, August 1, 2017 / Proposed Rules 35697

enhanced by the disclosure to a § 456.16 Preservation of FOIA records. Congress amended the Privacy Act
significant extent, as compared to the (a) The NCPC shall preserve all multiple times including the E-
level of public understanding existing correspondence pertaining to FOIA Government Act of 2002 which
prior to the disclosure. The NCPC shall Requests received and copies or Records addressed requirements for maintaining
not make value judgments about provided until disposition or electronic privacy records. The
whether information that would destruction is authorized by the NCPC’s proposed regulations update NCPC’s
contribute significantly to public General Records schedule established in existing Privacy Regulations to reflect
understanding of the operations or accordance with the National Archives amendments over time. The Office of
activities of the government is important and Records Administration (NARA) the Federal Register recently assigned
enough to be made public. approved schedule. NCPC a new chapter of 1 CFR—Chapter
(b) Materials that are responsive to a VI—to allow NCPC to group all its
(c) To determine whether disclosure
FOIA Request shall not be disposed of regulations together in one chapter.
of the information is not primarily in
or destroyed while the Request or a NCPC proposes to codify the new
the commercial interest of the Privacy Regulations at 1 CFR 603.
related lawsuit is pending even if the
Requester, the Requester shall
Records would otherwise be authorized Section by Section Analysis of NCPC’s
demonstrate, and NCPC shall consider,
for disposition under the NCPC’s Privacy Act Regulations
the following factors:
General Records Schedule or NARA or
(1) Whether the Requester has a other NARA-approved records schedule. § 603.1 Purpose and scope. This
commercial interest that would be section advises the purpose of the
Dated: July 24, 2017. regulations is to implement a privacy
furthered by the Requested disclosure.
Anne R. Schuyler, program consistent with the
The NCPC shall consider any
commercial interest of the Requester General Counsel. requirements of the Privacy Act and the
(with reference to the definition of [FR Doc. 2017–15887 Filed 7–31–17; 8:45 am] privacy related provision of the E-
Commercial Use Request in § 456.3(f)), BILLING CODE 7502–02–P Government Act of 2002. As stated in
or of any person on whose behalf the the section, NCPC’s privacy program
Requester may be acting, that would be extends to all Records maintained by
furthered by the Requested disclosure. NATIONAL CAPITAL PLANNING NCPC in a System of Records; the
Requesters shall be given an COMMISSION responsibilities of NCPC to safeguard
opportunity in the administrative this information; the procedures by
1 CFR Chapters IV and VI which Individuals may request
process to provide explanatory
information regarding this notification of the existence of a Record
Privacy Act Regulations about them, access to Records about
consideration.
AGENCY: National Capital Planning them, an amendment to or correction of
(2) Whether any identified Commission. the Records about them, and an
commercial interest of the Requester is accounting of disclosures of those
ACTION: Proposed rule.
sufficiently large in comparison with Records by the NCPC; the procedures by
the public interest in disclosure that SUMMARY: The National Capital Planning which an Individual may appeal an
disclosure is primarily in the Commission (NCPC or Commission) Adverse Determination, and the conduct
commercial interest of the Requester. A proposes to adopt new regulations of a Privacy Impact Assessment.
Fee Waiver is justified where the public governing NCPC’s implementation of § 603.2 Definitions. This section
interest standard of paragraph (b) of this the Privacy Act, as amended and the defines terms frequently used in the
section is satisfied and that public privacy provisions of the E-Government regulations. The section includes the
interest is greater in magnitude than that Act of 2002. NCPC must comply with five terms defined in the existing
of any identified commercial interest in the requirements of the Privacy Act and regulations—Individual, Maintain,
disclosure. The NCPC ordinarily shall the privacy provisions of the E- Record, Routine Use and System of
presume that a Representative of the Government Act of 2002 for records Records. It adds the definitions for the
News Media satisfies the public interest maintained on individuals and personal following terms: Adverse
standard, and the public interest will be information stored as a hard copy or Determination, E-Government Act of
the interest primarily served by electronically. 2002, Information in Identifiable Form
disclosure to that Requester. Disclosure DATES: Submit comments on or before
(IIF), Information Technology, Privacy
to data brokers or others who merely August 31, 2017. Act Officer (PAO), Privacy Act, Privacy
compile and market government Impact Assessment (PIA), Record,
ADDRESSES: You may submit written
information for direct economic return Requester, Request for Access to a
comments on the proposed Privacy Act
shall not be presumed to primarily serve Record, Request for Amendment or
regulations by either of the methods
the public interest. Correction of a Record, Senor Agency
listed below.
(d) Where only some of the Records 1. U.S. mail, courier, or hand delivery: Official for Privacy (SAOP), System of
to be released satisfy the requirements Anne R. Schuyler, General Counsel/ Records Notice (SORN), and Workday.
§ 603.3 Privacy Act program
for a Fee Waiver, a Fee Waiver shall be National Capital Planning Commission,
responsibilities. This section requires
granted for those Records. 401 9th Street NW., Suite 500,
NCPC to designate a SAOP and a PAO
(e) Requests for a Fee Waiver should Washington, DC 20004.
and outlines the responsibilities
mstockstill on DSK30JT082PROD with PROPOSALS

address the factors listed in paragraphs 2. Electronically: Privacy@ncpc.gov.
associated with both positions. It also
(b) and (c) of this section, insofar as they FOR FURTHER INFORMATION CONTACT:
enumerates the Privacy Act
apply to each Request. The NCPC shall Anne R. Schuyler, General Counsel at responsibilities of other NCPC
exercise its discretion to consider the 202–482–7223, anne.schuyler@ personnel.
cost-effectiveness of its investment of ncpc.gov. § 603.4 Standards used to Maintain
administrative resources in this SUPPLEMENTARY INFORMATION: NCPC’s Records. This section establishes the
decision-making process in deciding to adopted its current Privacy Regulations standards NCPC must follow regarding
grant Fee Waivers. (1 CFR 455) in 1977. Since that time, privacy information. The section

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Document Created: 2018-10-24 11:43:16
Document Modified: 2018-10-24 11:43:16
Category		Regulatory Information
Collection		Federal Register
sudoc Class		AE 2.7: GS 4.107: AE 2.106:
Publisher		Office of the Federal Register, National Archives and Records Administration
Section		Proposed Rules
Action		Proposed rule
Dates		Submit comments on or before August 31, 2017.
Contact		Anne R. Schuyler, General Counsel and Chief FOIA Officer, 202-482-7223, [email protected]
FR Citation		82 FR 35689