83 FR 11922 - Freedom of Information Act Regulations

MILLENNIUM CHALLENGE CORPORATION

Federal Register Volume 83, Issue 53 (March 19, 2018)

Page Range		11922-11927
FR Document		2018-04993

The purpose of this document is to outline the procedures by which the Millennium Challenge Corporation proposes to implement the relevant provisions of the Freedom of Information Act as required under that statute. This document will assist interested parties in obtaining access to Millennium Challenge Corporation public records.

Federal Register, Volume 83 Issue 53 (Monday, March 19, 2018)

[Federal Register Volume 83, Number 53 (Monday, March 19, 2018)]
[Proposed Rules]
[Pages 11922-11927]
From the Federal Register Online [www.thefederalregister.org]
[FR Doc No: 2018-04993]

[[Page 11922]]

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MILLENNIUM CHALLENGE CORPORATION

22 CFR Part 1304

Freedom of Information Act Regulations

AGENCY: Millennium Challenge Corporation.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The purpose of this document is to outline the procedures by
which the Millennium Challenge Corporation proposes to implement the
relevant provisions of the Freedom of Information Act as required under
that statute. This document will assist interested parties in obtaining
access to Millennium Challenge Corporation public records.

DATES: Send comments on or before April 18, 2018.

ADDRESSES: Send comments to Tamiko NW Watkins, Chief FOIA Officer,
Office of the General Counsel, Millennium Challenge Corporation, 1099
Fourteenth Street NW, Washington, DC 20005.

FOR FURTHER INFORMATION CONTACT: Tamiko NW Watkins, Chief FOIA Officer,
202.521.3730.

SUPPLEMENTARY INFORMATION: The Millennium Challenge Act (MCA) of 2003
established a new federal agency called the Millennium Challenge
Corporation. Congress enacted the Freedom of Information Act (FOIA) in
1966 and last modified it with the FOIA Improvement Act of 2016. This
proposed rule addresses electronically available documents, procedures
for making requests, agency handling of requests, records not
disclosed, changes in fees, and public reading rooms, as well as, other
related provisions.

Lists of Subjects in 22 CFR Part 1304

Freedom of Information Act procedures.

0
For the reasons set forth in the preamble, the Millennium Challenge
Corporation proposes to amend chapter XIII of title 22 by revising part
1304 to read as follows:

PART 1304--PRODUCTION OR DISCLOSURE OF INFORMATION

Subpart A--Procedures for Requests for Disclosure of Records Under the
Freedom of Information Act
Sec.
1304.1 General provisions.
1304.2 Definitions.
1304.3 Proactive disclosure of MCC records.
1304.4 Requirements for making requests.
1304.5 Responsibility for acknowledgment and initial
determinations.
1304.6 Timing of responses to requests.
1304.7 Responses to requests.
1304.8 Confidential commercial information.
1304.9 Administrative appeals.
1304.10 Preservation of records.
1304.11 Fees.
1304.12 Other rights and services.
Subpart B--[Reserved]

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

Subpart A--Procedures for Requests for Disclosure of Records Under
the Freedom of Information Act

Sec. 1304.1 General provisions.

This part contains the rules that the Millennium Challenge
Corporation (``MCC'') follows in processing requests for records under
the Freedom of Information Act (``FOIA'') (5 U.S.C. 552). The rules in
this part should be read in conjunction with the text of the FOIA and
the Uniform Freedom of Information Act Fee Schedule and Guidelines
published by the Office of Management and Budget (``OMB Fee
Guidelines''). In addition, the MCC FOIA web page contains information
about the specific procedures particular to MCC with respect to making
FOIA requests. This resource is available at www.mcc.gov/resources/foia. Requests may be made by individuals about themselves under the
Privacy Act of 1974, 5 U.S.C. 552(a).

Sec. 1304.2 Definitions.

Administrative appeal. An independent review of the initial
determination made in response to a FOIA request.
Agency. Any executive department, military department, government
corporation, government controlled corporation, or other establishment
in the executive branch of the Federal Government or any independent
regulatory agency.
Business day or work day. A day of the week, excluding Saturday,
Sunday, or legal public holidays.
Calendar days. Every day within a month, including Saturday,
Sunday, and legal public holidays. Unless identified as a ``business
day'' or ``work day,'' all timeframes and days noted in this part shall
be calculated in calendar days.
Chief FOIA Officer. The MCC employee who is authorized to make
determinations regarding the release of records requested under the
FOIA.
Commercial requester. Any person making a request for information
for a use or purpose that furthers a commercial, trade, or profit
interest, which can include furthering those interests through
litigation.
Complex request. A FOIA request that MCC anticipates will involve a
voluminous amount of material to review or will be time-consuming to
process.
Confidential commercial information. Records provided to the
government that contain material exempt from disclosure under Exemption
4 of the FOIA and disclosure of such records could reasonably be
expected to cause substantial competitive harm.
Consultation. When MCC locates a record that contains information
of interest to another agency, MCC shall ask the interested agency for
their views on disclosing the records before any final determination is
made.
Direct costs. Expenditures actually incurred by MCC for searching,
duplicating, and in the case of commercial use requests, reviewing
records in order to respond to a FOIA request.
Discretionary disclosure. The release of or portions of records to
a FOIA requester that could be withheld by MCC under one or more of the
FOIA exemptions.
Duplication. The process of making a copy of a record in order to
respond to a FOIA request, including but not limited to paper copies,
microfilm, audio-video materials, and computer diskettes or other
electronic copies.
Duplication fees. The estimated direct costs of making a copy of a
record in order to respond to a FOIA request.
Educational institution. Any school or institution that operates a
program of scholarly research. A requester in this category must show
that the request is made in connection with his or her role at the
educational institution.
Educational requester. Any person making a FOIA request authorized
by, and made under the auspices of, a qualifying institution, and that
the records are not sought to further scholarly research. Records
requested for the intention of fulfilling credit requirements at an
educational institution are not considered to be sought for a scholarly
purpose.
Exemptions. Certain categories of information that are not required
to be released in response to a FOIA request because release would be
harmful to governmental or private interests.
FOIA Appeals Officer. The MCC employee who is responsible for
conducting an independent review of the initial determination of the
FOIA request after the requester has requested an administrative
appeal.
FOIA Public Liaison. The MCC employee who is responsible for
assisting in the resolution of disputes in response to FOIA requests.

[[Page 11923]]

FOIA Program Officer. The MCC employee who receives and processes
requests within the MCC FOIA Office.
Non-commercial scientific institution. An institution that does not
operate on a commercial basis, but operates solely for the purpose of
conducting scientific research and the results of the scientific
research are not intended to promote any particular product or
industry.
Record. Any item, collection, or grouping of information maintained
by MCC in any form or format, including an electronic copy. A
``record'' can potentially constitute an entire document, a single page
of a multipage document, an individual paragraph of a document, or an
email within an email chain.
Referral. When an agency locates a record that originated with, or
is of otherwise primary interest to another agency, it will forward
that record to the other agency to process the record and to provide
the final determination directly to the requester.
Representative of the news media. Any person actively gathering
news for an entity that is organized and operated to publish or
broadcast news to the public. The term ``news'' means information that
is about current events or that would be of interest to the public. To
qualify for this category, the requester must not be seeking the
requested records for commercial use.
Requester. Any person, corporation, firm, organization, or other
entity who makes a request for records pursuant to the FOIA.
Review. The process of examining a record to determine whether all
or part of the record may be released or withheld, and includes
redacting or otherwise processing the record for disclosure to a
requester. The review process does not include time spent resolving
legal or policy issues regarding the application of exemptions to a
record. The review process also does not include time spent reviewing
records at the administrative appeal level unless, MCC determines that
the exemption under which it withheld records does not apply and the
records are reviewed again to determine whether a different exemption
may apply.
Search. The time spent locating records that may be responsive to a
request, manually or by electronic means, including page-by-page or
line-by-line identification of responsive material within a record.
Search fees. Estimated direct costs of the time spent locating
records by either manual or electronic means.
Submitter. Any person or entity who provides information directly
or indirectly to MCC. The term includes, but is not limited to,
corporations, state governments, and foreign governments.

Sec. 1304.3 Proactive disclosure of MCC records.

Records that are required by the FOIA to be made available for
public inspection in an electronic format may be accessed through the
MCC website. MCC is responsible for determining which of its records
are required to be made publicly available, identifying additional
records in the interest of the public that are appropriate for public
disclosure, and posting such records. MCC shall ensure that its website
of posted records is reviewed and updated on an ongoing basis. The FOIA
Program Officer may assist individuals in locating records on the MCC
website and FOIA reading room.

Sec. 1304.4 Requirements for making requests.

(a) Requests for access to, or copies of, MCC records other than
those identified in Sec. 1304.3, shall be in writing and addressed to
the MCC Chief FOIA Officer at 1099 14th St. NW, Washington, DC 20005 or
FOIA@mcc.gov. All requests for records shall be deemed to have been
made pursuant to the FOIA, regardless of whether the request
specifically mentions the Freedom of Information Act. To facilitate
processing, the requester should place the phrase ``FOIA REQUEST'' in
capital letters on the front of the envelope or subject line of the
email.
(b) Each request shall include the following:
(1) A description of the record(s) that provides sufficient detail
to enable MCC to locate the record(s) with a reasonable amount of
effort; such as the date, title or name, author, recipient, subject
matter of the record, case number, file designation, or reference
number. Before submitting their requests, requesters may contact the
MCC FOIA Program Officer to discuss the records the are seeking and
receive assistance in describing the records;
(2) The preferred format of the records;
(3) A statement that the request for records is made pursuant to
the FOIA;
(4) The requestor's full name, mailing address or email address,
and telephone number where the requester can be reached during business
hours; and
(5) If applicable, the maximum amount the requester is willing to
pay or dollar limit on the fees MCC may incur to respond to the request
for records. When this information is specified, MCC shall not exceed
such limit.
(c) If a request does not meet all of the requirements of paragraph
(b) of this section, the FOIA Program Officer may advise the requester
that additional information is needed. Requesters who are attempting to
reformulate or modify a request may engage with the MCC Program Officer
to clarify their request.

Sec. 1304.5 Responsibility for acknowledgment and initial
determinations.

(a) Upon receipt of a request for records, the FOIA Program Officer
will acknowledge receipt of the request in writing within ten (10)
business days. In responding to a request for records, MCC shall make
reasonable efforts to search for the records in electronic format,
except when such efforts would significantly interfere with the
operation of the agency's automated information system.
(b) The Chief FOIA Officer shall make an initial determination,
within twenty (20) business days, to either grant or deny, in whole or
in part, a request for records. If the Chief FOIA Officer shall notify
the requester making such a request of the following information:
(1) The determination whether grant or deny the request and reasons
for the determination;
(2) The right of the requester to seek assistance from the FOIA
Public Liaison; and in the case of an adverse determination;
(3) The right of the requester to seek dispute resolution services
via the Office of Government Information Services of the National
Archives and Records Administration (OGIS); and
(4) The right to file an administrative appeal to the FOIA Appeals
Officer within 90 calendar days after the date of the adverse
determination.

Sec. 1304.6 Timing of responses to requests.

(a) General information. The twenty (20) business day period
identified in Sec. 1304.5(b) shall commence on the date that the
request is first received by the MCC FOIA office and an acknowledgment
of the request shall be sent no later than ten (10) business days after
receipt of the request. The twenty (20) business day period shall not
be tolled except that MCC may make one request to the requester for
information and toll the twenty (20) business day period while it is
awaiting receipt of the information, or the twenty (20) business day
period may be tolled if it is necessary to clarify issues regarding
fees with the requester.
(b) Unusual circumstances. If MCC cannot meet the statutory time
limit for processing a request because of ``unusual circumstances'' as
defined in the FOIA and MCC extends the time

[[Page 11924]]

limit on that basis, MCC will, before expiration of the twenty (20)
business day period, notify the requester in writing of the unusual
circumstances involved and of the date by which MCC estimates
processing of the request will be completed. Where the extension
exceeds ten (10) business days, MCC will provide the requester with an
opportunity to modify the request or arrange an alternative time period
for processing the original or modified request. MCC must make its
designated FOIA Program Officer or FOIA Public Liaison available for
this purpose. To aid the requester, the MCC FOIA Public Liaison shall
assist in the resolution of any disputes between the requester and MCC,
and notify the requester of the right to seek dispute resolution
services from the Office of Government Information Services. Refusal by
the requester to modify the request or arrange for an alternative time
frame shall be factors in considering whether unusual circumstances
exist.
(c) Aggregating requests. MCC may aggregate requests where it
reasonably appears that multiple requests, submitted either by a
requester or by a group of requesters acting in concert, constitute a
single request that would otherwise involve unusual circumstances.
Requests that involve unrelated matters shall not be aggregated.
(d) Multitrack processing. MCC may use multitrack processing in
responding to requests. This process entails separating simple requests
that require rather limited review from more lengthy and complex
requests. Requests in each track are then processed in their respective
track. The FOIA Program Officer may provide requesters in the slower
track an opportunity to limit the scope of their requests in order to
decrease the processing time required. The FOIA Program Officer may
provide the opportunity to limit the scope of the request by contacting
the requester by letter, email, or telephone.
(e) Expedited processing of requests. The FOIA Program Officer must
determine whether to grant a request for expedited processing within
ten (10) calendar days of its receipt. Requests will receive expedited
processing if one of the following criteria are met:
(1) The requester can establish that failure to receive the records
quickly could reasonably be expected to pose an imminent threat to the
life or physical safety of an individual;
(2) The requester is primarily engaged in disseminating information
and can demonstrate that an urgency to inform the public concerning
actual or alleged federal government activity exists; or
(3) As determined by the Chief FOIA Officer.
(f) Written expedited requests. A requester who seeks expedited
processing must submit a written statement explaining in detail the
basis for making the request for expedited processing. This statement
must be certified to be true and correct. The MCC Chief FOIA Officer
may waive the formal certification requirement.

Sec. 1304.7 Responses to requests.

(a) General information. MCC, to the extent practicable, will
communicate with requesters who have access to the internet via email
or web portal.
(b) Acknowledgment of requests. MCC shall acknowledge the request
in writing and assign a tracking number for processing purposes.
(c) Estimated dates of completion and interim responses. Upon
request, MCC shall provide an estimated response date. If a request
involves a voluminous amount of material or searches in multiple
locations, MCC shall provide interim responses by releasing the records
on a rolling basis.
(d) Granting requests. MCC will notify the requestor in writing if
it determines that it will grant a request in full or in part. MCC
shall inform the requester of any fees charged and shall disclose the
requested records to the requester promptly upon payment of any
applicable fees.
(e) Partial grant of requests. MCC shall consider whether partial
disclosure of information is possible whenever the agency determines
that a full disclosure of a requested record is not possible. MCC shall
take reasonable steps necessary to segregate and release nonexempt
information.
(f) Denial or adverse determination of requests. Except as
otherwise provided in this part, MCC shall withhold information only
if--
(1) It reasonably foresees that disclosure would harm an interest
protected by an exemption under the FOIA or disclosure is prohibited by
law;
(2) The request does not reasonably describe the records sought;
(3) The information sought is not a record subject to the FOIA;
(4) The information sought does not exist, cannot be located, or
has been destroyed; or
(5) The records are not in the readily producible form or format
sought by the requester.
(g) Markings on released documents. Records disclosed in part shall
be marked clearly to show the amount of information deleted and the
exemption under which the deletion was made unless doing so would harm
an interest protected by an applicable exemption.

Sec. 1304.8 Confidential commercial information.

(a) Designation of confidential commercial information. A submitter
of confidential commercial information must use good faith efforts to
designate by appropriate markings, either at the time of the submission
or within a reasonable time thereafter, any portion of its submission
that it considers to be protected from disclosure under Exemption 4 of
the FOIA. These designations shall expire ten (10) years after the date
of submission unless the submitter requests and provides justification
for a longer designation period.
(b) Required notice. Written notice shall be provided to a
submitter of confidential commercial information whenever records
containing such information are requested under the FOIA if, after
reviewing the request, the responsive records, and any appeal by the
requester, it is determined that MCC may be required to disclose the
records, provided:
(1) The requested information has been designated in good faith by
the submitter as information considered protected from disclosure under
Exemption 4 of the FOIA; or
(2) MCC has reason to believe that the requested information may be
protected from disclosure under Exemption 4 of the FOIA, but has not
yet determined whether the information is protected from disclosure
under that exemption or any other applicable exemption.
(c) Information. The notices shall either describe the commercial
information requested or include a copy of the requested records or
portions of records containing information. 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.
(d) Exceptions to notice requirements. The notices requirements of
this section shall not apply if:
(1) The Chief FOIA Officer determines that the information is
exempt under the FOIA;
(2) The information has been lawfully published or has officially
been made available to the public;
(3) Disclosure of the information is required by a statute other
than the FOIA or by a regulation issued in accordance with the
requirements of Executive Order 12600 of June 23, 1987; or
(4) The designation made by the submitter under paragraph (b) of
this section appears obviously frivolous, except that, in such a case,
the component shall give the submitter

[[Page 11925]]

written notice of any final decision to disclose the information and
must provide that notice within a reasonable number of days prior to
the disclosure date.
(e) Opportunity to object to disclosure. A submitter may provide
the Chief FOIA Officer with a detailed written statement of any
objection to disclosure within ten (10) days of notification. The
statement shall specify all grounds for withholding any of the
information under any exemption of the FOIA, and if Exemption 4
applies, shall demonstrate the reasons the submitter believes the
information to be confidential commercial information that is exempt
from disclosure. Whenever possible, the submitter's claim of
confidentiality shall be supported by a statement or certification by
an officer or authorized representative of the submitter. In the event
a submitter fails to respond to the notice in the time specified, the
submitter will be considered to have no objection to the disclosure of
the information. Information provided by the submitter that is received
after the disclosure decision has been made will not be considered.
Information provided by a submitter pursuant to this paragraph may
itself be subject to disclosure under the FOIA.
(f) Notice of intent to disclose. The Chief FOIA Officer shall
consider a submitter's objections and specific grounds for
nondisclosure prior to determining whether to disclose the information
requested. Whenever the Chief FOIA Officer determines that disclosure
is appropriate, the Chief FOIA Officer shall, within a reasonable
number of days prior to disclosure, provide the submitter with written
notice of the intent to disclose which shall include a statement of the
reasons for which the submitter's objections were overruled, a
description of the information to be disclosed, and a specific
disclosure date. The Chief FOIA Officer shall also notify the requester
that the requested records will be made available.
(g) Notice of lawsuit. If the requester files a lawsuit seeking to
compel disclosure of confidential commercial information, MCC shall
promptly notify the submitter of this action. If a submitter files a
lawsuit seeking to prevent disclosure of confidential commercial
information, MCC shall promptly notify the requester.

Sec. 1304.9 Administrative appeals.

(a) Requirements for appealing an adverse determination. A
requester may appeal any adverse determination to MCC. The requester
must submit a written notice of appeal and it must be postmarked or, in
the case of electronic submissions, transmitted within ninety (90)
calendar days after the date of the response. The appeal should clearly
identify the determination that is being appealed and the assigned
tracking number. To facilitate handling, the requester should mark both
the appeal letter and envelope, or subject line of the electronic
transmission, ``Freedom of Information Act Appeal.''
(b) Appeals address. Requesters can submit appeals by mail by
addressing it to Millennium Challenge Corporation, Attn.: FOIA Appeals
Officer, 1099 14th St. NW, Washington, DC 20005 or online at
FOIA@mcc.gov.
(c) Adjudication of appeals. The MCC FOIA Appeals Officer will
adjudicate the appeal within twenty (20) business days after the
receipt of such appeal. An appeal ordinarily will not be adjudicated if
the request becomes a matter of the subject of litigation. On receipt
of any appeal involving classified information, the MCC FOIA Appeals
Officer must take appropriate action to ensure compliance with
applicable classification rules.
(d) Final agency determinations. The FOIA Appeals Officer shall
issue a final written determination, stating the basis for the
decision, within twenty (20) business days after receipt of a notice of
appeal. Any decision that upholds MCC's determination in whole or in
part must contain a statement that identifies the reason(s) for the
decision, including any FOIA exemptions applied. The decision will
provide the requester with notification of the statutory right to file
a lawsuit and will inform the requester of the dispute resolution
services offered by the OGIS of the National Archives and Records
Administration as an alternative to litigation. If the Chief FOIA
Officer's decision is remanded or modified on appeal, the FOIA Appeals
Officer will notify the requester of the determination in writing. MCC
will then further process the request in accordance with the appeal
determination and will respond directly to the requester.
(e) Engaging in dispute resolution services provided by OGIS.
Dispute resolution is a voluntary process. If MCC agrees to participate
in the dispute resolution services provided by OGIS, MCC will actively
engage as a partner to the process in an attempt to resolve the
dispute.
(f) When an appeal is required. Before seeking review by a court of
MCC's adverse determination, a requester generally must first submit a
timely administrative appeal.

Sec. 1304.10 Preservation of records.

MCC shall preserve all correspondence pertaining to the requests
that it receives under this part, as well as copies of all requested
records, until disposition or destruction is authorized pursuant to
Title 44 of the United States Code or the General Records Schedule 4.2
of the National Archives and Records Administration. MCC shall not
dispose of or destroy records while they are the subject of a pending
request, appeal, or lawsuit under the FOIA.

Sec. 1304.11 Fees.

(a) General information. (1) MCC's fee provisions are governed by
the FOIA and by the Office of Management and Budget's Uniform FOIA Fee
Schedule and Guidelines. For purposes of assessing fees, the FOIA
establishes the following categories of requesters:
(i) Commercial use;
(ii) Non-commercial scientific or educational institutions;
(iii) Representative of the news media; and
(iv) All other requesters.
(2) Fees will be assessed pursuant to the category of requester and
detailed in paragraph (b) of this section. Requesters may seek a fee
waiver. To resolve any fee issues that arise under this section, MCC
may contact a requester for additional information. MCC will ensure
that searches, review, and duplication are conducted in the most
efficient and the least expensive manner. MCC ordinarily will collect
all applicable fees before sending copies of records to a requester.
Requesters must pay fees to the Treasury of the United States. All fee
information is available at www.mcc.gov/resources/foia.
(b) Charging fees. Because the fee amounts provided already account
for the direct costs associated with the given fee type, MCC will not
add any additional costs to charges calculated under this section. In
responding to FOIA requests, MCC shall charge fees for the following
unless a waiver or reduction of fees has been granted:
(1) Search time fees. Search time includes page-by-page or line-by-
line identification of information within records and the reasonable
efforts expended to locate and retrieve information from electronic
records.
(i) Requests made by education institutions, non-commercial
scientific institutions, or representatives of the news media are not
subject to search time fees. Search time fees shall be charged for all
other requesters, subject to the restrictions identified in this
section. MCC may properly charge for time spent searching even if no

[[Page 11926]]

responsive records are located if it is determined that the records are
entirely exempt from disclosure.
(ii) Requesters shall be charged the direct costs associated with
conducting any searches that require the creation of a new computer
program to locate the requested records. Requesters shall be notified
of the costs associated with creating such a program and must agree to
pay the associated costs before the costs may be incurred.
(iii) For requests that require the retrieval of records stored by
an agency at the Federal Records Centers operated by the National
Archives and Records Administration (NARA), additional costs shall be
charged in accordance with the Transactional Billing Range Schedule
established by NARA.
(2) Duplication fees. Duplication fees shall be charged to all
requesters, subject to the restrictions in this section. MCC shall
honor a requester's preference for receiving a record in a particular
form or format where it is readily reproducible by MCC in the form or
format requested. Where photocopies are supplied, MCC shall provide one
copy per request and charge fees calculated per page. For copies of
records produced on tapes, disks, or other media, MCC shall charge the
direct costs of producing the copy, including operator time. Where
paper documents must be scanned in order to comply with a requester's
preference to receive the records in an electronic format, the
requester shall be charged direct costs associated with scanning those
materials. For other forms of duplication, MCC shall charge the direct
costs.
(3) Review. Review fees shall be charged to requesters who make
commercial use requests. Review fees shall be assessed in connection
with the initial review of the record. No charge will be made for
review at the administrative appeal state of exemptions applied at the
initial review stage. If a particular exemption is deemed to no longer
apply, any costs associated with MCC's subsequent review following the
administrative appeal of the records in order to consider the use of
other exemptions may be assessed as review fees.
(c) Restrictions on charging fees. The following restrictions shall
apply to MCC FOIA requests:
(1) If MCC fails to comply with the FOIA's time limits to respond
to a request, MCC may not charge fees, except as described in
paragraphs (c)(3) through (5) of this section;
(2) If MCC 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 ten (10) calendar days;
(3) If MCC has determined that unusual circumstances as defined by
the FOIA apply, and more than five-thousand (5000) pages are necessary
to respond to the request, MCC may charge search time fees or
duplication fees where applicable, if MCC has provided timely written
notice of the unusual circumstances to the requester in accordance with
the FOIA and has discussed with the requester via written mail, email,
or telephone (or made a minimum of three (3) good-faith attempts to do
so) how the requester could effectively limit the scope of the request;
(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; and
(5) No search time or review fees will be charged for a quarter-
hour period unless more than half of that period is required for search
or review.
(d) Fee exceptions. Except for requesters seeking records for
commercial use, MCC shall provide without charge:
(1) The first one-hundred (100) pages of duplication (or the cost
equivalent for other media); and
(2) The first two (2) hours of search time. When, after deducting
the first one-hundred (100) free pages (or its cost equivalent) and the
first two (2) hours of search time, a total fee calculated under this
section is $25.00 or less for any request, no fee will be charged.
(e) Notice of anticipated fees in excess of $25.00. (1) When MCC
determines that the fees to be assessed will exceed $25.00, the
requester shall be notified of the actual or estimated amount of the
fees, including the breakdown of the fees for search time, 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, MCC shall advise the requester accordingly. If the
requester is a not a commercial use requester, the notice shall specify
that the requester is entitled to the statutory requirements of one-
hundred (100) pages of duplication at no charge and, if the requester
is charged search time fees, two (2) 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 requester who is not a commercial 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. MCC is not required to
accept payments in installments.
(3) If the requester has indicated a willingness to pay some
designated amount of fees, and MCC estimates that the total fee will
exceed that amount, MCC 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. MCC 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 FOIA Program Officer will assist any requester in
reformulating a request to meet the requester's needs at a lower cost.
(f) Waiver or reduction of fees. Documents shall be furnished
without charge or at a charge below that listed in this section based
upon information provided by a requester or otherwise made known to the
Chief FOIA Officer that disclosure of the requested information is in
the public interest. Disclosure is in the public interest if it is
likely to contribute significantly to public understanding of
government operations and is not primarily for commercial purposes.
Requests for a waiver or reduction of fees shall be considered on a
case by case basis. Where only some of the records to be released
satisfy the requirements for waiver of fees, a waiver shall be granted
to those records. In order to determine whether the fee waiver
requirement is met, the Chief FOIA Officer shall consider the following
factors:
(1) The subject of the request. Whether the subject of the
requested records concerns the operations or activities of the
government;
(2) The informative value of the information to be disclosed; and
(3) The significance of the contribution to public understanding.

[[Page 11927]]

(g) Fees pending a waiver request. Requests for a waiver or
reduction of fees should be made when the request is first submitted to
the agency and should address the criteria referenced in this section.
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 must pay
any costs incurred up to the date the fee waiver request was received.
(h) Types of requesters. There are four categories of FOIA
requesters: Commercial use requesters, educational and non-commercial
scientific institutional requesters; representatives of the news media;
and all other requesters. The following specific levels of fees are
prescribed for each of these categories:
(1) Commercial requesters shall be charged the full direct costs of
searching for, reviewing, and duplicating requested records;
(2) Educational and non-commercial scientific institution
requesters shall be charged for document duplication only and the first
one-hundred (100) pages of paper copies shall be provided without
charge;
(3) Representative of the news media requesters shall be charged
for document duplication costs only, except that the first one-hundred
(100) pages of paper copies shall be provided without charge; and
(4) All other requesters who do not fall into any of the categories
in paragraphs (h)(1) through (3) of this section shall be charged fees
which recover the full reasonable direct costs incurred for searching
for and reproducing records if that total costs exceeds $25.00, except
that the first one-hundred (100) pages of duplication and the first two
hours of manual search time shall not be charged.
(i) Charges for unsuccessful searches. If the requester has been
notified of the estimated cost of the search time and has been advised
specifically that the requested records may not exist or may be
withheld as exempt, fees may be charged.
(j) Charges for other services. Although MCC is not required to
provide special services, if it chooses to do so as a matter of
administrative discretion, the direct costs of providing the service
shall be charged. Examples of such services include certifying that
records are true copies, providing multiple copies of the same
document, or sending records by means other than first class mail.
(k) Charging interest. MCC may charge interest on any unpaid bill
starting on the 31st day following the date of billing the requester.
Interest charges shall be assessed at the rate provided in 31 U.S.C.
3717 and will accrue from the billing date until payment is received.
MCC shall follow the provisions of the Debt Collection Act of 1982, as
amended, and its administrative procedures, including the use consumer
reporting agencies, collection agencies, and offset.
(l) Aggregating requests. The requester or a group of requesters
may not submit multiple requests at the same time, each seeking
portions of a document or documents solely in order to avoid payment of
fees. When the FOIA Program Officer reasonably believes that a
requester is attempting to divide a request into a series of requests
to evade an assessment of fees, the FOIA Program Officer may aggregate
such requests and charge accordingly. MCC may presume that multiple
requests of this type made within a thirty (30) calendar day period
have been made in order to avoid fees. For requests separated by a
longer period, MCC will aggregate them only where there is a reasonable
basis for determining that aggregation is warranted in view of all the
circumstances involved. Multiple requests involving unrelated matters
cannot be aggregated.
(m) Advance payment of fees. (1) MCC may require an advanced
payment of fees if the requestor previously failed to pay fees or if
the FOIA Program Officer determines the total fee will exceed $250.00.
When payment is required in advance of the processing of a request, the
time limits prescribed in Sec. 1304.5 shall not be deemed to begin
until the requester has paid the assessed fees.
(2) In cases in which MCC requires advance payment, the request
will not be considered received and further work will not be completed
until the required payment is received. If the requester does not pay
the advance payment within thirty (30) calendar days after the date of
the fee determination, the request will be closed. Where it is
anticipated that the cost of providing the requested record will exceed
$25.00 but falls below $250.00 after the free duplication and search
time has been calculated, MCC may, in its discretion may require either
an advance deposit of the entire estimated charges or written
confirmation of the requester's willingness to pay such charges.
(3) Where the requester has previously failed to pay a properly
charged FOIA fee within thirty (30) calendar days of the billing date,
MCC may require the requester to pay the full amount due plus any
applicable interest on that prior request, and/or require that the
requester make an advance payment of the full amount of the anticipated
fee before MCC begins a new request or continues to process a pending
request or any pending appeal. If MCC has a reasonable basis to believe
that a requester has misrepresented the requester's identity in order
to avoid paying outstanding fees, MCC may require that the requester
provide proof of identity.

Sec. 1304.12 Other rights and services.

Nothing in this part shall be construed to entitle any person a
right to any service or to the disclosure of any record to which such
person is not entitled under the FOIA.

Subpart B [Reserved]

Dated: March 7, 2018.
Tamiko N.W. Watkins,
Chief FOIA Officer, Millennium Challenge Corporation.
[FR Doc. 2018-04993 Filed 3-16-18; 8:45 am]
BILLING CODE 9211-03-P

Document Created: 2018-03-17 04:25:14
Document Modified: 2018-03-17 04:25:14

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		Notice of proposed rulemaking.
Dates		Send comments on or before April 18, 2018.
Contact		Tamiko NW Watkins, Chief FOIA Officer, 202.521.3730.
FR Citation		83 FR 11922