[Federal Register Volume 78, Number 160 (Monday, August 19, 2013)]
[Proposed Rules]
[Pages 50351-50358]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-19871]


 ========================================================================
 Proposed Rules
                                                 Federal Register
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 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. 78, No. 160 / Monday, August 19, 2013 / 
Proposed Rules  

[[Page 50351]]



NATIONAL CAPITAL PLANNING COMMISSION

1 CFR Part 456


Freedom of Information Act Regulations

AGENCY: National Capital Planning Commission.

ACTION: Notice of Proposed Rulemaking.

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SUMMARY: The National Capital Planning Commission (``NCPC'' or 
``Commission'') proposes to revise the current regulations the NCPC 
follows for processing Requests for Information under the Freedom of 
Information Act (FOIA). The revisions reorganize the regulations to 
focus each section on a discrete topic. The revisions also incorporate 
new information in response to changes to the FOIA. Finally, the 
revisions increase the threshold dollar amount that must be reached 
before the NCPC charges members of the public a processing fee for 
information.

DATES: Submit comments on or before October 18, 2013.

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/
Chief FOIA Officer, 202-482-7223 or [email protected].

SUPPLEMENTARY INFORMATION: 

I. Purpose for Revising the NCPC's Existing Regulations

    The NCPC proposes to revise its current FOIA regulations to create 
an organizational structure that permits easier use by members of the 
public. To achieve this objective, Sections in the existing regulations 
that address multiple aspects of one issue have been broken up, and 
each Section contained in the revised regulations addresses one 
discrete topic identified by its subject heading. The NCPC also seeks 
to update its FOIA regulations to reflect changes in the law that have 
occurred since the NCPC adopted its original FOIA regulations in 1982 
and processed amendments in 1998. With the addition of new Sections in 
the draft rules, the NCPC's FOIA regulations provide a complete 
compendium of the rules governing the agency's FOIA activity. Members 
of the public no longer need to consult multiple sources when preparing 
a FOIA Request for submission to NCPC.

II. 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, the NCPC endeavors to adhere to the provisions of the 
Executive Order. Accordingly, the NCPC, in consultation with OIRA, has 
determined the proposed rule is not a major rule for purposes of 
Executive Order 12866. Further, the NCPC developed the proposed rule in 
a manner consistent with the requirements of Executive Order 13563.

2. Regulatory Flexibility Act

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

3. Small Business Regulatory Enforcement Fairness Act

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

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

    A statement required by the Unfunded Mandates Reform Act is not 
required. The 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.

5. 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.

6. Civil Justice Reform (Executive Order 12988)

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

7. 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.

8. 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. The 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.

9. Clarity of the Regulation

    Executive Order 12866, Executive Order 12988, and the Presidential 
Memorandum of June 1, 1998 requires the NCPC to write all rules in 
plain language. The NCPC maintains the proposed rule meets this 
requirement. Those individuals reviewing the proposed rule who feel 
otherwise should submit specific comments to the

[[Page 50352]]

addresses noted above recommending revised language for those provision 
or portions thereof where they feel compliance is lacking.

10. Public Availability of Comments

    Be advised that personal information such as name, address, phone 
number email address, or other identifying personal information 
contained in a comment may be made publically available. Individuals 
may ask the 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 456

    Freedom of Information.

    Dated: August 12, 2013.
Anne R. Schuyler,
General Counsel.
    For the reasons stated in the preamble, the National Capital 
Planning Commission proposes to revise 1 CFR part 456 to read as 
follows:

PART 456--NATIONAL CAPITAL PLANNING COMMISSION FREEDOM OF 
INFORMATION ACT

Sec.
456.1 General information.
456.2 Organization.
456.3 Definitions.
456.4 General policy.
456.5 Public reading rooms and information routinely available.
456.6 FOIA request requirements.
456.7 Time-frame for response to FOIA requests.
456.8 Multi-track processing.
456.9 Expedited processing.
456.10 Consultations and referrals.
456.11 Classified and controlled unclassified information.
456.12 Confidential commercial information.
456.13 Appeals.
456.14 Fees.

    Authority:  40 U.S.C. 8701 et seq., as amended and 5 U.S.C. 552, 
as amended.


Sec.  456.1  General information.

    This part contains the rules the National Capital Planning 
Commission (``NCPC'' or ``Commission'') shall follow in processing 
Requests for Records under the Freedom of Information Act (FOIA), 5 
U.S.C. 552, as amended. Privacy Act Requests made by individuals under 
the Privacy Act, 5 U.S.C. 522a, which are processed in accordance with 
part 455 of Title 1 of the Code of Federal Regulations, are processed 
under this part as well. Information routinely provided to the public 
as part of regular NCPC activity shall be provided to the public 
without regard to this part.


Sec.  456.2  Organization.

    (a) The NCPC serves as the planning agency for the Federal 
Government in the National Capital Region (NCR). The NCR includes the 
District of Columbia, Montgomery and Prince George's Counties in 
Maryland, Arlington, Fairfax, Loudon, and Prince William Counties in 
Virginia, and all cities in Maryland and Virginia in the aforementioned 
counties.
    (b) Pursuant to the Planning Act, 40 U.S.C. 8701 et seq., the 
NCPC's primary mission includes:
    (1) Preparation of the Comprehensive Plan for the National Capital: 
Federal Elements (``Comprehensive Plan''). The Comprehensive Plan sets 
forth the principles, goals and planning policies that guide federal 
government growth and development of the NCR. The Comprehensive Plan 
serves as the foundation for all other plans prepared by the NCPC.
    (2) Review of Federal and District of Columbia Agency Plans and 
Projects.
    The Commission reviews, and takes appropriate action on, Federal 
and District Government agency plans and projects to ensure compliance 
with, among others, the Comprehensive Plan, principals of good planning 
and urban design, and federal environmental and historic preservation 
policies mandated by the National Environmental Policy Act and the 
National Historic Preservation Act.
    (3) Preparation of a Federal Capital Improvement Plan (FCIP). The 
FCIP is an annual, six-year program of prioritized Federal government 
capital projects prepared by the NCPC for use by the Office of 
Management and Budget (``OMB'') in its preparation of the President's 
Annual Budget.
    (c) The Commission is comprised of five citizen members, three of 
whom are appointed by the President of the United States, including the 
Chairman, and two of whom are appointed by the Mayor of the District of 
Columbia. Ex- officio members of the Commission include:
    (1) The Secretary of Defense;
    (2) The Administrator of the General Services Administration;
    (3) The Mayor of the District of Columbia;
    (4) The Chairman of the Council of the District of Columbia;
    (5) The Chairman of the Senate Committee of Homeland Security and 
Governmental Affairs; and
    (6) The Chairman of the House Committee on Oversight and Government 
Reform, or their designated alternates.
    (d) A professional staff, headed by an Executive Director, assists 
the Commission. The staff is organized functionally as follows:
    (1) Office of the Executive Director;
    (2) Office of the General Counsel;
    (3) Office of the Secretariat;
    (4) Office of Public Engagement;
    (5) Office of Administration;
    (6) Physical Planning Division;
    (7) Policy and Research Division; and
    (8) Urban Design and Plan Review Division.


Sec.  456.3  Definitions.

    For purposes of this part, the following definitions shall apply:
    (a) Act and FOIA mean the Freedom of Information Act, 5 U.S.C. 552, 
as amended.
    (b) Adverse Determination or Determination shall include a 
determination to withhold, in whole or in part, Records Requested in a 
FOIA Request; the failure to respond to all aspects of a Request; the 
determination to deny a Request for a fee waiver; or the determination 
to deny a Request for expedited processing. The term shall also 
encompass a challenge to NCPC's determination that Records have not 
been described adequately, that there are no responsive Records or that 
an adequate Search has been conducted.
    (c) Agency Record or Record means any documentary material which is 
either created or obtained by a Federal Agency (``Agency'') in the 
transaction of Agency business and under Agency control. Agency Records 
may include without limitation books; papers; maps; charts; plats; 
plans; architectural drawings; photographs and microfilm; machine 
readable materials such as magnetic tape and disks; electronic records 
including email messages; and audiovisual material such as still 
pictures, and 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 and are not subject to 
Agency creation or retention requirements or distributed to other 
Agency employees for their official use.
    (d) Confidential Commercial Information means commercial or 
financial information obtained by the NCPC from a Submitter that may be 
protected from disclosure under Exemption 4 of the FOIA. Exemption 4 of 
the FOIA protects ``trade secrets and commercial or financial 
information obtained from a person [that is] privileged or 
confidential.''
    (e) Controlled Unclassified Information means unclassified 
information that does not meet the standards for National Security 
Classification under Executive Order 13536, as amended, but is:

[[Page 50353]]

    (1) Pertinent to the national interests of the United States or to 
the important interests of entities outside the Federal Government, and
    (2) Under law or policy requires protection from unauthorized 
disclosure, special handling safeguards, or prescribed limits on 
exchange or dissemination.
    (f) Commercial Use Request means a FOIA Request from or on behalf 
of one who seeks information for a use or purpose that furthers the 
commercial, trade, or profit interests of the Requester or the person 
on whose behalf the Request is made.
    (g) Direct Costs means those expenditures that the NCPC incurs in 
searching for, duplicating, and in the case of commercial Requesters, 
reviewing documents to respond to a FOIA Request. Direct costs include, 
for example, the salary of the employee performing the work (the basic 
rate of pay for the employee plus 16 percent of the rate to cover 
benefits) and the cost of operating duplicating machinery. Direct Costs 
do not include overhead expenses such as costs of space, and heating or 
lighting the facility in which the Records are stored.
    (h) Duplication means the process of making a copy of a document 
necessary to respond to a FOIA Request in a form that is reasonably 
usable by a Requester. Copies can take the form of, among others, paper 
copy, audio-visual materials, or machine readable documents (i.e., 
computer disks).
    (i) Educational Institution means a preschool, a public or private 
elementary or secondary school, an institution of undergraduate higher 
education, an institution of graduate higher education, an institution 
of professional education, and an institution of vocational education, 
which operates a program or programs of scholarly research. To be 
classified in this category, a Requester must show that the Request is 
authorized by and is made under the auspices of a qualifying 
institution and that the Records are not sought for commercial use but 
are sought to further scholarly research or for purposes of education.
    (j) Expedited Processing means giving a FOIA Request priority 
because a Requester has shown a compelling need for the Records.
    (k) 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.
    (l) Freelance Journalist means a representative of the news media 
who is able to demonstrate a solid basis for expecting publication 
through a news organization, even though not actually employed by that 
news organization. A publication contract or past evidence of a 
specific freelance assignment from a news organization may indicate a 
solid basis for expecting publication.
    (m) 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.
    (n) Multi-track Processing means placing simple Requests requiring 
relatively minimal work and/or review in one processing track, more 
complex Requests in one or more other tracks, and expedited Requests in 
a separate track. Requests in each track are processed on a first-in/
first-out basis.
    (o) 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.
    (p) Privacy Act Request means a written (paper copy with an 
original signature) Request made by an individual for information about 
him/herself that is contained in a Privacy Act system of records. The 
Privacy Act applies only to U.S. citizens and aliens lawfully admitted 
for permanent residence such that only individuals satisfying these 
criteria may make Privacy Act Requests.
    (q) 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.
    (r) Representative of the News Media means 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 events that would be of current interest to 
the public. 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.
    (s) Requester means an entity or member of the public submitting a 
FOIA Request.
    (t) Review means the examination of Records located in response to 
a Commercial Use Request 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 
them and otherwise prepare them for release. Review does not include 
time spent resolving general legal or policy issues regarding the 
application of exemptions.
    (u) Search means the process of looking for material, by manual or 
electronic means that is responsive to a Request. The term also 
includes page-by-page or line-by-line identification of material within 
documents.
    (v) 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.
    (w) Unusual Circumstances means, for purposes of Sec.  456.7(b), 
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.
    (x) Workday means a regular Federal workday. It does not include 
Saturdays, Sundays, legal public holidays, and days when the federal 
government is closed for any reason.


Sec.  456.4  General policy.

    (a) It is the NCPC's general policy to facilitate the broadest 
possible availability and dissemination of information to the public 
through use of the NCPC's Web site, www.National Capital Planning 
Commission.gov, and physical distribution of materials not available 
electronically. The NCPC staff

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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 rules set forth in this part. In addition, to the 
extent permitted by other laws, the NCPC will make available Agency 
Records of interest to the public that are appropriate for disclosure.
    (b) Whenever the waiver of any of the procedures set forth in 
Sec. Sec.  456.6 and 456.14 would further the purposes of the FOIA by 
causing public disclosure of information eligible for disclosure under 
the Act and the rules contained in this part within the time periods 
required by the rules contained in this part, the NCPC may waive the 
procedures set forth in the aforementioned Sections in the context of 
individual Requests.


Sec.  456.5  Public reading rooms and information routinely available.

    (a) The NCPC shall maintain an electronic library at www.National 
Capital Planning Commission.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 
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 NCPC's Web site.
    (b) The following types of Records shall be available routinely 
(subject to the fee schedule set forth in Sec.  456.14) without resort 
to formal FOIA Request procedures unless such Records fall 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) Federal Elements of the Comprehensive Plan for the National 
Capital and other plans prepared by the NCPC from time to time;
    (7) Federal Capital Improvements Plan for the National Capital 
Region (FCIP) following release of the President's Budget;
    (8) Policies adopted by the Commission;
    (9) Correspondence between the Commission and the Congress, other 
federal and local government agencies, and the public; and
    (10) Frequently Requested Documents.


Sec.  456.6  FOIA Request Requirements.

    (a) The NCPC shall designate a Chief Freedom of Information Act 
Officer who shall be authorized to grant or deny any Request for a 
Record of the NCPC.
    (b) Requests for a Record or Records that is/are not available in 
the actual or electronic reading rooms shall be directed to the Chief 
Freedom of Information 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 as indicated on the NCPC Web site. To expedite internal 
handling of FOIA Requests, the words ``Freedom of Information Act 
Request'' shall appear prominently on the envelope or the subject line 
of a Request sent via email or facsimile.
    (d) The FOIA Request shall:
    (1) State that the Request is made pursuant to the FOIA;
    (2) Describe the Agency Record(s) Requested in sufficient detail 
including, without limitation, any specific information known such as 
date, title or name, author, recipient, or time frame for which you are 
seeking Records, to enable the NCPC personnel to locate the Requested 
Agency Records;
    (3) State, pursuant to the fee schedule set forth in Sec.  456.14, 
a willingness to pay all fees associated with the FOIA Request or the 
maximum fee Requester is willing to pay to obtain the Requested 
Records, unless the Requester is seeking a fee waiver or placement in a 
certain fee category;
    (4) State the desired form or format of disclosure of Agency 
Records with which the NCPC shall endeavor to comply unless compliance 
would damage or destroy an original Agency Record or reproduction is 
costly and/or requires the acquisition of new equipment; and
    (5) Provide a phone number or email address at which the Requester 
can be reached to facilitate the handling of the Request.
    (e) If a FOIA Request is unclear, overly broad, involves an 
extremely voluminous amount of Records or a burdensome Search, or fails 
to state a willingness to pay the requisite fees or the maximum fee 
which the Requester is willing to pay, the NCPC shall endeavor to 
contact the Requester to define the subject matter, identify and 
clarify the Records being sought, narrow the scope of the Request, and 
obtain assurances regarding payment of fees. The timeframe for a 
response set forth in Sec.  456.7(a) shall be tolled (stopped 
temporarily) and the NCPC will not begin processing a Request until the 
NCPC obtains the information necessary to clarify the Request and/or 
clarifies issues pertaining to the fee.


Sec.  456.7  Time-frame for response to FOIA requests.

    (a) The Chief Freedom of Information Act Officer, upon receipt of a 
FOIA Request made in compliance with these rules, shall determine 
within 20 Workdays whether to grant or deny the Request. The Freedom of 
Information Officer shall within 20 Workdays notify the Requester in 
writing of his/her determination and the reasons therefore and of the 
right to appeal any Adverse Determination to the head of the NCPC.
    (b) In cases involving Unusual Circumstances, the Chief Freedom of 
Information Act Officer may extend the 20 Workday time limit by written 
notice to the Requester. The written notice shall set forth the reasons 
for the extension and the date on which a determination is expected to 
be dispatched. No such notice shall specify a date that would result in 
an extension of more than 10 Working Days unless the Chief Freedom of 
Information Act Officer affords the Requester an opportunity to modify 
his/her Request or arranges an alternative timeframe with the Requester 
for completion of the NCPC's processing.


Sec.  456.8  Multi-track processing.

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


Sec.  456.9  Expedited processing.

    (a) The NCPC shall provide Expedited Processing of a FOIA Request 
if the person making the Request demonstrates that the Request 
involves:

[[Page 50355]]

    (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. A Request for Expedited Processing may be made at the time 
of the initial FOIA Request or at a later time.
    (b) 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 paragraph 
(a)(2) of this section must establish:
    (1) That he/she is a full time member 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.
    (c) Within 10 calendar days of receipt of a Request for expedited 
processing, the NCPC shall decide whether to grant or deny the Request 
and notify the Requester of the decision in writing. If a Request for 
Expedited Processing is granted, the Request shall be given priority 
and shall be processed in the expedited processing track. If a Request 
for Expedited Processing is denied, any appeal of that decision shall 
be acted on expeditiously.


Sec.  456.10  Consultations and referrals.

    (a) Unless the NCPC determines that it is best able to process a 
Record in response to a FOIA Request, the NCPC shall either respond to 
the FOIA Request after consultation with the Agency best able to 
determine if the Requested Record(s) is/are subject to disclosure; or 
refer the responsibility for responding to the FOIA Request to the 
Agency responsible for originating the Record(s). Generally, the Agency 
originating a Record will be presumed by the NCPC to be the Agency best 
qualified to render a decision regarding disclosure or exemption except 
for Agency Records submitted to the NCPC pursuant to its authority to 
review Agency plans and/or projects.
    (b) Upon referral of a FOIA Request to another Agency, the NCPC 
shall notify the Requester in writing of the referral and inform the 
Requester of the name of the Agency to which all or part of the FOIA 
Request has been referred.
    (c) The timeframe for a response to a FOIA Request requiring 
consultation or referral shall be based on the date the FOIA Request 
was initially received by the NCPC and not any later date.


Sec.  456.11  Classified and controlled unclassified information.

    (a) Whenever a Request is made for an Agency Record that has been 
classified, or may be appropriate for classification, by another Agency 
under Executive Order 13526, as amended or any other executive order 
concerning the classification of Records, the NCPC shall refer the 
responsibility for responding to the FOIA Request regarding that Record 
to the Agency that either classified the Record, should consider the 
Record for classification, or has the primary interest in the Record, 
as appropriate.
    (b) Whenever a Request is made for a Record that is designated 
Controlled Unclassified Information (CUI) by another Agency, the NCPC 
shall refer the FOIA Request to the Agency that designated the Record 
CUI. Decisions to disclose or withhold information designated as CUI 
shall be made based on the applicability of the statutory exemptions 
contained in the FOIA, not on a CUI marking or designation.


Sec.  456.12  Confidential Commercial Information.

    (a) Confidential Commercial Information obtained by the NCPC from a 
Submitter will be disclosed under the FOIA only in accordance with the 
requirements of this section.
    (b) A Submitter of Confidential Commercial Information will 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) Subject to the requirements of paragraphs (d) 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 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.
    (d) Notice shall be given to a Submitter wherever:
    (1) The Confidential Commercial Information has been designated in 
good faith by the Submitter as Confidential Commercial Information 
considered protected from disclosure under Exemption 4 of the FOIA; or
    (2) The NCPC has reason to believe that the Confidential Commercial 
Information may be protected from disclosure under Exemption 4 of the 
FOIA.
    (e) The NCPC shall allow a Submitter a reasonable time to respond 
to the notice described in paragraph (c) 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 it. 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

[[Page 50356]]

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 (d) and (f) 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) Disclosure of the Information is required by statute (other 
than the FOIA) or by a regulation issued in accordance with the 
requirements of Executive Order 12600; 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 (c) of this 
section, the NCPC shall also notify the Requester. Whenever the NCPC 
notifies a Submitter of its intent to disclose Requested Information 
under paragraph (f) of this section, the NCPC shall also notify the 
Requester. Whenever a Submitter files a lawsuit seeking to prevent the 
disclosure of Business Information, the NCPC shall notify the 
Requester.


Sec.  456.13  Appeals.

    (a) An appeal of an Adverse Determination shall be made in writing 
to the Chairman of the Commission (``Chairman''). An appeal may be 
submitted via US mail or other type of manual delivery service or via 
email or facsimile within 30 Workdays of the date of a notice of an 
Adverse Determination. To facilitate handling of an appeal, the words 
``Freedom of Information Act Appeal'' shall appear prominently on the 
envelope or the subject line of a Request sent via electronic-mail or 
facsimile.
    (b) An appeal of an Adverse Determination shall include a detailed 
statement of the legal, factual or other basis for the Requester's 
objections to an Adverse Determination; a daytime phone number or email 
address where the Requester can be reached if the NCPC requires 
additional information or clarification regarding the appeal; copies of 
the initial Request and the NCPC's written response; and for an Adverse 
Determination of a Request for Expedited Processing or a fee waiver, a 
demonstration of compliance with the requirements of Sec. Sec.  
456.9(a) or 456.14(i) respectively.
    (c) The Chairman shall respond to an appeal of an Adverse 
Determination in writing within 20 Workdays of receipt. If the Chairman 
grants the appeal, the Chairman shall notify the Requester, and the 
NCPC shall make available copies of the Requested Records promptly 
thereafter upon receipt of the appropriate fee determined in accordance 
with Sec.  456.14. If the Chairman denies the appeal in whole or in 
part, the letter to the Requester shall state the reason(s) for the 
denial, including the FOIA exemptions(s) applied; a statement that the 
decision is final; and notification of the Requester's right to seek 
judicial review of the denial in the District Court of the United 
States in either the district in which the Requester resides, in which 
the Requester has his/her principal place of business, or in the 
District of Columbia.
    (d) The NCPC shall not act on an appeal of an Adverse Determination 
if the underlying FOIA Request becomes the subject of FOIA litigation.
    (e) A party seeking court review of an Adverse Determination must 
first appeal the decision under this section to NCPC.


Sec.  456.14  Fees.

    (a) In responding to FOIA Requests, the NCPC shall charge the 
following fees unless a waiver or reduction of fees has been granted 
under paragraph (i) of this section.
    (1) Search fees shall be as follows:
    (i) Other than Requests made by Educational Institutions, 
Noncommercial Scientific Institutions, or Representatives of the News 
Media, Search fees shall be charged for all Requests, subject to the 
limitations of paragraph (b) of this section. The NCPC may charge for 
time spent conducting a Search even if it fails to locate any 
responsive Records or if the NCPC withholds Records located based on a 
FOIA exemption.
    (ii) For each quarter hour spent by personnel searching for 
Requested Records, including electronic searches that do not require 
new programming, the fees will be the 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 with an average salary of $63,103 per annum); Professional 
Personnel (assigned at the GS 11-13 grades with an average salary of 
$86,775 per annum); and Managerial Staff (assigned at the 14-15 grades 
with an average salary of $152,336 per annum). 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--for example, where 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 time spent 
by Managerial Personnel.
    (iii) For a computer Search of Records, Requesters shall be charged 
the Direct Costs of creating a computer program, if necessary, and/or 
conducting the Search, although certain Requesters (as provided in 
paragraph (b)(1) of this section) will be charged no Search fee and 
certain other Requesters (as provided in paragraph (b)(3) of this 
section) will be entitled to the cost equivalent of two hours of manual 
Search time without charge. These Direct Costs shall include the cost 
of operating a central processing unit for that portion of operating 
time that is directly attributable to a Search for responsive Records, 
and the costs of the operator's salary for the time attributable to the 
Search.
    (2) Duplication fees shall be charged to all Requesters, subject to 
the limitations of paragraph (b) of this section. For a paper photocopy 
of a Record (no more than one copy of which shall be supplied), the fee 
shall be 15 cents per page for single sided copies, 30 cents per page 
for double sided copies, 90 cents per page for 8\1/2\ by 11 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 a disk or provided 
as a printout, the NCPC shall charge the Direct Costs, including 
operator time, of

[[Page 50357]]

producing the copy. For other forms of Duplication, the NCPC shall 
charge the Direct Costs of that Duplication.
    (3) Review fees shall be charged to Requesters who make a 
Commercial Use Request. Review fees will be charged only for the NCPC 
initial Review of a Record to determine whether an exemption applies to 
a particular Record or portion thereof. No charge will be made for 
Review at the administrative appeal level for an exemption already 
applied. However, Records or portions thereof withheld under an 
exemption that are subsequently determined not applicable upon appeal 
may be reviewed again to determine whether any other exemption not 
previously considered applies. If changed circumstances lead NCPC to 
determine 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 (a)(1)(ii) of this section.
    (b) The following limitations on fees shall apply:
    (1) No Search fee shall be charged for FOIA Requests made by 
Educational Institutions, Noncommercial Scientific Institutions, or 
Representatives of the News Media.
    (2) No Search or Review fees shall be charged for a quarter-hour 
period unless more than half of that period is required for Search or 
Review.
    (3) Except for Requesters of a Commercial Use Request, the NCPC 
shall provide without charge the first two hours of Search (or the cost 
equivalent) and the first 100 pages of Duplication (or the cost 
equivalent); and
    (4) Except for Requesters of a Commercial Use Request, No fee shall 
be charged for a Request if the total fee calculated under paragraph 
(c) of this section equals $50.00 or less.
    (5) The provisions of paragraphs (b)(3) and (4) of this section 
shall be cumulative. Requesters other than those making a Commercial 
Use Request shall not be charged a fee unless the total cost of a 
Search in excess of two hours plus the cost of Duplication in excess of 
100 pages totals more than $25.00.
    (c) If the NCPC determines or estimates fees in excess of $50.00, 
the NCPC shall notify the Requester of the actual or estimated amount 
of total fees, unless in its initial Request the Requester has 
indicated a willingness to pay fees as high as those determined or 
estimated. If only a portion of the fee can be estimated, the NCPC 
shall advise the Requester that the estimated fee constitutes only a 
portion of the total fee. If the NCPC notifies a Requester that actual 
or estimated fees amount to more than $50.00, the Request shall not be 
considered received for purposes of calculating the timeframe for a 
response, and no further work shall be undertaken on the Request until 
the Requester agrees to pay the anticipated total fee. Any such 
agreement shall be memorialized in writing. A notice under this 
paragraph shall offer the Requester an opportunity to work with the 
NCPC to reformulate the Request to meet the Requester's needs at a 
lower cost.
    (d) Apart from other provisions of this section, if the Requester 
asks for or the NCPC chooses as a matter of administrative discretion 
to provide a special service--such as certifying that Records are true 
copies or sending them by other than ordinary mail--the actual costs of 
special service shall be charged.
    (e) The NCPC shall charge interest on any unpaid fee starting on 
the 31st day following the date of billing the Requester. Interest 
charges will be assessed at the rate provided in 31 U.S.C. 3717 
(Interest and Penalty on Claims) and will accrue from the date of the 
billing until payment is received by the NCPC. The NCPC shall follow 
the provisions of the Debt Collection Act of 1982 (Pub. L. No. 97-365, 
96 Stat. 1749), as amended, and its administrative procedures, 
including the use of consumer reporting agencies, collection agencies, 
and offset.
    (f) Where the NCPC reasonably believes that one or more Requesters 
are acting in concert to subdivide a Request into a series of Requests 
to avoid fees, the NCPC may aggregate the Requests and charge 
accordingly. The NCPC shall presume that multiple Requests of this type 
made within a 30-day period have been made to avoid fees. Where 
Requests are separated by a longer period, the NCPC shall aggregate the 
multiple Requests if a solid basis exists for determining aggregation 
is warranted under all circumstances involved.
    (g) Advance payments shall be treated as follows:
    (1) For Requests other than those described in paragraphs (g)(2) 
and (3) of this section, the NCPC shall not require an advance payment. 
An advance payment refers to a payment made before work on a Request is 
begun or continued after being stopped for any reason but does not 
extend to payment owed for work already completed but not sent to a 
Requester.
    (2) If the NCPC determines or estimates a total fee under this 
section of more than $250.00, it shall require an advance payment of 
all or part of the anticipated fee before beginning to process a 
Request, unless the Requester provides satisfactory assurance of full 
payment or has a history of prompt payment.
    (3) If a Requester previously failed to pay a properly charged FOIA 
fee to the NCPC within 30 days of the date of billing, the NCPC shall 
require the Requester to pay the full amount due, plus any applicable 
interest, and to make an advance payment of the full amount of any 
anticipated fee, before the NCPC begins to process a new Request or 
continues processing a pending Request from that Requester.
    (4) If the NCPC requires advance payment or payment due under 
paragraphs (g)(2) or (3) of this section, the Request shall not be 
considered received and no further work will be undertaken on the 
Request until the required payment is received.
    (h) Where Records responsive to Requests are maintained for 
distribution by Agencies operating statutorily based fee schedule 
programs, the NCPC shall inform Requesters of the steps for obtaining 
Records from those sources so that they may do so most economically.
    (i) Requirements for waiver or reduction of fees shall be as 
follows:
    (1) Records responsive to a Request shall be furnished without 
charge or at a charge reduced below that established under this section 
if the Requester demonstrates to the NCPC, and the NCPC determines, 
based on all available information, that:
    (i) 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
    (ii) Disclosure of the information is not primarily in the 
commercial interest of the Requester.
    (2) To determine whether the fee waiver requirement of paragraph 
(i)(1)(i) of this section is met, the NCPC shall consider the following 
factors:
    (i) The subject of the Request: 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.
    (ii) The informative value of the information to be disclosed: 
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 in order to be ``likely to 
contribute'' to an increased public understanding of those

[[Page 50358]]

operations or activities. The disclosure of information that already is 
in the public domain, in either a duplicative or a substantially 
identical form, would not be as likely to contribute to such 
understanding where nothing new would be added to the public's 
understanding.
    (iii) The contribution to an understanding of the subject by the 
public likely to result from disclosure: 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 will satisfy this 
consideration.
    (iv) The significance of the contribution to public understanding: 
Whether the disclosure is likely to contribute ``significantly'' to 
public understanding of government operations or activities. The 
public's understanding of the subject in question must be enhanced by 
the disclosure to a significant extent, as compared to the level of 
public understanding existing prior to the disclosure. The NCPC shall 
not make value judgments about whether information that would 
contribute significantly to public understanding of the operations or 
activities of the government is ``important'' enough to be made public.
    (3) To determine whether the fee waiver requirement of paragraph 
(i)(1)(ii) of this section is met, the NCPC shall consider the 
following factors:
    (i) The existence and magnitude of a commercial interest: 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.
    (ii) The primary interest in disclosure: 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 
or reduction is justified where the public interest standard 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 where a news media Requester has satisfied the 
public interest standard, the public interest will be the interest 
primarily served by disclosure to that Requester. Disclosure to data 
brokers or others who merely compile and market government information 
for direct economic return shall not be presumed to primarily serve the 
public interest.
    (4) Where only some of the Records to be released satisfy the 
requirements for a waiver of fees, a waiver shall be granted for those 
Records.
    (5) Requests for the waiver or reduction of fees should address the 
factors listed in paragraphs (i)(2) and (3) 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, however, in deciding to 
grant waivers or reductions of fees.
    (j) 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.

[FR Doc. 2013-19871 Filed 8-16-13; 8:45 am]
BILLING CODE 7502-02-P