[Federal Register Volume 79, Number 177 (Friday, September 12, 2014)]
[Rules and Regulations]
[Pages 54567-54571]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-21710]



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 Rules and Regulations
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  Federal Register / Vol. 79, No. 177 / Friday, September 12, 2014 / 
Rules and Regulations  

[[Page 54567]]



MILITARY COMPENSATION AND RETIREMENT MODERNIZATION COMMISSION

5 CFR Chapter XCIX

RIN 3260-AA00


Freedom of Information Act Regulations

AGENCY: Military Compensation and Retirement Modernization Commission.

ACTION: Interim final rule.

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SUMMARY: The Military Compensation and Retirement Modernization 
Commission (MCRMC) is issuing an interim final rule, establishing 
procedures for the public to obtain information from MCRMC under the 
Freedom of Information Act (FOIA).

DATES: This interim final rule is effective on September 15, 2014. 
Written comments on the interim final rule should be received on or 
before October 15, 2014.

ADDRESSES: Written comments concerning this interim final rule may be 
submitted to the MCRMC Desk Officer at the Office of Management and 
Budget (OMB) by email at [email protected].

FOR FURTHER INFORMATION CONTACT: Christopher Nuneviller, Associate 
Director, Administration and Operations, Military Compensation and 
Retirement Modernization Commission, at (703) 692-2080 or by email at 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    On January 2, 2013, the President signed into law the National 
Defense Authorization Act for Fiscal Year 2013, Public Law 112-239, 
Subtitle H, 126 Stat. 1632, 1787 (2013) (amended by National Defense 
Authorization Act for Fiscal Year 2014, Public Law 113-66, Sec. 1095, 
127 Stat. 672, 878 (2013)), which created the Military Compensation and 
Retirement Modernization Commission (MCRMC). To establish procedures to 
facilitate public interaction with MCRMC, the agency is issuing interim 
final regulations under FOIA.

II. Summary of Interim Final Rule

    This interim final rule establishes procedures for MCRMC necessary 
to implement FOIA, 5 U.S.C. 552. FOIA provides for the disclosure of 
agency records and information to the public, unless that information 
is exempted under statutory exemptions or exclusions. The procedures 
established herein are intended to ensure that MCRMC fully satisfies 
its responsibility to the public to disclose agency information.

III. Procedural Requirements

    These regulations establish procedures under FOIA to facilitate the 
interaction of the public with MCRMC. MCRMC's policy of disclosure 
follows the Presidential Memorandum of January 21, 2009, ``Transparency 
and Openness,'' 74 FR 4685, and the Attorney General's March 19, 2009 
FOIA policy guidance, advising Federal agencies to apply a presumption 
of openness in FOIA decision making. This interim final rule parallels 
the procedures currently used by other agencies to implement FOIA.
    MCRMC has determined that good cause exists under 5 U.S.C. 553(b) 
and 5 U.S.C. 553(d)(3) to waive the notice and comment and delayed 
effective requirements of the Administrative Procedure Act to publish 
this regulation as an interim final rule with a request for comments. 
MCRMC is a temporary, independent establishment with statutorily 
defined deadlines and a limited existence. It is the intent of the 
agency to be as transparent as practicable in making information 
available to the public. This regulation establishes procedures to 
facilitate MCRMC's interactions with the public and the public's access 
to information about MCRMC. In light of this agency's limited duration, 
as set forth in its enabling legislation, and the need for timely 
access, MCRMC has decided that full notice and comment rulemaking is 
impracticable and contrary to public policy. The absence of FOIA 
regulations could impair the public's ability to access information. 
MCRMC has determined that this interim final rule should be issued 
without a delayed effective date pursuant to 5 U.S.C. 553(d)(3).
    Because no notice of proposed rulemaking is required, the 
provisions of the Regulatory Flexibility Act (5 U.S.C. Chapter 6) do 
not apply. This rulemaking is not a significant regulatory action for 
the purposes of Executive Order 12866. Accordingly, a regulatory impact 
analysis is not required.

List of Subjects in 5 CFR Part 9901

    Administrative practice and procedure, Reporting and recordkeeping 
requirements.


0
Therefore, for reasons discussed in the preamble, the Military 
Compensation and Retirement Modernization Commission amends title 5 of 
the Code of Federal Regulations by establishing chapter XC IX, 
consisting of part 9901, to read as follows:

Chapter XCIX--Military Compensation and Retirement Modernization 
Commission

PART 9901--DISCLOSURE OF RECORDS AND INFORMATION

Sec.

Freedom of Information Act

9901.1 Authority, purpose, and scope.
9901.2 Proactive disclosure of records.
9901.3 Requests for records.
9901.4 Timing.
9901.5 Response to requests.
9901.6 Production of records.
9901.7 Appeals.
9901.8 Fees.

    Authority: National Defense Authorization Act for Fiscal Year 
2013, Pub. L. 112-239, Subtitle H, 126 Stat. 1632, 1787 (2013) 
(amended by National Defense Authorization Act for Fiscal Year 2014, 
Pub. L. 113-66, Sec. 1095, 127 Stat. 672, 878 (2013)); 5 U.S.C. 552.

Freedom of Information Act


Sec.  9901.1  Authority, purpose, and scope.

    (a) Authority. This information is furnished for the guidance of 
the public and in compliance with the requirements of the Freedom of 
Information Act (FOIA), 5 U.S.C. 552. This subpart should be read in 
conjunction with FOIA.
    (b) Purpose. (1) The National Defense Authorization Act for Fiscal 
Year 2013, Public Law 112-239, Subtitle H, 126 Stat. 1632, 1787 (2013) 
(amended by National Defense Authorization Act for

[[Page 54568]]

Fiscal Year 2014, Public Law 113-66, Sec. 1095, 127 Stat. 672, 878 
(2013)), established the Military Compensation and Retirement 
Modernization Commission (MCRMC). MCRMC's purpose, pursuant to its 
enabling statute, is to conduct a review of the military compensation 
and retirement systems and to make recommendations to modernize those 
systems to:
    (i) Ensure the long-term viability of the All-Volunteer Force by 
sustaining the required human resources of that force during all levels 
of conflict and economic conditions;
    (ii) Enable the quality of life for members of the Armed Forces and 
the other uniformed services and their families in a manner that 
fosters successful recruitment, retention, and careers for members of 
the Armed Forces and the other uniformed services; and
    (ii) Modernize and achieve fiscal sustainability for the 
compensation and retirement systems for the Armed Forces and the other 
uniformed services for the 21st century.
    (2) The Commission will make its recommendations only after it 
examines all laws, policies and practices of the Federal Government 
that result in any direct payment of authorized or appropriated funds 
to current and former members (veteran and retired) of the uniformed 
services, including the reserve components of those services, and the 
spouses, family members, children, survivors, and other persons 
authorized to receive such payments as a result of their connection to 
Service members.
    (c) Agency. MCRMC is an independent establishment of the Federal 
government as defined by Sections 104 and 105 of Title 5 of the U.S. 
Code, and a temporary organization under section 3161 of such title. 
The Commission is composed of nine members, appointed by the President 
and Congressional leadership. Members of this Commission are deemed to 
be Federal employees. MCRMC maintains its headquarters in Arlington, 
Virginia.
    (d) Records on individuals. MCRMC does not maintain any of its own 
systems of records on individuals. Pursuant to a Memorandum of 
Understanding between the Department of Defense, Director of 
Administration & Management and MCRMC, the Department of Defense, 
Washington Headquarters Services is responsible for MCRMC personnel 
records management including compliance with the Privacy Act.


Sec.  9901.2  Proactive disclosure of records.

    (a) Proactive disclosure. Subject to the application of FOIA 
exemptions, 5 U.S.C. 552(b), records that are required by FOIA to be 
made available for public inspection and copying and records identified 
by the agency as records of interest to the public, including 
Commission hearing schedules, testimony, minutes, press releases, and 
documents provided to the Commission, are available on the MCRMC Web 
site at http://www.mcrmc.gov.
    (b) Final report. The Commission's final report will be available 
on its Web site.
    (c) Released records. The Commission will post records released in 
response to FOIA requests on its Web site.


Sec.  9901.3  Requests for records.

    (a) Generally. Many documents are available on the MCRMC Web site 
and MCRMC encourages requesters to visit the Web site before making a 
request for records pursuant to this subpart. MCRMC will provide 
records to individual requesters in response to FOIA requests for 
records not available on its Web site.
    (b) Electronic or written requests required. For records not 
available on the Web site, requesters wishing to obtain information 
from MCRMC should submit a request on the MCRMC Web site. If a computer 
is not available to the requester, a written request may be made to the 
MCRMC FOIA Officer. Such requests should be addressed to: FOIA Officer, 
Military Compensation and Retirement Modernization Commission, Post 
Office Box 13170, Arlington, VA 22209. As there may be delays in mail 
delivery, it is advisable to send the request via facsimile to (703) 
697-8330 or email to [email protected]. MCRMC will communicate with the 
requester by email unless he or she specifies otherwise.
    (c) Contents of request. Requests must include the following:
    (1) A statement that the request is being made under FOIA, the 
requester's full name and address, a telephone number at which the 
requester can be reached during normal business hours, and an email 
address for the requester, if the requester has one;
    (2) A description of the records sought in enough detail to allow 
the records to be located with a reasonable amount of effort. The 
request must identify/describe the records sought and include 
information such as date, title or name, author, recipient, and subject 
matter of the records sought, where possible;
    (3) If submitting the request as an educational institution, a non-
commercial scientific institution, or a representative of the news 
media, the request must specifically identify the organization on which 
the status is based, and if a free-lance representative of the news 
media, the requester should submit a history of past publications and/
or demonstrate a solid basis for expecting publication through a news-
media entity;
    (4) A fee waiver, if applicable; and
    (5) If the request is made by mail, the words ``FOIA REQUEST'' or 
``REQUEST FOR RECORDS'' must be clearly marked on the cover letter, 
letter, and envelope.
    (c) Perfected requests. MCRMC will process only perfected requests. 
A perfected request must meet all of the requirements of this subpart.


Sec.  9901.4  Timing.

    (a) Acknowledgment of request. MCRMC will provide an acknowledgment 
notice with an individualized tracking number and a summary of the 
records requested to each requester within 10 working days after 
receiving a request.
    (b) Response time. Every effort will be made to respond to the 
request within 20 days (excluding Saturdays, Sundays, and legal public 
holidays) of receiving the request.
    (c) Appeal. MCRMC will make a decision with respect to an appeal of 
a denial of a request for records within 20 days (excluding Saturdays, 
Sundays, and legal public holidays) after receipt of the appeal.
    (d) Clarification/Additional information. If a request for records 
does not reasonably describe the records sought, MCRMC will contact the 
requester to seek additional information. Requesters may discuss their 
request with the MCRMC FOIA Public Liaison and modify the request. The 
MCRMC FOIA Public Liaison may be reached via telephone at (703) 692-
2080 or by U.S. Mail at FOIA Public Liaison, Military Compensation and 
Retirement Modernization Commission, Post Office Box 13170, Arlington, 
VA 22209. As there may be delays in mail delivery, it is advisable to 
send the request via facsimile to (703) 697-8330 or email to 
[email protected]. MCRMC may make one request for clarification/additional 
information to the requester for information and suspend the 20-day 
period while awaiting such information. When a requester fails to 
clarify by providing additional information, MCRMC will notify the 
requester that the request has not been properly made and that no 
further action will be taken on the request. The requester may appeal 
such a decision under the procedures set forth in subpart 9901.7.

[[Page 54569]]

    (e) Expedited processing. A request for expedited processing must 
accompany the initial request for records. It must be a written 
statement of compelling need for expedited processing, stating that the 
facts are true and correct to the best of the requester's knowledge and 
belief. In determining whether processing should be expedited, the FOIA 
Officer may consider whether:
    (1) Failure to obtain the requested records on an expedited basis 
could reasonably be expected to pose an imminent threat to a person's 
life or physical safety; or
    (2) With respect to a request made by a person primarily engaged in 
disseminating information, there is an urgency to inform the public 
about actual or alleged Federal government activity.
    (f) Extension for unusual circumstances. If MCRMC determines that 
unusual circumstances exist, the time limits described in paragraphs 
(b) and (c) of this subpart may be extended by no more than 10 days 
(excluding Saturdays, Sunday, and legal public holidays) by providing 
written notice of the extension to the requester. The time limit may be 
extended if the request cannot be processed within the time limits of 
this subpart due to the need to search, collect, and examine a 
voluminous amount of records, coordinate, or consult with another 
agency. The requester will be given an opportunity to limit the scope 
of the request or to arrange with MCRMC an alternative time frame for 
processing the request. The FOIA Officer shall include with the notice 
of extension a brief statement of the reason for the extension and the 
date the FOIA Officer expects to make a determination.


Sec.  9901.5  Response to requests.

    (a) Authority to grant or deny requests. The MCRMC FOIA Officer is 
authorized to grant or deny any request for MCRMC records.
    (b) Grant of request. If the MCRMC FOIA Officer grants a request, 
in full or in part, the FOIA Officer shall promptly provide the 
requester written notice of the decision. The requester will be 
notified whether the request has been assigned to the Standard or 
Complex track, pursuant to paragraph (d) of subpart 9901.6.
    (c) Request denial. If the FOIA Officer denies a fee waiver request 
or finds there are no responsive records subject to FOIA, the FOIA 
Officer will notify the requester of that fact. If the FOIA Officer 
denies the request, in full or part, the FOIA Officer will provide the 
requester written notice of the denial, which will include a 
description of the material withheld, the FOIA exemption under which 
the information was withheld, and the approximate number of pages of 
information withheld. When a portion of a record is withheld, the 
amount of information redacted and the claimed exemption will be noted 
at the place in the record where the redaction was made. The notice 
will also describe the procedure for filing an appeal.
    (d) Referral of records. When a responsive record that originated 
in another agency is located, the responsive record will be referred to 
its originating agency for response.
    (e) Referral of request. The requester will be notified when all or 
part of a request is referred to another agency and will be given 
contact information for the FOIA office of the agency to which the 
request and responsive record were referred.


Sec.  9901.6  Production of records.

    (a) Generally. MCRMC will apply a presumption of openness when 
processing FOIA requests and will only withhold exempt information if 
it reasonably foresees that disclosure would harm an interest protected 
by one of the statutory exemptions or if disclosure is prohibited by 
law. Before withholding information, MCRMC will conduct a foreseeable 
harm analysis, which clearly identifies the harm that would occur with 
disclosure.
    (b) Large requests. If a request involves a voluminous amount of 
material or searches in multiple locations, MCRMC will provide the 
requester with interim responses, releasing the information on a 
rolling basis.
    (c) Copies. MCRMC will maintain copies of records that have been 
the subject of any pending or closed request, appeal, or lawsuit under 
the FOIA, to include all correspondence pertaining to the subject 
request, until disposition is authorized under the National Archives 
and Records Administration's General Records Schedule 14.
    (d) Multi-Track processing. (1) MCRMC uses a multi-track system to 
process FOIA requests. This means that a FOIA request is processed 
based on its complexity. When MCRMC receives a request it will be 
assigned to the Standard or Complex track.
    (i) Standard Track. Requests that are routine and require little 
search time, review, or analysis are assigned to the Standard Track. 
MCRMC will respond to these requests in the order in which they are 
received and make every effort to respond no later than 20 working days 
after receipt of the request.
    (ii) Complex Track. Requests that are non-routine are assigned to 
the Complex Track if the response may:
    (A) Be voluminous;
    (B) Require an unusually high level of effort for search, review, 
or duplication; or
    (C) Cause an undue disruption to the day-to-day activities of MCRMC 
in carrying out its statutory responsibilities.
    (2) The requester will be notified if the request is assigned to 
the Complex Track and will be given an estimate of the time for 
response. MCRMC will respond to Complex Track requests as soon as 
practicable. MCRMC may discuss with the requester the possibility of 
reformulating the request to reduce processing time.


Sec.  9901.7  Appeals.

    (a) Initiating appeals. Requesters not satisfied with the FOIA 
Officer's decision may request review of the decision by the MCRMC FOIA 
Appellate Authority. The appeal must be received within 60 days of the 
date of the FOIA Officer's decision. Appeals may be made through the 
MCRMC Web site at the FOIA tab or in writing, addressed to: FOIA 
Appellate Authority, Military Compensation and Retirement Modernization 
Commission, Post Office Box 13170, Arlington, VA 22209. As there may be 
delays in mail delivery, it is advisable to send the request via 
facsimile to (703) 697-8330 or email to [email protected]. The requester 
may wish to explain why the Appellate Authority should grant the 
appeal, to the extent that an explanation could assist the Appellate 
Authority in making a decision on the appeal.
    (b) Appeal decisions. MCRMC's Chief FOIA Officer will decide the 
appeal within 20 days (except Saturdays, Sundays, and legal public 
holidays) from the date it receives the appeal. If the appeal is 
denied, MCRMC will notify the requester in writing of the decision and 
the provisions for judicial review. If the appeal is granted, the Chief 
FOIA Officer will notify the requester in writing.
    (c) Mediation. A response to an appeal will advise the requester of 
the 2007 FOIA amendments, which created the Office of Government 
Information Services (OGIS), which offers mediation services to resolve 
disputes between FOIA requesters and Federal agencies as a non-
exclusive alternative to litigation. A requester may contact OGIS at: 
Office of Government Information Services, National Archives and 
Records Administration, 8601 Adelphi Road, College Park, MD 20740; 
email: [email protected]; telephone: (202) 741-5770;

[[Page 54570]]

facsimile: (202) 741-5769; toll free telephone: (877) 684-6448.


Sec.  9901.8  Fees.

    (a) Generally. MCRMC may charge reasonable fees that recoup the 
allowable direct costs incurred in responding to FOIA requests. MCRMC 
may assess charges for time spent searching for records even if MCRMC 
is unable to locate the records or if the records are located and 
determined to be exempt from disclosure.
    (1) Timing. MCRMC may toll the response time limit while awaiting 
information from the requester regarding fee assessment. Time limits 
resume upon MCRMC's receipt of a response from the requester.
    (b) Definitions. For purposes of this subpart:
    (1) All other request means a request from or on behalf of a person 
who does not qualify as a commercial use requester, an educational 
institution requester, a non-commercial scientific institution 
requester, or a representative of the news media requester.
    (2) Commercial use request means a request from or on behalf of a 
person who seeks information for a use or purpose that furthers the 
requester's or other person's commercial, trade, or profit interests.
    (3) Direct costs means those costs incurred searching for and 
duplicating (and, in the case of commercial use requests, reviewing) 
documents in response to a FOIA request. Direct costs include, for 
example, salaries of employees who perform the work and costs of 
conducting large-scale computer searches. Direct costs do not include, 
for example, overhead expenses such as the costs of space, and of 
heating or lighting a facility.
    (4) Duplication means to copy records in response to a FOIA 
request. Copies can take the form of paper, audio-visual materials, or 
electronic records, among others.
    (5) Educational institution is any school that operates a program 
of scholarly research. Records requested with the intention of 
fulfilling credit requirements or completion of individual research 
goals do not qualify as a request by an educational institution.
    (6) Non-commercial scientific institution means an institution that 
is not operated on a commercial basis and operates solely for the 
purpose of conducting scientific research, the results of which are not 
intended to promote any particular product or industry.
    (7) Representative of the news media means any person or entity 
that gathers information of potential interest to a segment of the 
public, uses its editorial skills to turn raw materials into a distinct 
work, and distributes that work to an audience.
    (8) Review means to examine a record to determine whether any 
portion of the record may be withheld, and to process a record for 
disclosure.
    (9) Search means to look for and retrieve records for a FOIA 
request, to include looking page-by-page or line-by-line to identify 
responsive material within individual records. Search includes time 
spent looking for records even if responsive records are not found.
    (c) Reduction of fees. (1) MCRMC will not charge fees for any 
request where the fees would total less than $50.
    (2) MCRMC will provide, except for commercial use requesters, 
without charge, the first 100 pages of duplication (or the cost 
equivalent for other media) and the first two hours of a search.
    (3) MCRMC shall not assess search fees if the agency fails to 
comply with time limits set forth in subpart 9901.4 if no unusual 
circumstances, as defined in subpart 9901.4, apply to the processing of 
the request.
    (d) Waiver of fees. MCRMC shall waive all or part of any fee 
provided for in this subpart where the FOIA Officer determines that 
disclosure of the information is in the public interest because it is 
likely to contribute significantly to public understanding of the 
operations or activities of the Government and the records sought are 
not primarily in the commercial interest of the requester. Requests for 
a fee waiver must explain how the information requested contributes to 
the public interest. In determining whether a fee should be waived, the 
FOIA Officer shall consider whether the requester has demonstrated 
that:
    (1) The subject matter of the request specifically concerns 
identifiable operations or activities of the Government;
    (2) The information is already in the public domain;
    (3) Disclosure is primarily in the commercial interest of the 
requester; and
    (4) Disclosure of the information would significantly enhance the 
public's understanding of the subject matter.
    (e) Categories of requesters. Subject to the limitations of this 
subpart, MCRMC will assess fees for categories of requesters as 
follows:
    (1) Commercial use requesters pay for search, review, and 
duplication.
    (2) Educational institutions, noncommercial scientific institutions 
and representatives of the news media pay only for duplication 
(excluding charges for the first 100 pages or its cost equivalent).
    (3) All other requesters pay for search (excluding the first two 
hours) and duplication (excluding charges for the first 100 pages or 
its cost equivalent).
    (f) Charges. In responding to FOIA requests, MCRMC will charge the 
following fees unless a waiver or reduction of fees has been requested 
and granted under this subpart. The fee amounts provided below account 
for direct costs.
    (1) Search and review. For each quarter hour spent by MCRMC 
searching for requested records, including electronic searches, or 
reviewing records, the fee will be $10.77.
    (2) Duplication. Duplication fees will be charged to all 
requesters, subject to the restrictions of this subpart. MCRMC will 
honor a requester's preference for receiving a record in a particular 
format where it is readily reproducible in that form or format. Where 
photocopies are supplied, MCRMC will provide one copy per request at a 
cost of five cents per page. For copies of records produced on tapes, 
disks, or other electronic media, MCRMC will charge the direct costs of 
producing the copy, including operator time. Where paper documents must 
be scanned to comply with a requester's preference to receive the 
records in an electronic format, the requester shall pay the direct 
costs associated with scanning those materials. For other forms of 
duplication, MCRMC will charge the direct costs.
    (3) Special charges. MCRMC shall recover the full cost of providing 
special services, such as sending records by an overnight delivery 
service, to the extent that MCRMC elects to provide them, as special 
services are not required by FOIA.
    (4) Aggregating requests. When the FOIA Officer reasonably believes 
that a requester or a group of requesters acting in concert is/are 
attempting to divide a request into a series of requests for the 
purpose of avoiding fees, the FOIA Officer may aggregate those requests 
and charge fees accordingly.
    (5) Advance payment. When a requester has previously failed to pay 
fees in a timely fashion or MCRMC has determined that the fee will 
exceed $250, MCRMC may require advance payment of fees.
    (6) Remittances. Payment shall be made in the form of check or 
money order made payable to the Treasury of the United States. At the 
time the FOIA Officer notifies a requester of the

[[Page 54571]]

applicable fees, the FOIA Officer shall inform the requester of where 
to send the payment.

Christopher Nuneviller,
Associate Director, Administration and Operations.
[FR Doc. 2014-21710 Filed 9-11-14; 8:45 am]
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