[Federal Register Volume 83, Number 85 (Wednesday, May 2, 2018)]
[Rules and Regulations]
[Pages 19414-19421]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-09212]



[[Page 19413]]

Vol. 83

Wednesday,

No. 85

May 2, 2018

Part III





National Commission on Military, National, and Public Service





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





1 CFR Part 426





Freedom of Information Act Regulations; Interim Final Rule

  Federal Register / Vol. 83 , No. 85 / Wednesday, May 2, 2018 / Rules 
and Regulations  

[[Page 19414]]


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

NATIONAL COMMISSION ON MILITARY, NATIONAL, AND PUBLIC SERVICE

1 CFR Part 426

RIN 3262-AA00


Freedom of Information Act Regulations

AGENCY: National Commission on Military, National, and Public Service.

ACTION: Interim final rule; request for comments.

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

SUMMARY: The National Commission on Military, National, and Public 
Service (the ``Commission'') is issuing an interim final rule, 
establishing procedure for the public to obtain information from the 
Commission under the Freedom of Information Act (FOIA).

DATES: This interim final rule is effective on May 2, 2018. Written 
comments on the interim final rule should be received on or before June 
1, 2018.

ADDRESSES: You may send comments, identified by Regulatory Information 
Number (RIN), by any of the following methods:
     Email: Please send comments to [email protected] and 
include the RIN in the subject line of the message.
     Website: http://www.inspire2serve.gov/content/share-your-thoughts. Follow the instructions on the page to submit a comment and 
include the RIN in the comment.
     Mail: National Commission on Military, National, and 
Public Service, Attn: Rulemaking--RIN 3262 AA00, 2530 Crystal Drive, 
Suite 1000, Box No. 63, Arlington, VA 22202.
    All submissions received must include the RIN for this rulemaking. 
If the Commission cannot read your comment due to technical 
difficulties and cannot contact you for clarification, the Commission 
may not be able to consider your comment.

FOR FURTHER INFORMATION CONTACT: For general inquiries, submission 
process questions, or any additional information about this interim 
final regulation, please contact Rachel Rikleen, at (703) 571-3760 or 
by email at [email protected].

SUPPLEMENTARY INFORMATION: 

I. Background

    On December 23, 2016, the President signed into law the National 
Defense Authorization Act for Fiscal Year 2017, Public Law 114-328, 130 
Stat. 2000 (2016), which created the National Commission on Military, 
National, and Public Service (the ``Commission''). Public Law 114-328, 
Subtitle F, 130 Stat. at 2130. To establish procedures to facilitate 
public interaction with the Commission, the agency is issuing interim 
final regulations under the Freedom of Information Act (FOIA).

II. Summary of Interim Final Rule

    This interim final rule establishes procedures for the Commission 
necessary to implement the Freedom of Information Act (FOIA), which 
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 the Commission fully satisfies its responsibility to the public. 
The authority for this rulemaking is 5 U.S.C. 552(a), which was amended 
by the FOIA Improvement Act of 2016, Public Law 114-185, 130 Stat. 538 
(2016). It also complies with the policy directives set out in 
Presidential Memoranda dated January 21, 2009, entitled ``Freedom of 
Information Act'' (74 FR 4683, January 26, 2009) and ``Transparency and 
Openness'' (74 FR 4685, January 26, 2009), which encourage federal 
agencies to apply a presumption of disclosure in FOIA decision making.

III. Procedural Requirements

Administrative Procedure Act

    This interim final rule parallels the procedures currently used by 
other agencies to implement FOIA. The Commission 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. The Commission 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 the Commission's 
interactions with the public and the public's access to information 
about the Commission. In light of this agency's limited duration, as 
set forth in its enabling legislation, and the need for timely access, 
the Commission has decided that full notice and comment rulemaking is 
impracticable and contrary to public policy as the absence of FOIA 
regulations could impair the public's ability to access information. 
Additionally, the Commission has determined that full notice and 
comment rulemaking is not necessary as this regulation constitutes a 
rule of agency procedure under 5 U.S.C. 553(b). This is because the 
rule merely establishes procedural requirements for accessing 
information under FOIA from the Commission. In other words, it outlines 
how the public may access information available under FOIA. It does not 
change the substantive standards by which the agency evaluates 
applications under FOIA. Finally, the Commission has determined that 
this interim final rule should be issued without a delayed effective 
date pursuant to 5 U.S.C. 553(d)(3). The 30-day delay in effective date 
typically allows regulated entities time to revise their policies in 
light of a regulation that governs those entities' conduct. Here, such 
a delay is unnecessary because the regulation facilitates the 
accessibility of information under FOIA.

Executive Orders 12866 and 13771

    This rulemaking is not a significant regulatory action for the 
purposes of Executive Order 12866. Accordingly, a regulatory impact 
analysis is not required. It is also not subject to the requirements 
found in Executive Order 13771.

Unfunded Mandates Reform Act

    Section 202 of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 
1532, requires agencies to assess anticipated costs and benefits before 
issuing any rule whose mandates require State, local, or tribal 
governments to spend more than $100 million in one year. This rule will 
not mandate any requirements for State, local or tribal governments, 
nor will it affect private sector costs.

Regulatory Flexibility Act

    The Commission certifies this interim rule is not subject to the 
Regulatory Flexibility Act, 5 U.S.C. 601 et seq., because it will not 
have a significant economic impact on a substantial number of small 
entities and it is not issuing a notice of proposed rulemaking.

Paperwork Reduction Act

    It has been determined that this rule does not impose reporting or 
record keeping requirements under the Paperwork Reduction Act of 1995, 
44 U.S.C. 3501 et seq.

List of Subjects in 1 CFR Part 426

    Administrative practice and procedure, Reporting and recordkeeping 
requirements.

    Therefore, for reasons discussed in the preamble, the National 
Commission on Military, National, and Public

[[Page 19415]]

Service amends 1 CFR part 426 as follows:

PART 426--NATIONAL COMMISSION ON MILITARY, NATIONAL, AND PUBLIC 
SERVICE

0
1. The authority citation for part 426 continues to read as follows:

    Authority: 5 U.S.C. 552(a)

0
2. Add subpart B, consisting of Sec. Sec.  426.201 through 426.211, to 
read as follows:
Subpart B--Disclosure of Records and Information Under the Freedom of 
Information Act
Sec.
426.201 General.
426.202 Proactive disclosures.
426.203 Requirements for making requests.
426.204 Responsibility for responding to requests.
426.205 Timing of responses to requests.
426.206 Response to requests.
426.207 Confidential commercial information.
426.208 Appeals.
426.209 Preservation of records.
426.210 Fees.
426.211 Other rights and services.

Subpart B--Disclosure of Records and Information Under the Freedom 
of Information Act


Sec.  426.201  General.

    This subpart contains the regulations of the National Commission on 
Military, National, and Public Service (the ``Commission'') 
implementing the Freedom of Information Act (``FOIA''), 5 U.S.C. 552, 
as amended. These regulations set forth procedures for requesting 
access to records maintained by the Commission. These regulations 
should be read together with the text of the FOIA, and the Uniform 
Freedom of Information Fee Schedule and Guidelines published by the 
Office of Management and Budget (``OMB Guidelines''). Requests made by 
individuals for records about themselves under the Privacy Act of 1974, 
5 U.S.C. 552a, are processed in accordance with the Commission's 
Privacy Act regulations as well as under this subpart.


Sec.  426.202  Proactive disclosures.

    (a) Records that FOIA requires agencies to make available for 
public inspection in an electronic format may be accessed through the 
Commission's website at www.inspire2serve.gov. The Commission will 
ensure that its website of posted records and indices is reviewed and 
updated on an ongoing basis. The Commission has a FOIA Public Liaison 
who can assist individuals in locating records particular to the 
Commission. A list of agency FOIA Public Liaisons is available at 
http://www.foia.gov/report-makerequest.html.
    (b) The following types of records shall be available routinely on 
the website, 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) Any formal report issued by the Commission;
    (2) Testimonies and presentations submitted to the Commission;
    (3) Schedules for public meetings and hearings of the Commission 
along with transcripts or notes of such public meetings and hearings;
    (4) Press statements;
    (5) Substantive rules of general applicability adopted by the 
Commission, procedural rules governing the Commission's general 
operations that may affect the public, and statements of general policy 
or interpretation of general applicability formulated and adopted by 
the Commission; and
    (6) Copies of all records, regardless of form or format, that have 
been released previously to any person under 5 U.S.C. 552(a)(3), and 
that the Commission determines have become or are likely to become the 
subject of subsequent requests for substantially the same records. When 
the Commission receives three or more requests for substantially the 
same records, then the Commission shall make the released records 
available in the Commission's reading room and on the Commission's 
website.
    (c) The Commission shall also maintain a public reading room, at 
the Commission's offices, containing records available for public 
inspection that cannot be produced in electronic form. The reading room 
shall be available for use on workdays during the hours of 9 a.m. to 4 
p.m. Requests for appointments to review the materials in the public 
reading room should be directed to the FOIA Public Liaison.
    (d) Based upon applicable exemptions in 5 U.S.C. 552(b), the 
Commission may redact certain information contained in any matter 
described in this section before making such information available for 
inspection or publishing it. The justification for the redaction shall 
be explained in writing, and the extent of such redaction shall be 
indicated on the portion of the record which is made available or 
published, unless including that indication would harm an interest 
protected by the exemptions under which the redaction is made. The 
location of the information deleted must also be indicated on the 
record, if technically feasible.


Sec.  426.203  Requirements for making requests.

    (a) In general. Many documents are available on the Commission's 
website and the Commission encourages requesters to visit the website 
before making a request for records pursuant to this subpart. Except 
for records already available on the website or subject to the FOIA 
exemptions and exclusions, the Commission shall promptly provide 
records to any person in response to a request that conforms to the 
rules and procedures of this section. Requesters may contact the 
agency's FOIA Public Liaison to discuss the records they seek and to 
receive assistance in describing the records.
    (b) Form of request. For records not available on the website, 
requesters wishing to obtain information from the Commission should 
submit a written request to the Commission. It may be submitted by mail 
or via the internet (website or email). A request by mail must be 
addressed to: FOIA Request, National Commission on Military, National, 
and Public Service, 2530 Crystal Drive, Suite 1000, Box No. 63, 
Arlington, VA 22202. As there may be delays in mail delivery, it is 
advisable to send the request via email to [email protected]. The 
Commission will communicate with the requester by email unless he or 
she specifies otherwise. Requesters may specify the preferred form or 
format for the records sought, and the Commission will accommodate the 
request if the record is readily reproducible in that form or format.
    (c) Contents of request. Requests must include the following:
    (1) The requester's full name, mailing 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. To the 
extent possible, requesters should include specific information, such 
as the date, title or name, author, recipient, and subject matter of 
the records sought. If known, the requester must include any file 
designations or descriptions for the records requested;
    (3) If submitting the request as an educational institution, a non-
commercial scientific institution, or a representative of the news 
media, information to support being placed in that category of 
requester as they are defined in Sec.  426.210(b);
    (4) A fee waiver request, if applicable (see Sec.  426.210(f));

[[Page 19416]]

    (5) A statement explaining why expedited processing is necessary, 
if it is being requested (see Sec.  426.205(c)); and
    (6) Where the request is making a request for records about himself 
or herself, verification of the individual's identity (please see the 
Commission's Privacy Act regulations at 1 CFR, chapter IV, part 426, 
subpart A).
    (d) Date received. The Commission shall deem itself to have 
received a request on the date that it receives a request containing 
the information required by paragraph (c) of this section. If after 
receiving a request, the Commission determines that it does not 
reasonably describe the records sought, the agency must inform the 
requester what additional information is needed or why the request is 
otherwise insufficient. Requesters who are attempting to reformulate or 
modify such a request may discuss their request with the FOIA Public 
Liaison.


Sec.  426.204  Responsibility for responding to requests.

    (a) In general. In determining which records are responsive to a 
request, an agency ordinarily will include only records in its 
possession as of the date that it begins its search. If any other date 
is used, the agency must inform the requester of that date. A record 
that is excluded from the requirements of the FOIA pursuant to 5 U.S.C. 
552(c), is not considered responsive to a request.
    (b) Authority to grant or deny requests. The Chief FOIA Officer or 
designee is authorized to grant or to deny any requests for records.
    (c) Consultation, referral, and coordination. When reviewing 
records in response to a request, the Commission will determine whether 
another agency of the Federal Government is better able to determine 
whether the record is exempt from disclosure under the FOIA. As to any 
such record, the Commission will proceed in one of the following ways:
    (1) Consultation. When records originated within the Commission, 
but contain within them information of interest to another agency or 
other Federal Government office, the Commission will typically consult 
with that other entity prior to making a release determination.
    (2) Referral. When the Commission believes that a different agency 
is best able to determine whether to disclose the record, the 
Commission typically should refer the responsibility for responding to 
the request regarding that record to that agency. Ordinarily, the 
agency that originated the record is presumed to be the best agency to 
make the disclosure determination. Whenever an agency refers any part 
of the responsibility for responding to a request to another agency, it 
must document the referral, maintain a copy of the record that it 
refers, and notify the requester of the referral, the name of the 
agency, and the FOIA agency contact.
    (3) Coordination. The standard referral procedure is not 
appropriate where disclosure of the identity of the agency to which the 
referral would be made could harm an interest protected by an 
applicable exemption, such as the exemptions that protect personal 
privacy or national security interests. In such instances, in order to 
avoid harm to an interest protected by an applicable exemption, the 
agency that received the request should coordinate with the originating 
agency to seek its views on the disclosability of the record. The 
release determination for the record that is the subject of the 
coordination should then be conveyed to the requester by the agency 
that originally received the request.
    (d) Timing of response to consultations and referrals. All 
consultations and referrals received by the Commission will be handled 
according to the date that the first agency received the perfected FOIA 
request.


Sec.  426.205  Timing of responses to requests.

    (a) In general. The Commission ordinarily will respond to requests 
according to their order of receipt. The following timing and steps are 
the normal process:
    (1) Acknowledgment. The Commission will provide an acknowledgment 
notice with an individualized tracking number, the date of receipt of 
the request, a confirmation of a waiver or reduction of fees (if 
requested), and a summary of the records requested to each requester 
within 10 working days after receiving a request that has all of the 
requisite information.
    (2) Response time. Ordinarily, the Commission shall have 20 work 
days from when a request is received to determine whether to grant or 
deny a request for records. The 20-day time period shall not be tolled 
by the Commission except that the Commission may:
    (i) Make one reasonable demand to the requester for clarifying 
information about the request and toll the 20-day time period while 
awaiting the clarifying information; or
    (ii) Notify the requester of the fee assessment for the request and 
toll the 20-day time period while awaiting the requester's response.
    (3) Appeal. The Commission will make a decision with respect to an 
appeal of a full or partial denial of a request for records within 20 
work days after receipt of the appeal.
    (b) Multi-Track processing. The Commission uses a multi-track 
system to process FOIA requests, so that a FOIA request is processed 
based on its complexity. Each request will be assigned to the Standard, 
Complex, or Expedited track.
    (1) Standard Track. Requests that are routine and require little 
search time, review, or analysis are assigned to the Standard Track. 
The Commission 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.
    (2) Complex Track. Requests that are non-routine are assigned to 
the Complex Track if the response may be voluminous; requires an 
unusually high level of effort for search, review, or duplication; or 
causes an undue disruption to the day-to-day activities of the 
Commission in carrying out its statutory responsibilities. 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. The 
Commission will respond to Complex Track requests as soon as 
practicable, and may discuss with the requester the possibility of 
reformulating the request to reduce processing time.
    (3) Expedited Track. Requests for expedited processing that meet 
the standards set forth in paragraph (c) of this section, will be 
assigned to the Expedited track. In such cases, the process described 
in paragraph (c) will be followed.
    (c) Expedited processing. A request for expedited processing must 
accompany the initial request for records, and the request should be 
clearly marked ``Expedited Processing Requested.'' It must be a 
certified, written statement of compelling need for expedited 
processing, stating that the facts are true and correct. The Commission 
shall decide whether to grant the request within 10 calendar days of 
its receipt, and shall notify the requester in writing. If the 
Commission grants this request, then the Commission will give the 
expedited request priority over non-expedited requests and shall 
process it as soon as practicable. Denials of expedited processing 
requests can be appealed using the same procedures as denials of other 
FOIA requests. In determining whether processing should be

[[Page 19417]]

expedited, the Chief 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;
    (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; or
    (3) A reasonable expectation of an imminent loss of a substantial 
due process right.
    (d) Unusual circumstances. If the Commission determines that 
``unusual circumstances'' exist, as that term is defined in the FOIA, 
the time limits for responding to requests and appeals may be extended 
by no more than 10 work days by providing written notice of the 
extension to the requester. The requester will be given an opportunity 
to limit the scope of the request or to arrange with the Commission an 
alternative time frame for processing the request. A FOIA Officer shall 
include with the notice of extension a brief statement of the reason 
for the extension, the date the FOIA Officer expects to make a 
determination, and the availability of the FOIA Public Liaison to 
assist the requester, and the requester's right to seek dispute 
resolution services from the Office of Government Information Services 
(OGIS) of the National Archives and Records Administration.


Sec.  426.206  Response to requests.

    (a) Acknowledgements of requests. The Commission will send an 
acknowledgement of the request in writing and assign it an 
individualized tracking number if it will take longer than 10 working 
days to process. Upon request, the Commission will provide an estimated 
date by which the Commission expects to provide a response to the 
requester. If a request involves a voluminous amount of material, or 
searches in multiple locations, the agency may provide interim 
responses, releasing the records on a rolling basis.
    (b) Grant of request. If a FOIA Officer grants a request, in full 
or in part, the Commission shall promptly provide the requester written 
notice of the decision, what fees apply under section 10 of this 
subpart, and the availability of its FOIA Public Liaison to offer 
assistance. The requester will be notified whether the request has been 
assigned to the Standard, Complex, or Expedited track, pursuant to 
Sec.  426.205(b).
    (c) Request denial. If the Chief FOIA Officer denies a request in 
any respect, the Commission will notify the requester of that 
determination in writing. A denial of request includes decisions that: 
Fees will not be waived, no expedited processing will be done, there 
are no responsive records subject to FOIA, the requested record does 
not exist or has been destroyed, the requested record is exempt in 
whole or in part, or the request does not reasonably describe the 
records sought. The written notice will include:
    (1) The name and title or position of the person responsible for 
the denial;
    (2) A brief statement of the reasons for the denial, including any 
FOIA exemption applied by the agency in denying the request;
    (3) A description of the material withheld, such as the approximate 
number of pages or some other reasonable form of estimation;
    (4) A statement that the denial may be appealed under section 8(a) 
of this subpart, and a description of the appeal requirements; and
    (5) A statement notifying the requester of the assistance available 
from the agency's FOIA Public Liaison and the dispute resolution 
services offered by OGIS.
    (d) Redactions. 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.


Sec.  426.207  Confidential commercial information.

    (a) Definitions.
    Confidential commercial information means commercial or financial 
information obtained by the Commission from a submitter that may be 
protected from disclosure under Exemption 4 of the FOIA, 5 U.S.C. 
552(b)(4).
    Submitter means any person or entity, including a corporation, 
State, or foreign government, but not including another Federal 
Government entity, that provides confidential commercial information, 
either directly or indirectly to the Federal Government.
    (b) Designation of confidential commercial information. A submitter 
of confidential commercial information must use good faith efforts to 
designate by appropriate markings, at the time of submission, any 
portion of its submission that it considers to be protected from 
disclosure under Exemption 4. These designations expire 10 years after 
the date of the submission unless the submitter requests and provides 
justification for a longer designation period.
    (c) When notice to submitters is required. (1) The Commission must 
promptly provide written notice to the submitter of confidential 
commercial information whenever records containing such information are 
requested under the FOIA if the agency determines that it may be 
required to disclose the records, provided the requested information 
has been designated in good faith by the submitter or the Commission 
has a reason to believe that the requested information may be protected 
from disclosure under Exemption 4.
    (2) The notice must either describe the commercial information 
requested or include a copy of the requested records or portions of 
records containing the information. In cases involving a voluminous 
number of submitters, the Commission may post or publish a notice in a 
place or manner reasonably likely to inform the submitters of the 
proposed disclosure, instead of sending individual notifications.
    (d) Exceptions to submitter notice requirements. The notice 
requirements of this section do not apply if:
    (1) The Commission determines that the information is exempt under 
the FOIA, and therefore will not be disclosed;
    (2) The information has been lawfully published or has been 
officially 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 12,600 of June 23, 1987; or
    (4) The designation made by the submitter under paragraph (b) of 
this section appears obviously frivolous. In such case, the Commission 
must give the submitter written notice of any final decision to 
disclose the information within a reasonable number of days prior to a 
specified disclosure date.
    (e) Opportunity to object to disclosure. (1) The Commission must 
specify a reasonable time period within which the submitter must 
respond to the notice referenced above.
    (2) If a submitter has any objections to disclosure, it should 
provide the Commission a detailed written statement that specifies all 
grounds for withholding the particular information under any exemption 
of the FOIA. In order to rely on Exemption 4 as basis for 
nondisclosure, the submitter must explain why the information 
constitutes a trade secret or commercial or financial information that 
is confidential.
    (3) A submitter who fails to respond within the time period 
specified in the

[[Page 19418]]

notice will be considered to have no objection to disclosure of the 
information. The Commission is not required to consider any information 
received after the date of any disclosure decision. Any information 
provided by a submitter under this subpart may itself be subject to 
disclosure under the FOIA.
    (4) The Commission must consider a submitter's objections and 
specific grounds for nondisclosure in deciding whether to disclose the 
requested information.
    (f) Notice of intent to disclose. Whenever the Commission decides 
to disclose information over the objection of a submitter, the agency 
must provide the submitter written notice, which must include:
    (1) A statement of the reasons why each of the submitter's 
disclosure objections was not sustained;
    (2) A description of the information to be disclosed or copies of 
the records as the Commission intends to release them; and
    (3) A specified disclosure date, which must be a reasonable time 
after the notice.
    (g) Notice of FOIA lawsuit. Whenever a requester files a lawsuit 
seeking to compel the disclosure of confidential commercial 
information, the Commission must promptly notify the submitter.
    (h) Requester notification. The Commission must notify the 
requester whenever it provides the submitter with notice and an 
opportunity to object to disclosure; whenever it notifies the submitter 
of its intent to disclose the requested information; and whenever a 
submitter files a lawsuit to prevent the disclosure of the information.


Sec.  426.208  Appeals.

    (a) Grounds for administrative appeals. A requester may appeal an 
initial determination of the Commission, including but not limited to a 
determination:
    (1) To deny access to records in whole or in part (as provided in 
Sec.  426.206(c));
    (2) To assign a particular fee category to the requester (as 
provided in Sec.  426.209(d));
    (3) To deny a request for a reduction or waiver of fees (as 
provided in Sec.  426.209(f));
    (4) That no records could be located that are responsive to the 
request (as provided in Sec.  426.206(c)); or
    (5) To deny a request for expedited processing (as provided in 
Sec.  426.205(c)).
    (b) Initiating appeals. Requesters not satisfied with the FOIA 
Officer's decision may make a written request appealing the decision 
within 90 days of the date of the FOIA Officer's decision. Any appeal 
requests should be clearly marked with the words ``Freedom of 
Information Act Appeal.'' Appeals may be made through the Commission's 
email, [email protected]; website, www.inspire2serve.gov, or 
through the mail, and may be addressed to: FOIA Appeals, National 
Commission on Military, National, and Public Service, 2530 Crystal 
Drive, Suite 1000, Box No. 63, Arlington, VA 22202. As there may be 
delays in mail delivery, it is advisable to send the request via email. 
The request should set out the name and contact information of the 
requester, specify the date of the initial request and the initial 
determination, and set forth why the appeal should be granted.
    (c) Adjudication of appeals. Appeals will be processed in the order 
of their receipt. An appeal ordinarily will not be adjudicated if the 
request become a matter of FOIA litigation. Before seeking review by a 
court of an agency's adverse determination, a requester generally must 
first submit a timely administrative appeal.
    (d) Appeal decisions. The Commission's Chair or his designee shall 
decide whether to affirm or reverse the initial determination (in whole 
or in part), and shall notify the requester of this decision in writing 
within 20 work days, pursuant to Sec.  426.205(c). If the appeal is 
denied (in whole or in part), the Commission will notify the requester 
in writing of the decision, the reasons for the denial (including the 
FOIA exemptions relied upon), the name and title of the official 
responsible for the determination on appeal, and the provisions for 
judicial review and dispute resolution services offered by the OGIS. If 
the appeal is granted in full or in part, the Chief FOIA Officer will 
notify the requester in writing and promptly process the request.
    (e) Dispute resolution. Dispute resolution is a voluntary process. 
If the Commission agrees to participate in the dispute resolution 
services provided by OGIS, it will actively engage as a partner to the 
process in an attempt to resolve the dispute. Requesters may seek 
dispute resolution by contacting the FOIA Public Liaison or OGIS at: 
Office of Government Information Services, National Archives and 
Records Administration, 8601 Adelphi Road, OGIS, College Park, MD 
20740; email: [email protected]; telephone: (202) 741-5770; facsimile: 
(202) 741-5769; toll free telephone: (877) 684-6448.


Sec.  426.209  Preservation of records.

    The Commission will preserve all correspondence pertaining to the 
requests that it receives under this subpart, 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. The 
Commission will not dispose of or destroy records while they are the 
subject of a pending request, appeal, or lawsuit under the FOIA.


Sec.  426.210  Fees.

    (a) In general. The Commission shall charge the requester for 
processing a request under the FOIA in accordance with the provisions 
of this section and with the OMB Guidelines. For purposes of assessing 
fees, the FOIA establishes three categories of requesters: Commercial 
use requesters, non-commercial scientific or educational institutions 
or news media requesters, and all other requesters. Different fees are 
assessed depending on the category. Requesters may seek a fee waiver, 
and the Commission will consider fee waiver requests in accordance with 
the requirements in paragraph (f) of this section. To resolve any fee 
issues that arise under this section, the Commission will contact a 
requester for additional information. No fees shall be charged if the 
amount of fees incurred in processing the request is below $25. The 
Commission ordinarily will collect all applicable fees before sending 
copies of records to a requester. Requesters must pay fees by check or 
money order made payable to the Treasury of the United States, or by 
another method as determined by the Commission.
    (b) Definitions. For purposes of this section:
    Commercial use request means a request that asks for information 
for a use or a purpose that furthers a commercial, trade, or profit 
interest, which can include furthering those interests through 
litigation. The Commission's decision to place a requester in the 
commercial use category will be made on a case-by-case basis based on 
the requester's intended use of the information. The Commission will 
notify requesters of their placement in this category.

    Direct costs means those expenses that the Commission incurs in 
searching for and duplicating (and, in the case of commercial use 
requests, reviewing) records in order to respond to a FOIA request. For 
example, direct costs include the salary of the employee performing the 
work (i.e., the basic rate of pay for the employee, plus 16 percent of 
that rate to cover benefits) and the cost of operating computers and 
other electronic equipment, such as

[[Page 19419]]

photocopiers and scanners. Direct costs do not include overhead 
expenses such as the costs of space, and of heating or lighting a 
facility.
    Duplication means reproducing a copy of a record, or of the 
information contained in it, necessary to respond to a FOIA request. 
Copies can take the form of paper, audiovisual materials, or electronic 
records, among others.
    Educational institution means any school that operates a program of 
scholarly research. A requester in this fee category must show that the 
request is made in connection with his or her role at the educational 
institution. The Commission may seek verification from the requester 
that the request is in furtherance of scholarly research and the 
Commission will advise requesters of their placement in this category.

    Example 1. A request from a professor of geology at a university 
for records relating to soil erosion, written on letterhead of the 
Department of Geology, would be presumed to be from an educational 
institution.
    Example 2. A request from the same professor of geology seeking 
drug information from the Food and Drug Administration in 
furtherance of a murder mystery he is writing would not be presumed 
to be an institutional request, regardless of whether it was written 
on institutional stationery.
    Example 3. A student who makes a request in furtherance of their 
coursework or other school-sponsored activities and provides a copy 
of a course syllabus or other reasonable documentation to indicate 
the research purpose for the request, would qualify as part of this 
fee category.

    Noncommercial scientific institution means an institution that is 
not operated on a ``commercial'' basis, as defined in this paragraph 
(b) and that is operated solely for the purpose of conducting 
scientific research the results of which are not intended to promote 
any particular product or industry. A requester in this category must 
show that the request is authorized by and is made under the auspices 
of a qualifying institution and that the records are sought to further 
scientific research and are not for a commercial use. The Commission 
will advise requesters of their placement in this category.
    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 the raw materials into a distinct 
work, and distributes that work to an audience. The term ``news'' means 
information that is about current events or that would be of current 
interest to the public. Examples of news media entities include 
television or radio stations that broadcast news to the public at large 
and publishers of periodicals that disseminate news and make their 
products available through a variety of means to the general public, 
including news organizations that disseminate solely on the internet. A 
request for records supporting the news-dissemination function of the 
requester will not be considered to be for a commercial use. 
``Freelance'' journalists who demonstrate a solid basis for expecting 
publication through a news media entity will be considered as a 
representative of the news media. A publishing contract would provide 
the clearest evidence that publication is expected; however, the 
Commission can also consider a requester's past publication record in 
making this determination. The Commission will advise requesters of 
their placement in this category.
    Review means the examination of a record located in response to a 
request in order to determine whether any portion of it is exempt from 
disclosure. Review time includes processing any record for disclosure, 
such as doing all that is necessary to prepare the record for 
disclosure, including the process of redacting the record and marking 
the appropriate exemptions. Review costs are properly charged even if a 
record ultimately is not disclosed. Review time also includes time 
spent both obtaining and considering any formal objection to disclosure 
made by a confidential commercial information submitter under Sec.  
426.207 of this subpart, but it does not include time spent resolving 
general legal or policy issues regarding the application of exemptions.
    Search means the process of looking for and retrieving records or 
information responsive to a request. 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.
    (c) Fees chargeable for specific services. In responding to FOIA 
requests, the Commission will charge the following fees unless a waiver 
or reduction of fees has been granted under paragraph (f) of this 
section. No additional costs will be added to charges calculated under 
this section.
    (1) Duplicating records. The Commission shall assess requester fees 
for the cost of copying records. The charge will be $0.12 per page, up 
to 8\1/2\ x 14, made by photocopy or similar process. The charge will 
be the actual cost for duplicating photographs, films, and other 
materials. Where paper documents must be scanned so they can be sent 
electronically, the requester must pay the direct costs associated with 
scanning those materials. The Commission will honor a requester's 
preference for receiving a record in a particular form or format where 
the agency can readily reproduce it in the form or format requested.
    (2) Search services. The Commission shall charge a requester for 
all time spent by its employees searching for records that are 
responsive to a request, even if no responsive records are found or the 
records are exempt from disclosure. For non-electronic searches, the 
Commission shall charge for search time at the salary rate (basic pay 
plus 16 percent) of the employee who conducts the search. For 
electronic records, the Commission shall charge the requester for the 
actual direct cost of the search, including computer search time, runs, 
and the operator's salary.
    (3) Review of records. The Commission shall only charge review fees 
to requesters who make commercial use requests. Review fees will be 
assessed in connection with the initial review of the record, but no 
charge will be made for review at the administrative appeal stage. 
However, if a particular exemption is deemed to no longer apply, any 
costs associated with an agency's re-review of the records in order to 
consider the use of other exemptions may be assess as review fees. The 
Commission shall charge a requester for time spent reviewing records at 
the salary rate(s) (i.e., basic pay plus 16 percent) of the employees 
who conduct the review.
    (4) Inspection of records in the reading room. Fees for all 
services provided shall be charged whether or not copies are made 
available to the requester for inspection. However, no fee shall be 
charged for monitoring a requester's inspection of records in the 
physical reading room.
    (5) Other services. Although not required to provide special 
services, if the Commission chooses to do so as a matter of 
administrative discretion, the requested services are charged at the 
actual cost to the Commission. Examples of such services include 
certifying that records are true copies or sending records by express 
mail.
    (d) Fees applicable to each category of requester. The Commission 
shall apply the fees set forth in this paragraph, for each category 
described in paragraph (c) of this section, to FOIA requests processed 
by the Commission.
    (1) Commercial use. A requester seeking records for commercial use 
shall be charged the full direct cost of searching for, reviewing, and 
duplicating the records they request as set forth in paragraph (c) of 
this section. The Commission is not required to consider a waiver 
request based upon the assertion that disclosure would be in

[[Page 19420]]

the public interest from a commercial use requester.
    (2) Educational and non-commercial scientific uses. A requester 
seeking records for educational or non-commercial scientific use shall 
be charged only for the cost of duplicating the records they request, 
except that the Commission shall provide the first 100 pages of 
duplication (or cost equivalent for other media) free of charge. To be 
eligible, the requester must show that the records are not sought for a 
commercial use, but rather in furtherance of scholarly or scientific 
research.
    (3) News media uses. A requester seeking records under the news 
media use category shall be charged only the cost of duplicating the 
records they request, except that the Commission shall provide the 
requester with the first 100 pages of duplication (or cost equivalent 
for the other media) free of charge.
    (4) Other requests. A requester seeking records for any other use 
shall be charged the full direct cost of searching for and duplicating 
records that are responsive to the request, as set out in paragraph (b) 
of this section, except that the Commission shall provide the first 100 
pages of duplication and the first two hours of search time free of 
charge.
    (e) Other circumstances when fees are not charged. Notwithstanding 
paragraphs (c) and (d) of this section, the Commission may not charge a 
requester a fee for processing a FOIA request if the total fee is equal 
to or less than $25. Additionally, the Commission may not charge a 
requester a search or duplication fee if the Commission fails to comply 
with any time limit under Sec.  426.205 or Sec.  426.208, unless:
    (1) A court has determined that exceptional circumstances exist, as 
defined by the FOIA, then a failure to comply with such time limit 
shall be excused for the length of time provided by the court order;
    (2) The Commission has determined that unusual circumstances, as 
defined by the FOIA, apply and the Commission provides timely written 
notice to the requester in accordance with Sec.  426.205(d), then the 
time limit shall be excused for an additional 10 days; or
    (3) The Commission has determined that unusual circumstances apply; 
more than 5,000 pages are necessary to respond to the request; the 
Commission has provided a timely written notice to the requester in 
accordance with Sec.  426.205(d), and the Commission has discussed with 
the requester via written mail, electronic mail, or telephone (or made 
not less than three good-faith attempts to do so) how the requester 
could effectively limit the scope of the request. Then the Commission 
may charge a requester all applicable fees.
    (f) Waiver or reduction of fees. (1) A requester may request a 
waiver or reduction of fees otherwise applicable to a FOIA request in 
writing during the initial FOIA request. The waiver must demonstrate 
that the fee reduction or waiver is in the public interest because it 
furnishes information that is likely to contribute significantly to 
public understanding of the operations or activities of the government, 
and the information is not primarily in the commercial interest of the 
requester.
    (2) To determine whether the requester has satisfied the waiver 
request requirements, the Commission shall consider whether the subject 
of the requested records has a direct connection to government 
operations or activities; the disclosable portion of the requested 
records is meaningfully informative, and is not already in the public 
domain; the disclosure would contribute to the understanding of a 
reasonably broad audience, as opposed to the individual requester; and 
the public's understanding would be significantly enhanced by the 
disclosure. The Commission shall also consider whether the requester, 
or any person on whose behalf the requester may be acting, has a 
commercial interest that would be furthered by the disclosure, and 
whether the public interest is greater in magnitude than that of any 
identified commercial interest in disclosure.
    (3) Where only some of the records to be released satisfy the 
requirements for a waiver or reduction of fees, a waiver or reduction 
shall be granted for those records.
    (4) The Commission shall notify the requester in writing regarding 
its determination to reduce or waive fees.
    (5) If the Commission denies a request to reduce or waive fees, 
then the Commission shall advise the requester, in the denial 
notification letter, that the requester may incur fees as a result of 
processing the request. In the denial notification letter, the 
Commission shall advise the requester that the Commission will not 
proceed to process the request further unless the requester, in 
writing, directs the Commission to do so and either agrees to pay any 
fees that may apply to processing the request or specifies an upper 
limit (of not less than $25) that the requester is willing to pay to 
process the request. If the Commission does not receive this written 
direction and agreement within 30 days of the date of the denial 
notification letter, then the Commission shall deem the FOIA request to 
be withdrawn.
    (6) If the Commission denies a request to reduce or waive fees, 
then the requester shall have the right to submit an appeal in 
accordance with Sec.  426.208. The Commission shall communicate this 
appeal right as part of its denial notification to the requester.
    (g) Notice of estimated fees. (1) When an agency determines or 
estimates that the fees to be assessed in accordance with this section 
will exceed $25, the agency must notify the requester of the actual or 
estimated amount of the fees, including a breakdown of the fees for 
search, review or duplication, unless the requester has indicated a 
willingness to pay fees as high as those anticipated. If only a portion 
of the fee can be estimated readily the Commission will advise the 
requester accordingly. The notice will specify what duplication and 
search time the requester is entitled to and how they have been 
accounted for in the estimate.
    (2) If the agency notifies the requester that the actual or 
estimated fees are in excess of $25, the request will not be considered 
received and further work will not be completed until the requester 
commits in writing to pay the actual or estimated total fee, or 
designates some amount of fees the requester is willing to pay, or in 
the case of a noncommercial use requester who has not yet been provided 
with the 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. Agencies are not required to accept payments in 
installments.
    (3) If the requester has indicated a willingness to pay some 
designated amount of fees, but the Commission estimates that the total 
fee will exceed that amount, the Commission will toll the processing of 
the request when it notifies the requester of the estimated fees in 
excess of the amount the requester has indicated a willingness to pay. 
The Commission will 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 Public Liaison will be available to assist any 
requester in reformulating a request to meet the requester's needs at a 
lower cost.
    (h) Advance payment. (1) For requests other than those described in

[[Page 19421]]

paragraphs (h)(2) and (3) of this section, the Commission will not 
require the requester to make an advance payment before work is 
commenced or continued on a request. Payment owed for work already 
completed (i.e., payment before copies are sent to a requester) is not 
an advance payment.
    (2) When the Commission determines or estimates that a total fee to 
be charged under this section will exceed $250, it may require that the 
requester make an advance payment up to the amount of the entire 
anticipated fee before beginning to process the request. An agency may 
elect to process the request prior to collecting fees when it receives 
a satisfactory assurance of full payment from a requester with a 
history of prompt payment.
    (3) If a requester previously has failed to pay a fee within 30 
calendar days of the date of the billing, the requester shall be 
required to pay the full amount owed plus any applicable interest, and 
to make an advance payment of the full amount of the estimated fee 
before the Commission begins to process a new request.
    (4) In cases in which an agency 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 30 calendar days after the date of 
the agency's fee determination, the request will be closed.
    (i) Charging interest. The Commission may charge interest on any 
unpaid bill 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 and will accrue from the billing date until payment is 
received by the Commission. The Commission will follow the provisions 
of the Debt Collection Act of 1982 (Pub. L. 97-365, 96 Stat. 1749), as 
amended, and its administrative procedures.
    (j) Aggregating requests. If the Commission reasonably determines 
that a requester or a group of requesters acting together is attempting 
to divide a request into a series of requests for the purpose of 
avoiding fees, the Commission may aggregate those requests and charge 
accordingly. The Commission may presume that multiple requests 
involving related matters submitted within a 30 calendar day period 
have been made in order to avoid fees. For requests separated by a 
longer period, the Commission will aggregate them only where there is a 
reasonable basis for determining that aggregation is warranted in view 
of all the circumstances involved. The Commission shall not aggregate 
multiple requests involving unrelated matters.
    (k) Other statutes specifically providing for fees. The fee 
schedule of this section does not apply to fees charged under any 
statute that specifically requires an agency to set and collect fees 
for particular types of records. In instances where records responsive 
to a request are subject to a statutorily-based fee schedule program, 
the Commission must inform the requester of the contact information for 
that program.


Sec.  426.211  Other rights and services.

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

    Dated: April 20, 2018.
Joseph Heck,
Chairman.
[FR Doc. 2018-09212 Filed 5-1-18; 8:45 am]
BILLING CODE 3610-YE-P