[Federal Register Volume 83, Number 145 (Friday, July 27, 2018)]
[Rules and Regulations]
[Pages 35544-35550]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-15950]



22 CFR Part 1304

Freedom of Information Act Regulations

AGENCY: Millennium Challenge Corporation.

ACTION: Final rule.


SUMMARY: This rule amends the Agency's regulations under the Freedom of 
Information Act (FOIA). The regulation has been revised to update and 
implement the relevant provisions of the Freedom of Information Act as 
required under that statute. This document will assist interested 
parties in obtaining access to Millennium Challenge Corporation public 

DATES: This rule is effective July 27, 2018.

Officer, 202-521-3730.

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

Discussion of Final Rule and Response to Comments and Other Changes 
From Proposed Rule

    MCC reviewed all public comments and made the necessary revisions 
in order to ensure that this rule complies with the Freedom of 
Information Act and FOIA Improvement Act of 2016. These revisions 
include updating definitions to reflect the definitions identified in 
the Department of Justice Template for Agency FOIA Regulations.

Lists of Subjects in 22 CFR Part 1304

    Freedom of Information Act procedures.

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


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

1304.1 General provisions.
1304.2 Definitions.
1304.3 Proactive disclosure of MCC records.
1304.4 Requirements for making requests.
1304.5 Responsibility for acknowledgment and initial determinations.
1304.6 Timing of responses to requests.
1304.7 Responses to requests.
1304.8 Confidential commercial information.
1304.9 Administrative appeals.
1304.10 Preservation of records.
1304.11 Fees.
1304.12 Other rights and services.

Subpart B--[Reserved]

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

Sec.  1304.1  General provisions.

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

Sec.  1304.2  Definitions.

    Administrative appeal. An independent review of the initial 
determination made in response to a FOIA request.
    Agency. Any executive department, military department, government 
corporation, government controlled corporation, or other establishment 
in the executive branch of the Federal Government or any independent 
regulatory agency.
    Business day or work day. A day of the week, excluding Saturday, 
Sunday, or legal public holidays.
    Calendar days. Every day within a month, including Saturday, 
Sunday, and legal public holidays. Unless identified as a ``business 
day'' or ``work day,'' all timeframes and days noted in this part shall 
be calculated in calendar days.
    Chief FOIA Officer. A designated MCC employee who is a senior 
official, at the Assistant Secretary or equivalent level who, subject 
to the authority of the head of the agency, shall have agency wide 
responsibility for efficient and appropriate compliance with the FOIA. 
In addition, the Chief FOIA Officer shall monitor implementation of the 
FOIA throughout MCC and keep the head of the agency, the chief legal 
officer of the agency, and the Attorney General appropriately informed 
of the agency's performance in implementing the FOIA; recommend to the 
head of the agency such adjustments to MCC's practices, policies, 
personnel, and funding as may

[[Page 35545]]

be necessary to improve its implementation of the FOIA; facilitate 
public understanding of the purposes of the statutory exemptions of the 
FOIA; offer training to MCC staff regarding their responsibilities 
under the FOIA, serve as the primary agency liaison with the Office of 
Government Information Services and the Office of Information policy; 
and designate one (1) or more FOIA Public Liaisons. The Chief FOIA 
Officer shall review, not less frequently than annually, all aspects of 
the administration of the FOIA by MCC to ensure compliance with the 
requirements of the FOIA, including--agency regulations; disclosure of 
records; assessment of fees and determination of eligibility for fee 
waivers; timely processing of requests for information; the use of 
exemptions; and dispute resolution services with the assistance of the 
Office of Government Information Services or the FOIA Public Liaison.
    Commercial requester. Any person making a request for information 
for a use or purpose that furthers a commercial, trade, or profit 
interest, which can include furthering those interests through 
    Complex request. A FOIA request that MCC anticipates will involve a 
voluminous amount of material to review or will be time-consuming to 
    Confidential commercial information. Records provided to the 
government that contain material exempt from disclosure under Exemption 
4 of the FOIA and disclosure of such records could reasonably be 
expected to cause substantial competitive harm.
    Consultation. When MCC locates a record that contains information 
of interest to another agency, MCC shall ask the interested agency for 
their views on disclosing the records before any final determination is 
    Direct costs. Expenditures actually incurred by MCC for searching, 
duplicating, and in the case of commercial use requests, reviewing 
records in order to respond to a FOIA request.
    Discretionary disclosure. The release of or portions of records to 
a FOIA requester that could be withheld by MCC under one or more of the 
FOIA exemptions.
    Duplication. The process of making a copy of a record in order to 
respond to a FOIA request, including but not limited to paper copies, 
microfilm, audio-video materials, and computer diskettes or other 
electronic copies.
    Duplication fees. The estimated direct costs of making a copy of a 
record in order to respond to a FOIA request.
    Educational institution. Any school or institution that operates a 
program of scholarly research. A requester in this category must show 
that the request is made in connection with his or her role at the 
educational institution.
    Educational requester. 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 
    Exemptions. Certain categories of information that are not required 
to be released in response to a FOIA request because release would be 
harmful to governmental or private interests.
    Fee waiver. The waiver or reduction of processing fees if a 
requester can demonstrate that certain statutory standards are 
satisfied including that the information is in the public interest and 
is not requested for a commercial interest.
    FOIA Appeals Officer. The MCC employee who is responsible for 
conducting an independent review of the initial determination of the 
FOIA request after the requester has requested an administrative 
    FOIA Public Liaison. The MCC employee who is responsible for 
assisting in the resolution of disputes in response to FOIA requests.
    FOIA Program Officer. The MCC employee who receives and processes 
requests within the MCC FOIA Office.
    Non-commercial scientific institution. An institution that does not 
operate on a commercial basis, but operates solely for the purpose of 
conducting scientific research and the results of the scientific 
research are not intended to promote any particular product or 
    Record. Any item, collection, or grouping of information maintained 
by MCC in any form or format, including an electronic copy. A 
``record'' can potentially constitute an entire document, a single page 
of a multipage document, an individual paragraph of a document, or an 
email within an email chain.
    Referral. When an agency locates a record that originated with, or 
is of otherwise primary interest to another agency, it will forward 
that record to the other agency to process the record and to provide 
the final determination directly to the requester.
    Representative of the news media. Any person 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, agencies 
can also consider a requester's past publication record in making this 
    Review. The process of examining a record to determine whether all 
or part of the record may be released or withheld, and includes 
redacting or otherwise processing the record for disclosure to a 
requester. The review process does not include time spent resolving 
legal or policy issues regarding the application of exemptions to a 
record. The review process also does not include time spent reviewing 
records at the administrative appeal level unless, MCC determines that 
the exemption under which it withheld records does not apply and the 
records are reviewed again to determine whether a different exemption 
may apply.
    Requester category. One of the three categories that agencies place 
requesters in for the purpose of determining whether a requester will 
be charged fees for search, review and duplication, including 
commercial requesters; non-commercial scientific or educational 
institutions or news media requesters, and all other requesters.
    Search. The time spent locating records that may be responsive to a 
request, manually or by electronic means, including page-by-page or 
line-by-line identification of responsive material within a record.
    Search fees. Estimated direct costs of the time spent locating 
records by either manual or electronic means.
    Submitter. Any person or entity who provides information directly 
or indirectly to MCC. The term includes, but is not limited to, 
corporations, state governments, and foreign governments.

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Sec.  1304.3  Proactive disclosure of MCC records.

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

Sec.  1304.4  Requirements for making requests.

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

Sec.  1304.5  Responsibility for acknowledgment and initial 

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

Sec.  1304.6  Timing of responses to requests.

    (a) General information. The twenty (20) business day period 
identified in Sec.  1304.5(b) shall commence on the date that the 
request is first received by the MCC FOIA office and an acknowledgment 
of the request shall be sent no later than ten (10) business days after 
receipt of the request. The twenty (20) business day period shall not 
be tolled except that MCC may make one request to the requester for 
information and toll the twenty (20) business day period while it is 
awaiting receipt of the information, or the twenty (20) business day 
period may be tolled if it is necessary to clarify issues regarding 
fees with the requester.
    (b) Unusual circumstances. If MCC cannot meet the statutory time 
limit for processing a request because of ``unusual circumstances'' as 
defined in the FOIA and MCC extends the time limit on that basis, MCC 
will, before expiration of the twenty (20) business day period, notify 
the requester in writing of the unusual circumstances involved and of 
the date by which MCC estimates processing of the request will be 
completed. Where the extension exceeds ten (10) business days, MCC will 
provide the requester with an opportunity to modify the request or 
arrange an alternative time period for processing the original or 
modified request. MCC must make its designated FOIA Program Officer or 
FOIA Public Liaison available for this purpose. To aid the requester, 
the MCC FOIA Public Liaison shall assist in the resolution of any 
disputes between the requester and MCC, and notify the requester of the 
right to seek dispute resolution services from the Office of Government 
Information Services.
    (c) Aggregating requests. MCC may aggregate requests where it 
reasonably appears that multiple requests, submitted either by a 
requester or by a group of requesters acting in concert, constitute a 
single request that would otherwise involve unusual circumstances. 
Requests that involve unrelated matters shall not be aggregated.
    (d) Multitrack processing. MCC may use multitrack processing in 
responding to requests. This process entails separating simple requests 
that require rather limited review from more lengthy and complex 
requests. Requests in each track are then processed in their respective 
track. The FOIA Program Officer may provide requesters in the slower 
track an opportunity to limit the scope of their requests in order to 
decrease the processing time required. The FOIA Program Officer may 
provide the opportunity to limit the scope of the request by contacting 
the requester by letter, email, or telephone.
    (e) Expedited processing of requests. The FOIA Program Officer must 
determine whether to grant a request for expedited processing within 
ten (10) calendar days of its receipt. Requests will receive expedited 
processing if one of the following criteria are met:
    (1) The requester can establish that failure to receive the records 
quickly could reasonably be expected to pose an imminent threat to the 
life or physical safety of an individual;
    (2) The requester is primarily engaged in disseminating information 
and can demonstrate that an urgency to inform the public concerning 
actual or alleged Federal Government activity exists; or
    (3) As determined by the Chief FOIA Officer.
    (f) Written expedited requests. A requester who seeks expedited 
processing must submit a written statement explaining in detail the 
basis for making the request for expedited processing. This statement 
must be certified to be true and correct. The

[[Page 35547]]

MCC Chief FOIA Officer may waive the formal certification requirement.

Sec.  1304.7  Responses to requests.

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

Sec.  1304.8  Confidential commercial information.

    (a) Designation of confidential commercial information. A submitter 
of confidential commercial information must use good faith efforts to 
designate by appropriate markings, either at the time of the submission 
or within a reasonable time thereafter, any portion of its submission 
that it considers to be protected from disclosure under Exemption 4 of 
the FOIA. These designations shall expire ten (10) years after the date 
of submission unless the submitter requests and provides justification 
for a longer designation period.
    (b) Required notice. Written notice shall be provided to a 
submitter of confidential commercial information whenever records 
containing such information are requested under the FOIA if, after 
reviewing the request, the responsive records, and any appeal by the 
requester, it is determined that MCC may be required to disclose the 
records, provided:
    (1) The requested information has been designated in good faith by 
the submitter as information considered protected from disclosure under 
Exemption 4 of the FOIA; or
    (2) MCC has reason to believe that the requested information may be 
protected from disclosure under Exemption 4 of the FOIA, but has not 
yet determined whether the information is protected from disclosure 
under that exemption or any other applicable exemption.
    (c) Information. The notices shall either describe the commercial 
information requested or include a copy of the requested records or 
portions of records containing information. In cases involving a 
voluminous number of submitters, notice may be made by posting or 
publishing the notice in a place or manner reasonably likely to 
accomplish it.
    (d) Exceptions to notice requirements. The notices requirements of 
this section shall not apply if:
    (1) The Chief FOIA Officer determines that the information is 
exempt under the FOIA;
    (2) The information has been lawfully published or has officially 
been made available to the public;
    (3) Disclosure of the information is required by a statute other 
than the FOIA or by a regulation issued in accordance with the 
requirements of Executive Order 12600 of June 23, 1987; or
    (4) The designation made by the submitter under paragraph (b) of 
this section appears obviously frivolous, except that, in such a case, 
the component shall give the submitter written notice of any final 
decision to disclose the information and must provide that notice 
within a reasonable number of days prior to the disclosure date.
    (e) Opportunity to object to disclosure. A submitter may provide 
the Chief FOIA Officer with a detailed written statement of any 
objection to disclosure within ten (10) days of notification. The 
statement shall specify all grounds for withholding any of the 
information under any exemption of the FOIA, and if Exemption 4 
applies, shall demonstrate the reasons the submitter believes the 
information to be confidential commercial information that is exempt 
from disclosure. Whenever possible, the submitter's claim of 
confidentiality shall be supported by a statement or certification by 
an officer or authorized representative of the submitter. In the event 
a submitter fails to respond to the notice in the time specified, the 
submitter will be considered to have no objection to the disclosure of 
the information. Information provided by the submitter that is received 
after the disclosure decision has been made will not be considered. 
Information provided by a submitter pursuant to this paragraph may 
itself be subject to disclosure under the FOIA.
    (f) Notice of intent to disclose. The Chief FOIA Officer shall 
consider a submitter's objections and specific grounds for 
nondisclosure prior to determining whether to disclose the information 
requested. Whenever the Chief FOIA Officer determines that disclosure 
is appropriate, the Chief FOIA Officer shall, within a reasonable 
number of days prior to disclosure, provide the submitter with written 
notice of the intent to disclose which shall include a statement of the 
reasons for which the submitter's objections were overruled, a 
description of the information to be disclosed, and a specific 
disclosure date. The Chief FOIA Officer shall also notify the requester 
that the requested records will be made available.
    (g) Notice of lawsuit. If the requester files a lawsuit seeking to 
compel disclosure of confidential commercial information, MCC shall 
promptly notify the submitter of this action. If a submitter files a 
lawsuit seeking to prevent disclosure of confidential commercial 
information, MCC shall promptly notify the requester.

Sec.  1304.9  Administrative appeals.

    (a) Requirements for appealing an adverse determination. A 
requester may appeal any adverse determination to MCC. The requester 
must submit a written notice of appeal and it must be postmarked or, in 
the case of electronic submissions, transmitted within ninety (90) 
calendar days after the date of the response. The appeal should clearly 
identify the determination that is being appealed and the assigned 

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

Sec.  1304.10  Preservation of records.

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

Sec.  1304.11  Fees.

    (a) General information. (1) MCC's fee provisions are governed by 
the FOIA and by the Office of Management and Budget's Uniform FOIA Fee 
Schedule and Guidelines. For purposes of assessing fees, the FOIA 
establishes the following categories of requesters:
    (i) Commercial use;
    (ii) Non-commercial scientific or educational institutions;
    (iii) Representative of the news media; and
    (iv) All other requesters.
    (2) Fees will be assessed pursuant to the category of requester and 
detailed in paragraph (b) of this section. Requesters may seek a fee 
waiver. To resolve any fee issues that arise under this section, MCC 
may contact a requester for additional information. MCC will ensure 
that searches, review, and duplication are conducted in the most 
efficient and the least expensive manner. MCC ordinarily will collect 
all applicable fees before sending copies of records to a requester. 
Requesters must pay fees to the Treasury of the United States. All fee 
information is available at www.mcc.gov/resources/foia.
    (b) Charging fees. Because the fee amounts provided already account 
for the direct costs associated with the given fee type, MCC will not 
add any additional costs to charges calculated under this section. In 
responding to FOIA requests, MCC shall charge fees for the following 
unless a waiver or reduction of fees has been granted:
    (1) Search time fees. Search time includes page-by-page or line-by-
line identification of information within records and the reasonable 
efforts expended to locate and retrieve information from electronic 
    (i) Requests made by education institutions, non-commercial 
scientific institutions, or representatives of the news media are not 
subject to search time fees. Search time fees shall be charged for all 
other requesters, subject to the restrictions identified in this 
section. MCC may properly charge for time spent searching even if no 
responsive records are located if it is determined that the records are 
entirely exempt from disclosure.
    (ii) Requesters shall be charged the direct costs associated with 
conducting any searches that require the creation of a new computer 
program to locate the requested records. Requesters shall be notified 
of the costs associated with creating such a program and must agree to 
pay the associated costs before the costs may be incurred.
    (iii) For requests that require the retrieval of records stored by 
an agency at the Federal Records Centers operated by the National 
Archives and Records Administration (NARA), additional costs shall be 
charged in accordance with the Transactional Billing Range Schedule 
established by NARA.
    (2) Duplication fees. Duplication fees shall be charged to all 
requesters, subject to the restrictions in this section. MCC shall 
honor a requester's preference for receiving a record in a particular 
form or format where it is readily reproducible by MCC in the form or 
format requested. Where photocopies are supplied, MCC shall provide one 
copy per request and charge fees calculated per page. For copies of 
records produced on tapes, disks, or other media, MCC shall charge the 
direct costs of producing the copy, including operator time. Where 
paper documents must be scanned in order to comply with a requester's 
preference to receive the records in an electronic format, the 
requester shall be charged direct costs associated with scanning those 
materials. For other forms of duplication, MCC shall charge the direct 
    (3) Review. Review fees shall be charged to requesters who make 
commercial use requests. Review fees shall be assessed in connection 
with the initial review of the record. No charge will be made for 
review at the administrative appeal state of exemptions applied at the 
initial review stage. If a particular exemption is deemed to no longer 
apply, any costs associated with MCC's subsequent review following the 
administrative appeal of the records in order to consider the use of 
other exemptions may be assessed as review fees.
    (c) Restrictions on charging fees. The following restrictions shall 
apply to MCC FOIA requests:
    (1) If MCC fails to comply with the FOIA's time limits to respond 
to a request, MCC may not charge fees, except as described in 
paragraphs (c)(3) through (5) of this section;
    (2) If MCC has determined that unusual circumstances as defined by 
the FOIA apply and the agency provided timely written notice to the 
requester in accordance with the FOIA, a failure to comply with the 
time limit shall be excused for an additional ten (10) calendar days;
    (3) If MCC has determined that unusual circumstances as defined by 

[[Page 35549]]

FOIA apply, and more than five-thousand (5,000) pages are necessary to 
respond to the request, MCC may charge search time fees or duplication 
fees where applicable, if MCC has provided timely written notice of the 
unusual circumstances to the requester in accordance with the FOIA and 
has discussed with the requester via written mail, email, or telephone 
(or made a minimum of three (3) good-faith attempts to do so) how the 
requester could effectively limit the scope of the request;
    (4) If a court has determined that exceptional circumstances exist 
as defined by the FOIA, a failure to comply with the time limits shall 
be excused for the length of time provided by the court order; and
    (5) No search time or review fees will be charged for a quarter-
hour period unless more than half of that period is required for search 
or review.
    (d) Fee exceptions. Except for requesters seeking records for 
commercial use, MCC shall provide without charge:
    (1) The first one-hundred (100) pages of duplication (or the cost 
equivalent for other media); and
    (2) The first two (2) hours of search time. When, after deducting 
the first one-hundred (100) free pages (or its cost equivalent) and the 
first two (2) hours of search time, a total fee calculated under this 
section is $25.00 or less for any request, no fee will be charged.
    (e) Notice of anticipated fees in excess of $25.00. (1) When MCC 
determines that the fees to be assessed will exceed $25.00, the 
requester shall be notified of the actual or estimated amount of the 
fees, including the breakdown of the fees for search time, review or 
duplication, unless the requester has indicated a willingness to pay 
fees as high as those anticipated. If only a portion of the fee can be 
estimated readily, MCC shall advise the requester accordingly. If the 
requester is not a commercial use requester, the notice shall specify 
that the requester is entitled to the statutory requirements of one-
hundred (100) pages of duplication at no charge and, if the requester 
is charged search time fees, two (2) hours of search time at no charge, 
and shall advise the requester whether those entitlements have been 
    (2) In cases in which a requester has been notified that the actual 
or estimated fees are in excess of $25.00, the request shall not be 
considered received and further work will not be completed until the 
requester commits, in writing, to pay the actual or estimated total 
fee, or designates some amount of fees the requester is willing to pay, 
or in the case of a requester who is not a commercial use requester who 
has not yet been provided with the requester's statutory entitlements, 
designates that the requester seeks only that which can be provided by 
the statutory entitlements. The requester must provide the commitment 
or designation in writing, and must, when applicable designate an exact 
dollar amount the requester is willing to pay. MCC is not required to 
accept payments in installments.
    (3) If the requester has indicated a willingness to pay some 
designated amount of fees, and MCC estimates that the total fee will 
exceed that amount, MCC shall toll the processing of the request when 
it notifies the requester of the estimated fees in excess of the amount 
the requester has indicated a willingness to pay. MCC shall inquire 
whether the requester wishes to revise the amount of fees the requester 
is willing to pay or modify the request. Once the requester responds, 
the time to respond will resume from where it was at the date of the 
    (4) The FOIA Program Officer will assist any requester in 
reformulating a request to meet the requester's needs at a lower cost.
    (f) Waiver or reduction of fees. Documents shall be furnished 
without charge or at a charge below that listed in this section based 
upon information provided by a requester or otherwise made known to the 
Chief FOIA Officer that disclosure of the requested information is in 
the public interest. Disclosure is in the public interest if it is 
likely to contribute significantly to public understanding of 
government operations and is not primarily for commercial purposes. 
Requests for a waiver or reduction of fees shall be considered on a 
case by case basis. Where only some of the records to be released 
satisfy the requirements for waiver of fees, a waiver shall be granted 
to those records. In order to determine whether the fee waiver 
requirement is met, the Chief FOIA Officer shall consider the following 
    (1) The subject of the request. Whether the subject of the 
requested records concerns the operations or activities of the 
    (2) The informative value of the information to be disclosed; and
    (3) The significance of the contribution to public understanding.
    (g) Fees pending a waiver request. Requests for a waiver or 
reduction of fees should be made when the request is first submitted to 
the agency and should address the criteria referenced in this section. 
A requester may submit a fee waiver request at a later time so long as 
the underlying record request is pending or on administrative appeal. 
When a requester who has committed to pay fees subsequently asks for a 
waiver of those fees and that waiver is denied, the requester must pay 
any costs incurred up to the date the fee waiver request was received.
    (h) Types of requesters. There are four categories of FOIA 
requesters: Commercial use requesters, educational and non-commercial 
scientific institutional requesters; representatives of the news media; 
and all other requesters. The following specific levels of fees are 
prescribed for each of these categories:
    (1) Commercial requesters shall be charged the full direct costs of 
searching for, reviewing, and duplicating requested records;
    (2) Educational and non-commercial scientific institution 
requesters shall be charged for document duplication only and the first 
one-hundred (100) pages of paper copies shall be provided without 
    (3) Representative of the news media requesters shall be charged 
for document duplication costs only, except that the first one-hundred 
(100) pages of paper copies shall be provided without charge; and
    (4) All other requesters who do not fall into any of the categories 
in paragraphs (h)(1) through (3) of this section shall be charged fees 
which recover the full reasonable direct costs incurred for searching 
for and reproducing records if that total costs exceeds $25.00, except 
that the first one-hundred (100) pages of duplication and the first two 
hours of manual search time shall not be charged.
    (i) Charges for unsuccessful searches. If the requester has been 
notified of the estimated cost of the search time and has been advised 
specifically that the requested records may not exist or may be 
withheld as exempt, fees may be charged.
    (j) Charges for other services. Although MCC is not required to 
provide special services, if it chooses to do so as a matter of 
administrative discretion, the direct costs of providing the service 
shall be charged. Examples of such services include certifying that 
records are true copies, providing multiple copies of the same 
document, or sending records by means other than first class mail.
    (k) Charging interest. MCC may charge interest on any unpaid bill 
starting on the 31st day following the date of billing the requester. 
Interest charges shall be assessed at the rate provided in 31 U.S.C. 
3717 and will accrue from the billing date until payment is received.

[[Page 35550]]

MCC shall follow the provisions of the Debt Collection Act of 1982, as 
amended, and its administrative procedures, including the use consumer 
reporting agencies, collection agencies, and offset.
    (l) Aggregating requests. The requester or a group of requesters 
may not submit multiple requests at the same time, each seeking 
portions of a document or documents solely in order to avoid payment of 
fees. When the FOIA Program Officer reasonably believes that a 
requester is attempting to divide a request into a series of requests 
to evade an assessment of fees, the FOIA Program Officer may aggregate 
such requests and charge accordingly. MCC may presume that multiple 
requests of this type made within a thirty (30) calendar day period 
have been made in order to avoid fees. For requests separated by a 
longer period, MCC will aggregate them only where there is a reasonable 
basis for determining that aggregation is warranted in view of all the 
circumstances involved. Multiple requests involving unrelated matters 
cannot be aggregated.
    (m) Advance payment of fees. (1) MCC may require an advanced 
payment of fees if the requestor previously failed to pay fees or if 
the FOIA Program Officer determines the total fee will exceed $250.00. 
When payment is required in advance of the processing of a request, the 
time limits prescribed in Sec.  1304.5 shall not be deemed to begin 
until the requester has paid the assessed fees.
    (2) In cases in which MCC requires advance payment, the request 
will not be considered received and further work will not be completed 
until the required payment is received. If the requester does not pay 
the advance payment within thirty (30) calendar days after the date of 
the fee determination, the request will be closed. Where it is 
anticipated that the cost of providing the requested record will exceed 
$25.00 but falls below $250.00 after the free duplication and search 
time has been calculated, MCC may, in its discretion may require either 
an advance deposit of the entire estimated charges or written 
confirmation of the requester's willingness to pay such charges.
    (3) Where the requester has previously failed to pay a properly 
charged FOIA fee within thirty (30) calendar days of the billing date, 
MCC may require the requester to pay the full amount due plus any 
applicable interest on that prior request, and/or require that the 
requester make an advance payment of the full amount of the anticipated 
fee before MCC begins a new request or continues to process a pending 
request or any pending appeal. If MCC has a reasonable basis to believe 
that a requester has misrepresented the requester's identity in order 
to avoid paying outstanding fees, MCC may require that the requester 
provide proof of identity.

Sec.  1304.12  Other rights and services.

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

    Dated: July 17, 2018.
Tamiko N.W. Watkins,
Chief FOIA Officer, Millennium Challenge Corporation.
[FR Doc. 2018-15950 Filed 7-26-18; 8:45 am]