44036 Federal Register / Vol. 82, No. 181 / Wednesday, September 20, 2017 / Rules and Regulations 

NATIONAL CAPITAL PLANNING 

COMMISSION 

1 CFR Part 456 and Chapter VI 

Freedom of Information Act 

Regulations 

AGENCY: National Capital Planning 

Commission. 

ACTION: Final rule. 

SUMMARY: The National Capital Planning 

Commission (NCPC or Commission) 

hereby adopts new Freedom of 

Information Act (FOIA) Regulations. 

NCPC must comply with the 

requirements of FOIA when it process 

requests for Information submitted 

pursuant to FOIA. 

DATES: This rule is effective October 20, 

2017. 

FOR FURTHER INFORMATION CONTACT: 

Anne R. Schuyler, General Counsel and 

Chief FOIA Officer, 202–482–7223, 

anne.schuyler@ncpc.gov. 

SUPPLEMENTARY INFORMATION: On June 

30, 2016, President Obama signed into 

law the FOIA Improvement Act of 2016 

(Pub. L. 114–185). The FOIA 

Improvement Act of 2016 addresses a 

range of procedural issues, including, 

among others, the requirement that 

agencies establish a minimum of 90 

days for requesters to file an 

administrative appeal; provide dispute 

resolution services at various times 

throughout the FOIA process; refrain 

from charging fees for failure to comply 

with mandated time limits; engage in 

proactive disclosure of records of 

general interest or use to the public that 

are appropriate for such disclosure; and 

apply the Department of Justice’s 

‘‘foreseeable harm’’ standard as the basis 

for withholding information pursuant to 

an exemption contained in FOIA. 

NCPC adopted updated FOIA 

regulations in February 2014. As a 

result, NCPC included many of the 

Department of Justice, Office of 

Information Policy (OIP) policies into its 

existing regulations some of which are 

now incorporated as law into the FOIA 

Improvement Act of 2016. This means 

the new FOIA Regulations (FOIA 

Regulations) required only a few 

changes to comply with the 

requirements of the FOIA Improvement 

Act of 2016. 

NCPC published its existing FOIA 

regulations under Title 1, Chapter IV, 

part 456 of the Code of Federal 

Regulations (CFR). Historically, Title 1, 

Chapter IV (Miscellaneous Agencies), 

Parts 455, 456, and 457 of the CFR 

contained NCPC regulations (Privacy, 

FOIA, and Nondiscrimination 

respectively). However, as there were no 

additional parts within Chapter IV to 

accommodate NCPC’s recently adopted 

National Environmental Policy Act 

(NEPA) Regulations, the Office of the 

Federal Register assigned NCPC a new 

Chapter—Chapter VI—within Title 1 for 

consolidation of all current and future 

NCPC regulations. As NCPC revises its 

existing regulations and prepares new 

ones, each revised and new regulation 

will be published in the next sequential 

Part of Chapter VI. The next sequential 

Part available for NCPC’s revised FOIA 

regulations is Part 602. Thus, the 

revised FOIA regulations are advertised 

as Part 602. 

I. Key Changes Incorporated Into 

NCPC’s Freedom of Information Act 

Regulations 

A. Time Limits 

The FOIA Improvement Act of 2016 

requires agencies to establish a 

minimum of 90 days for requesters to 

file an administrative appeal. NCPC’s 

FOIA regulations incorporate this 

requirement in § 602.12(a) (Appeals of 

Adverse Determinations). Section 

602.12(g) enumerates the ability to 

extend time limits for responding to a 

FOIA request (20 days) and the process 

to be followed by NCPC to extend the 

time limits. 

B. Assistance From NCPC’s FOIA Public 

Liaison and the National Archives 

Record Administration’s (NARA), Office 

of Government Information (OGIS) 

The FOIA Improvement Act of 2016 

requires agencies to advise Requesters of 

the availability of dispute resolution 

services at various times throughout the 

FOIA process. The Act provides for 

these services to be offered by an 

agency’s FOIA Public Liaison and OGIS. 

NCPC’s FOIA Regulations reference 

these services in §§ 602.5 (FOIA Request 

requirements), 602.6 (FOIA Response 

requirements), and 602.12 (Appeals of 

Adverse Determinations). 

C. Changes to Fee Structure 

The FOIA Improvement Act of 2016 

precludes the collection of fees if an 

agency fails to meet mandated FOIA 

time limits. NCPC’s FOIA regulations 

contain this limitation in § 602.13(f)(1). 

Section 602.13(f)(2) introduces a new 

fee construct contained in the FOIA 

Improvements Act of 2016 for Requests 

that generate 5000 pages of responsive 

records. 

As a general matter, the FOIA 

Regulations contain a reorganized fee 

section. The current regulations 

organize the fee section based on types 

of fees, e.g., Search, Review and 

Duplication. The new FOIA Regulations 

organize the fee section based on three 

categories of Requesters, e.g., 

Commercial Use Requesters; 

Noncommercial Scientific Institutions, 

Educational Institutions, and News 

Media Requesters; and all other 

Requesters. NCPC adopted this new 

organizational structure to improve the 

clarity of the fee section. Other than the 

reorganized structure and the two 

additions necessitated by the FOIA 

Improvements Act of 2016, the content 

of the fee section in the FOIA 

Regulations remains unchanged from 

that of the existing regulations. 

D. Standard for Release of Records 

The FOIA Improvement Act of 2016 

requires agencies to proactively disclose 

in electronic format records that have 

been requested three or more times. It 

also requires application of the 

Department of Justice’s ‘‘foreseeable 

harm’’ standard as the basis for 

withholding information pursuant to an 

exemption contained in FOIA. The 

concept of proactive disclosure is 

already contained in NCPC’s current 

regulations and is carried over in 

NCPC’s FOIA Regulations at §§ 602.2(b) 

(Policy) and 602.4(b)(10) (Information 

Available without a FOIA Request). The 

foreseeable harm standard is 

incorporated in § 602.6(c). 

E. Elimination of a Description of 

NCPC’s Organizational Structure 

NCPC’s existing regulations contain 

an entire section devoted to a 

description of the Agency’s 

organizational structure and the 

Commission’s composition (See, 1 CFR 

456.2). As this information is now 

readily available on NCPC’s Web site, 

the referenced section has been removed 

from the FOIA Regulations. As a 

consequence, the remaining sections of 

the FOIA Regulations have been 

renumbered. Moreover, the Policy 

section has been moved. It now follows 

the Purpose section (renamed from 

General Information) and proceeds the 

Definition section. This appeared to be 

a move logical organizational structure. 

II. Summary of and Response to 

Comments 

NCPC published a proposed rule 

addressing revisions to its current FOIA 

Regulations in the Federal Register on 

August 1, 2017 for a 30-day public 

comment period. The public comment 

period closed on August 31, 2017. 

NCPC received no comments on its 

proposed FOIA Regulations. 

Consequently, the proposed FOIA 

Regulations are now being advertised as 

the final FOIA Regulations. 


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Federal Register / Vol. 82, No. 181 / Wednesday, September 20, 2017 / Rules and Regulations 44037 

III. Compliance With Laws and 

Executive Orders 

Executive Orders 12866 and 13563 

By Memorandum dated October 12, 

1993 from Sally Katzen, Administrator, 

Office of Information and Regulatory 

Affairs (OIRA) to Heads of Executive 

Departments and Agencies, and 

Independent Agencies, OMB rendered 

the NCPC exempt from the requirements 

of Executive Order 12866 (See, 

Appendix A of cited Memorandum). 

Nonetheless, NCPC endeavors to adhere 

to the provisions of Executive Orders 

and developed this rule in a manner 

consistent with the requirements of 

Executive Order 13563. 

Executive Order 13771 

By virtue of its exemption from the 

requirements of EO 12866, NCPC is 

exemption from this Executive Order. 

NCPC confirmed this fact with OIRA. 

Regulatory Flexibility Act 

As required by the Regulatory 

Flexibility Act (5 U.S.C. 601 et seq.), the 

NCPC certifies that the rule will not 

have a significant economic effect on a 

substantial number of small entities. 

Small Business Regulatory Enforcement 

Fairness Act 

This is not a major rule under 5 U.S.C. 

804(2), the Small Business Regulatory 

Enforcement Fairness Act. It does not 

have an annual effect on the economy 

of $100 million or more; will not cause 

a major increase in costs for individuals, 

various levels of governments or various 

regions; and does not have a significant 

adverse effect on completion, 

employment, investment, productivity, 

innovation or the competitiveness of US 

enterprises with foreign enterprises. 

Unfunded Mandates Reform Act (2 

U.S.C. 1531 et seq.) 

A statement regarding the Unfunded 

Mandates Reform Act is not required. 

The rule neither imposes an unfunded 

mandate of more than $100 million per 

year nor imposes a significant or unique 

effect on State, local or tribal 

governments or the private sector. 

Federalism (Executive Order 13132) 

In accordance with Executive Order 

13132, the rule does not have sufficient 

federalism implications to warrant the 

preparation of a Federalism Assessment. 

The rule does not substantially and 

directly affect the relationship between 

the Federal and state governments. 

Civil Justice Reform (Executive Order 

12988) 

The General Counsel of NCPC has 

determined that the rule does not 

unduly burden the judicial system and 

meets the requirements of Executive 

Order 12988 3(a) and 3(b)(2). 

Paperwork Reduction Act 

The rule does not contain information 

collection requirements, and it does not 

require a submission to the Office of 

Management and Budget under the 

Paperwork Reduction Act. 

National Environmental Policy Act 

The rule is of an administrative 

nature, and its adoption does not 

constitute a major federal action 

significantly affecting the quality of the 

human environment. NCPC’s adoption 

of the rule will have minimal or no 

effect on the environment; impose no 

significant change to existing 

environmental conditions; and will 

have no cumulative environmental 

impacts. 

Clarity of the Regulation 

Executive Order 12866, Executive 

Order 12988, and the Presidential 

Memorandum of June 1, 1998 requires 

the NCPC to write all rules in plain 

language. NCPC maintains the rule 

meets this requirement. Those 

individuals reviewing the rule who 

believe otherwise should submit 

specific comments to the addresses 

noted above recommending revised 

language for those provisions or 

portions thereof where they believe 

compliance is lacking. 

Public Availability of Comments 

Be advised that personal information 

such as name, address, phone number, 

electronic address, or other identifying 

personal information contained in a 

comment may be made publically 

available. Individuals may ask NCPC to 

withhold the personal information in 

their comment, but there is no guarantee 

the agency can do so. 

List of Subjects in 1 CFR Parts 456 and 

602 

Freedom of information. 

For the reasons stated in the 

preamble, the National Capital Planning 

Commission amends 1 CFR Chapter IV 

and establishes 1 CFR Chapter VI to 

read as follows: 

CHAPTER IV—MISCELLANEOUS 

AGENCIES 

PART 456 [Removed] 

■ 1. Under the authority of 40 U.S.C. 

8711(a) remove part 456. 

■ 2. Establish Chapter VI, consisting of 

part 602, to read as follows: 

CHAPTER VI—NATIONAL CAPITAL 

PLANNING COMMISSION 

PART 602—NATIONAL CAPITAL 

PLANNING COMMISSION FREEDOM 

OF INFORMATION ACT REGULATIONS 

Sec. 

602.1 Purpose. 

602.2 Policy. 

602.3 Definitions. 

602.4 Information available without a FOIA 

Request. 

602.5 FOIA Request requirements. 

602.6 FOIA response requirements. 

602.7 Multi-track processing. 

602.8 Expedited processing. 

602.9 Consultations and referrals. 

602.10 Classified and Controlled 

Unclassified Information. 

602.11 Confidential Commercial 

Information. 

602.12 Appeals of Adverse Determinations. 

602.13 Fees. 

602.14 Fee waiver requirements. 

602.15 Preservation of FOIA records. 

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

§ 602.1 Purpose. 

This part contains the rules the 

National Capital Planning Commission 

(NCPC or Commission) shall follow in 

processing third party Requests for 

Records concerning the activities of the 

NCPC under the Freedom of Information 

Act (FOIA), 5 U.S.C. 552, as amended. 

Requests made by a U.S. citizen or an 

individual lawfully admitted for 

permanent residence to access his or her 

own records under the Privacy Act, 5 

U.S.C. 522a are processed under this 

part and in accordance with part 603 of 

Title 1 of the Code of Federal 

Regulations (CFR) to provide the 

greatest degree of access while 

safeguarding an individual’s personal 

privacy. Information routinely provided 

to the public as part of regular NCPC 

activity shall be provided to the public 

without regard to this part. 

§ 602.2 Policy. 

(a) It is the NCPC’s policy to facilitate 

the broadest possible availability and 

dissemination of information to the 

public through use of the NCPC’s Web 

site, www.ncpc.gov, and physical 

distribution of materials not available 

electronically. The NCPC staff shall be 

available to assist the public in 

obtaining information formally by using 

the procedures herein or informally in 

a manner not inconsistent with the rule 

set forth in this part. 

(b) To the maximum extent possible, 

the NCPC shall make available agency 

Records of interest to the public that are 

appropriate for disclosure. 

§ 602.3 Definitions. 

For purposes of this part, the 

following definitions shall apply: 


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44038 Federal Register / Vol. 82, No. 181 / Wednesday, September 20, 2017 / Rules and Regulations 

Act and FOIA mean the Freedom of 

Information Act, 5 U.S.C. 552, as 

amended. 

Adverse Determination or 

Determination shall include a 

determination to withhold, in whole or 

in part, Records requested in a FOIA 

Request; the failure to respond to all 

aspects of a Request; the determination 

to deny a request for a Fee Waiver; or 

the determination to deny a request for 

expedited processing. The term shall 

also encompass a challenge to NCPC’s 

determination that Records have not 

been described adequately, that there 

are no responsive Records, or that an 

adequate Search has been conducted. 

Agency Record or Record means any 

documentary material which is either 

created or obtained by a federal agency 

(Agency) in the transaction of Agency 

business and under Agency control. 

Agency Records may include without 

limitation books; papers; maps; charts; 

plats; plans; architectural drawings; 

photographs and microfilm; machine 

readable materials such as magnetic 

tape, computer disks and electronic data 

storage devices; electronic records 

including email messages; and 

audiovisual material such as still 

pictures, sound, and video recordings. 

This definition generally does not cover 

records of Agency staff that are created 

and maintained primarily for a staff 

member’s convenience, exempt from 

Agency creation or retention 

requirements, and withheld from 

distribution to other Agency employees 

for their official use. 

Confidential Commercial Information 

means commercial or financial 

information obtained by the NCPC from 

a Submitter that may be protected from 

disclosure under Exemption 4 of the 

FOIA. Exemption 4 of the FOIA protects 

trade secrets and commercial or 

financial information obtained from a 

person which information is privileged 

or confidential. 

Controlled Unclassified Information 

means unclassified information that 

does not meet the standards for National 

Security Classification under Executive 

Order 13536, as amended, but is 

pertinent to the national interests of the 

United States or to the important 

interests of entities outside the federal 

government, and under law or policy 

requires protection from unauthorized 

disclosure, special handling safeguards, 

or prescribed limits on exchange or 

dissemination. 

Commercial Use Request means a 

FOIA Request from or on behalf of one 

who seeks information for a use or 

purpose that furthers the commercial, 

trade, or profit interests of the Requester 

or the person on whose behalf the 

Request is made. 

Direct Costs means those 

expenditures that the NCPC incurs in 

searching for, duplicating, and 

reviewing documents to respond to a 

FOIA Request. Direct Costs include, for 

example, the salary of the employee 

performing the work (the basic rate of 

pay for the employee plus 16 percent of 

the rate to cover benefits) and the cost 

of operating duplicating machinery. 

Direct Costs do not include overhead 

expenses such as costs of space, and 

heating or lighting the facility in which 

the Records are stored. 

Duplication means the process of 

making a copy of a document necessary 

to respond to a FOIA Request in a form 

that is reasonably usable by a Requester. 

Copies can take the form of, among 

others, paper copy, audio-visual 

materials, or machine readable 

documents (i.e., computer disks or 

electronic data storage devices). 

Educational Institution means a 

preschool, a public or private 

elementary or secondary school, an 

institution of undergraduate higher 

education, an institution of graduate 

higher education, an institution of 

professional education, and an 

institution of vocational education, 

which operates a program or programs 

of scholarly research. To be classified in 

this category, a Requester must show 

that the Request is authorized by and is 

made under the auspices of a qualifying 

institution and that the records are not 

sought for a commercial use but are 

sought to further scholarly research. 

Expedited Processing means giving a 

FOIA Request priority because a 

Requester has shown a compelling need 

for the Records. 

Fee Waiver means a waiver in whole 

or in part of fees if a Requester can 

demonstrate that certain statutory 

requirements are satisfied including that 

the information is in the public interest 

and is not requested primarily for 

commercial purposes. 

FOIA Public Liaison means an NCPC 

official who is responsible for assisting 

in reducing delays, increasing 

transparency and understanding the 

status of Requests, and assisting in the 

resolution of disputes. 

FOIA Request or Request means a 

written Request made by an entity or 

member of the public for an Agency 

Record submitted via the U.S. Postal 

Service mail or other delivery means to 

include without limitation electronicmail (email) or facsimile. 

Frequently Requested Documents 

means documents that have been 

Requested at least three times under the 

FOIA. It also includes documents the 

NCPC anticipates would likely be the 

subject of multiple Requests. 

Multi-track Processing means placing 

requests in multiple tracks based on the 

amount of work or time (or both) needed 

to process the request. Simple Requests 

requiring relatively minimal work and/ 

or review are placed in one processing 

track, more complex Requests are 

placed in one or more other tracks, and 

expedited Requests are placed in a 

separate track. Requests in each track 

are processed on a first-in/first-out 

basis. 

Noncommercial Scientific Institution 

means an institution that is not operated 

for commerce, trade or profit, but is 

operated solely for the purpose of 

conducting scientific research the 

results of which are not intended to 

promote any particular product or 

industry. To be in this category, a 

Requester must show that the Request is 

authorized by and is made under the 

auspices of a qualifying institution and 

that the Records are not sought for 

commercial use but are sought to further 

scientific research. 

Privacy Act Request means, in 

accordance with NCPC’s Privacy Act 

Regulations (1 CFR part 603) a written 

(paper copy with an original signature) 

request made by an individual for 

information about himself/herself that is 

contained in a Privacy Act system of 

records. The Privacy Act applies only to 

U.S. citizens and aliens lawfully 

admitted for permanent residence such 

that only individuals satisfying these 

criteria may make Privacy Act Requests. 

Reading Room Materials means 

Records, paper or electronic, that are 

required to be made available to the 

public under 5.U.S.C. 552(a)(2) as well 

as other Records that the NCPC, at its 

discretion, makes available to the public 

for inspection and copying without 

requiring the filing of a FOIA Request. 

Representative of the News Media 

means any person or entity that gathers 

information of potential interest to a 

segment of the population, uses his/her/ 

its editorial skills to turn raw material 

into a distinct work, and distributes that 

work to an audience. News media 

entities include television or radio 

stations broadcasting to the public at 

large; publishers of periodicals that 

qualify as disseminators of news and 

make their products available for 

purchase or subscription by the general 

public; and alternative media to include 

electronic dissemination through 

telecommunication (internet) services. 

To be in this category, a Requester must 

not be seeking the Requested Records 

for a commercial use. A Freelance 

Journalist is a Representative of the 

News Media who is able to demonstrate 


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Federal Register / Vol. 82, No. 181 / Wednesday, September 20, 2017 / Rules and Regulations 44039 

a solid basis for expecting publication 

through a news organization, even 

though not actually employed by that 

news organization. A publication 

contract or past evidence of a specific 

freelance assignment from a news 

organization may indicate a solid basis 

for expecting publication. 

Requester means an entity or member 

of the public submitting a FOIA 

Request. 

Requester Category means one of the 

five categories NCPC places Requesters 

in for the purpose of determining 

whether the Requester will be charged 

for Search, Review and Duplication, and 

includes Commercial Use Requests, 

Educational Institutions, 

Noncommercial Scientific Institutions, 

Representatives of the News Media, and 

all other Requesters. 

Review means the examination of 

Records to determine whether any 

portion of the located Record is eligible 

to be withheld. It also includes 

processing any Records for disclosure, 

i.e., doing all that is necessary to excise 

the record and otherwise prepare the 

Record for release. Review does not 

include time spent resolving general 

legal or policy issues regarding the 

application of exemptions. 

Search means the process of looking 

for material, by manual or electronic 

means that is responsive to a FOIA 

Request. The term also includes pageby-page or line-by-line identification of 

material within documents. 

Submitter means any person or entity 

outside the federal government from 

whom the NCPC directly or indirectly 

obtains commercial or financial 

information. The term includes, among 

others, corporations, banks, state and 

local governments, and agencies of 

foreign governments who provide 

information to the NCPC. 

Unusual Circumstances means, for 

purposes of § 602.7(c), and only to the 

extent reasonably necessary to the 

proper processing of a particular 

Request: 

(1) The need to Search for and collect 

the Requested Agency Records from 

establishments that are separate from 

the Commission’s offices; 

(2) The need to Search for, collect and 

appropriately examine and Review a 

voluminous amount of separate and 

distinct Agency Records which are 

demanded in a single Request; or 

(3) The need for consultation with 

another Agency having a substantial 

interest in the determination of the 

FOIA Request. 

Workday means a regular Federal 

workday. It does not include Saturdays, 

Sundays, and legal public holidays. 

§ 602.4 Information available without a 

FOIA Request. 

(a) The NCPC shall maintain an 

electronic library at www.ncpc.gov that 

makes Reading Room Materials capable 

of production in electronic form 

available for public inspection and 

downloading. The NCPC shall also 

maintain an actual public reading room 

containing Reading Room Materials 

incapable of production in electronic 

form at NCPC’s offices. The actual 

reading room shall be available for use 

on Workdays during the hours of 9:00 

a.m. to 4:00 p.m. Requests for 

appointments to review Reading Room 

Materials in the actual public reading 

room should be directed to the NCPC’s 

Information Resources Specialist 

identified on the NCPC Web site 

(www.ncpc.gov). 

(b) The following types of Records 

shall be available routinely without 

resort to formal FOIA Request 

procedures unless such Records fall 

within one of the exemptions listed at 

5 U.S.C. 552(b) of the Act: 

(1) Commission agendas; 

(2) Plans and supporting 

documentation submitted by applicants 

to the Commission to include 

environmental and historic preservation 

reports prepared for a plan or project; 

(3) Executive Director’s 

Recommendations; 

(4) Commission Memoranda of 

Action; 

(5) Transcripts of Commission 

proceedings; 

(6) The Comprehensive Plan for the 

National Capital: Federal Elements and 

other plans prepared by the NCPC; 

(7) Federal Capital Improvements 

Plan for the National Capital Region 

following release of the President’s 

Budget; 

(8) Policies adopted by the 

Commission; 

(9) Correspondence between the 

Commission and the Congress, other 

federal and local government agencies, 

and the public; and 

(10) Frequently Requested 

Documents. 

§ 602.5 FOIA Request requirements. 

(a) The NCPC shall designate a Chief 

Freedom of Information Act Officer who 

shall be authorized to grant or deny any 

Request for a Record of the NCPC. 

(b) Requests for a Record or Records 

that is/are not available in the actual or 

electronic reading rooms shall be 

directed to the Chief Freedom of 

Information Act Officer. 

(c) All FOIA Requests shall be made 

in writing. If sent by U.S. mail, Requests 

should be sent to NCPC’s official 

business address contained on the 

NCPC Web site. If sent via email, they 

should be directed to FOIA@ncpc.gov. 

To expedite internal handling of FOIA 

Requests, the words Freedom of 

Information Act Request shall appear 

prominently on the transmittal envelope 

or the subject line of a Request sent via 

email or facsimile. 

(d) The FOIA Request shall: 

(1) State that the Request is made 

pursuant to the FOIA; 

(2) Describe the Agency Record(s) 

Requested in sufficient detail including, 

without limitation, any specific 

information known such as date, title or 

name, author, recipient, or time frame 

for which you are seeking Records, to 

enable the NCPC personnel to locate the 

Requested Agency Records; 

(3) State, pursuant to the fee schedule 

set forth in § 602.14, a willingness to 

pay all fees associated with the FOIA 

Request or the maximum fee the 

Requester is willing to pay to obtain the 

Requested Records, unless the Requester 

is seeking a Fee Waiver or placement in 

a certain Requester Category; 

(4) State, if desired, the preferred form 

or format of disclosure of Agency 

Records with which the NCPC shall 

endeavor to comply unless compliance 

would damage or destroy an original 

Agency Record or reproduction is costly 

and/or requires the acquisition of new 

equipment; and 

(5) Provide a phone number, email 

address or mailing address at which the 

Requester can be reached to facilitate 

the handling of the Request. 

(e) If a FOIA Request is unclear, 

overly broad, involves an extremely 

voluminous amount of Records or a 

burdensome Search, or fails to state a 

willingness to pay the requisite fees or 

the maximum fee which the Requester 

is willing to pay, the NCPC shall 

endeavor to contact the Requester to 

define the subject matter, identify and 

clarify the Records being sought, narrow 

the scope of the Request, and obtain 

assurances regarding payment of fees. 

The timeframe for a response set forth 

in § 602.6(a) shall be tolled (stopped 

temporarily) and the NCPC will not 

begin processing a Request until the 

NCPC obtains the information necessary 

to clarify the Request and/or clarifies 

issues pertaining to the fee. 

(f) NCPC shall designate a FOIA 

Public Liaison to assist a Requester in 

making a Request or to assist a 

Requester in correcting a Request that 

does not reasonably describe the 

Records sought or to correct other 

deficiencies described in paragraph (e) 

of this section that necessitate follow-up 

with the Requester. 


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44040 Federal Register / Vol. 82, No. 181 / Wednesday, September 20, 2017 / Rules and Regulations 

§ 602.6 FOIA response requirements. 

(a) The Freedom of Information Act 

Officer, upon receipt of a FOIA Request 

made in compliance with these rules, 

shall determine whether to grant or 

deny the Request. The Freedom of 

Information Officer shall notify the 

Requester in writing within 20 

Workdays of receipt of a perfected 

Request of his/her determination and 

the reasons therefore and of the right to 

appeal any Adverse Determination to 

the head of the NCPC. 

(b) In cases involving Unusual 

Circumstances, the agency may extend 

the 20 Workday time limit by written 

notice to the Requester. The written 

notice shall set forth the reasons for the 

extension and the date on which a 

determination is expected to be 

dispatched. No such notice shall specify 

a date that would result in an extension 

of more than 10 Working Days unless 

the agency affords the Requester an 

opportunity to modify his/her Request 

or arranges an alternative timeframe 

with the Requester for completion of the 

NCPC’s processing. The agency shall 

also advise the Requester of his/her 

right to seek assistance from the FOIA 

Public Liaison or OGIS to resolve time 

limit disputes arising under this 

paragraph. 

(c) NCPC shall deny a Request based 

on an exemption contained in the FOIA 

and withhold information from 

disclosure pursuant to an exemption 

only if NCPC reasonably foresees that 

disclosure would harm an interest 

protected by an exemption or if 

disclosure is prohibited by law. If a 

Request is denied based on an 

exemption, NCPC’s response shall 

comply with the requirements of 

paragraph (d) below. 

(d) If a Request is denied in whole or 

in part, the Chief FOIA Officer’s written 

determination shall include, if 

technically feasible, the precise amount 

of information withheld, and the 

exemption under which it is being 

withheld unless revealing the 

exemption would harm an interested 

protected by the exemption. NCPC shall 

release any portion of a withheld Record 

that reasonably can be segregated from 

the exempt portion of the Record. 

§ 602.7 Multi-track processing. 

The NCPC may use multiple tracks for 

processing FOIA Requests based on the 

complexity of Requests and those for 

which expedited processing is 

Requested. Complexity shall be 

determined based on the amount of 

work and/or time needed to process a 

Request and/or the number of pages of 

responsive Records. If the NCPC utilizes 

Multi-track Processing, it shall advise a 

Requester when a Request is placed in 

a slower track of the limits associated 

with a faster track and afford the 

Requester the opportunity to limit the 

scope of its Request to qualify for faster 

processing. 

§ 602.8 Expedited processing. 

(a) The NCPC shall provide Expedited 

Processing of a FOIA Request if the 

person making the Request 

demonstrates that the Request involves: 

(1) Circumstances in which the lack of 

expedited treatment could reasonably be 

expected to pose an imminent threat to 

the life or physical safety of an 

individual; 

(2) An urgency to inform the public 

about an actual or alleged federal 

government activity, if made by a 

person primarily engaged in 

disseminating information; 

(3) The loss of substantial due process 

rights; or 

(4) A matter of widespread and 

exceptional media interest in which 

there exists possible questions about the 

government’s integrity which affect 

public confidence. 

(b) A Request for Expedited 

Processing may be made at the time of 

the initial FOIA Request or at a later 

time. 

(c) A Requester seeking Expedited 

Processing must submit a detailed 

statement setting forth the basis for the 

Expedited Processing Request. The 

Requester must certify in the statement 

that the need for Expedited Processing 

is true and correct to the best of his/her 

knowledge. To qualify for Expedited 

Processing, a Requester relying upon the 

category in paragraph (a)(2) of this 

section must establish: 

(1) He/She is a full time 

Representative of the News Media or 

primarily engaged in the occupation of 

information dissemination, though it 

need not be his/her sole occupation; 

(2) A particular urgency to inform the 

public about the information sought by 

the FOIA Request beyond the public’s 

right to know about the government 

activity generally; and 

(3) The information is of the type that 

has value that will be lost if not 

disseminated quickly such as a breaking 

news story. Information of historical 

interest only or information sought for 

litigation or commercial activities will 

not qualify nor would a news media 

deadline unrelated to breaking news. 

(d) Within 10 calendar days of receipt 

of a Request for expedited processing, 

the NCPC shall decide whether to grant 

or deny the Request and notify the 

Requester of the decision in writing. If 

a Request for Expedited Processing is 

granted, the Request shall be given 

priority and shall be processed in the 

expedited processing track as fast as 

practicable. If a Request for Expedited 

Processing is denied, any appeal of that 

decision shall be acted on 

expeditiously. 

§ 602.9 Consultations and referrals. 

(a) If a Requester seeks a Record in 

which another agency of the Federal 

Government is better able to determine 

whether the record is exempt from 

disclosure under the FOIA, NCPC shall 

either respond to the FOIA Request after 

consultation with the Agency best able 

to determine if the Requested Record(s) 

is/are subject to disclosure or refer the 

responsibility for responding to the 

FOIA Request to the Agency responsible 

for originating the Record(s). Generally, 

the Agency originating a Record will be 

presumed by the NCPC to be the Agency 

best qualified to render a decision 

regarding disclosure or exemption 

except for Agency Records submitted to 

the NCPC pursuant to its authority to 

review Agency plans and/or projects. 

(b) Upon referral of Records to 

another Agency, the NCPC shall notify 

the Requester in writing of the referral, 

inform the Requester of the name of the 

Agency to which all or part of the 

responsive records have been referred, 

provide the Requester a description of 

the part of the Request referred, and 

advise the Requester of a point of 

contact within the receiving Agency. 

(c) The timeframe for a response to a 

FOIA Request requiring consultation or 

referral shall be based on the date the 

FOIA Request was initially received by 

the NCPC and not any later date. 

§ 602.10 Classified and Controlled 

Unclassified Information. 

(a) For Requests for an Agency Record 

that has been classified or may be 

appropriate for classification by another 

Agency pursuant to an Executive Order 

concerning the classification of Records, 

the NCPC shall refer the responsibility 

for responding to the FOIA Request to 

the Agency that either classified the 

Record, should consider classifying the 

Record, or has primary interest in the 

Record, as appropriate. 

(b) Whenever a Request is made for a 

Record that is designated Controlled 

Unclassified Information by another 

Agency, the NCPC shall refer the FOIA 

Request to the Agency that designated 

the Record as Controlled Unclassified 

Information. Decisions to disclose or 

withhold information designated as 

Controlled Unclassified Information 

shall be made based on the applicability 

of the statutory exemptions contained in 

the FOIA, not on a Controlled 


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Unclassified Information marking or 

designation. 

§ 602.11 Confidential Commercial 

Information. 

(a) Confidential Commercial 

Information obtained by the NCPC from 

a Submitter shall be disclosed under the 

FOIA only in accordance with the 

requirements of this section. 

(b) A Submitter of Confidential 

Commercial Information shall use goodfaith efforts to designate, by appropriate 

markings, either at the time of 

submission or at a reasonable time 

thereafter, any portions of its 

submission that it considers to be 

protected from disclosure under 

Exemption 4 of the FOIA. These 

designations will expire ten years after 

the date of the submission unless the 

Submitter requests, and provides 

justification for, a longer designation 

period. 

(c) Notice shall be given to a 

Submitter of a FOIA Request for 

potential Confidential Commercial 

Information if: 

(1) The requested information has 

been designated in good faith by the 

Submitter as Confidential Commercial 

Information eligible for protection from 

disclosure under Exemption 4 of the 

FOIA; or 

(2) The NCPC has reason to believe 

the requested information is 

Confidential Commercial Information 

protected from disclosure under 

Exemption 4 of the FOIA. 

(d) Subject to the requirements of 

paragraphs (c) and (g) of this section, the 

NCPC shall provide a Submitter with 

prompt written notice of a FOIA 

Request or administrative appeal that 

seeks the Submitter’s Confidential 

Commercial Information. The notice 

shall give the Submitter an opportunity 

to object to disclosure of any specified 

portion of that Confidential Commercial 

Information pursuant to paragraph (e) of 

this section. The notice shall either 

describe the Confidential Commercial 

Information Requested or include copies 

of the Requested Records or portions 

thereof containing the Confidential 

Commercial Information. When notice 

to a large number of Submitters is 

required, NCPC may provide 

notification by posting or publishing the 

notice in a place reasonably likely to 

accomplish the intent of the notice 

requirement such as a newspaper, 

newsletter, the NCPC Web site, or the 

Federal Register. 

(e) The NCPC shall allow a Submitter 

a reasonable time to respond to the 

notice described in paragraph (d) of this 

section and shall specify within the 

notice the time period for response. If a 

Submitter has any objection to 

disclosure, it shall submit a detailed 

written statement. The statement must 

specify all grounds for withholding any 

portion of the Confidential Commercial 

Information under any exemption of the 

FOIA and, in the case of Exemption 4, 

it must show why the Confidential 

Commercial Information is a trade secret 

or commercial or financial information 

that is privileged or confidential. If the 

Submitter fails to respond to the notice 

within the specified time, the NCPC 

shall consider this failure to respond as 

no objection to disclosure of the 

Confidential Commercial Information 

on the part of the Submitter, and NCPC 

shall proceed to release the requested 

information. A statement provided by 

the Submitter that is not received by 

NCPC until after the NCPC’s disclosure 

decision has been made shall not be 

considered by the NCPC. Information 

provided by a Submitter under this 

paragraph may itself be subject to 

disclosure under the FOIA. 

(f) The NCPC shall consider a 

Submitter’s objections and specific 

grounds for nondisclosure in deciding 

whether to disclose Confidential 

Commercial Information. Whenever the 

NCPC decides to disclose Confidential 

Commercial Information over the 

objection of a Submitter, the NCPC shall 

give the Submitter written notice, which 

shall include: 

(1) A statement of the reason(s) why 

each of the Submitter’s disclosure 

objections was not sustained; 

(2) A description of the Confidential 

Commercial Information to be disclosed; 

and 

(3) A specified disclosure date, which 

shall be a reasonable time subsequent to 

the notice. 

(g) The notice requirements of 

paragraphs (c) and (d) of this section 

shall not apply if: 

(1) The NCPC determines that the 

Confidential Commercial Information is 

exempt under FOIA; 

(2) The Confidential Commercial 

Information has been published 

lawfully or has been officially made 

available to the public; 

(3) The Confidential Commercial 

Information’s disclosure is required by 

statute (other than the FOIA) or by a 

regulation issued in accordance with the 

requirements of Executive Order 12600 

(Predisclosure Notification Procedures 

for Confidential Commercial 

Information); or 

(4) The designation made by the 

Submitter under paragraph (b) of this 

section appears obviously frivolous in 

which case the NCPC shall, within a 

reasonable time prior to a specified 

disclosure date, give the Submitter 

written notice of any final decision to 

disclose the Confidential Commercial 

Information. 

(h) Whenever a Requester files a 

lawsuit seeking to compel the disclosure 

of Confidential Commercial 

Information, the NCPC shall promptly 

notify the Submitter. 

(i) Whenever the NCPC provides a 

Submitter with notice and an 

opportunity to object to disclosure 

under paragraph (d) of this section, the 

NCPC shall also notify the Requester. 

Whenever the NCPC notifies a 

Submitter of its intent to disclose 

Requested Information under paragraph 

(f) of this section, the NCPC shall also 

notify the Requester. Whenever a 

Submitter files a lawsuit seeking to 

prevent the disclosure of Confidential 

Commercial Information, the NCPC 

shall notify the Requester. 

§ 602.12 Appeals of Adverse 

Determinations. 

(a) An appeal of an Adverse 

Determination shall be made in writing 

to the Chairman of the Commission 

(Chairman). An appeal may be 

submitted via U.S. mail or other type of 

manual delivery service or via email or 

facsimile within 90 Workdays of the 

date of a notice of an Adverse 

Determination. To facilitate handling of 

an appeal, the words Freedom of 

Information Act Appeal shall appear 

prominently on the transmittal envelope 

or the subject line of a Request sent via 

electronic-mail or facsimile. 

(b) An appeal of an Adverse 

Determination shall include a detailed 

statement of the legal, factual or other 

basis for the Requester’s objections to an 

Adverse Determination; a daytime 

phone number or email address where 

the Requester can be reached if the 

NCPC requires additional information or 

clarification regarding the appeal; 

copies of the initial Request and the 

NCPC’s written response; and for an 

Adverse Determination of a Request for 

Expedited Processing or a Fee Waiver, a 

demonstration of compliance with the 

requirements of §§ 602.8(a) and (c) or 

602.15(a) through (c) respectively. 

(c) The Chairman shall respond to an 

appeal of an Adverse Determination in 

writing within 20 Workdays of receipt. 

(1) If the Chairman grants the appeal, 

the Chairman shall notify the Requester, 

and the NCPC shall make available 

copies of the Requested Records 

promptly thereafter upon receipt of the 

appropriate fee determined in 

accordance with § 602.13. 

(2) If the Chairman denies the appeal 

in whole or in part, the letter to the 

Requester shall state 


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(i) The reason(s) for the denial, 

including the FOIA exemptions(s) 

applied; 

(ii) A statement that the decision is 

final; 

(iii) A notice of the Requester’s right 

to seek judicial review of the denial in 

the District Court of the United States in 

either the locale in which the Requester 

resides, the locale in which the 

Requester has his/her principal place of 

business, or in the District of Columbia; 

and 

(iv) A notice that the Requester may 

seek dispute resolution services from 

either the NCPC FOIA Public Liaison or 

the Office of Government Information 

Services (OGIS) to resolve disputes 

between a Requester and the NCPC as a 

non-exclusive alternative to litigation. 

Contact information for OGIS can be 

obtained from the OGIS Web site at 

ogis@nara.gov. 

(d) The NCPC shall not act on an 

appeal of an Adverse Determination if 

the underlying FOIA Request becomes 

the subject of FOIA litigation. 

(e) A party seeking court review of an 

Adverse Determination must first appeal 

the decision under this section to NCPC. 

§ 602.13 Fees. 

(a) NCPC shall charge fees for 

processing FOIA requests in accordance 

with the provisions of this section and 

OMB Guidelines. 

(b) For purposes of assessing fees, 

NCPC shall categorize Requesters into 

three categories: Commercial Use 

Requesters; Noncommercial Scientific 

Institutions, Educational Institutions, 

and News Media Requesters; and all 

other Requesters. Different fees shall be 

charged depending upon the category 

into which a Requester falls. If fees 

apply, a Requesters may seek a fee 

waiver in accordance with the 

requirements of § 602.15. 

(c) Search Fees shall be charged as 

follows: 

(1) NCPC shall not charge Search fees 

to Requests made by Educational 

Institutions, Noncommercial Scientific 

Institutions, or Representatives of the 

New Media. NCPC shall charge Search 

fees to all other Requesters subject to the 

restrictions of paragraph (f)(5) of this 

section even if NCPC fails to locate any 

responsive Records or if the NCPC 

withholds Records located based on a 

FOIA exemption. 

(2) For each quarter hour spent by 

personnel searching for Requested 

Records, including electronic searches 

that do not require new programming, 

the Search fees shall be calculated based 

on the average hourly General Schedule 

(GS) base salary, plus the District of 

Columbia locality payment, plus 16 

percent for benefits of employees in the 

following three categories: Staff 

Assistant (assigned at the GS 9–11 

grades); Professional Personnel 

(assigned at the GS 11–13 grades); and 

Managerial Staff (assigned at the 14–15 

grades). For a Staff Assistant the quarter 

hour fee to Search for and retrieve a 

Requested Record shall be $9.00. If a 

Search and retrieval cannot be 

performed entirely by a Staff Assistant, 

and the identification of Records within 

the scope of a Request requires the use 

of Professional Personnel, the fee shall 

be $12.00 for each quarter hour of 

Search time spent by Professional 

Personnel. If the time of Managerial 

Personnel is required, the fee shall be 

$18.00 for each quarter hour of Search 

time spent by Managerial Personnel. 

(3) For a computer Search of Records, 

Requesters shall be charged the Direct 

Costs of creating a computer program, if 

necessary, and/or conducting the 

Search. Direct Costs for a computer 

Search shall include the cost that is 

directly attributable to the Search for 

responsive Records and the costs of the 

operator’s salary for the time 

attributable to the Search. 

(d) Duplication fees shall be charged 

to all Requesters, subject to the 

limitations of paragraph (f)(5) of this 

section. For a paper photocopy of a 

Record (no more than one copy of 

which shall be supplied), the fee shall 

be 10 cents per page for single or double 

sided copies, 90 cents per page for 81⁄2

by 11 inch color copies, and $1.50 per 

page for color copies up to 11 x 17 

inches per page. For copies produced by 

computer, and placed on an electronic 

data saving device or provided as a 

printout, the NCPC shall charge the 

Direct Costs, including operator time, of 

producing the copy. For other forms of 

Duplication, the NCPC shall charge the 

Direct Costs of that Duplication. 

(e) Review fees shall be charged to 

only those Requesters who make a 

Commercial Use Request. Review fees 

will be charged only for the NCPC 

initial Review of a Record to determine 

whether an exemption applies to a 

particular Record or portion thereof. No 

charge will be made for Review at the 

administrative appeal level for an 

exemption already applied. However, 

Records or portions thereof withheld 

under an exemption that is 

subsequently determined not applicable 

upon appeal may be reviewed again to 

determine whether any other exemption 

not previously considered applies. If the 

NCPC determines a different exemption 

applies, the costs of that Review are 

chargeable. Review fees will be charged 

at the same rates as those charged for a 

Search under paragraph (c)(2) of this 

section. 

(f) The following limitations on fees 

shall apply: 

(1) If NCPC fails to comply with the 

time limits in which to respond to a 

request, NCPC shall not charge Search 

fees or, in the case of Educational 

Institutions, Noncommercial Scientific 

Institutions, or Representatives of the 

News Media, duplication fees, except as 

described in paragraphs (f)(2)–(4) of this 

section. 

(2) If NCPC 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 10 days. 

(3) If NCPC determines that Unusual 

Circumstances exist, and more than 

5000 pages of responsive records are 

necessary to respond to the Request, 

NCPC may charge Search fees. NCPC 

may also charge duplication fees in the 

case of Educational Institutions, 

Noncommercial Scientific Institutions, 

or Representatives of the News Media. 

The provisions of this paragraph shall 

only apply if NCPC provides timely 

written notice of the Unusual 

Circumstances to the Requester and 

discusses with the Requester via mail, email or phone (or made at least three 

good faith efforts to do so) how to 

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. 

(5) No Search or Review fees shall be 

charged for a quarter-hour period unless 

more than half of that period is required 

for Search or Review. 

(6) Except for Requesters of a 

Commercial Use Request, the NCPC 

shall provide without charge the first 

two hours of Search (or the cost 

equivalent) and the first 100 pages of 

Duplication (or the cost equivalent); 

(7) Except for Requesters of a 

Commercial Use Request, no fee shall be 

charged for a Request if the total fee 

calculated under this section equals 

$50.00 or less. 

(8) Requesters other than those 

making a Commercial Use Request shall 

not be charged a fee unless the total cost 

of a Search in excess of two hours plus 

the cost of Duplication in excess of 100 

pages totals more than $50.00. 

(g) If the NCPC determines or 

estimates fees in excess of $50.00, the 

NCPC shall notify the Requester of the 

actual or estimated amount of total fees, 


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unless in its initial Request the 

Requester has indicated a willingness to 

pay fees as high as those determined or 

estimated. If only a portion of the fee 

can be estimated, the NCPC shall advise 

the Requester that the estimated fee 

constitutes only a portion of the total 

fee. If the NCPC notifies a Requester that 

actual or estimated fees amount to more 

than $50.00, the Request shall not be 

considered received for purposes of 

calculating the timeframe for a 

Response, and no further work shall be 

undertaken on the Request until the 

Requester agrees to pay the anticipated 

total fee. Any such agreement shall be 

memorialized in writing. A notice under 

this paragraph shall offer the Requester 

an opportunity to work with the NCPC 

to reformulate the Request to meet the 

Requester’s needs at a lower cost. 

(h) Apart from other provisions of this 

section, if the Requester asks for, or the 

NCPC chooses as a matter of 

administrative discretion to provide a 

special service—such as certifying that 

Records are true copies or sending them 

by other than ordinary mail, the actual 

costs of special service shall be charged. 

(i) The NCPC shall charge interest on 

any unpaid fee starting on the 31st day 

following the date of billing the 

Requester. Interest charges will be 

assessed at the rate provided in 31 

U.S.C. 3717 (Interest and Penalty on 

Claims) and will accrue from the date of 

the billing until payment is received by 

the NCPC. The NCPC shall follow the 

provisions of the Debt Collection Act of 

1982 (Pub. L. 97–365, 96 Stat. 1749), as 

amended, and its administrative 

procedures, including the use of 

consumer reporting agencies, collection 

agencies, and offset. 

(j) Where the NCPC reasonably 

believes that one or more Requesters are 

acting in concert to subdivide a Request 

into a series of Requests to avoid fees, 

the NCPC may aggregate the Requests 

and charge accordingly. The NCPC shall 

presume that multiple Requests of this 

type made within a 30-day period have 

been made to avoid fees. Where 

Requests are separated by a time period 

in excess of 30 days, the NCPC shall 

aggregate the multiple Requests if a 

solid basis exists for determining 

aggregation is warranted under all 

circumstances involved. 

(k) Advance payments shall be treated 

as follows: 

(1) For Requests other than those 

described in paragraphs (k)(2) and (3) of 

this section, the NCPC shall not require 

an advance payment. An advance 

payment refers to a payment made 

before work on a Request is begun or 

continued after being stopped for any 

reason but does not extend to payment 

owed for work already completed but 

not sent to a Requester. 

(2) If the NCPC determines or 

estimates a total fee under this section 

of more than $250.00, it shall require an 

advance payment of all or part of the 

anticipated fee before beginning to 

process a Request, unless the Requester 

provides satisfactory assurance of full 

payment or has a history of prompt 

payment. 

(3) If a Requester previously failed to 

pay a properly charged FOIA fee to the 

NCPC within 30 days of the date of 

billing, the NCPC shall require the 

Requester to pay the full amount due, 

plus any applicable interest, and to 

make an advance payment of the full 

amount of any anticipated fee, before 

the NCPC begins to process a new 

Request or continues processing a 

pending Request from that Requester. 

(4) If the NCPC requires advance 

payment or payment due under 

paragraphs (k)(2) or (3) of this section, 

the Request shall not be considered 

received and no further work will be 

undertaken on the Request until the 

required payment is received. 

(l) Where Records responsive to 

Requests are maintained for distribution 

by Agencies operating statutorily based 

fee schedule programs, the NCPC shall 

inform Requesters of the steps for 

obtaining Records from those sources so 

that they may do so most economically. 

(m) All fees shall be paid by personal 

check, money order or bank draft drawn 

on a bank of the United States, made 

payable to the order of the Treasurer of 

the United States. 

§ 602.15 Fee waiver requirements. 

(a) Records responsive to a Request 

shall be furnished without charge or at 

a charge reduced below that established 

under § 602.14 if the Requester 

demonstrates to the NCPC, and the 

NCPC determines, based on all available 

information, that Disclosure of the 

Requested information is in the public 

interest because it is likely to contribute 

significantly to public understanding of 

the operations or activities of the 

government, and disclosure of the 

information is not primarily in the 

commercial interest of the Requester. 

(b) To determine if disclosure of the 

Requested information is in the public 

interest because it is likely to contribute 

significantly to public understanding of 

the operations or activities of the 

government, the Requester shall 

demonstrate, and NCPC shall consider, 

the following factors: 

(1) Whether the subject of the 

Requested Records concerns the 

operations or activities of the 

government. The subject of the 

Requested Records must concern 

identifiable operations or activities of 

the federal government, with a 

connection that is direct and clear, not 

remote or attenuated. 

(2) Whether the disclosure is likely to 

contribute to an understanding of 

government operations or activities. The 

portions of the Requested Records 

eligible for disclosure must be 

meaningfully informative about 

government operations or activities. The 

disclosure of information that already is 

in the public domain, in either a 

duplicative or a substantially identical 

form, is not likely to contribute to an 

understanding of government operations 

and activities because this information 

is already known. 

(3) Whether disclosure of the 

Requested information will contribute 

to public understanding. The disclosure 

must contribute to the understanding of 

a reasonably broad audience of persons 

interested in the subject, as opposed to 

the individual understanding of the 

Requester. A Requester’s expertise in 

the subject area and ability and 

intention to effectively convey 

information to the public shall be 

considered. It shall be presumed that a 

Representative of the News Media 

satisfies this consideration. 

(4) Whether the disclosure is likely to 

contribute significantly to public 

understanding of government operations 

or activities. The public’s understanding 

of the subject in question must be 

enhanced by the disclosure to a 

significant extent, as compared to the 

level of public understanding existing 

prior to the disclosure. The NCPC shall 

not make value judgments about 

whether information that would 

contribute significantly to public 

understanding of the operations or 

activities of the government is important 

enough to be made public. 

(c) To determine whether disclosure 

of the information is not primarily in 

the commercial interest of the 

Requester, the Requester shall 

demonstrate, and NCPC shall consider, 

the following factors: 

(1) Whether the Requester has a 

commercial interest that would be 

furthered by the Requested disclosure. 

The NCPC shall consider any 

commercial interest of the Requester 

(with reference to the definition of 

Commercial Use Request in § 602.3(f)), 

or of any person on whose behalf the 

Requester may be acting, that would be 

furthered by the Requested disclosure. 

Requesters shall be given an 

opportunity in the administrative 

process to provide explanatory 

information regarding this 

consideration. 


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(2) Whether any identified 

commercial interest of the Requester is 

sufficiently large in comparison with 

the public interest in disclosure that 

disclosure is primarily in the 

commercial interest of the Requester. A 

Fee Waiver is justified where the public 

interest standard of paragraph (b) of this 

section is satisfied and that public 

interest is greater in magnitude than that 

of any identified commercial interest in 

disclosure. The NCPC ordinarily shall 

presume that a Representative of the 

News Media satisfies the public interest 

standard, and the public interest will be 

the interest primarily served by 

disclosure to that Requester. Disclosure 

to data brokers or others who merely 

compile and market government 

information for direct economic return 

shall not be presumed to primarily serve 

the public interest. 

(d) Where only some of the Records 

to be released satisfy the requirements 

for a Fee Waiver, a Fee Waiver shall be 

granted for those Records. 

(e) Requests for a Fee Waiver should 

address the factors listed in paragraphs 

(a) through (c) of this section, insofar as 

they apply to each Request. The NCPC 

shall exercise its discretion to consider 

the cost-effectiveness of its investment 

of administrative resources in this 

decision-making process in deciding to 

grant Fee Waivers. 

§ 602.15 Preservation of FOIA records. 

(a) The NCPC shall preserve all 

correspondence pertaining to FOIA 

Requests received and copies or Records 

provided until disposition or 

destruction is authorized by the NCPC’s 

General Records schedule established in 

accordance with the National Archives 

and Records Administration (NARA) 

approved schedule. 

(b) Materials that are responsive to a 

FOIA Request shall not be disposed of 

or destroyed while the Request or a 

related lawsuit is pending even if the 

Records would otherwise be authorized 

for disposition under the NCPC’s 

General Records Schedule or NARA or 

other NARA-approved records schedule. 

Dated: September 14, 2017. 

Anne R. Schuyler, 

General Counsel. 

[FR Doc. 2017–19997 Filed 9–19–17; 8:45 am] 

BILLING CODE 7502–20–P 

NATIONAL CAPITAL PLANNING 

COMMISSION 

1 CFR Parts 455 and 603 

Privacy Act Regulations 

AGENCY: National Capital Planning 

Commission. 

ACTION: Final rule. 

SUMMARY: The National Capital Planning 

Commission (NCPC or Commission) 

hereby adopts new regulations 

governing NCPC’s implementation of 

the Privacy Act, as amended and the 

privacy provisions of the E-Government 

Act of 2002. NCPC must comply with 

the requirements of the Privacy Act and 

the privacy provisions of the EGovernment Act of 2002 for records 

maintained on individuals and personal 

information stored as a hard copy or 

electronically. 

DATES: This rule is effective October 20, 

2017. 

FOR FURTHER INFORMATION CONTACT: 

Anne R. Schuyler, General Counsel at 

202–482–7223, anne.schuyler@

ncpc.gov. 

SUPPLEMENTARY INFORMATION: NCPC 

adopted its current Privacy Regulations 

(1 CFR part 455) in 1977 pursuant to 5 

U.S.C. 552a. Since that time, Congress 

amended the Privacy Act multiple times 

including the E-Government Act of 2002 

which addressed requirements for 

maintaining electronic privacy records. 

The regulations update NCPC’s existing 

Privacy Regulations to reflect 

amendments over time. The Office of 

the Federal Register recently assigned 

NCPC a new chapter of 1 CFR—Chapter 

VI—to allow NCPC to group all its 

regulations together in one chapter. 

NCPC eliminates its Privacy 

Regulations at 1 CFR part 455 and 

codifies the new Privacy Regulations at 

1 CFR part 603. 

I. Section by Section Analysis of 

NCPC’s Privacy Act Regulations 

§ 603.1 Purpose and scope. This 

section advises the purpose of the 

regulations is to implement a privacy 

program consistent with the 

requirements of the Privacy Act and the 

privacy related provision of the EGovernment Act of 2002. As stated in 

the section, NCPC’s privacy program 

extends to all Records maintained by 

NCPC in a System of Records; the 

responsibilities of NCPC to safeguard 

this information; the procedures by 

which Individuals may request 

notification of the existence of a Record 

about them, access to Records about 

them, an amendment to or correction of 

the Records about them, and an 

accounting of disclosures of those 

Records by the NCPC; the procedures by 

which an Individual may appeal an 

Adverse Determination, and the conduct 

of a Privacy Impact Assessment. 

§ 603.2 Definitions. This section 

defines terms frequently used in the 

regulations. The section includes the 

five terms defined in the existing 

regulations—Individual, Maintain, 

Record, Routine Use and System of 

Records. It adds the definitions for the 

following terms: Adverse 

Determination, E-Government Act of 

2002, Information in Identifiable Form 

(IIF), Information Technology, Privacy 

Act Officer (PAO), Privacy Act, Privacy 

Impact Assessment (PIA), Record, 

Requester, Request for Access to a 

Record, Request for Amendment or 

Correction of a Record, Senior Agency 

Official for Privacy (SAOP), System of 

Records Notice (SORN), and Workday. 

§ 603.3 Privacy Act program 

responsibilities. This section requires 

NCPC to designate a SAOP and a PAO 

and outlines the responsibilities 

associated with both positions. It also 

enumerates the Privacy Act 

responsibilities of other NCPC 

personnel. 

§ 603.4 Standards used to Maintain 

Records. This section establishes the 

standards NCPC must follow regarding 

privacy information. The section 

requires NCPC to limit private 

information to only that necessary to 

achieve the purposes for which it is 

collected and stored; to ensure all 

information collected is accurate, 

relevant, timely, and complete; and to 

collect privacy information regarding an 

Individual’s rights, benefits and 

privileges under federal programs from 

the Individual to the maximum extent 

possible subject to collection from third 

parties in certain circumstances. 

§ 603.5 Notice to Individuals 

supplying information. This section 

enumerates the information NCPC must 

provide Individuals who are asked to 

supply information about themselves. 

The required information enumerated 

includes the purpose for which NCPC 

intends to use the information; the 

effects upon an Individual for not 

providing the information; and the form 

of notice NCPC must supply in response 

to an Individual’s provision of 

information. 

§ 603.6 System of Records (SOR) 

Notice (SORN). This section requires 

NCPC to publish a notice in the Federal 

Register describing each SOR 40-days 

before establishing a new or revising an 

existing SOR. The section requires the 

SORN to include the purpose of the 

Records and their location; the types of 

Individuals contained in the SOR; the 


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