Revision of Freedom of Information Act Regulation, 3619-3623 [2017-00178]
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Federal Register / Vol. 82, No. 8 / Thursday, January 12, 2017 / Rules and Regulations
devices has serious public health
implications.
(b) Classification. Class II (special
controls). The special controls for this
device are:
(1) The device’s sensitivity and
specificity performance characteristics
or positive percent agreement and
negative percent agreement, for each
specimen type claimed in the intended
use of the device, must meet one of the
following two minimum clinical
performance criteria:
(i) For devices evaluated as compared
to an FDA-cleared nucleic acid basedtest or other currently appropriate and
FDA accepted comparator method other
than correctly performed viral culture
method:
(A) The positive percent agreement
estimate for the device when testing for
influenza A and influenza B must be at
the point estimate of at least 80 percent
with a lower bound of the 95 percent
confidence interval that is greater than
or equal to 70 percent.
(B) The negative percent agreement
estimate for the device when testing for
influenza A and influenza B must be at
the point estimate of at least 95 percent
with a lower bound of the 95 percent
confidence interval that is greater than
or equal to 90 percent.
(ii) For devices evaluated as compared
to correctly performed viral culture
method as the comparator method:
(A) The sensitivity estimate for the
device when testing for influenza A
must be at the point estimate of at least
90 percent with a lower bound of the 95
percent confidence interval that is
greater than or equal to 80 percent. The
sensitivity estimate for the device when
testing for influenza B must be at the
point estimate of at least 80 percent
with a lower bound of the 95 percent
confidence interval that is greater than
or equal to 70 percent.
(B) The specificity estimate for the
device when testing for influenza A and
influenza B must be at the point
estimate of at least 95 percent with a
lower bound of the 95 percent
confidence interval that is greater than
or equal to 90 percent.
(2) When performing testing to
demonstrate the device meets the
requirements in paragraph (b)(1) of this
section, a currently appropriate and
FDA accepted comparator method must
be used to establish assay performance
in clinical studies.
(3) Annual analytical reactivity testing
of the device must be performed with
contemporary influenza strains. This
annual analytical reactivity testing must
meet the following criteria:
(i) The appropriate strains to be tested
will be identified by FDA in
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consultation with the Centers for
Disease Control and Prevention (CDC)
and sourced from CDC or an FDAdesignated source. If the annual strains
are not available from CDC, FDA will
identify an alternative source for
obtaining the requisite strains.
(ii) The testing must be conducted
according to a standardized protocol
considered and determined by FDA to
be acceptable and appropriate.
(iii) By July 31 of each calendar year,
the results of the last 3 years of annual
analytical reactivity testing must be
included as part of the device’s labeling.
If a device has not been on the market
long enough for 3 years of annual
analytical reactivity testing to have been
conducted since the device received
marketing authorization from FDA, then
the results of every annual analytical
reactivity testing since the device
received marketing authorization from
FDA must be included. The results must
be presented as part of the device’s
labeling in a tabular format, which
includes the detailed information for
each virus tested as described in the
certificate of authentication, either by:
(A) Placing the results directly in the
device’s § 809.10(b) of this chapter
compliant labeling that physically
accompanies the device in a separate
section of the labeling where the
analytical reactivity testing data can be
found; or
(B) In the device’s label or in other
labeling that physically accompanies
the device, prominently providing a
hyperlink to the manufacturer’s public
Web site where the analytical reactivity
testing data can be found. The
manufacturer’s home page, as well as
the primary part of the manufacturer’s
Web site that discusses the device, must
provide a prominently placed hyperlink
to the Web page containing this
information and must allow unrestricted
viewing access.
(4) If one of the actions listed at
section 564(b)(1)(A)–(D) of the Federal
Food, Drug, and Cosmetic Act occurs
with respect to an influenza viral strain,
or if the Secretary of Health and Human
Services (HHS) determines, under
section 319(a) of the Public Health
Service Act, that a disease or disorder
presents a public health emergency, or
that a public health emergency
otherwise exists, with respect to an
influenza viral strain:
(i) Within 30 days from the date that
FDA notifies manufacturers that
characterized viral samples are available
for test evaluation, the manufacturer
must have testing performed on the
device with those viral samples in
accordance with a standardized protocol
considered and determined by FDA to
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3619
be acceptable and appropriate. The
procedure and location of testing may
depend on the nature of the emerging
virus.
(ii) Within 60 days from the date that
FDA notifies manufacturers that
characterized viral samples are available
for test evaluation and continuing until
3 years from that date, the results of the
influenza emergency analytical
reactivity testing, including the detailed
information for the virus tested as
described in the certificate of
authentication, must be included as part
of the device’s labeling in a tabular
format, either by:
(A) Placing the results directly in the
device’s § 809.10(b) of this chapter
compliant labeling that physically
accompanies the device in a separate
section of the labeling where analytical
reactivity testing data can be found, but
separate from the annual analytical
reactivity testing results; or
(B) In a section of the device’s label
or in other labeling that physically
accompanies the device, prominently
providing a hyperlink to the
manufacturer’s public Web site where
the analytical reactivity testing data can
be found. The manufacturer’s home
page, as well as the primary part of the
manufacturer’s Web site that discusses
the device, must provide a prominently
placed hyperlink to the Web page
containing this information and must
allow unrestricted viewing access.
Dated: January 4, 2017.
Leslie Kux,
Associate Commissioner for Policy.
[FR Doc. 2017–00199 Filed 1–11–17; 8:45 am]
BILLING CODE 4164–01–P
DEPARTMENT OF HOUSING AND
URBAN DEVELOPMENT
24 CFR Part 15
[Docket No. FR–5986–F–01]
RIN 2501–AD81
Revision of Freedom of Information
Act Regulation
Office of the Secretary, HUD.
Final rule.
AGENCY:
ACTION:
This final rule amends HUD’s
Freedom of Information Act (FOIA)
regulation to implement the FOIA
Improvement Act of 2016. The FOIA
Improvement Act enacted a range of
procedural issues, including
requirements that agencies establish a
minimum of 90 days for requesters to
file an administrative appeal, and
codifies the foreseeable harm standard.
SUMMARY:
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Federal Register / Vol. 82, No. 8 / Thursday, January 12, 2017 / Rules and Regulations
In addition, this final rule revises a
section of HUD’s FOIA regulations to
more accurately reflect statutory
language.
DATES: Effective Date: February 13,
2017.
FOR FURTHER INFORMATION CONTACT:
Helen Foster, Deputy Chief
Administrative Officer, Office of
Administration, Department of Housing
and Urban Development, 451 7th Street
SW., Room 10139, Washington, DC
20410–0500, telephone number 202–
402–2671 (this is not a toll-free
number). Hearing- or speech-impaired
individuals may access this number via
TTY by calling the toll-free Federal
Relay Service at telephone number 1–
800–877–8339.
SUPPLEMENTARY INFORMATION:
I. Background
On June 30, 2016, the President
signed into law the FOIA Improvement
Act of 2016 (2016 Act) (Pub. L. 114–185,
130 Stat. 538), which contains several
substantive and procedural amendments
to the Freedom of Information Act
(FOIA). The 2016 Act addresses a range
of procedural issues, including
requirements that agencies establish a
minimum of 90 days for requesters to
file an administrative appeal, and that
agencies provide dispute resolution
services at various times throughout the
FOIA process. The 2016 Act also
codifies a ‘‘foreseeable harm’’ standard,
amends Exemption 5 to the FOIA,
creates a new Chief FOIA Officer
Council within the Executive Branch,
and adds two new elements to agency
Annual FOIA Reports. The amendments
apply to any request made after the date
of enactment, which was June 30, 2016.
Section 3 of the 2016 Act requires
agencies to review and issue updated
regulations on procedures for the
disclosure of records under the FOIA, in
accordance with the amendments made
by the 2016 Act, within 180 days of
enactment. Accordingly, HUD revises its
FOIA regulation to incorporate changes
enacted by the 2016 Act.
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II. Changes Made in This Final Rule
The following is an overview of the
changes made in this final rule.
Section 15.101 Proactive Disclosures
of Department Records
The 2016 Act requires agencies to
‘‘make available for public inspection in
an electronic format’’ records that,
because of their subject matter, the
agency determines ‘‘have become or are
likely to become the subject of
subsequent requests for substantially the
same records,’’ or that have been
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requested 3 or more times. In response,
HUD is amending §§ 15.101(a) and
15.101(b)(7) to comply with this
requirement. The revisions mirror the
language from the 2016 Act.
The 2016 Act also adds agency
reporting requirements for agencies’
annual FOIA reports. The 2016 Act
requires that a report covering the
preceding fiscal year is to be submitted
to the Attorney General of the United
States and to the Director of the Office
of Government Information Services
(OGIS). The raw statistical data used in
each report must be made available
without charge, license, or registration
requirement; in an aggregated,
searchable format, and in a format that
may be downloaded in bulk. Both the
report and the raw statistical data used
in the report must be made available for
public inspection in an electronic
format. In response to this requirement,
HUD is adding § 15.101(b)(8) in
conformance with these new reporting
requirements.
Section 15.103 Timing of Responses to
Requests
When a FOIA request involves
‘‘unusual circumstances,’’ agencies have
long been required to provide written
notice to the requester, and in those
instances where an extension of time of
more than ten working days is specified,
agencies have been required to provide
the requester with an opportunity to
limit the scope of the request so that it
can be processed more quickly or to
arrange an alternative time to respond.
The 2016 Act adds an additional
requirement when unusual
circumstances exist. Specifically,
whenever agencies extend the time
limits by more than ten additional
working days, in the written notice to
the requester they must notify the
requester of their right to seek dispute
resolution services from the OGIS. To
address this requirement, HUD is
revising § 15.103(c) to incorporate the
change enacted by the 2016 Act.
HUD is also using this final rule to
update several specific provisions of
§ 15.103 to more accurately reflect the
statutory language in 5 U.S.C.
552(a)(6)(A)(i). First, HUD is revising
§ 15.103(a) to state that HUD will
generally ‘‘make a determination
whether to comply with a FOIA request
within 20 working days.’’ Second, HUD
is revising § 15.103(c), which addresses
when HUD may extend the time periods
for processing a FOIA request, to
remove the sentence that limited
extensions to 10 working days. HUD is
removing this language as inconsistent
with the plain reading of the statute, the
logic of the rest of the language in
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§ 15.103(c), and Department of Justice
guidance. Finally, in accordance with 5
U.S.C. 552(a)(6)(B)(ii), HUD has updated
§ 15.103(c) to include the provision that
HUD shall make available its FOIA
Public Liaison, who shall assist in the
resolution of any disputes between the
requester and HUD.
Section 15.105 Responses to Requests
When an agency makes a
determination regarding whether to
comply with a FOIA request, the 2016
Act provides that the agency is required
to immediately notify the requester of
such determination and the reasons
therefore, and also notify the requester
that they have a right to seek assistance
from the agency’s FOIA Public Liaison.
For adverse determinations, the 2016
Act requires that agencies afford the
requester no less than 90 days from the
date of the adverse determination on the
request to file an appeal. In addition, the
2016 Act requires that agencies notify
the requester that they may seek dispute
resolution services from the FOIA
Public Liaison or from OGIS.
Consistent with this requirement,
HUD has revised § 15.105(d) to provide
that, once HUD makes a determination
regarding compliance within the time
line provided in § 15.103(a), HUD will
immediately notify the requester of such
determination, the reasons therefore,
and their right to seek assistance from
the FOIA Public Liaison.
For adverse determinations, HUD has
added § 15.105(d)(2)(iv) to provide that
HUD will notify the requester of their
right to file an appeal no less than 90
days after the date of receiving the
adverse determination. Finally,
§ 15.105(d)(2)(v) has been added to
provide that HUD will notify the
requester of their right to seek dispute
resolution services from the FOIA
Public Liaison or from OGIS.
Section 15.106 Fees
The 2016 Act contains several new
provisions regarding agencies’ ability to
assess search and duplication fees. First,
the 2016 Act provides that an agency
shall not assess any search fees, or in
some cases, duplication fees, if the
agency has failed to comply with any
time limit described in § 15.103, with
limited exceptions. Second, if an agency
determines that unusual circumstances
apply to the processing of a FOIA
request, and the agency has provided
timely written notice to the requester,
then a delayed response time is excused
for an additional ten days; if the agency
fails to comply with the extended time
limit, it may not charge search fees, or,
in some cases, duplication fees, with
limited exceptions. Third, the 2016 Act
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provides an exception allowing agencies
to charge search fees, or in some cases,
duplication fees, if unusual
circumstances apply, more than 5,000
pages are necessary to respond to the
request, timely written notice has been
made to the requester, and the agency
has discussed with the requester via
written mail, electronic mail, or
telephone (or made not less than 3 goodfaith attempts to do so) how the
requester could effectively limit the
scope of the request. Fourth, the 2016
Act maintains that if a court determines
that ‘‘exceptional circumstances’’ exist,
as defined in 5 U.S.C. 552(a)(6)(C), the
agency’s failure to comply with a time
limit ‘‘shall be excused for the length of
time provided by the court order.’’
In accordance with the first change,
HUD is updating § 15.106(d) to provide
that HUD will not assess search fees or,
for requesters that are educational or
noncommercial scientific institutions or
representatives of the news media
requesting records not sought for
commercial use, duplication fees, if it
fails to comply with the extended time
limits as described in § 15.103. To
comply with the second change, HUD is
adding § 15.106(d)(5) to grant HUD an
additional ten days when unusual
circumstances apply and timely written
notice has been provided to the
requester and to terminate HUD’s ability
to assess search fees or duplication fees,
as applicable, if HUD does not comply
with the additional ten days. Regarding
the third change, HUD is adding
§ 15.106(d)(6) to allow HUD to charge
search fees when unusual circumstances
apply and more than 5,000 pages are
necessary to respond to the FOIA
request. Regarding the fourth
amendment, HUD is adding
§ 15.106(d)(7)(i) to excuse a failure to
comply with any time limit if a court
determines that exceptional
circumstances exist; and
§ 15.106(d)(7)(ii), which provides the
definition of ‘‘exceptional
circumstances’’ as defined in 5 U.S.C.
552(a)(6)(C), has also been added for
clarifying purposes.
Section 15.107 Documents Generally
Protected From Disclosure
The 2016 Act requires that agencies
withhold information under FOIA ‘‘only
if the agency reasonably foresees that
disclosure would harm an interest
protected by an exemption’’ or if
disclosure is prohibited by law. The
2016 Act further directs agencies to
consider whether partial disclosure of
information is possible whenever the
agency determines that a full disclosure
of a requested record is not possible,
and to take reasonable steps necessary
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to segregate and release nonexempt
information. The 2016 Act does not
require disclosure of information that is
otherwise prohibited from disclosure by
law, or otherwise exempted from
disclosure under Exemption 3.
Consistent with these changes, HUD
is restructuring § 15.107 and adding
paragraph (a) to provide that HUD shall
withhold information only if it is
reasonably foreseeable that disclosure
would harm an interest protected by an
exemption, or if disclosure is prohibited
by law. Paragraph (a) also emphasizes
that HUD will consider whether partial
disclosure of information is possible if
it determines that a full disclosure of a
requested record is not possible, and
that HUD will take reasonable steps
necessary to segregate and release
nonexempt information.
In addition, the 2016 Act sunsets the
deliberative process privilege, as
protected from disclosure under
Exemption 5 of the FOIA. Specifically,
the 2016 Act amends Exemption 5 to
provide that the deliberative process
privilege does not apply to records
created 25 years or more before the date
on which the records were requested. In
accordance with the 2016 Act, HUD is
revising § 15.107(b)(5) to state that the
deliberative process privilege ‘‘shall not
apply to records created 25 years or
more before the date on which the
records were requested.’’
III. Justification for Final Rulemaking
In general, HUD publishes a rule for
public comment before issuing a rule for
effect, in accordance with HUD’s
regulations on rulemaking at 24 CFR
part 10. Part 10, however, provides in
§ 10.1 for exceptions from that general
rule where HUD finds good cause to
omit advance notice and public
participation. The good cause
requirement is satisfied when the prior
public procedure is ‘‘impracticable,
unnecessary or contrary to the public
interest.’’
HUD finds that good cause exists to
publish this rule for effect without first
soliciting public comment because prior
public comment is unnecessary. This
final rule follows the statutory directive
in Section 3 of the 2016 Act, which
requires agencies to review and issue
updated regulations on procedures for
the disclosure of records under the
FOIA, in accordance with the
amendments made by the 2016 Act,
within 180 days of enactment. The 2016
Act codifies a number of transparency
and openness principles and enacts a
number of procedural requirements,
including requiring that agencies
establish a minimum of 90 days for
requesters to file an administrative
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appeal and that they provide dispute
resolution services at various times
throughout the FOIA process. This final
rule reflects the changes required by the
2016 Act. Finally, the rule revises
provisions § 15.103 to more accurately
reflect the statutory language in 5 U.S.C.
552(a)(6)(A)(i).
IV. Findings and Certifications
Executive Order 12866 and Executive
Order 13563
Executive Orders 12866 and 13563
direct agencies to assess all costs and
benefits of available regulatory
alternatives and, if the regulation is
necessary, to select the regulatory
approach that maximizes net benefits.
Because this final rule incorporates
changes enacted by the 2016 Act, this
rule was determined to not be a
significant regulatory action under
section 3(f) of Executive Order 12866,
Regulatory Planning and Review, and
therefore was not reviewed by OMB.
Environmental Impact
This rule is categorically excluded
from environmental review under the
National Environmental Policy Act (42
U.S.C. 4321). The revision of the FOIArelated provisions of 24 CFR part 15
falls within the exclusion provided by
24 CFR 50.19(c)(1), in that it does not
direct, provide for assistance or loan
and mortgage insurance for, or
otherwise govern or regulate, real
property acquisition, disposition,
leasing, rehabilitation, alteration,
demolition, or new construction, or
establish, revise, or provide for
standards for construction or
construction materials, manufactured
housing, or occupancy.
Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA)
(5 U.S.C. 601 et seq.) generally requires
an agency to conduct a regulatory
flexibility analysis of any rule subject to
notice and comment rulemaking
requirements, unless the agency certifies
that the rule will not have a significant
economic impact on a substantial
number of small entities. This final rule
establishes procedures by which HUD
will respond to requests for information
under FOIA. Costs assessed by HUD for
search, review, and duplication required
to process the information requested by
a requester are limited by FOIA to direct
costs and are not significant.
Accordingly, the undersigned certifies
that this rule will not have a significant
economic impact on a substantial
number of small entities.
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Executive Order 13132, Federalism
Executive Order 13132 (entitled
‘‘Federalism’’) prohibits an agency from
publishing any rule that has federalism
implications if the rule either imposes
substantial direct compliance costs on
state and local governments and is not
required by statute, or the rule preempts
state law, unless the agency meets the
consultation and funding requirements
of section 6 of the Executive Order. This
final rule does not have federalism
implications and does not impose
substantial direct compliance costs on
state and local governments or preempt
state law within the meaning of the
Executive Order.
Unfunded Mandates
Title II of the Unfunded Mandates
Reform Act of 1995 (2 U.S.C. 1531–
1538) establishes requirements for
federal agencies to assess the effects of
their regulatory actions on state, local,
and tribal governments, and on the
private sector. This final rule does not
impose any federal mandates on any
state, local, or tribal governments, or on
the private sector, within the meaning of
the Unfunded Mandates Reform Act of
1995.
List of Subjects in 24 CFR Part 15
Classified information, Courts,
Freedom of information, Government
employees, Reporting and
recordkeeping requirements.
For the reasons stated in the
preamble, HUD amends 24 CFR part 15
as follows:
PART 15—PUBLIC ACCESS TO HUD
RECORDS UNDER THE FREEDOM OF
INFORMATION ACT AND TESTIMONY
AND PRODUCTION OF INFORMATION
BY HUD EMPLOYEES
1. The authority for 24 CFR part 15 is
revised to read as follows:
■
Authority: 42 U.S.C. 3535(d), 5 U.S.C. 552.
2. Amend § 15.101 by removing in
paragraph (a) ‘‘and copying’’ and adding
in its place ‘‘in an electronic format’’,
and by adding paragraphs (b)(7) and
(b)(8), to read as follows:
■
§ 15.101 Proactive disclosures of
departmental records.
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(b) * * *
(7) Copies of all records, regardless of
form or format that have been released
to any person under § 15.105; and
(i) Because of the nature of their
subject matter, the agency determines
that the records have become or are
likely to become the subject of
subsequent requests for substantially the
same records; or
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(ii) Have been requested three or more
times.
(8) Report for the preceding fiscal year
submitted to the U.S. Attorney General
and the Director of the Office of
Government Information Services
(OGIS) as required by 5 U.S.C. 552(e)
and the raw statistical data used in each
report. This report will be made
available:
(i) Without charge, license, or
registration requirement;
(ii) In an aggregated, searchable
format; and
(iii) In a format that may be
downloaded in bulk.
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■ 3. In § 15.103, amend paragraph (a) by
removing ‘‘respond to’’ and adding in its
place ‘‘make a determination whether to
comply with’’, and revise paragraph (c)
introductory text, to read as follows:
§ 15.103
Timing of responses to requests.
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(c) Extension of time periods for
processing a request. In unusual
circumstances, as defined in this
paragraph, HUD may extend the time
period for processing a FOIA request. In
such circumstances, HUD will provide
the requester with written notice setting
forth the unusual circumstances for the
extension and the date on which a
determination is expected to be
dispatched. If processing a request
would require more than 10 working
days beyond the general time limit
established in paragraph (a) of this
section, HUD will offer the requester an
opportunity to limit the scope of the
request so that HUD may process it
within the extra 10-day working period
or arrange an alternative time period
within which the FOIA request will be
processed. To aid the requester, HUD
shall make available its FOIA Public
Liaison, who shall assist in the
resolution of any disputes between the
requester and HUD, and notify the
requester of the right of the requester to
seek dispute resolution services from
the Office of Government Information
Services. For purposes of this section,
unusual circumstances include:
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§ 15.104
[Amended]
4. Amend paragraph (b) by adding
‘‘the’’ between ‘‘contacting’’ and
‘‘FOIA’’.
■ 5. Amend § 15.105 as follows:
■ a. Add paragraph (d) introductory
text;
■ b. In paragraph (d)(1) remove ‘‘Once’’
and replace it with ‘‘If ’’.
■ c. Redesignate paragraph (d)(2)(iv) as
(d)(2)(vi); and
■
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d. Add paragraphs (d)(2)(iv) and (v).
Revisions and additions to read as
follows:
■
§ 15.105
Responses to requests.
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(d) Forms of response. Once HUD
makes a determination regarding
whether to comply with a request
pursuant to time limits established in
§ 15.103(a), HUD shall immediately
notify the requester of such
determination and the reasons therefor,
and the requester’s right to seek
assistance from the FOIA Public
Liaison.
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(2) * * *
(iv) Notice of the right of the requester
to appeal to the head of the agency,
within a period determined by the head
of the agency that is not less than 90
days after the date of such adverse
determination; and
(v) Notice of the right of the requester
to seek dispute resolution services from
the FOIA Public Liaison of the agency
or the Office of Government Information
Services; and
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■ 6. In § 15.106 revise paragraph (d)(1)
and add paragraphs (d)(5), (6) and (7) to
read as follows:
§ 15.106
Fees.
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(d) Restrictions on charging fees. (1)
No search fee will be charged for
requests by educational institutions,
noncommercial scientific institutions,
or representatives of the news media. In
addition, except as provided in
paragraphs (d)(5), (d)(6), and (d)(7) of
this section, HUD shall not assess any
search fees (or, for requesters that are
educational institutions, noncommercial
scientific institutions or representatives
of the news media requesting records
not sought for commercial use,
duplication fees) if HUD has failed to
comply with any time limit described in
§ 15.103.
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(5) If HUD determines that unusual
circumstances apply and HUD provides
timely written notice to the requester
pursuant to requirements provided in
§ 15.103(c), a failure to comply with any
time limit as described in § 15.103 is
excused for an additional 10 days. If
HUD fails to comply with the extended
time limit, HUD may not assess any
search fees (or for requesters that are
educational or noncommercial scientific
institutions or representatives of the
news media requesting records not
sought for commercial use, duplication
fees).
E:\FR\FM\12JAR1.SGM
12JAR1
Federal Register / Vol. 82, No. 8 / Thursday, January 12, 2017 / Rules and Regulations
(6) If unusual circumstances apply
and more than 5000 pages are necessary
to respond to the request, HUD may
charge search fees or, for requesters that
are educational or noncommercial
scientific institutions or representatives
of the news media requesting records
not sought for commercial use,
duplication fees, if timely written notice
has been made to the requester pursuant
to requirements provided in § 15.103(c)
and HUD has discussed with the
requester through written mail,
electronic mail, or telephone (or made
not less than 3 good-faith attempts to do
so) how the requester could effectively
limit the scope of the request as
stipulated in § 15.103(c).
(7)(i) If a court has determined that
exceptional circumstances exist, a
failure to comply with any time limit as
described in § 15.103 shall be excused
for the length of time provided by the
court order.
(ii) For purposes of this section, the
term ‘‘exceptional circumstances’’ does
not include a delay that results from a
predictable workload of requests, unless
HUD demonstrates reasonable progress
in reducing its backlog of pending
requests. However, refusal by the
requester to reasonably modify the
scope of a request or arrange an
alternative time frame for processing a
request (or a modified request) after
HUD gives them an opportunity to do so
shall be considered a factor in
determining whether exceptional
circumstances exist.
*
*
*
*
*
■ 7. Amend § 15.107 as follows:
■ a. Remove paragraph (b);
■ b. Redesignate the introductory text as
new paragraph (b);
■ c. Revise paragraph (a);
■ d. Redesignate paragraphs (c) through
(i) as (b)(1) through (b)(9), respectively,
and
■ e. Revise redesignated paragraph
(b)(5);
Revisions and addition to read as
follows:
mstockstill on DSK3G9T082PROD with RULES
§ 15.107 Documents generally protected
from disclosure.
(a) HUD shall withhold information
only if HUD reasonably foresees that
disclosure would harm an interest
protected by an exemption as provided
in paragraph (b) of this section, or
disclosure is prohibited by law. HUD
will consider whether partial disclosure
of information is possible whenever
HUD determines that a full disclosure of
a requested record is not possible, and
will take reasonable steps necessary to
segregate and release nonexempt
information. Nothing in this section
requires disclosure of information that
VerDate Sep<11>2014
17:27 Jan 11, 2017
Jkt 241001
is otherwise prohibited from disclosure
by law, or otherwise exempted from
disclosure as provided in paragraph
(b)(3) of this section.
*
*
*
*
*
(b) * * *
(5) Certain interagency or intraagency communications. Exemption 5
(5 U.S.C. 552(b)(5)) protects interagency
or intra-agency communications that are
protected by legal privileges, such as the
attorney-client privilege, attorney workproduct privilege, or communications
reflecting the agency’s deliberative
process. The deliberative process
privilege shall not apply to records
created 25 years or more before the date
on which the records were requested.
*
*
*
*
*
Dated: December 27, 2016.
Nani A. Coloretti,
Deputy Secretary.
3623
Washington, DC 20410; telephone
number 202–708–1793 (this is not a tollfree number). Persons with hearing or
speech impairments may access this
number through TTY by calling the tollfree Federal Relay Service at 800–877–
8339.
SUPPLEMENTARY INFORMATION: In the
final rule FR Doc. 2016–30708,
published in the Federal Register on
December 20, 2016 (81 FR 92626), the
following correction is made:
§ 891.20
[Corrected]
On page 92638, in the third column,
in § 891.20, paragraphs (f)(a) through (c)
are redesignated as paragraphs (f)(1)
through (3).
Dated: January 4, 2017.
Aaron Santa Anna,
Assistant General Counsel for Regulations.
[FR Doc. 2017–00167 Filed 1–11–17; 8:45 am]
[FR Doc. 2017–00178 Filed 1–11–17; 8:45 am]
BILLING CODE 4210–67–P
BILLING CODE 4210–67–P
DEPARTMENT OF HOUSING AND
URBAN DEVELOPMENT
24 CFR Part 891
RIN 2501–AD75
Narrowing the Digital Divide Through
Installation of Broadband
Infrastructure in HUD-Funded New
Construction and Substantial
Rehabilitation of Multifamily Rental
Housing; Correction
Office of General Counsel,
HUD.
ACTION:
Final rule; correction.
On December 20, 2016, HUD
published a final rule requiring the
installation of broadband infrastructure
at the time of new construction or
substantial rehabilitation of multifamily
rental housing that is funded or
supported by HUD, the point at which
such installation is generally easier and
less costly than when undertaken as a
stand-alone effort. This document
corrects incorrect paragraph
designations in one section of the
regulatory text. The effective date for
HUD’s final rule of January 19, 2017 is
unchanged.
DATES: Effective January 19, 2017.
FOR FURTHER INFORMATION CONTACT:
With respect to this supplementary
document, contact Ariel Periera,
Associate General Counsel for
Legislation and Regulations, Department
of Housing and Urban Development,
451 7th Street SW., Room 10238,
SUMMARY:
PO 00000
Frm 00023
Fmt 4700
Sfmt 4700
Department of the Navy
32 CFR Part 706
[Docket No. FR 5890–C–03]
AGENCY:
DEPARTMENT OF DEFENSE
Certifications and Exemptions Under
the International Regulations for
Preventing Collisions at Sea, 1972
Department of the Navy, DoD.
Final rule.
AGENCY:
ACTION:
The Department of the Navy
(DoN) is amending its certifications and
exemptions under the International
Regulations for Preventing Collisions at
Sea, 1972 (72 COLREGS), to reflect that
the Deputy Assistant Judge Advocate
General (DAJAG) (Admiralty and
Maritime Law) has determined that USS
OMAHA (LCS 12) is a vessel of the
Navy which, due to its special
construction and purpose, cannot fully
comply with certain provisions of the 72
COLREGS without interfering with its
special function as a naval ship. The
intended effect of this rule is to warn
mariners in waters where 72 COLREGS
apply.
DATES: This rule is effective January 12,
2017 and is applicable beginning
December 12, 2016.
FOR FURTHER INFORMATION CONTACT:
Commander Theron R. Korsak, JAGC,
U.S. Navy, Admiralty Attorney,
(Admiralty and Maritime Law), Office of
the Judge Advocate General, Department
of the Navy, 1322 Patterson Ave. SE.,
Suite 3000, Washington Navy Yard, DC
20374–5066, telephone number: 202–
685–5040.
SUMMARY:
E:\FR\FM\12JAR1.SGM
12JAR1
]]>Agencies
[Federal Register Volume 82, Number 8 (Thursday, January 12, 2017)]
[Rules and Regulations]
[Pages 3619-3623]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-00178]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
24 CFR Part 15
[Docket No. FR-5986-F-01]
RIN 2501-AD81
Revision of Freedom of Information Act Regulation
AGENCY: Office of the Secretary, HUD.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This final rule amends HUD's Freedom of Information Act (FOIA)
regulation to implement the FOIA Improvement Act of 2016. The FOIA
Improvement Act enacted a range of procedural issues, including
requirements that agencies establish a minimum of 90 days for
requesters to file an administrative appeal, and codifies the
foreseeable harm standard.
[[Page 3620]]
In addition, this final rule revises a section of HUD's FOIA
regulations to more accurately reflect statutory language.
DATES: Effective Date: February 13, 2017.
FOR FURTHER INFORMATION CONTACT: Helen Foster, Deputy Chief
Administrative Officer, Office of Administration, Department of Housing
and Urban Development, 451 7th Street SW., Room 10139, Washington, DC
20410-0500, telephone number 202-402-2671 (this is not a toll-free
number). Hearing- or speech-impaired individuals may access this number
via TTY by calling the toll-free Federal Relay Service at telephone
number 1-800-877-8339.
SUPPLEMENTARY INFORMATION:
I. Background
On June 30, 2016, the President signed into law the FOIA
Improvement Act of 2016 (2016 Act) (Pub. L. 114-185, 130 Stat. 538),
which contains several substantive and procedural amendments to the
Freedom of Information Act (FOIA). The 2016 Act addresses a range of
procedural issues, including requirements that agencies establish a
minimum of 90 days for requesters to file an administrative appeal, and
that agencies provide dispute resolution services at various times
throughout the FOIA process. The 2016 Act also codifies a ``foreseeable
harm'' standard, amends Exemption 5 to the FOIA, creates a new Chief
FOIA Officer Council within the Executive Branch, and adds two new
elements to agency Annual FOIA Reports. The amendments apply to any
request made after the date of enactment, which was June 30, 2016.
Section 3 of the 2016 Act requires agencies to review and issue
updated regulations on procedures for the disclosure of records under
the FOIA, in accordance with the amendments made by the 2016 Act,
within 180 days of enactment. Accordingly, HUD revises its FOIA
regulation to incorporate changes enacted by the 2016 Act.
II. Changes Made in This Final Rule
The following is an overview of the changes made in this final
rule.
Section 15.101 Proactive Disclosures of Department Records
The 2016 Act requires agencies to ``make available for public
inspection in an electronic format'' records that, because of their
subject matter, the agency determines ``have become or are likely to
become the subject of subsequent requests for substantially the same
records,'' or that have been requested 3 or more times. In response,
HUD is amending Sec. Sec. 15.101(a) and 15.101(b)(7) to comply with
this requirement. The revisions mirror the language from the 2016 Act.
The 2016 Act also adds agency reporting requirements for agencies'
annual FOIA reports. The 2016 Act requires that a report covering the
preceding fiscal year is to be submitted to the Attorney General of the
United States and to the Director of the Office of Government
Information Services (OGIS). The raw statistical data used in each
report must be made available without charge, license, or registration
requirement; in an aggregated, searchable format, and in a format that
may be downloaded in bulk. Both the report and the raw statistical data
used in the report must be made available for public inspection in an
electronic format. In response to this requirement, HUD is adding Sec.
15.101(b)(8) in conformance with these new reporting requirements.
Section 15.103 Timing of Responses to Requests
When a FOIA request involves ``unusual circumstances,'' agencies
have long been required to provide written notice to the requester, and
in those instances where an extension of time of more than ten working
days is specified, agencies have been required to provide the requester
with an opportunity to limit the scope of the request so that it can be
processed more quickly or to arrange an alternative time to respond.
The 2016 Act adds an additional requirement when unusual circumstances
exist. Specifically, whenever agencies extend the time limits by more
than ten additional working days, in the written notice to the
requester they must notify the requester of their right to seek dispute
resolution services from the OGIS. To address this requirement, HUD is
revising Sec. 15.103(c) to incorporate the change enacted by the 2016
Act.
HUD is also using this final rule to update several specific
provisions of Sec. 15.103 to more accurately reflect the statutory
language in 5 U.S.C. 552(a)(6)(A)(i). First, HUD is revising Sec.
15.103(a) to state that HUD will generally ``make a determination
whether to comply with a FOIA request within 20 working days.'' Second,
HUD is revising Sec. 15.103(c), which addresses when HUD may extend
the time periods for processing a FOIA request, to remove the sentence
that limited extensions to 10 working days. HUD is removing this
language as inconsistent with the plain reading of the statute, the
logic of the rest of the language in Sec. 15.103(c), and Department of
Justice guidance. Finally, in accordance with 5 U.S.C.
552(a)(6)(B)(ii), HUD has updated Sec. 15.103(c) to include the
provision that HUD shall make available its FOIA Public Liaison, who
shall assist in the resolution of any disputes between the requester
and HUD.
Section 15.105 Responses to Requests
When an agency makes a determination regarding whether to comply
with a FOIA request, the 2016 Act provides that the agency is required
to immediately notify the requester of such determination and the
reasons therefore, and also notify the requester that they have a right
to seek assistance from the agency's FOIA Public Liaison. For adverse
determinations, the 2016 Act requires that agencies afford the
requester no less than 90 days from the date of the adverse
determination on the request to file an appeal. In addition, the 2016
Act requires that agencies notify the requester that they may seek
dispute resolution services from the FOIA Public Liaison or from OGIS.
Consistent with this requirement, HUD has revised Sec. 15.105(d)
to provide that, once HUD makes a determination regarding compliance
within the time line provided in Sec. 15.103(a), HUD will immediately
notify the requester of such determination, the reasons therefore, and
their right to seek assistance from the FOIA Public Liaison.
For adverse determinations, HUD has added Sec. 15.105(d)(2)(iv) to
provide that HUD will notify the requester of their right to file an
appeal no less than 90 days after the date of receiving the adverse
determination. Finally, Sec. 15.105(d)(2)(v) has been added to provide
that HUD will notify the requester of their right to seek dispute
resolution services from the FOIA Public Liaison or from OGIS.
Section 15.106 Fees
The 2016 Act contains several new provisions regarding agencies'
ability to assess search and duplication fees. First, the 2016 Act
provides that an agency shall not assess any search fees, or in some
cases, duplication fees, if the agency has failed to comply with any
time limit described in Sec. 15.103, with limited exceptions. Second,
if an agency determines that unusual circumstances apply to the
processing of a FOIA request, and the agency has provided timely
written notice to the requester, then a delayed response time is
excused for an additional ten days; if the agency fails to comply with
the extended time limit, it may not charge search fees, or, in some
cases, duplication fees, with limited exceptions. Third, the 2016 Act
[[Page 3621]]
provides an exception allowing agencies to charge search fees, or in
some cases, duplication fees, if unusual circumstances apply, more than
5,000 pages are necessary to respond to the request, timely written
notice has been made to the requester, and the agency has discussed
with the requester via written mail, electronic mail, or telephone (or
made not less than 3 good-faith attempts to do so) how the requester
could effectively limit the scope of the request. Fourth, the 2016 Act
maintains that if a court determines that ``exceptional circumstances''
exist, as defined in 5 U.S.C. 552(a)(6)(C), the agency's failure to
comply with a time limit ``shall be excused for the length of time
provided by the court order.''
In accordance with the first change, HUD is updating Sec.
15.106(d) to provide that HUD will not assess search fees or, for
requesters that are educational or noncommercial scientific
institutions or representatives of the news media requesting records
not sought for commercial use, duplication fees, if it fails to comply
with the extended time limits as described in Sec. 15.103. To comply
with the second change, HUD is adding Sec. 15.106(d)(5) to grant HUD
an additional ten days when unusual circumstances apply and timely
written notice has been provided to the requester and to terminate
HUD's ability to assess search fees or duplication fees, as applicable,
if HUD does not comply with the additional ten days. Regarding the
third change, HUD is adding Sec. 15.106(d)(6) to allow HUD to charge
search fees when unusual circumstances apply and more than 5,000 pages
are necessary to respond to the FOIA request. Regarding the fourth
amendment, HUD is adding Sec. 15.106(d)(7)(i) to excuse a failure to
comply with any time limit if a court determines that exceptional
circumstances exist; and Sec. 15.106(d)(7)(ii), which provides the
definition of ``exceptional circumstances'' as defined in 5 U.S.C.
552(a)(6)(C), has also been added for clarifying purposes.
Section 15.107 Documents Generally Protected From Disclosure
The 2016 Act requires that agencies withhold information under FOIA
``only if the agency reasonably foresees that disclosure would harm an
interest protected by an exemption'' or if disclosure is prohibited by
law. The 2016 Act further directs agencies to consider whether partial
disclosure of information is possible whenever the agency determines
that a full disclosure of a requested record is not possible, and to
take reasonable steps necessary to segregate and release nonexempt
information. The 2016 Act does not require disclosure of information
that is otherwise prohibited from disclosure by law, or otherwise
exempted from disclosure under Exemption 3.
Consistent with these changes, HUD is restructuring Sec. 15.107
and adding paragraph (a) to provide that HUD shall withhold information
only if it is reasonably foreseeable that disclosure would harm an
interest protected by an exemption, or if disclosure is prohibited by
law. Paragraph (a) also emphasizes that HUD will consider whether
partial disclosure of information is possible if it determines that a
full disclosure of a requested record is not possible, and that HUD
will take reasonable steps necessary to segregate and release nonexempt
information.
In addition, the 2016 Act sunsets the deliberative process
privilege, as protected from disclosure under Exemption 5 of the FOIA.
Specifically, the 2016 Act amends Exemption 5 to provide that the
deliberative process privilege does not apply to records created 25
years or more before the date on which the records were requested. In
accordance with the 2016 Act, HUD is revising Sec. 15.107(b)(5) to
state that the deliberative process privilege ``shall not apply to
records created 25 years or more before the date on which the records
were requested.''
III. Justification for Final Rulemaking
In general, HUD publishes a rule for public comment before issuing
a rule for effect, in accordance with HUD's regulations on rulemaking
at 24 CFR part 10. Part 10, however, provides in Sec. 10.1 for
exceptions from that general rule where HUD finds good cause to omit
advance notice and public participation. The good cause requirement is
satisfied when the prior public procedure is ``impracticable,
unnecessary or contrary to the public interest.''
HUD finds that good cause exists to publish this rule for effect
without first soliciting public comment because prior public comment is
unnecessary. This final rule follows the statutory directive in Section
3 of the 2016 Act, which requires agencies to review and issue updated
regulations on procedures for the disclosure of records under the FOIA,
in accordance with the amendments made by the 2016 Act, within 180 days
of enactment. The 2016 Act codifies a number of transparency and
openness principles and enacts a number of procedural requirements,
including requiring that agencies establish a minimum of 90 days for
requesters to file an administrative appeal and that they provide
dispute resolution services at various times throughout the FOIA
process. This final rule reflects the changes required by the 2016 Act.
Finally, the rule revises provisions Sec. 15.103 to more accurately
reflect the statutory language in 5 U.S.C. 552(a)(6)(A)(i).
IV. Findings and Certifications
Executive Order 12866 and Executive Order 13563
Executive Orders 12866 and 13563 direct agencies to assess all
costs and benefits of available regulatory alternatives and, if the
regulation is necessary, to select the regulatory approach that
maximizes net benefits. Because this final rule incorporates changes
enacted by the 2016 Act, this rule was determined to not be a
significant regulatory action under section 3(f) of Executive Order
12866, Regulatory Planning and Review, and therefore was not reviewed
by OMB.
Environmental Impact
This rule is categorically excluded from environmental review under
the National Environmental Policy Act (42 U.S.C. 4321). The revision of
the FOIA-related provisions of 24 CFR part 15 falls within the
exclusion provided by 24 CFR 50.19(c)(1), in that it does not direct,
provide for assistance or loan and mortgage insurance for, or otherwise
govern or regulate, real property acquisition, disposition, leasing,
rehabilitation, alteration, demolition, or new construction, or
establish, revise, or provide for standards for construction or
construction materials, manufactured housing, or occupancy.
Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.)
generally requires an agency to conduct a regulatory flexibility
analysis of any rule subject to notice and comment rulemaking
requirements, unless the agency certifies that the rule will not have a
significant economic impact on a substantial number of small entities.
This final rule establishes procedures by which HUD will respond to
requests for information under FOIA. Costs assessed by HUD for search,
review, and duplication required to process the information requested
by a requester are limited by FOIA to direct costs and are not
significant. Accordingly, the undersigned certifies that this rule will
not have a significant economic impact on a substantial number of small
entities.
[[Page 3622]]
Executive Order 13132, Federalism
Executive Order 13132 (entitled ``Federalism'') prohibits an agency
from publishing any rule that has federalism implications if the rule
either imposes substantial direct compliance costs on state and local
governments and is not required by statute, or the rule preempts state
law, unless the agency meets the consultation and funding requirements
of section 6 of the Executive Order. This final rule does not have
federalism implications and does not impose substantial direct
compliance costs on state and local governments or preempt state law
within the meaning of the Executive Order.
Unfunded Mandates
Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C.
1531-1538) establishes requirements for federal agencies to assess the
effects of their regulatory actions on state, local, and tribal
governments, and on the private sector. This final rule does not impose
any federal mandates on any state, local, or tribal governments, or on
the private sector, within the meaning of the Unfunded Mandates Reform
Act of 1995.
List of Subjects in 24 CFR Part 15
Classified information, Courts, Freedom of information, Government
employees, Reporting and recordkeeping requirements.
For the reasons stated in the preamble, HUD amends 24 CFR part 15
as follows:
PART 15--PUBLIC ACCESS TO HUD RECORDS UNDER THE FREEDOM OF
INFORMATION ACT AND TESTIMONY AND PRODUCTION OF INFORMATION BY HUD
EMPLOYEES
0
1. The authority for 24 CFR part 15 is revised to read as follows:
Authority: 42 U.S.C. 3535(d), 5 U.S.C. 552.
0
2. Amend Sec. 15.101 by removing in paragraph (a) ``and copying'' and
adding in its place ``in an electronic format'', and by adding
paragraphs (b)(7) and (b)(8), to read as follows:
Sec. 15.101 Proactive disclosures of departmental records.
* * * * *
(b) * * *
(7) Copies of all records, regardless of form or format that have
been released to any person under Sec. 15.105; and
(i) Because of the nature of their subject matter, the agency
determines that the records have become or are likely to become the
subject of subsequent requests for substantially the same records; or
(ii) Have been requested three or more times.
(8) Report for the preceding fiscal year submitted to the U.S.
Attorney General and the Director of the Office of Government
Information Services (OGIS) as required by 5 U.S.C. 552(e) and the raw
statistical data used in each report. This report will be made
available:
(i) Without charge, license, or registration requirement;
(ii) In an aggregated, searchable format; and
(iii) In a format that may be downloaded in bulk.
* * * * *
0
3. In Sec. 15.103, amend paragraph (a) by removing ``respond to'' and
adding in its place ``make a determination whether to comply with'',
and revise paragraph (c) introductory text, to read as follows:
Sec. 15.103 Timing of responses to requests.
* * * * *
(c) Extension of time periods for processing a request. In unusual
circumstances, as defined in this paragraph, HUD may extend the time
period for processing a FOIA request. In such circumstances, HUD will
provide the requester with written notice setting forth the unusual
circumstances for the extension and the date on which a determination
is expected to be dispatched. If processing a request would require
more than 10 working days beyond the general time limit established in
paragraph (a) of this section, HUD will offer the requester an
opportunity to limit the scope of the request so that HUD may process
it within the extra 10-day working period or arrange an alternative
time period within which the FOIA request will be processed. To aid the
requester, HUD shall make available its FOIA Public Liaison, who shall
assist in the resolution of any disputes between the requester and HUD,
and notify the requester of the right of the requester to seek dispute
resolution services from the Office of Government Information Services.
For purposes of this section, unusual circumstances include:
* * * * *
Sec. 15.104 [Amended]
0
4. Amend paragraph (b) by adding ``the'' between ``contacting'' and
``FOIA''.
0
5. Amend Sec. 15.105 as follows:
0
a. Add paragraph (d) introductory text;
0
b. In paragraph (d)(1) remove ``Once'' and replace it with ``If ''.
0
c. Redesignate paragraph (d)(2)(iv) as (d)(2)(vi); and
0
d. Add paragraphs (d)(2)(iv) and (v).
Revisions and additions to read as follows:
Sec. 15.105 Responses to requests.
* * * * *
(d) Forms of response. Once HUD makes a determination regarding
whether to comply with a request pursuant to time limits established in
Sec. 15.103(a), HUD shall immediately notify the requester of such
determination and the reasons therefor, and the requester's right to
seek assistance from the FOIA Public Liaison.
* * * * *
(2) * * *
(iv) Notice of the right of the requester to appeal to the head of
the agency, within a period determined by the head of the agency that
is not less than 90 days after the date of such adverse determination;
and
(v) Notice of the right of the requester to seek dispute resolution
services from the FOIA Public Liaison of the agency or the Office of
Government Information Services; and
* * * * *
0
6. In Sec. 15.106 revise paragraph (d)(1) and add paragraphs (d)(5),
(6) and (7) to read as follows:
Sec. 15.106 Fees.
* * * * *
(d) Restrictions on charging fees. (1) No search fee will be
charged for requests by educational institutions, noncommercial
scientific institutions, or representatives of the news media. In
addition, except as provided in paragraphs (d)(5), (d)(6), and (d)(7)
of this section, HUD shall not assess any search fees (or, for
requesters that are educational institutions, noncommercial scientific
institutions or representatives of the news media requesting records
not sought for commercial use, duplication fees) if HUD has failed to
comply with any time limit described in Sec. 15.103.
* * * * *
(5) If HUD determines that unusual circumstances apply and HUD
provides timely written notice to the requester pursuant to
requirements provided in Sec. 15.103(c), a failure to comply with any
time limit as described in Sec. 15.103 is excused for an additional 10
days. If HUD fails to comply with the extended time limit, HUD may not
assess any search fees (or for requesters that are educational or
noncommercial scientific institutions or representatives of the news
media requesting records not sought for commercial use, duplication
fees).
[[Page 3623]]
(6) If unusual circumstances apply and more than 5000 pages are
necessary to respond to the request, HUD may charge search fees or, for
requesters that are educational or noncommercial scientific
institutions or representatives of the news media requesting records
not sought for commercial use, duplication fees, if timely written
notice has been made to the requester pursuant to requirements provided
in Sec. 15.103(c) and HUD has discussed with the requester through
written mail, electronic mail, or telephone (or made not less than 3
good-faith attempts to do so) how the requester could effectively limit
the scope of the request as stipulated in Sec. 15.103(c).
(7)(i) If a court has determined that exceptional circumstances
exist, a failure to comply with any time limit as described in Sec.
15.103 shall be excused for the length of time provided by the court
order.
(ii) For purposes of this section, the term ``exceptional
circumstances'' does not include a delay that results from a
predictable workload of requests, unless HUD demonstrates reasonable
progress in reducing its backlog of pending requests. However, refusal
by the requester to reasonably modify the scope of a request or arrange
an alternative time frame for processing a request (or a modified
request) after HUD gives them an opportunity to do so shall be
considered a factor in determining whether exceptional circumstances
exist.
* * * * *
0
7. Amend Sec. 15.107 as follows:
0
a. Remove paragraph (b);
0
b. Redesignate the introductory text as new paragraph (b);
0
c. Revise paragraph (a);
0
d. Redesignate paragraphs (c) through (i) as (b)(1) through (b)(9),
respectively, and
0
e. Revise redesignated paragraph (b)(5);
Revisions and addition to read as follows:
Sec. 15.107 Documents generally protected from disclosure.
(a) HUD shall withhold information only if HUD reasonably foresees
that disclosure would harm an interest protected by an exemption as
provided in paragraph (b) of this section, or disclosure is prohibited
by law. HUD will consider whether partial disclosure of information is
possible whenever HUD determines that a full disclosure of a requested
record is not possible, and will take reasonable steps necessary to
segregate and release nonexempt information. Nothing in this section
requires disclosure of information that is otherwise prohibited from
disclosure by law, or otherwise exempted from disclosure as provided in
paragraph (b)(3) of this section.
* * * * *
(b) * * *
(5) Certain interagency or intra-agency communications. Exemption 5
(5 U.S.C. 552(b)(5)) protects interagency or intra-agency
communications that are protected by legal privileges, such as the
attorney-client privilege, attorney work-product privilege, or
communications reflecting the agency's deliberative process. The
deliberative process privilege shall not apply to records created 25
years or more before the date on which the records were requested.
* * * * *
Dated: December 27, 2016.
Nani A. Coloretti,
Deputy Secretary.
[FR Doc. 2017-00178 Filed 1-11-17; 8:45 am]
BILLING CODE 4210-67-P
