Freedom of Information Act Regulations, 64401-64403 [2016-22166]

Agencies

• DEPARTMENT OF THE INTERIOR
• Office of the Secretary

[Federal Register Volume 81, Number 182 (Tuesday, September 20, 2016)]
[Proposed Rules]
[Pages 64401-64403]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-22166]


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DEPARTMENT OF THE INTERIOR

Office of the Secretary

43 CFR Part 2

[No. DOI-2016-0006; 16XD4523WS DS10200000 DWSN00000.000000 WBS DP10202]
RIN 1093-AA21


Freedom of Information Act Regulations

AGENCY: Office of the Secretary, Interior.

ACTION: Proposed rule.

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SUMMARY: This rulemaking would revise the regulations that the 
Department of the Interior (Department) follows in processing records 
under the Freedom of Information Act in part to comply with the FOIA 
Improvement Act of 2016. The revisions would clarify and update 
procedures for requesting information from the Department and 
procedures that the Department follows in responding to requests from 
the public.

DATES: Comments on the rulemaking must be submitted on or before 
November 21, 2016.

ADDRESSES: You may submit comments on the rulemaking by either of the 
methods listed below. Please use Regulation Identifier Number 1093-AA21 
in your message.
    1. Federal eRulemaking Portal: https://www.regulations.gov. In the 
``Search'' bar, enter DOI-2016-0006 (the docket number for this rule) 
and then click ``Search.'' Follow the instructions on the Web site for 
submitting comments.
    2. U.S. mail, courier, or hand delivery: Executive Secretariat--
FOIA regulations, Department of the Interior, 1849 C Street NW., 
Washington, DC 20240.

FOR FURTHER INFORMATION CONTACT: Cindy Cafaro, Office of Executive 
Secretariat and Regulatory Affairs, 202-208-5342.

SUPPLEMENTARY INFORMATION: 

I. Why We're Publishing This Proposed Rule and What It Does

    In late 2012, the Department published a final rule updating and 
replacing the Department's previous Freedom of Information Act (FOIA) 
regulations. In early 2016, the Department updated that final rule, 
primarily to authorize the Office of Inspector General (OIG) to process 
their own FOIA appeals. On June 30, 2016, the FOIA Improvement Act of 
2016, Pub. L. 114-185, 130 Stat. 538 (the Act) was enacted. The Act 
specifically requires all agencies to review and update their FOIA 
regulations in accordance with its provisions, and the Department is 
making changes to its regulations accordingly. Finally, the Department 
has received feedback from its FOIA practitioners and requesters and 
identified areas where it would be possible to further update, clarify, 
and streamline the language of some procedural provisions. Therefore, 
the Department is proposing to make the following changes:
     Section 2.4(e) would be amended to provide additional 
guidance on how bureaus handle misdirected requests.
     Section 2.15 would be amended to bring attention to the 
Department's existing FOIA Request Tracking Tool (https://foia.doi.gov/requeststatus).
     Section 2.19 would be amended to bring further attention 
to the services provided by the Office of Government Information 
Services (OGIS), in accordance with the provisions of the Act.
     Section 2.21 would be amended to reflect that the OGIS 
would be defined earlier in the regulations than it previously had 
been.
     Section 2.24 would be amended to require a foreseeable 
harm analysis, in accordance with the provisions of the Act, and to 
require bureaus to provide an explanation to the requester when an 
estimate of the volume of any records withheld in full or in part is 
not provided.

[[Page 64402]]

     Section 2.37(f) would be amended to reflect the provisions 
of the Act.
     Section 2.39 would be amended to remove what would be 
superfluous language, after the changes to section 2.37(f).
     Section 2.58 would be amended to provide more time for 
requesters to appeal, in accordance with the provisions of the Act.

II. Compliance With Laws and Executive Orders

1. Regulatory Planning and Review (Executive Orders 12866 and 13563)

    Executive Order (E.O) 12866 provides that the Office of Information 
and Regulatory Affairs will review all significant rules. The Office of 
Information and Regulatory Affairs has determined that this rulemaking 
is not significant.
    Executive Order 13563 reaffirms the principles of E.O. 12866 while 
calling for improvements in the nation's regulatory system to promote 
predictability, to reduce uncertainty, and to use the best, most 
innovative, and least burdensome tools for achieving regulatory ends. 
The Executive Order directs agencies to consider regulatory approaches 
that reduce burdens and maintain flexibility and freedom of choice for 
the public where these approaches are relevant, feasible, and 
consistent with regulatory objectives. E.O. 13563 emphasizes further 
that regulations must be based on the best available science and that 
the rulemaking process must allow for public participation and an open 
exchange of ideas. We have developed this proposed rule in a manner 
consistent with these requirements.

2. Regulatory Flexibility Act

    The Department of the Interior certifies that this rulemaking will 
not have a significant economic effect on a substantial number of small 
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).

3. 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. This rule:
    a. Does not have an annual effect on the economy of $100 million or 
more.
    b. Will not cause a major increase in costs or prices for 
consumers, individual industries, Federal, State, or local government 
agencies, or geographic regions.
    c. Does not have significant adverse effects on competition, 
employment, investment, productivity, innovation, or the ability of 
U.S.-based enterprises to compete with foreign-based enterprises.

4. Unfunded Mandates Reform Act

    This rulemaking does not impose an unfunded mandate on State, 
local, or tribal governments or the private sector of more than $100 
million per year. This rulemaking does not have a significant or unique 
effect on State, local, or tribal governments or the private sector. A 
statement containing the information required by the Unfunded Mandates 
Reform Act (2 U.S.C. 1531 et seq.) is not required.

5. Takings (E.O. 12630)

    In accordance with Executive Order 12630, this rulemaking does not 
have significant takings implications. A takings implication assessment 
is not required.

6. Federalism (E.O. 13132)

    In accordance with Executive Order 13132, this proposed rule does 
not have sufficient federalism implications to warrant the preparation 
of a federalism summary impact statement. It would not substantially 
and directly affect the relationship between the Federal and state 
governments. A federalism summary impact statement is not required.

7. Civil Justice Reform (E.O. 12988)

    In accordance with Executive Order 12988, the Office of the 
Solicitor has determined that this rulemaking does not unduly burden 
the judicial system and meets the requirements of sections 3(a) and 
3(b)(2) of the Executive Order.

8. Consultation With Indian Tribes (E.O. 13175)

    Under the criteria in Executive Order 13175, we have evaluated this 
proposed rule and determined that it has no potential effects on 
federally recognized Indian tribes. This rulemaking does not have 
tribal implications that impose substantial direct compliance costs on 
Indian Tribal governments.

9. Paperwork Reduction Act

    This proposed rule does not contain information collection 
requirements, and a submission to the Office of Management and Budget 
under the Paperwork Reduction Act is not required.

10. National Environmental Policy Act

    This rulemaking does not constitute a major Federal action 
significantly affecting the quality of the human environment. A 
detailed statement under the National Environmental Policy Act of 1969, 
42 U.S.C. 4321 et seq. (NEPA), is not required. Pursuant to 43 CFR 
46.205(b) and 43 CFR 46.210(i), the Department of the Interior NEPA 
implementing procedures exclude from preparation of an environmental 
assessment or impact statement ``[p]olicies, directives, regulations, 
and guidelines: that are of an administrative, financial, legal, 
technical, or procedural nature. . . .'' None of the extraordinary 
circumstances listed in 43 CFR 46.215 exists for this rulemaking. 
Accordingly, this proposed rule is categorically excluded from 
environmental analysis under 43 CFR 46.210(i).

11. Effects on the Energy Supply (E.O. 13211)

    This rulemaking is not a significant energy action under the 
definition in Executive Order 13211. A Statement of Energy Effects is 
not required. This rulemaking will not have a significant effect on the 
nation's energy supply, distribution, or use.

12. Clarity of This Proposed Regulation

    We are required by Executive Orders 12866 and 12988 and by the 
Presidential Memorandum of June 1, 1998, to write all rules in plain 
language. This means that each rule we publish must:

    (a) Be logically organized;
    (b) Use the active voice to address readers directly;
    (c) Use clear language rather than jargon;
    (d) Be divided into short sections and sentences; and
    (e) Use lists and tables wherever possible.

    If you feel that we have not met these requirements, send us 
comments by one of the methods listed in the ADDRESSES section. To 
better help us revise the rule, your comments should be as specific as 
possible. For example, you should tell us the numbers of the sections 
or paragraphs that you find unclear, which sections or sentences are 
too long, the sections where you feel lists or tables would be useful, 
etc.

13. Public Availability of Comments

    Before including your address, phone number, email address, or 
other personal identifying information in your comment, you should be 
aware that your entire comment--including your personal identifying 
information--may be made publicly available at any time. While you can 
ask us in your comment to withhold your personal identifying 
information from public review, we cannot guarantee that we will be 
able to do so.

[[Page 64403]]

List of Subjects in 43 CFR Part 2

    Freedom of information.

Kristen J. Sarri,
Principal Deputy Assistant Secretary for Policy, Management, and 
Budget.

    For the reasons stated in the preamble, the Department of the 
Interior proposes to amend part 2 of title 43 of the Code of Federal 
Regulations as follows:

PART 2--FREEDOM OF INFORMATION ACT; RECORDS AND TESTIMONY

0
1. The authority citation for part 2 continues to read as follows:

    Authority:  5 U.S.C. 301, 552, 552a, 553; 31 U.S.C. 3717; 43 
U.S.C. 1460, 1461.

Subpart B--How to Make a Request

0
2. In Sec.  2.4, revise paragraph (e) to read as follows:


Sec.  2.4   Does where you send your request affect its processing?

* * * * *
    (e) If your request is received by a bureau that believes it is not 
the appropriate bureau to process your request, the bureau that 
received your request will attempt to contact you (if possible, via 
telephone or email) to confirm that you deliberately sent your request 
to that bureau for processing. If you do not confirm this, the bureau 
will deem your request misdirected and route the misdirected request to 
the appropriate bureau to respond under the basic time limit outlined 
in Sec.  2.17 of this part.
* * * * *

Subpart D--Timing of Responses to Requests


Sec.  2.15   [Amended]

0
3. In Sec.  2.15, add paragraph (g) to read as follows:


Sec.  2.15  What is multitrack processing and how does it affect your 
request?

* * * * *
    (g) You may track the status of your request, including its 
estimated processing completion date, at https://foia.doi.gov/requeststatus/.


Sec.  2.19   [Amended]

0
4. In Sec.  2.19(b)(2), add the words ``, and notify you of your right 
to seek dispute resolution from the Office of Government Information 
Services (OGIS)'' after the words ``you and the bureau''.

Subpart E--Responses to Requests


Sec.  2.21   [Amended]

0
 5. In Sec.  2.21(a), the second sentence, remove the words ``Office of 
Government Information Services (OGIS)'' and add in their place ``the 
OGIS''.


Sec.  2.24   [Amended]

0
 6. Amend Sec.  2.24 by:
    a. In paragraph (b)(3), adding the words ``, along with a statement 
that the bureau reasonably foresees that disclosure would harm an 
interest protected by the applied exemption(s) or disclosure is 
prohibited by law'' after the words ``or in part''; and
    b. In paragraph (b)(4), adding the word ``including'' after the 
word ``unless'' and adding the words ``and the bureau explains this 
harm to you'' after the words ``withhold the records''.

Subpart G--Fees


Sec.  2.37   [Amended]

0
7. In Sec.  2.37, revise paragraph (f) to read as follows:


Sec.  2.37   What general principles govern fees?

* * * * *
    (f) If the bureau does not comply with any time limit in the FOIA:
    (1) Except as provided in paragraph (f)(2) of this section, the 
bureau cannot assess any search fees (or, if you are in the fee 
category of a representative of the news media or an educational and 
noncommercial scientific institution, duplication fees).
    (2)(i) If the bureau has determined that unusual circumstances 
apply (as the term is defined in Sec.  2.70 of this part) and the 
bureau provided you a timely written notice to extend the basic time 
limit in accordance with Sec.  2.19 of this part, the noncompliance is 
excused for an additional 10 calendar days. If the bureau fails to 
comply with the extended time limit, the bureau may not assess any 
search fees (or, if you are in the fee category of a representative of 
the news media or an educational and noncommercial scientific 
institution, duplication fees).
    (ii) If the bureau has determined that unusual circumstances apply 
and more than 5,000 pages are necessary to respond to the request, the 
noncompliance is excused if, in accordance with Sec.  2.19 of this 
part, the bureau has provided you a timely written notice and has 
discussed with you via written mail, email, or telephone (or made not 
less than 3 good-faith attempts to do so) how you could effectively 
limit the scope of the request.
    (iii) If a court has determined that exceptional circumstances 
exist (as that term is defined in Sec.  2.70 of this part), the 
noncompliance is excused for the length of time provided by the court 
order.
* * * * *


Sec.  2.39   [Amended]

0
 8. In Sec.  2.39, remove the paragraph (a) designation and remove 
paragraph (b).

Subpart H--Administrative Appeals


Sec.  2.58   [Amended]

0
9. In Sec.  2.58(a) and (b), remove the number ``30'' and add in its 
place the number ``90''.
[FR Doc. 2016-22166 Filed 9-19-16; 8:45 am]
 BILLING CODE 4334-63-P