Revision of the FDIC's Freedom of Information Act Regulations, 83643-83648 [2016-27961]
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Federal Register / Vol. 81, No. 225 / Tuesday, November 22, 2016 / Rules and Regulations
Title 44—Emergency Management and
Assistance
PART 5—PRODUCTION OR
DISCLOSURE OF INFORMATION
6. The authority citation for part 5 is
revised to read as follows:
■
Authority: Pub. L. 107–296, 116 Stat.
2135; 5 U.S.C. 301.
Subparts A through E—[Removed and
Reserved]
7. Remove and reserve subparts A
through E of part 5.
■ 8. Revise § 5.86 to read as follows:
■
§ 5.86 Records involved in litigation or
other judicial process.
Subpoenas duces tecum issued
pursuant to litigation or any other
adjudicatory proceeding in which the
United States is a party shall be referred
to the Chief Counsel.
Jeh Charles Johnson,
Secretary.
[FR Doc. 2016–28095 Filed 11–21–16; 8:45 am]
BILLING CODE 9110–9L–P
FEDERAL DEPOSIT INSURANCE
CORPORATION
12 CFR Part 309
RIN 3064–AE53
Revision of the FDIC’s Freedom of
Information Act Regulations
Federal Deposit Insurance
Corporation.
ACTION: Interim final rule and request
for comment.
AGENCY:
This rule amends the Federal
Deposit Insurance Corporation’s (FDIC)
regulations under the Freedom of
Information Act (FOIA) to incorporate
certain changes made to the FOIA by the
FOIA Improvement Act of 2016 (FOIA
Improvement Act). In addition, this rule
amends certain provisions to reflect
changes brought about by prior
amendments to the FOIA that had been
incorporated into agency practice and
corrects inaccurate contact information
and adjusts numbering and lettering of
current provisions because of additions
to the regulations.
DATES: This rule is effective November
22, 2016. Comments must be submitted
by January 23, 2017.
ADDRESSES: You may submit written
comments, which must include the
agency name and RIN 3064–AE53, by
one of the following methods:
• Agency Web site: www.fdic.gov/
regulations/laws/federal/. Follow
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SUMMARY:
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instructions for submitting comments
on the Agency Web site.
• Email: Comments@fdic.gov. Include
‘‘Disclosure of Information’’ in the
subject line of the message.
• Mail: Robert E. Feldman, Executive
Secretary, Attention: Comments, Federal
Deposit Insurance Corporation, 550 17th
Street NW., Washington, DC 20429.
• Hand Delivery: Comments may be
hand-delivered to the guard station at
the rear of the 550 17th Street Building
(located on F Street) on business days
between 7:00 a.m. and 5:00 p.m.
• Federal eRulemaking Portal: https://
www.regulations.gov. Follow the
instructions for submitting comments.
Public Inspection: All comments
received will be posted without change
to https://www.fdic.gov/regulations/laws/
federal/, including any personal
information provided. Paper copies of
public comments may be ordered from
the FDIC Public Information Center,
3501 North Fairfax Drive, Room E–1002,
Arlington, VA 22226, or by telephone at
(877) 275–3342 or (703) 562–2200.
FOR FURTHER INFORMATION CONTACT:
Hugo Zia, Supervisory Counsel, FDIC,
FOIA/Privacy Act Group, Legal
Division, at hzia@fdic.gov or (703) 562–
2671; or John Elmore, Counsel, FDIC,
FOIA/Privacy Act Group, Legal
Division, at joelmore@fdic.gov or (703)
562–2047; or Sarah Jirousek, Counsel,
FDIC, FOIA/Privacy Act Group, Legal
Division, at sjirousek@fdic.gov or (703)
562–2125.
SUPPLEMENTARY INFORMATION:
I. Policy Objectives
The policy objective of this interim
final rule is to bring the FDIC’s FOIA
regulations 1 into accord with the
changes to the FOIA made by the FOIA
Improvement Act,2 the OPEN
Government Act,3 and the OPEN FOIA
Act.4
II. Background
This rule amends the FDIC’s
regulations under the FOIA to
incorporate certain changes made to the
FOIA, 5 U.S.C. 552, by the FOIA
Improvement Act. Among other things,
the FOIA Improvement Act requires
agencies to provide a minimum of 90
days for requesters to file an
administrative appeal. The FOIA
Improvement Act also requires agency
regulations to address dispute
resolution procedures and to provide
notification to requesters about the
availability of dispute resolution
1 12
CFR 309.2, 309.4, 309.5.
Law 114–185, 130 Stat. 538 (2016).
3 Public Law 110–175, 121 Stat. 2524 (2007).
4 Public Law 111–83, 123 Stat. 2142, 2184 (2009).
2 Public
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services. The FOIA Improvement Act
requires the FDIC to issue regulations
which incorporate the changes made by
the FOIA Improvement Act not later
than 180 days after the date of its
enactment (i.e., by December 27, 2016).
This rule updates the FDIC’s regulations
in 12 CFR part 309 to reflect those
statutory changes.
In addition, as explained below, this
rule amends certain provisions to reflect
changes brought about by the
amendments to the FOIA in the OPEN
Government Act and the OPEN FOIA
Act. These amendments to the FOIA
from 2007 and 2009 have been followed
by the FDIC even though the agency’s
regulations had not been amended.
Finally, the rule corrects one instance
of inaccurate contact information and
adjusts the numbering and lettering of
current provisions because of additions
made to the regulations.
III. Description of the Rule
The following changes have been
made to the FDIC’s FOIA regulations:
Section 309.2 Definitions
Paragraph (e) of § 309.2 (Definitions)
is revised to include the current
definition for a record under the FOIA.
Section 9 of the OPEN Government Act
amended the definitions section of the
FOIA, 5 U.S.C. 552(f), by including
within the definition of ‘‘record’’ any
information ‘‘maintained for an agency
by an entity under Government contract,
for the purposes of records
management.’’ This amendment made
clear that records, in the possession of
Government contractors for purposes of
records management, are considered
agency records for purposes of the
FOIA. Through this change to the
regulations, the FDIC adopts the
statutory definition of ‘‘record.’’
Section 309.4 Publicly Available
Records
Paragraph (a)(2) of § 309.4 (Records
available on the FDIC’s World Wide
Web page) is revised to replace outdated
wording concerning the inspection of
records that are required to be made
available to the public. In the current
version of the FDIC’s regulations, the
phrase ‘‘via computer
telecommunications’’ is used. The FOIA
Improvement Act changed this wording
to ‘‘for inspection in an electronic
format.’’ Through this change to the
regulations, the FDIC adopts the
language concerning public inspection
of records in the FOIA Improvement
Act.
Paragraph (a)(2)(i)(D) of § 309.4
(Records available on the FDIC’s World
Wide Web page) is revised to include
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the requirement that the FDIC make
available for public inspection in an
electronic format any record that has
been released and (i) that the FDIC
determines has become or is likely to
become the subject of subsequent
requests for substantially the same
records, or (ii) that has been requested
three or more times. This requirement
has been the practice of the FDIC for a
number of years, is in accord with the
current practice of the FDIC and is
required by the FOIA Improvement Act.
Paragraph (b) of § 309.4 (Public
Information Center) is revised to correct
inaccurate contact information for the
FDIC’s Public Information Center. This
revision to the regulations is required so
that requesters have the correct contact
information when inquiring about
publicly available records.
Section 309.5 Procedures for
Requesting Records
Paragraph (a)(6) of § 309.5
(Representative of the news media) is
revised to include the current definition
of ‘‘representative of the news media’’
under the FOIA. Section 3 of the OPEN
Government Act amended 5 U.S.C.
552(a)(4)(A)(ii) of the FOIA by expressly
providing a definition of ‘‘representative
of the news media.’’ Through this
change to the regulations, the FDIC
adopts the definition of ‘‘representative
of the news media’’ that is in the OPEN
Government Act.
Paragraph (d)(1) of § 309.5 (Receipt of
requests) is revised to specify that the
FDIC will provide a requester with an
individualized tracking number for any
FOIA request that satisfies 12 CFR
309.5(b), no matter how long it will take
to process the request. Section 7 of the
OPEN Government Act amended 5
U.S.C. 552(a) by requiring agencies to
assign an individualized tracking
number for each request that will
require more than ten days to process.
This section codified existing
requirements set forth in Executive
Order 13,392. Providing tracking
numbers for every FOIA request that
satisfies § 309.5(b), including those that
will take less than ten days to process,
has been the practice of the FDIC for a
number of years, is in accord with the
current practice of the FDIC and adopts
the language of the OPEN Government
Act.
Paragraph (d)(4) of § 309.5 is revised
to account for a change in numbering
because of the addition of § 309.5(h)
(Dispute resolution). Previously, the
paragraph covering procedures
concerning appeals that is crossreferenced in this paragraph was
§ 309.5(h); it is now § 309.5(i). This
adjustment to numbering is necessary to
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maintain the organizational integrity of
the regulations.
Paragraph (d)(6) of § 309.5 (Checking
status of request) is added to notify
requesters of the contact information for
FDIC’s FOIA Service Center (telephone
number and Web site address), thereby
enabling requesters to obtain certain
information about the status of their
request. Section 7 of the OPEN
Government Act amended 5 U.S.C.
552(a) by requiring agencies to establish
a telephone number or a Web site to
allow requesters to inquire about the
status of their request, obtain the date an
agency originally received their request,
and obtain an estimated date for the
completion of the agency’s processing of
their request. This section of the OPEN
Government Act codified existing
requirements set forth in Executive
Order 13,392. The FDIC has a FOIA
Service Center that is accessible via the
internet and telephone and, through
either method, requesters are provided
with the date of the FDIC’s receipt of
their request and the estimated date on
which the FDIC will complete its
processing of their request. The FDIC
has made these services and information
available to requesters for a number of
years. The addition of this notification
provision to the regulations is in accord
with the FDIC’s current practice and
adopts the language in the OPEN
Government Act.
Paragraph (d)(7) of § 309.5
(Notification) is revised in numbering
because of the addition of § 309.5(d)(6)
(Checking status of request). Previously
this paragraph was § 309.5(d)(6)
(Notification); it is now § 309.5(d)(7)
(Notification). This adjustment to
numbering is necessary to maintain the
organizational integrity of the
regulations.
Paragraph (d)(8) of § 309.5 (Response
to request) is revised in numbering
because of the addition of § 309.5(d)(6)
(Checking status of request). Previously
this paragraph was § 309.5(d)(7); it is
now § 309.5(d)(8). This adjustment to
numbering is necessary to maintain the
organizational integrity of the
regulations.
Paragraph (d)(8)(iii) of § 309.5
(Response to request) is added to require
the FDIC to notify requesters, in its
response to their request, of their right
to seek assistance from the FDIC’s FOIA
Public Liaison, if the FDIC determines
such request satisfies 12 CFR 309.5(b).
Section 2 of the FOIA Improvement Act
added 5 U.S.C. 552(a)(6)(A)(i)(II), which
requires agencies to offer the services of
their FOIA Public Liaison when issuing
their determinations of requests. The
addition of this notification provision to
the regulations is in accord with the
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FDIC’s current practice and is required
by the FOIA Improvement Act.
Paragraph (d)(8)(iv) of § 309.5
(Response to request) is revised in
numbering because of the addition of
§ 309.5(d)(8)(iii) (Checking status of
request). Previously this paragraph was
§ 309.5(d)(8)(iii); it is now
§ 309.5(d)(8)(iv). This adjustment to
numbering is necessary to maintain the
organizational integrity of the
regulations.
Paragraph (d)(8)(iv)(C) of § 309.5
(Response to request) is revised to
remove an ‘‘and’’ because of the
addition of § 309.5(d)(8)(iv)(E). This
removal is necessary to maintain the
organizational integrity of the
regulations.
Paragraph (d)(8)(iv)(D) of § 309.5
(Response to request) is revised to
provide for notification to the requester
that the deadline to file an
administrative appeal is extended to 90
days, in conformity with the 90-day
time period established by the FOIA
Improvement Act. Section 2 of the FOIA
Improvement Act amended 5 U.S.C.
552(a)(6)(A)(i) by changing the time
period for an appeal of adverse
determinations, from 30 days to 90 days.
This paragraph is also revised to add an
‘‘and’’ because of the addition of
§ 309.5(d)(8)(iv)(E). These changes are
required by the FOIA Improvement Act
and for the regulation to remain
organized.
Paragraph (d)(8)(iv)(E) of § 309.5
(Response to request) is added to
include a requirement that the FDIC
notify requesters, in response to an
adverse determination of a request that
satisfies § 309.5(b), of their right to seek
assistance from the FDIC’s FOIA Public
Liaison and/or the Office of Government
Information Services (OGIS) at the
National Archives and Records
Administration. Section 2 of the FOIA
Improvement Act added 5 U.S.C.
552(a)(6)(A)(i)(III), which requires that
when agencies make adverse
determinations on requests, they must
offer the services of their FOIA Public
Liaison and/or OGIS. The addition of
this provision concerning notification to
the regulations is required by the FOIA
Improvement Act.
Paragraph (f)(1)(x) of § 309.5 is revised
to account for a change in numbering
because of the addition of § 309.5(h)
(Dispute resolution). Previously, the
paragraph referring to procedures
concerning appeals that is crossreferenced in this paragraph was
§ 309.5(h); it is now § 309.5(i). This
adjustment to numbering is necessary to
maintain the organizational integrity of
the regulations.
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Paragraph (g)(3)(i) of § 309.5 (Exempt
information) is revised in numbering
and by adding an ‘‘and’’ because of the
addition of § 309.5(g)(3)(ii). Previously
this paragraph was § 309.5(d)(8)(iii); it is
now § 309.5(d)(8)(iv). This adjustment
to numbering and the addition of an
‘‘and’’ is necessary to maintain the
organizational integrity of the
regulations.
Paragraph (g)(3)(ii) of § 309.5 (Exempt
information) is added to include a
requirement codified in the OPEN FOIA
Act that statutes enacted after the date
of the enactment of the OPEN FOIA Act
must specifically cite to Exemption 3 of
the FOIA in order to qualify under
Exemption 3. The OPEN FOIA Act was
enacted on October 28, 2009, and so this
amendment impacts statutes enacted
after that date. In order for any statute
enacted after that date to qualify as an
Exemption 3 statute, it must satisfy one
of the traditional requirements, i.e., it
must ‘‘require that the matters be
withheld from the public in such a
manner as to leave no discretion on the
issue’’ or it must ‘‘establish particular
criteria for withholding or refer to
particular types of matters to be
withheld;’’ and, the statute enacted after
October 28, 2009, must also specifically
cite to Exemption 3. Through this
change to the regulations, the FDIC is
bringing the language concerning
withholdings made pursuant to
Exemption 3 into accord with the OPEN
FOIA Act.
Paragraph (h) of § 309.5 (Dispute
resolution) is added to include
procedures for engaging in dispute
resolution through the FOIA Public
Liaison and OGIS. Section 3 of the FOIA
Improvement Act requires agencies to
amend their regulations to include
procedures for engaging in dispute
resolution through the FOIA Public
Liaison and OGIS. The FDIC has
pointed requesters to its FOIA Service
Center at https://www.fdic.gov, which
contains details about the procedures
for contacting these entities in order to
engage in dispute resolution. The
addition of these procedures to the
FDIC’s regulations is required by the
FOIA Improvement Act.
Paragraph (i) of § 309.5 (Appeals) is
revised in numbering because of the
addition of § 309.5(h) (Dispute
resolution). Previously this paragraph
was § 309.5(h); it is now § 309.5(i). This
adjustment to numbering is necessary to
maintain the organizational integrity of
the regulations.
Paragraph (i)(2) of § 309.5 (Appeals) is
revised to extend the time to file an
administrative appeal to 90 days, in
conformity with the 90-day time period
established by the FOIA Improvement
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Act. Section 2 of the FOIA Improvement
Act amended 5 U.S.C. 552(a)(6)(A)(i),
changing the time period for appeal of
adverse determinations from 30 days to
90 days. This change to the regulations
is required by the FOIA Improvement
Act.
Paragraph (j) of § 309.5 (Records of
another agency) is revised in numbering
because of the addition of § 309.5(h)
(Dispute resolution). Previously this
paragraph was § 309.5(i); it is now
§ 309.5(j). This adjustment to numbering
is necessary to maintain the
organizational integrity of the
regulations.
IV. Expected Effects of the Rule
The FDIC has analyzed the expected
effects of the interim final rule and
estimates them to be relatively small.
The rule makes two primary changes to
the existing regulations: Extending the
deadline for requesters to file an appeal,
and establishing procedures for dispute
resolution and requiring notice to
requesters about the availability of
dispute resolution services. These
changes help support the policy
objective of the FOIA, which is to
provide public access to government
information.
The provision in the interim final rule
that extends the time period for which
an appeal will be considered will likely
result in a small increase in
administrative costs associated with
FOIA requests, but that may be offset by
a decrease in lawsuits brought since
requesters will now have a larger
window for seeking administrative
review of an adverse request
determination. In the past ten fiscal
years, the FDIC has received 238
appeals from FOIA requesters, an
average of 24 appeals per fiscal year.
The extension of the appeal time period
from 30 business days to 90 calendar
days will likely result in a general
increase in number of appeals, given the
larger window for filing an appeal. A
general increase in the number of
appeals will likely increase
administrative costs for the FDIC. Any
potential increase in administrative
costs as a result of the extension of the
appeal period rule is difficult to
estimate given that costs will depend
upon both the volume of requests
received and the extent to which the
requests may be subject, in whole or in
part, to denial. However, the extension
of the appeal period will benefit the
public by expanding the deadline for
requesters to file an administrative
appeal of adverse determinations made
by the FDIC.
The establishment of a dispute
resolution process also supports public
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access to government information while
likely posing a small increase in
administrative costs for the FDIC and/or
the OGIS. The establishment of a
dispute resolutions process, in addition
to the FDIC appeal process, will support
public access to government records by
providing requesters with an additional
mechanism for the review of adverse
determinations, in the event of a
dispute. Any potential increase in
administrative costs as a result of the
establishment of a dispute resolution
process by the interim final rule is
difficult to estimate, given the
unpredictable elements noted above.
The interim final rule also makes
changes to the FDIC’s FOIA regulations
to reflect FDIC FOIA practices initially
prompted by the OPEN Government Act
and the OPEN FOIA Act. Most of the
changes to the FDIC FOIA regulations
are procedural and either codify current
practice or make benign changes to the
FOIA regulations that are unlikely to
pose any costs or benefits for the Public.
In conclusion, there is potential for a
small increase in administrative costs
for the FDIC posed by the revisions, but
the policy objective of public access to
government information continues to be
supported and would in fact be
enhanced—as required by the FOIA
Improvement Act.
V. Alternatives Considered
The changes in the interim final rule
are mandated by the FOIA Improvement
Act and are in accord with the OPEN
Government Act and the OPEN FOIA
Act. Under the FOIA Improvement Act,
the FDIC has no discretion to make or
consider alternative specifications to the
provisions in the interim final rule. The
other technical changes to 12 CFR part
309 are minor and designed to improve
the transparency and readability of the
CFR, and therefore FDIC staff did not
actively consider alternative approaches
to these changes.
VI. Request for Comment
Pursuant to the Administrative
Procedure Act (the ‘‘APA’’), at 5 U.S.C.
553(b), notice and comment are not
required prior to the issuance of a final
rule if an agency, for good cause, finds
that ‘‘notice and public procedure
thereon are impracticable, unnecessary,
or contrary to the public interest.’’ As
discussed above, the FOIA Improvement
Act requires the FDIC to issue
regulations which incorporate the
changes made by the FOIA
Improvement Act not later than 180
days after the date of its enactment (i.e.,
by December 27, 2016). Because the
statutory changes under the FOIA
Improvement Act were effective
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immediately and due to the statutory
deadline imposed for rulemaking, the
FDIC has concluded that publishing
notice and taking comment before
issuing a final rule would be
impracticable. In addition, since these
changes merely bring the regulations
into alignment with the provisions
contained in the FOIA Improvement
Act, the OPEN Government Act, and the
OPEN FOIA Act, and improve the rule’s
accuracy and organization, publishing
prior notice would be unnecessary.
Therefore, the FDIC finds good cause
exists to publish this rule as final
without prior notice and comment and
with an effective date as of the date of
its publication in the Federal Register to
allow the public to benefit immediately.
Nevertheless, the FDIC welcomes public
comments from any interested person
on any aspect of the changes made by
this interim final rule. Please refer to the
ADDRESSES section above. The FDIC
will carefully consider all public
comments, if any, in any further
development of this rule.
VII. Regulatory Analysis
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Riegle Community Development and
Regulatory Improvement Act
Section 302 of the Riegle Community
Development and Regulatory
Improvement Act 5 generally requires
that regulations prescribed by federal
banking agencies which impose
additional reporting, disclosures, or
other new requirements on insured
depository institutions take effect on the
first day of a calendar quarter unless the
regulation is required to take effect on
another date pursuant to another act of
Congress or the agency determines for
good cause that the regulation should
become effective on an earlier date. This
interim final rule makes revisions in the
FDIC’s FOIA regulations, because these
changes are merely bringing the
regulations into alignment with the
provisions contained in the FOIA
Improvement Act, the OPEN
Government Act, and the OPEN FOIA
Act, as well as for purposes of accuracy
and organization. It does not impose any
new or additional reporting, disclosures,
or other requirements on insured
depository institutions. Additionally, as
previously noted, the FOIA
Improvement Act requires the FDIC to
issue regulations which incorporate the
changes made by the FOIA
Improvement Act not later than 180
days after the date of its enactment (i.e.,
by December 27, 2016). Accordingly,
5 12
U.S.C. 4802.
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this interim final rule will be effective
upon publication.
Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) 6
applies only to rules for which an
agency publishes a general notice of
proposed rulemaking pursuant to 5
U.S.C. 553(b). As discussed above,
consistent with section 553(b)(B) of the
APA, the FDIC has determined for good
cause that general notice and
opportunity for public comment is not
necessary. Accordingly, the RFA’s
requirements relating to initial and final
regulatory flexibility analysis do not
apply. Nonetheless, the FDIC observes
that because this interim final rule only
amends the FDIC’s regulations under
the FOIA to incorporate certain changes
made by the FOIA Improvement Act,
the OPEN Government Act, and the
OPEN FOIA Act, and for purposes of
accuracy and organization, it should not
have a significant economic impact on
a substantial number of small entities.
The FDIC requests comment on these
conclusions.
The Omnibus Consolidated and
Emergency Supplemental
Appropriations Act, 1999: Assessment
of Federal Regulations and Policies on
Families
The FDIC determined that this interim
final rule will not affect family
wellbeing within the meaning of section
654 of the Omnibus Consolidated and
Emergency Supplemental
Appropriations Act, 1999.7
Paperwork Reduction Act
The Paperwork Reduction Act of
1995 8 states that no agency may
conduct or sponsor, nor is the
respondent required to respond to, an
information collection unless it displays
a currently valid Office of Management
and Budget (OMB) control number. The
FDIC has determined that this interim
final rule does not create any new, or
revise any existing, collections of
information under the Paperwork
Reduction Act. Consequently, no
information collection request will be
submitted to the OMB for review. The
FDIC invites comment on its PRA
determination.
Plain Language Act
Section 722 of the Gramm-LeachBliley Act requires the FDIC to use plain
language in all proposed and final rules
published after January 1, 2000.9 The
6 Public Law 96–354, Sept. 19, 1980, codified to
5 U.S.C. 601 et seq.
7 Public Law 105–277, 112 Stat. 2681 (1998).
8 44 U.S.C. 3501–3521.
9 Public Law 106–102, 113 Stat. 1338 (1999).
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FDIC invites comment on how to make
this rule easier to understand. For
example:
• Has the FDIC organized the material
to suit your needs? If not, how could the
FDIC present the rule more clearly?
• Are the requirements in the rule
clearly stated? If not, how could the rule
be more clearly stated?
• Does the rule contain technical
language or jargon that is not clear? If
so, which language requires
clarification?
• Would a different format (grouping
and order of sections, use of headings,
paragraphing) make the rule easier to
understand? If so, what changes would
achieve that?
• Is this section format adequate? If
not, which of the sections should be
changed and how?
• What other changes can the FDIC
incorporate to make the rule easier to
understand?
List of Subjects in 12 CFR Part 309
Federal Deposit Insurance
Corporation, Procedure and Rules of
Practice, Disclosure of Information.
Accordingly, for the reasons stated in
the preamble, 12 CFR chapter 3,
subchapter A, part 309 is amended as
follows:
PART 309—DISCLOSURE OF
INFORMATION
1. The authority citation for part 309
continues to read as follows:
■
Authority: 5 U.S.C. 552; 12 U.S.C. 1819
‘‘Seventh’’ and ‘‘Tenth.’’
2. Section 309.2 is amended by
revising paragraph (e) to read as follows:
■
§ 309.2
Definitions.
*
*
*
*
*
(e) The term record means:
(1) Any information that would be an
agency record subject to the
requirements of this section when
maintained by the FDIC in any format,
including an electronic format; and
(2) Any information described under
paragraph (e)(1) of this section that is
maintained for the FDIC by an entity
under Government contract, for
purposes of records management.
*
*
*
*
*
■ 3. Section 309.4 is amended by
revising the paragraph (a)(2) subject
heading and paragraphs (a)(2)(i)
introductory text, (a)(2)(i)(D), and (b) to
read as follows:
§ 309.4
Publicly available records.
(a) * * *
(2) Documents required to be made
available for inspection in an electronic
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format. (i) The following types of
documents created on or after November
1, 1996, and required to be made
available for inspection in an electronic
format, may be found on the FDIC’s
World Wide Web page located at: https://
www.fdic.gov:
*
*
*
*
*
(D) Copies of all records released to
any person under § 309.5:
(1) That, because of the nature of their
subject matter, the FDIC determines
have become or are likely to become the
subject of subsequent requests for
substantially the same records; or
(2) That have been requested 3 or
more times; and
*
*
*
*
*
(b) Public Information Center. The
FDIC maintains a Public Information
Center or ‘‘PIC’’ that contains Corporate
records that the Freedom of Information
Act requires be made available for
regular inspection and copying, as well
as any records or information the FDIC,
in its discretion, has regularly made
available, to the public. The PIC has
extensive materials of interest to the
public, including many Reports,
Summaries and Manuals used or
published by the Corporation that are
made available, by appointment, for
inspection and copying. The PIC is open
from 9 a.m. to 4 p.m., Monday through
Friday, excepting Federal holidays. It is
located at 3501 North Fairfax Drive,
Room E–1005, Arlington, VA 22226.
The PIC may be reached during business
hours by calling 1(877) 275–3342 or 1(703) 562–2200.
*
*
*
*
*
■ 4. Section 309.5 is amended by:
■ a. Revising paragraphs (a)(6), (d)(1),
and (d)(4);
■ b. Redesignating paragraphs (d)(6) and
(d)(7) as paragraphs (d)(7) and (d)(8),
respectively and adding new paragraph
(d)(6);
■ c. Redesignating newly redesignated
paragraph (d)(8)(iii) as paragraph
(d)(8)(iv) and adding a new paragraph
(d)(8)(iii);
■ d. Revising newly redesignated
paragraphs (d)(8)(iv)(C) and (d)(8)(iv)(D)
and adding paragraph (d)(8)(iv)(E);
■ e. Revising paragraphs (f)(1)(x) and
(g)(3);
■ f. Redesignating paragraphs (h) and (i)
as paragraphs (i) and (j), respectively;
■ g. Adding new paragraph (h); and
■ h. Revising newly redesignated
paragraph (i)(2).
The revisions and additions read as
follows:
§ 309.5
Procedures for requesting records.
(a) * * *
(6) Representative of the news media
means any person or entity that gathers
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information of potential interest to a
segment of the public, uses its editorial
skills to turn the raw materials into a
distinct work, and distributes that work
to an audience. The term news means
information that is about current events
or that would be of current interest to
the public. Examples of news-media
entities are television or radio stations
broadcasting to the public at large and
publishers of periodicals (but only if
such entities qualify as disseminators of
news) who make their products
available for purchase by or
subscription by or free distribution to
the general public. These examples are
not all-inclusive. Moreover, as methods
of news delivery evolve (for example,
the adoption of the electronic
dissemination of newspapers through
telecommunications services), such
alternative media will be considered to
be news-media entities. A freelance
journalist will be regarded as working
for a news-media entity if the journalist
can demonstrate a solid basis for
expecting publication through that
entity, whether or not the journalist is
actually employed by that entity. A
publication contract would present a
solid basis for such an expectation; the
FDIC may also consider the past
publication record of the requester in
making this determination.
(d) * * *
(1) Receipt of requests. Upon receipt
of a request that satisfies paragraph (b)
of this section, the FOIA/PA Group will
acknowledge receipt of the request in
writing to the requester and provide the
requester with an individualized
tracking number for the request. The
date of receipt for such request,
including one that is addressed
incorrectly or that is referred by another
agency, is the date the FOIA/PA Group
actually receives the request.
*
*
*
*
*
(4) A requester seeking expedited
processing will be notified whether
expedited processing has been granted
within ten (10) working days of the
receipt of the request. If the request for
expedited processing is denied, the
requester may file an appeal pursuant to
the procedures set forth in paragraph (i)
of this section, and the FDIC shall
respond to the appeal within ten (10)
working days after receipt of the appeal.
*
*
*
*
*
(6) Checking status of request. A
requester may check on the status of a
request using the tracking number
assigned to the request to obtain
information about the request including
the date on which the FDIC originally
received the request and an estimated
date on which the FDIC will complete
PO 00000
Frm 00023
Fmt 4700
Sfmt 4700
83647
action on the request. The status of a
request may be obtained:
(i) Online at the FDIC’s FOIA Service
Center, at https://www.fdic.gov, if the
request was submitted electronically
using the FDIC’s online FOIA request
form; or
(ii) By calling the FDIC’s FOIA
Service Center at (202) 898–7021, if the
request was submitted by email,
facsimile or regular mail.
*
*
*
*
*
(8) * * *
(iii) The right of the requester to seek
assistance from the FDIC’s FOIA Public
Liaison; and
(iv) * * *
(C) The exemptions relied on for the
denial;
(D) The right of the requester to
appeal the denial to the FDIC’s General
Counsel within 90 calendar days
following receipt of the notification, as
specified in paragraph (i) of this section;
and
(E) The right of the requester to seek
dispute resolution services from the
FDIC’s FOIA Public Liaison and/or the
Office of Government Information
Services (OGIS).
(f) * * *
(1) * * *
(x) As part of the initial request, a
requester may ask that the FDIC waive
or reduce fees if disclosure of the
records is in the public interest because
it is likely to contribute significantly to
public understanding of the operations
or activities of the government and is
not primarily in the commercial interest
of the requester. Determinations as to a
waiver or reduction of fees will be made
by the FOIA/PA Group, Legal Division
(or designee) and the requester will be
notified in writing of his/her
determination. A determination not to
grant a request for a waiver or reduction
of fees under this paragraph may be
appealed to the FDIC’s General Counsel
(or designee) pursuant to the procedure
set forth in paragraph (i) of this section.
*
*
*
*
*
(g) * * *
(3) Records specifically exempted
from disclosure by statute, provided that
such statute:
(i)(A) Requires that the matters be
withheld from the public in such a
manner as to leave no discretion on the
issue; or
(B) Establishes particular criteria for
withholding or refers to particular types
of matters to be withheld; and
(ii) if enacted after the date of
enactment of the OPEN FOIA Act of
2009, specifically cites to 5 U.S.C.
552(b)(3);
*
*
*
*
*
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Federal Register / Vol. 81, No. 225 / Tuesday, November 22, 2016 / Rules and Regulations
(h) Dispute resolution. A requester
seeking to engage in dispute resolution
may make a request to the FOIA Public
Liaison and/or OGIS by following the
procedures set forth online in the FDIC’s
FOIA Service Center at https://
www.fdic.gov.
(i) * * *
(2) A person whose initial request for
records under this section, or whose
request for a waiver of fees under
paragraph (f)(1)(x) of this section, has
been denied, either in part or in whole,
has the right to appeal the denial to the
FDIC’s General Counsel (or designee)
within 90 calendar days after receipt of
notification of the denial. Appeals of
denials of initial requests or for a waiver
of fees must be in writing and include
any additional information relevant to
consideration of the appeal.
*
*
*
*
*
Dated at Washington, DC, this 15th day of
November, 2016.
By order of the Board of Directors.
Federal Deposit Insurance Corporation.
Valerie J. Best,
Assistant Executive Secretary.
[FR Doc. 2016–27961 Filed 11–21–16; 8:45 am]
BILLING CODE 6714–01–P
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 39
[Docket No. FAA–2016–3701; Directorate
Identifier 2015–NM–015–AD; Amendment
39–18689; AD 2016–21–08]
RIN 2120–AA64
Airworthiness Directives; Airbus
Airplanes
Examining the AD Docket
Federal Aviation
Administration (FAA), Department of
Transportation (DOT).
ACTION: Final rule.
AGENCY:
We are superseding
Airworthiness Directive (AD) 2013–25–
08 for all Airbus Model A330–200, –200
Freighter, and –300 series airplanes; and
Model A340–200 and –300 series
airplanes. AD 2013–25–08 required a
repetitive inspection program on certain
check valves in the hydraulic systems
that includes, among other things,
inspections for lock wire presence and
integrity, traces of seepage or black
deposits, proper torque, alignment of
the check valve and manifold,
installation of new lock wire, and
corrective actions if needed. This new
AD removes airplanes from the
applicability, and requires modifying
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SUMMARY:
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the green, blue, and yellow high
pressure hydraulic manifolds by
replacing certain check valves with
improved check valves, which
terminates the repetitive inspections
required by this AD. This AD was
prompted by multiple reports of
hydraulic line check valves loosening.
We are issuing this AD to address the
unsafe condition on these products.
DATES: This AD is effective December
27, 2016.
The Director of the Federal Register
approved the incorporation by reference
of certain publications listed in this AD
as of December 27, 2016.
The Director of the Federal Register
approved the incorporation by reference
of certain other publications listed in
this AD as of January 31, 2014 (78 FR
78694, December 27, 2013).
The Director of the Federal Register
approved the incorporation by reference
of certain other publications listed in
this AD as of December 14, 2009 (74 FR
62208, November 27, 2009).
ADDRESSES: For service information
identified in this final rule, contact
Airbus SAS—Airworthiness Office—
EAL, 1 Rond Point Maurice Bellonte,
31707 Blagnac Cedex, France; telephone
+33 5 61 93 36 96; fax +33 5 61 93 45
80; email airworthiness.A330-A340@
airbus.com; Internet https://
www.airbus.com. You may view this
referenced service information at the
FAA, Transport Airplane Directorate,
1601 Lind Avenue SW., Renton, WA.
For information on the availability of
this material at the FAA, call 425–227–
1221. It is also available on the Internet
at https://www.regulations.gov by
searching for and locating Docket No.
FAA–2016–3701.
You may examine the AD docket on
the Internet at https://
www.regulations.gov by searching for
and locating Docket No. FAA–2016–
3701; or in person at the Docket
Management Facility between 9 a.m.
and 5 p.m., Monday through Friday,
except Federal holidays. The AD docket
contains this AD, the regulatory
evaluation, any comments received, and
other information. The address for the
Docket Office (telephone 800–647–5527)
is Docket Management Facility, U.S.
Department of Transportation, Docket
Operations, M–30, West Building
Ground Floor, Room W12–140, 1200
New Jersey Avenue SE., Washington,
DC 20590.
FOR FURTHER INFORMATION CONTACT:
Vladimir Ulyanov, Aerospace Engineer,
International Branch, ANM–116,
Transport Airplane Directorate, FAA,
PO 00000
Frm 00024
Fmt 4700
Sfmt 4700
1601 Lind Avenue SW., Renton, WA
98057–3356; telephone 425–227–1138;
fax 425–227–1149.
SUPPLEMENTARY INFORMATION:
Discussion
We issued a notice of proposed
rulemaking (NPRM) to amend 14 CFR
part 39 to supersede AD 2013–25–08,
Amendment 39–17704 (78 FR 78694,
December 27, 2013) (‘‘AD 2013–25–
08’’). AD 2013–25–08 applied to all
Airbus Model A330–200, –200
Freighter, and –300 series airplanes; and
Model A340–200 and –300 series
airplanes. The NPRM published in the
Federal Register on February 25, 2016
(81 FR 9374) (‘‘the NPRM’’). The NPRM
was prompted by multiple reports of
hydraulic line check valves loosening.
The NPRM proposed to continue to
require a repetitive inspection program
on certain check valves in the hydraulic
systems that includes, among other
things, inspections for lock wire
presence and integrity, traces of seepage
or black deposits, proper torque,
alignment of the check valve and
manifold, installation of new lock wire,
and corrective actions if needed. The
NPRM also proposed to add airplanes to
the applicability, and require modifying
the green, blue, and yellow high
pressure hydraulic manifolds by
replacing certain check valves with
improved check valves, which would
terminate the repetitive inspections
required by the proposed AD. We are
issuing this AD to detect and correct
hydraulic check valve loosening;
loosened valves could result in
hydraulic leaks, possibly leading to the
loss of all three hydraulic systems and
consequent loss of control of the
airplane.
The European Aviation Safety Agency
(EASA), which is the Technical Agent
for the Member States of the European
Union, has issued EASA Airworthiness
Directive 2015–0009, dated January 16,
2015 (referred to after this as the
Mandatory Continuing Airworthiness
Information, or ‘‘the MCAI’’), to correct
an unsafe condition. The MCAI states:
An A330 operator experienced a Yellow
hydraulic circuit low level due to a loose
check valve, Part Number (P/N) CAR401.
During the inspection on the other two
hydraulic systems, the other three check
valves P/N CAR401 were also found to be
loose with their lock wire broken in two
instances. Airbus A340 aeroplanes are also
equipped with P/N CAR401 high pressure
manifold check valves.
Additional cases of P/N CAR401 check
valve loosening have been reported on
aeroplanes having accumulated more than
1,000 flight cycles (FC). The check valve
fitted on the Yellow hydraulic system is more
E:\FR\FM\22NOR1.SGM
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]]>Agencies
[Federal Register Volume 81, Number 225 (Tuesday, November 22, 2016)]
[Rules and Regulations]
[Pages 83643-83648]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-27961]
=======================================================================
-----------------------------------------------------------------------
FEDERAL DEPOSIT INSURANCE CORPORATION
12 CFR Part 309
RIN 3064-AE53
Revision of the FDIC's Freedom of Information Act Regulations
AGENCY: Federal Deposit Insurance Corporation.
ACTION: Interim final rule and request for comment.
-----------------------------------------------------------------------
SUMMARY: This rule amends the Federal Deposit Insurance Corporation's
(FDIC) regulations under the Freedom of Information Act (FOIA) to
incorporate certain changes made to the FOIA by the FOIA Improvement
Act of 2016 (FOIA Improvement Act). In addition, this rule amends
certain provisions to reflect changes brought about by prior amendments
to the FOIA that had been incorporated into agency practice and
corrects inaccurate contact information and adjusts numbering and
lettering of current provisions because of additions to the
regulations.
DATES: This rule is effective November 22, 2016. Comments must be
submitted by January 23, 2017.
ADDRESSES: You may submit written comments, which must include the
agency name and RIN 3064-AE53, by one of the following methods:
Agency Web site: www.fdic.gov/regulations/laws/federal/.
Follow instructions for submitting comments on the Agency Web site.
Email: Comments@fdic.gov. Include ``Disclosure of
Information'' in the subject line of the message.
Mail: Robert E. Feldman, Executive Secretary, Attention:
Comments, Federal Deposit Insurance Corporation, 550 17th Street NW.,
Washington, DC 20429.
Hand Delivery: Comments may be hand-delivered to the guard
station at the rear of the 550 17th Street Building (located on F
Street) on business days between 7:00 a.m. and 5:00 p.m.
Federal eRulemaking Portal: https://www.regulations.gov.
Follow the instructions for submitting comments.
Public Inspection: All comments received will be posted without
change to https://www.fdic.gov/regulations/laws/federal/, including any
personal information provided. Paper copies of public comments may be
ordered from the FDIC Public Information Center, 3501 North Fairfax
Drive, Room E-1002, Arlington, VA 22226, or by telephone at (877) 275-
3342 or (703) 562-2200.
FOR FURTHER INFORMATION CONTACT: Hugo Zia, Supervisory Counsel, FDIC,
FOIA/Privacy Act Group, Legal Division, at hzia@fdic.gov or (703) 562-
2671; or John Elmore, Counsel, FDIC, FOIA/Privacy Act Group, Legal
Division, at joelmore@fdic.gov or (703) 562-2047; or Sarah Jirousek,
Counsel, FDIC, FOIA/Privacy Act Group, Legal Division, at
sjirousek@fdic.gov or (703) 562-2125.
SUPPLEMENTARY INFORMATION:
I. Policy Objectives
The policy objective of this interim final rule is to bring the
FDIC's FOIA regulations \1\ into accord with the changes to the FOIA
made by the FOIA Improvement Act,\2\ the OPEN Government Act,\3\ and
the OPEN FOIA Act.\4\
---------------------------------------------------------------------------
\1\ 12 CFR 309.2, 309.4, 309.5.
\2\ Public Law 114-185, 130 Stat. 538 (2016).
\3\ Public Law 110-175, 121 Stat. 2524 (2007).
\4\ Public Law 111-83, 123 Stat. 2142, 2184 (2009).
---------------------------------------------------------------------------
II. Background
This rule amends the FDIC's regulations under the FOIA to
incorporate certain changes made to the FOIA, 5 U.S.C. 552, by the FOIA
Improvement Act. Among other things, the FOIA Improvement Act requires
agencies to provide a minimum of 90 days for requesters to file an
administrative appeal. The FOIA Improvement Act also requires agency
regulations to address dispute resolution procedures and to provide
notification to requesters about the availability of dispute resolution
services. The FOIA Improvement Act requires the FDIC to issue
regulations which incorporate the changes made by the FOIA Improvement
Act not later than 180 days after the date of its enactment (i.e., by
December 27, 2016). This rule updates the FDIC's regulations in 12 CFR
part 309 to reflect those statutory changes.
In addition, as explained below, this rule amends certain
provisions to reflect changes brought about by the amendments to the
FOIA in the OPEN Government Act and the OPEN FOIA Act. These amendments
to the FOIA from 2007 and 2009 have been followed by the FDIC even
though the agency's regulations had not been amended.
Finally, the rule corrects one instance of inaccurate contact
information and adjusts the numbering and lettering of current
provisions because of additions made to the regulations.
III. Description of the Rule
The following changes have been made to the FDIC's FOIA
regulations:
Section 309.2 Definitions
Paragraph (e) of Sec. 309.2 (Definitions) is revised to include
the current definition for a record under the FOIA. Section 9 of the
OPEN Government Act amended the definitions section of the FOIA, 5
U.S.C. 552(f), by including within the definition of ``record'' any
information ``maintained for an agency by an entity under Government
contract, for the purposes of records management.'' This amendment made
clear that records, in the possession of Government contractors for
purposes of records management, are considered agency records for
purposes of the FOIA. Through this change to the regulations, the FDIC
adopts the statutory definition of ``record.''
Section 309.4 Publicly Available Records
Paragraph (a)(2) of Sec. 309.4 (Records available on the FDIC's
World Wide Web page) is revised to replace outdated wording concerning
the inspection of records that are required to be made available to the
public. In the current version of the FDIC's regulations, the phrase
``via computer telecommunications'' is used. The FOIA Improvement Act
changed this wording to ``for inspection in an electronic format.''
Through this change to the regulations, the FDIC adopts the language
concerning public inspection of records in the FOIA Improvement Act.
Paragraph (a)(2)(i)(D) of Sec. 309.4 (Records available on the
FDIC's World Wide Web page) is revised to include
[[Page 83644]]
the requirement that the FDIC make available for public inspection in
an electronic format any record that has been released and (i) that the
FDIC determines has become or is likely to become the subject of
subsequent requests for substantially the same records, or (ii) that
has been requested three or more times. This requirement has been the
practice of the FDIC for a number of years, is in accord with the
current practice of the FDIC and is required by the FOIA Improvement
Act.
Paragraph (b) of Sec. 309.4 (Public Information Center) is revised
to correct inaccurate contact information for the FDIC's Public
Information Center. This revision to the regulations is required so
that requesters have the correct contact information when inquiring
about publicly available records.
Section 309.5 Procedures for Requesting Records
Paragraph (a)(6) of Sec. 309.5 (Representative of the news media)
is revised to include the current definition of ``representative of the
news media'' under the FOIA. Section 3 of the OPEN Government Act
amended 5 U.S.C. 552(a)(4)(A)(ii) of the FOIA by expressly providing a
definition of ``representative of the news media.'' Through this change
to the regulations, the FDIC adopts the definition of ``representative
of the news media'' that is in the OPEN Government Act.
Paragraph (d)(1) of Sec. 309.5 (Receipt of requests) is revised to
specify that the FDIC will provide a requester with an individualized
tracking number for any FOIA request that satisfies 12 CFR 309.5(b), no
matter how long it will take to process the request. Section 7 of the
OPEN Government Act amended 5 U.S.C. 552(a) by requiring agencies to
assign an individualized tracking number for each request that will
require more than ten days to process. This section codified existing
requirements set forth in Executive Order 13,392. Providing tracking
numbers for every FOIA request that satisfies Sec. 309.5(b), including
those that will take less than ten days to process, has been the
practice of the FDIC for a number of years, is in accord with the
current practice of the FDIC and adopts the language of the OPEN
Government Act.
Paragraph (d)(4) of Sec. 309.5 is revised to account for a change
in numbering because of the addition of Sec. 309.5(h) (Dispute
resolution). Previously, the paragraph covering procedures concerning
appeals that is cross-referenced in this paragraph was Sec. 309.5(h);
it is now Sec. 309.5(i). This adjustment to numbering is necessary to
maintain the organizational integrity of the regulations.
Paragraph (d)(6) of Sec. 309.5 (Checking status of request) is
added to notify requesters of the contact information for FDIC's FOIA
Service Center (telephone number and Web site address), thereby
enabling requesters to obtain certain information about the status of
their request. Section 7 of the OPEN Government Act amended 5 U.S.C.
552(a) by requiring agencies to establish a telephone number or a Web
site to allow requesters to inquire about the status of their request,
obtain the date an agency originally received their request, and obtain
an estimated date for the completion of the agency's processing of
their request. This section of the OPEN Government Act codified
existing requirements set forth in Executive Order 13,392. The FDIC has
a FOIA Service Center that is accessible via the internet and telephone
and, through either method, requesters are provided with the date of
the FDIC's receipt of their request and the estimated date on which the
FDIC will complete its processing of their request. The FDIC has made
these services and information available to requesters for a number of
years. The addition of this notification provision to the regulations
is in accord with the FDIC's current practice and adopts the language
in the OPEN Government Act.
Paragraph (d)(7) of Sec. 309.5 (Notification) is revised in
numbering because of the addition of Sec. 309.5(d)(6) (Checking status
of request). Previously this paragraph was Sec. 309.5(d)(6)
(Notification); it is now Sec. 309.5(d)(7) (Notification). This
adjustment to numbering is necessary to maintain the organizational
integrity of the regulations.
Paragraph (d)(8) of Sec. 309.5 (Response to request) is revised in
numbering because of the addition of Sec. 309.5(d)(6) (Checking status
of request). Previously this paragraph was Sec. 309.5(d)(7); it is now
Sec. 309.5(d)(8). This adjustment to numbering is necessary to
maintain the organizational integrity of the regulations.
Paragraph (d)(8)(iii) of Sec. 309.5 (Response to request) is added
to require the FDIC to notify requesters, in its response to their
request, of their right to seek assistance from the FDIC's FOIA Public
Liaison, if the FDIC determines such request satisfies 12 CFR 309.5(b).
Section 2 of the FOIA Improvement Act added 5 U.S.C.
552(a)(6)(A)(i)(II), which requires agencies to offer the services of
their FOIA Public Liaison when issuing their determinations of
requests. The addition of this notification provision to the
regulations is in accord with the FDIC's current practice and is
required by the FOIA Improvement Act.
Paragraph (d)(8)(iv) of Sec. 309.5 (Response to request) is
revised in numbering because of the addition of Sec. 309.5(d)(8)(iii)
(Checking status of request). Previously this paragraph was Sec.
309.5(d)(8)(iii); it is now Sec. 309.5(d)(8)(iv). This adjustment to
numbering is necessary to maintain the organizational integrity of the
regulations.
Paragraph (d)(8)(iv)(C) of Sec. 309.5 (Response to request) is
revised to remove an ``and'' because of the addition of Sec.
309.5(d)(8)(iv)(E). This removal is necessary to maintain the
organizational integrity of the regulations.
Paragraph (d)(8)(iv)(D) of Sec. 309.5 (Response to request) is
revised to provide for notification to the requester that the deadline
to file an administrative appeal is extended to 90 days, in conformity
with the 90-day time period established by the FOIA Improvement Act.
Section 2 of the FOIA Improvement Act amended 5 U.S.C. 552(a)(6)(A)(i)
by changing the time period for an appeal of adverse determinations,
from 30 days to 90 days. This paragraph is also revised to add an
``and'' because of the addition of Sec. 309.5(d)(8)(iv)(E). These
changes are required by the FOIA Improvement Act and for the regulation
to remain organized.
Paragraph (d)(8)(iv)(E) of Sec. 309.5 (Response to request) is
added to include a requirement that the FDIC notify requesters, in
response to an adverse determination of a request that satisfies Sec.
309.5(b), of their right to seek assistance from the FDIC's FOIA Public
Liaison and/or the Office of Government Information Services (OGIS) at
the National Archives and Records Administration. Section 2 of the FOIA
Improvement Act added 5 U.S.C. 552(a)(6)(A)(i)(III), which requires
that when agencies make adverse determinations on requests, they must
offer the services of their FOIA Public Liaison and/or OGIS. The
addition of this provision concerning notification to the regulations
is required by the FOIA Improvement Act.
Paragraph (f)(1)(x) of Sec. 309.5 is revised to account for a
change in numbering because of the addition of Sec. 309.5(h) (Dispute
resolution). Previously, the paragraph referring to procedures
concerning appeals that is cross-referenced in this paragraph was Sec.
309.5(h); it is now Sec. 309.5(i). This adjustment to numbering is
necessary to maintain the organizational integrity of the regulations.
[[Page 83645]]
Paragraph (g)(3)(i) of Sec. 309.5 (Exempt information) is revised
in numbering and by adding an ``and'' because of the addition of Sec.
309.5(g)(3)(ii). Previously this paragraph was Sec. 309.5(d)(8)(iii);
it is now Sec. 309.5(d)(8)(iv). This adjustment to numbering and the
addition of an ``and'' is necessary to maintain the organizational
integrity of the regulations.
Paragraph (g)(3)(ii) of Sec. 309.5 (Exempt information) is added
to include a requirement codified in the OPEN FOIA Act that statutes
enacted after the date of the enactment of the OPEN FOIA Act must
specifically cite to Exemption 3 of the FOIA in order to qualify under
Exemption 3. The OPEN FOIA Act was enacted on October 28, 2009, and so
this amendment impacts statutes enacted after that date. In order for
any statute enacted after that date to qualify as an Exemption 3
statute, it must satisfy one of the traditional requirements, i.e., it
must ``require that the matters be withheld from the public in such a
manner as to leave no discretion on the issue'' or it must ``establish
particular criteria for withholding or refer to particular types of
matters to be withheld;'' and, the statute enacted after October 28,
2009, must also specifically cite to Exemption 3. Through this change
to the regulations, the FDIC is bringing the language concerning
withholdings made pursuant to Exemption 3 into accord with the OPEN
FOIA Act.
Paragraph (h) of Sec. 309.5 (Dispute resolution) is added to
include procedures for engaging in dispute resolution through the FOIA
Public Liaison and OGIS. Section 3 of the FOIA Improvement Act requires
agencies to amend their regulations to include procedures for engaging
in dispute resolution through the FOIA Public Liaison and OGIS. The
FDIC has pointed requesters to its FOIA Service Center at https://www.fdic.gov, which contains details about the procedures for
contacting these entities in order to engage in dispute resolution. The
addition of these procedures to the FDIC's regulations is required by
the FOIA Improvement Act.
Paragraph (i) of Sec. 309.5 (Appeals) is revised in numbering
because of the addition of Sec. 309.5(h) (Dispute resolution).
Previously this paragraph was Sec. 309.5(h); it is now Sec. 309.5(i).
This adjustment to numbering is necessary to maintain the
organizational integrity of the regulations.
Paragraph (i)(2) of Sec. 309.5 (Appeals) is revised to extend the
time to file an administrative appeal to 90 days, in conformity with
the 90-day time period established by the FOIA Improvement Act. Section
2 of the FOIA Improvement Act amended 5 U.S.C. 552(a)(6)(A)(i),
changing the time period for appeal of adverse determinations from 30
days to 90 days. This change to the regulations is required by the FOIA
Improvement Act.
Paragraph (j) of Sec. 309.5 (Records of another agency) is revised
in numbering because of the addition of Sec. 309.5(h) (Dispute
resolution). Previously this paragraph was Sec. 309.5(i); it is now
Sec. 309.5(j). This adjustment to numbering is necessary to maintain
the organizational integrity of the regulations.
IV. Expected Effects of the Rule
The FDIC has analyzed the expected effects of the interim final
rule and estimates them to be relatively small. The rule makes two
primary changes to the existing regulations: Extending the deadline for
requesters to file an appeal, and establishing procedures for dispute
resolution and requiring notice to requesters about the availability of
dispute resolution services. These changes help support the policy
objective of the FOIA, which is to provide public access to government
information.
The provision in the interim final rule that extends the time
period for which an appeal will be considered will likely result in a
small increase in administrative costs associated with FOIA requests,
but that may be offset by a decrease in lawsuits brought since
requesters will now have a larger window for seeking administrative
review of an adverse request determination. In the past ten fiscal
years, the FDIC has received 238 appeals from FOIA requesters, an
average of 24 appeals per fiscal year. The extension of the appeal time
period from 30 business days to 90 calendar days will likely result in
a general increase in number of appeals, given the larger window for
filing an appeal. A general increase in the number of appeals will
likely increase administrative costs for the FDIC. Any potential
increase in administrative costs as a result of the extension of the
appeal period rule is difficult to estimate given that costs will
depend upon both the volume of requests received and the extent to
which the requests may be subject, in whole or in part, to denial.
However, the extension of the appeal period will benefit the public by
expanding the deadline for requesters to file an administrative appeal
of adverse determinations made by the FDIC.
The establishment of a dispute resolution process also supports
public access to government information while likely posing a small
increase in administrative costs for the FDIC and/or the OGIS. The
establishment of a dispute resolutions process, in addition to the FDIC
appeal process, will support public access to government records by
providing requesters with an additional mechanism for the review of
adverse determinations, in the event of a dispute. Any potential
increase in administrative costs as a result of the establishment of a
dispute resolution process by the interim final rule is difficult to
estimate, given the unpredictable elements noted above.
The interim final rule also makes changes to the FDIC's FOIA
regulations to reflect FDIC FOIA practices initially prompted by the
OPEN Government Act and the OPEN FOIA Act. Most of the changes to the
FDIC FOIA regulations are procedural and either codify current practice
or make benign changes to the FOIA regulations that are unlikely to
pose any costs or benefits for the Public.
In conclusion, there is potential for a small increase in
administrative costs for the FDIC posed by the revisions, but the
policy objective of public access to government information continues
to be supported and would in fact be enhanced--as required by the FOIA
Improvement Act.
V. Alternatives Considered
The changes in the interim final rule are mandated by the FOIA
Improvement Act and are in accord with the OPEN Government Act and the
OPEN FOIA Act. Under the FOIA Improvement Act, the FDIC has no
discretion to make or consider alternative specifications to the
provisions in the interim final rule. The other technical changes to 12
CFR part 309 are minor and designed to improve the transparency and
readability of the CFR, and therefore FDIC staff did not actively
consider alternative approaches to these changes.
VI. Request for Comment
Pursuant to the Administrative Procedure Act (the ``APA''), at 5
U.S.C. 553(b), notice and comment are not required prior to the
issuance of a final rule if an agency, for good cause, finds that
``notice and public procedure thereon are impracticable, unnecessary,
or contrary to the public interest.'' As discussed above, the FOIA
Improvement Act requires the FDIC to issue regulations which
incorporate the changes made by the FOIA Improvement Act not later than
180 days after the date of its enactment (i.e., by December 27, 2016).
Because the statutory changes under the FOIA Improvement Act were
effective
[[Page 83646]]
immediately and due to the statutory deadline imposed for rulemaking,
the FDIC has concluded that publishing notice and taking comment before
issuing a final rule would be impracticable. In addition, since these
changes merely bring the regulations into alignment with the provisions
contained in the FOIA Improvement Act, the OPEN Government Act, and the
OPEN FOIA Act, and improve the rule's accuracy and organization,
publishing prior notice would be unnecessary. Therefore, the FDIC finds
good cause exists to publish this rule as final without prior notice
and comment and with an effective date as of the date of its
publication in the Federal Register to allow the public to benefit
immediately. Nevertheless, the FDIC welcomes public comments from any
interested person on any aspect of the changes made by this interim
final rule. Please refer to the ADDRESSES section above. The FDIC will
carefully consider all public comments, if any, in any further
development of this rule.
VII. Regulatory Analysis
Riegle Community Development and Regulatory Improvement Act
Section 302 of the Riegle Community Development and Regulatory
Improvement Act \5\ generally requires that regulations prescribed by
federal banking agencies which impose additional reporting,
disclosures, or other new requirements on insured depository
institutions take effect on the first day of a calendar quarter unless
the regulation is required to take effect on another date pursuant to
another act of Congress or the agency determines for good cause that
the regulation should become effective on an earlier date. This interim
final rule makes revisions in the FDIC's FOIA regulations, because
these changes are merely bringing the regulations into alignment with
the provisions contained in the FOIA Improvement Act, the OPEN
Government Act, and the OPEN FOIA Act, as well as for purposes of
accuracy and organization. It does not impose any new or additional
reporting, disclosures, or other requirements on insured depository
institutions. Additionally, as previously noted, the FOIA Improvement
Act requires the FDIC to issue regulations which incorporate the
changes made by the FOIA Improvement Act not later than 180 days after
the date of its enactment (i.e., by December 27, 2016). Accordingly,
this interim final rule will be effective upon publication.
---------------------------------------------------------------------------
\5\ 12 U.S.C. 4802.
---------------------------------------------------------------------------
Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) \6\ applies only to rules for
which an agency publishes a general notice of proposed rulemaking
pursuant to 5 U.S.C. 553(b). As discussed above, consistent with
section 553(b)(B) of the APA, the FDIC has determined for good cause
that general notice and opportunity for public comment is not
necessary. Accordingly, the RFA's requirements relating to initial and
final regulatory flexibility analysis do not apply. Nonetheless, the
FDIC observes that because this interim final rule only amends the
FDIC's regulations under the FOIA to incorporate certain changes made
by the FOIA Improvement Act, the OPEN Government Act, and the OPEN FOIA
Act, and for purposes of accuracy and organization, it should not have
a significant economic impact on a substantial number of small
entities. The FDIC requests comment on these conclusions.
---------------------------------------------------------------------------
\6\ Public Law 96-354, Sept. 19, 1980, codified to 5 U.S.C. 601
et seq.
---------------------------------------------------------------------------
The Omnibus Consolidated and Emergency Supplemental Appropriations Act,
1999: Assessment of Federal Regulations and Policies on Families
The FDIC determined that this interim final rule will not affect
family wellbeing within the meaning of section 654 of the Omnibus
Consolidated and Emergency Supplemental Appropriations Act, 1999.\7\
---------------------------------------------------------------------------
\7\ Public Law 105-277, 112 Stat. 2681 (1998).
---------------------------------------------------------------------------
Paperwork Reduction Act
The Paperwork Reduction Act of 1995 \8\ states that no agency may
conduct or sponsor, nor is the respondent required to respond to, an
information collection unless it displays a currently valid Office of
Management and Budget (OMB) control number. The FDIC has determined
that this interim final rule does not create any new, or revise any
existing, collections of information under the Paperwork Reduction Act.
Consequently, no information collection request will be submitted to
the OMB for review. The FDIC invites comment on its PRA determination.
---------------------------------------------------------------------------
\8\ 44 U.S.C. 3501-3521.
---------------------------------------------------------------------------
Plain Language Act
Section 722 of the Gramm-Leach-Bliley Act requires the FDIC to use
plain language in all proposed and final rules published after January
1, 2000.\9\ The FDIC invites comment on how to make this rule easier to
understand. For example:
---------------------------------------------------------------------------
\9\ Public Law 106-102, 113 Stat. 1338 (1999).
---------------------------------------------------------------------------
Has the FDIC organized the material to suit your needs? If
not, how could the FDIC present the rule more clearly?
Are the requirements in the rule clearly stated? If not,
how could the rule be more clearly stated?
Does the rule contain technical language or jargon that is
not clear? If so, which language requires clarification?
Would a different format (grouping and order of sections,
use of headings, paragraphing) make the rule easier to understand? If
so, what changes would achieve that?
Is this section format adequate? If not, which of the
sections should be changed and how?
What other changes can the FDIC incorporate to make the
rule easier to understand?
List of Subjects in 12 CFR Part 309
Federal Deposit Insurance Corporation, Procedure and Rules of
Practice, Disclosure of Information.
Accordingly, for the reasons stated in the preamble, 12 CFR chapter
3, subchapter A, part 309 is amended as follows:
PART 309--DISCLOSURE OF INFORMATION
0
1. The authority citation for part 309 continues to read as follows:
Authority: 5 U.S.C. 552; 12 U.S.C. 1819 ``Seventh'' and
``Tenth.''
0
2. Section 309.2 is amended by revising paragraph (e) to read as
follows:
Sec. 309.2 Definitions.
* * * * *
(e) The term record means:
(1) Any information that would be an agency record subject to the
requirements of this section when maintained by the FDIC in any format,
including an electronic format; and
(2) Any information described under paragraph (e)(1) of this
section that is maintained for the FDIC by an entity under Government
contract, for purposes of records management.
* * * * *
0
3. Section 309.4 is amended by revising the paragraph (a)(2) subject
heading and paragraphs (a)(2)(i) introductory text, (a)(2)(i)(D), and
(b) to read as follows:
Sec. 309.4 Publicly available records.
(a) * * *
(2) Documents required to be made available for inspection in an
electronic
[[Page 83647]]
format. (i) The following types of documents created on or after
November 1, 1996, and required to be made available for inspection in
an electronic format, may be found on the FDIC's World Wide Web page
located at: https://www.fdic.gov:
* * * * *
(D) Copies of all records released to any person under Sec. 309.5:
(1) That, because of the nature of their subject matter, the FDIC
determines have become or are likely to become the subject of
subsequent requests for substantially the same records; or
(2) That have been requested 3 or more times; and
* * * * *
(b) Public Information Center. The FDIC maintains a Public
Information Center or ``PIC'' that contains Corporate records that the
Freedom of Information Act requires be made available for regular
inspection and copying, as well as any records or information the FDIC,
in its discretion, has regularly made available, to the public. The PIC
has extensive materials of interest to the public, including many
Reports, Summaries and Manuals used or published by the Corporation
that are made available, by appointment, for inspection and copying.
The PIC is open from 9 a.m. to 4 p.m., Monday through Friday, excepting
Federal holidays. It is located at 3501 North Fairfax Drive, Room E-
1005, Arlington, VA 22226. The PIC may be reached during business hours
by calling 1(877) 275-3342 or 1-(703) 562-2200.
* * * * *
0
4. Section 309.5 is amended by:
0
a. Revising paragraphs (a)(6), (d)(1), and (d)(4);
0
b. Redesignating paragraphs (d)(6) and (d)(7) as paragraphs (d)(7) and
(d)(8), respectively and adding new paragraph (d)(6);
0
c. Redesignating newly redesignated paragraph (d)(8)(iii) as paragraph
(d)(8)(iv) and adding a new paragraph (d)(8)(iii);
0
d. Revising newly redesignated paragraphs (d)(8)(iv)(C) and
(d)(8)(iv)(D) and adding paragraph (d)(8)(iv)(E);
0
e. Revising paragraphs (f)(1)(x) and (g)(3);
0
f. Redesignating paragraphs (h) and (i) as paragraphs (i) and (j),
respectively;
0
g. Adding new paragraph (h); and
0
h. Revising newly redesignated paragraph (i)(2).
The revisions and additions read as follows:
Sec. 309.5 Procedures for requesting records.
(a) * * *
(6) Representative of the news media means any person or entity
that gathers information of potential interest to a segment of the
public, uses its editorial skills to turn the raw materials into a
distinct work, and distributes that work to an audience. The term news
means information that is about current events or that would be of
current interest to the public. Examples of news-media entities are
television or radio stations broadcasting to the public at large and
publishers of periodicals (but only if such entities qualify as
disseminators of news) who make their products available for purchase
by or subscription by or free distribution to the general public. These
examples are not all-inclusive. Moreover, as methods of news delivery
evolve (for example, the adoption of the electronic dissemination of
newspapers through telecommunications services), such alternative media
will be considered to be news-media entities. A freelance journalist
will be regarded as working for a news-media entity if the journalist
can demonstrate a solid basis for expecting publication through that
entity, whether or not the journalist is actually employed by that
entity. A publication contract would present a solid basis for such an
expectation; the FDIC may also consider the past publication record of
the requester in making this determination.
(d) * * *
(1) Receipt of requests. Upon receipt of a request that satisfies
paragraph (b) of this section, the FOIA/PA Group will acknowledge
receipt of the request in writing to the requester and provide the
requester with an individualized tracking number for the request. The
date of receipt for such request, including one that is addressed
incorrectly or that is referred by another agency, is the date the
FOIA/PA Group actually receives the request.
* * * * *
(4) A requester seeking expedited processing will be notified
whether expedited processing has been granted within ten (10) working
days of the receipt of the request. If the request for expedited
processing is denied, the requester may file an appeal pursuant to the
procedures set forth in paragraph (i) of this section, and the FDIC
shall respond to the appeal within ten (10) working days after receipt
of the appeal.
* * * * *
(6) Checking status of request. A requester may check on the status
of a request using the tracking number assigned to the request to
obtain information about the request including the date on which the
FDIC originally received the request and an estimated date on which the
FDIC will complete action on the request. The status of a request may
be obtained:
(i) Online at the FDIC's FOIA Service Center, at https://www.fdic.gov, if the request was submitted electronically using the
FDIC's online FOIA request form; or
(ii) By calling the FDIC's FOIA Service Center at (202) 898-7021,
if the request was submitted by email, facsimile or regular mail.
* * * * *
(8) * * *
(iii) The right of the requester to seek assistance from the FDIC's
FOIA Public Liaison; and
(iv) * * *
(C) The exemptions relied on for the denial;
(D) The right of the requester to appeal the denial to the FDIC's
General Counsel within 90 calendar days following receipt of the
notification, as specified in paragraph (i) of this section; and
(E) The right of the requester to seek dispute resolution services
from the FDIC's FOIA Public Liaison and/or the Office of Government
Information Services (OGIS).
(f) * * *
(1) * * *
(x) As part of the initial request, a requester may ask that the
FDIC waive or reduce fees if disclosure of the records is in the public
interest because it is likely to contribute significantly to public
understanding of the operations or activities of the government and is
not primarily in the commercial interest of the requester.
Determinations as to a waiver or reduction of fees will be made by the
FOIA/PA Group, Legal Division (or designee) and the requester will be
notified in writing of his/her determination. A determination not to
grant a request for a waiver or reduction of fees under this paragraph
may be appealed to the FDIC's General Counsel (or designee) pursuant to
the procedure set forth in paragraph (i) of this section.
* * * * *
(g) * * *
(3) Records specifically exempted from disclosure by statute,
provided that such statute:
(i)(A) Requires that the matters be withheld from the public in
such a manner as to leave no discretion on the issue; or
(B) Establishes particular criteria for withholding or refers to
particular types of matters to be withheld; and
(ii) if enacted after the date of enactment of the OPEN FOIA Act of
2009, specifically cites to 5 U.S.C. 552(b)(3);
* * * * *
[[Page 83648]]
(h) Dispute resolution. A requester seeking to engage in dispute
resolution may make a request to the FOIA Public Liaison and/or OGIS by
following the procedures set forth online in the FDIC's FOIA Service
Center at https://www.fdic.gov.
(i) * * *
(2) A person whose initial request for records under this section,
or whose request for a waiver of fees under paragraph (f)(1)(x) of this
section, has been denied, either in part or in whole, has the right to
appeal the denial to the FDIC's General Counsel (or designee) within 90
calendar days after receipt of notification of the denial. Appeals of
denials of initial requests or for a waiver of fees must be in writing
and include any additional information relevant to consideration of the
appeal.
* * * * *
Dated at Washington, DC, this 15th day of November, 2016.
By order of the Board of Directors.
Federal Deposit Insurance Corporation.
Valerie J. Best,
Assistant Executive Secretary.
[FR Doc. 2016-27961 Filed 11-21-16; 8:45 am]
BILLING CODE 6714-01-P
