Regulations Implementing the FOIA Improvement Act of 2016 and Clarifying the FOIA Regulations, 86573-86575 [2016-28811]

Download as PDF Federal Register / Vol. 81, No. 231 / Thursday, December 1, 2016 / Rules and Regulations PART 740—[AMENDED] DEPARTMENT OF ENERGY 1. The authority citation for part 740 continues to read as follows: Federal Energy Regulatory Commission Authority: 50 U.S.C. 4601 et seq.; 50 U.S.C. 1701 et seq.; 22 U.S.C. 7201 et seq.; E.O. 13026, 61 FR 58767, 3 CFR, 1996 Comp., p. 228; E.O. 13222, 66 FR 44025, 3 CFR, 2001 Comp., p. 783; Notice of August 4, 2016, 81 FR 52587 (August 8, 2016). 18 CFR Parts 375 and 388 ■ 2. Section 740.9 is amended by revising paragraph (a)(8) and the introductory text of paragraph (a)(14) to read as follows: ■ § 740.9 Temporary imports, exports, reexports, and transfers (in-country) (TMP). * * * * * (a) * * * (8) Assembly in Mexico. Commodities may be exported to Mexico under Customs entries that require return to the United States after processing, assembly, or incorporation into end products by companies, factories, or facilities participating in Mexico’s inbond industrialization program (IMMEX) under this paragraph (a)(8), provided that all resulting end-products (or the commodities themselves) are returned to the United States as soon as practicable but no later than four years after the date of export or reexport. * * * * * (14) Return or disposal of items. With the exception of items described in paragraphs (a)(8) and (11) of this section, all items exported, reexported, or transferred (in-country) under this section must, if not consumed or destroyed in the normal course of authorized temporary use abroad, be returned to the United States or other country from which the items were so transferred as soon as practicable but no later than one year after the date of export, reexport, or transfer (in-country). Items not returned shall be disposed of or retained in one of the following ways: * * * * * Kevin J. Wolf, Assistant Secretary for Export Administration. [FR Doc. 2016–28893 Filed 11–30–16; 8:45 am] [Docket No. RM17–5–000; Order No.832] Regulations Implementing the FOIA Improvement Act of 2016 and Clarifying the FOIA Regulations Federal Energy Regulatory Commission, Department of Energy. ACTION: Final rule. AGENCY: On June 30, 2016, President Obama signed the Freedom of Information Act Improvement Act of 2016. The Act requires agencies to revise their regulations within 180 days to account for the new statutory mandates. After undertaking a review of Commission regulations in accordance with Section 3 of the Act, the Commission is revising its FOIA regulations to incorporate the statutory mandates. Additionally, this rule updates the delegation regulations with respect to determinations made by the General Counsel in response to FOIA administrative appeals. DATES: This rule will become effective January 3, 2017. FOR FURTHER INFORMATION CONTACT: Mark Hershfield, Office of the General Counsel, 888 First Street NE., Washington, DC 20426, (202) 502–8597, mark.hershfield@ferc.gov. Christopher MacFarlane, Office of the General Counsel, 888 First Street NE., Washington, DC 20426, (202) 502–6761, christopher.macfarlane@ferc.gov. SUPPLEMENTARY INFORMATION: SUMMARY: ORDER NO. 832 FINAL RULE I. Introduction 1. On June 30, 2016, President Obama signed the Freedom of Information Act (FOIA) Improvement Act of 2016 (FOIA Improvement Act or the Act).1 The Act directs agencies to: (1) Make information that has been requested and disclosed three times publically accessible in an electronic format; 2 (2) institute a sunset period of 25 years on records protected under the deliberative jstallworth on DSK7TPTVN1PROD with RULES BILLING CODE 3510–33–P 1 FOIA Improvement Act of 2016, Public Law 114–185, 130 Stat. 538 (June 2016). The Act also requires several actions that do not necessitate a revising of the regulations such as FOIA officers offering additional FOIA training. 2 See Proactive Disclosure of Non-Exempt Agency Information: Making Information Available Without the Need to File a FOIA Request, OIP Guidance (Oct. 5, 2015), https://www.justice.gov/oip/oipguidance-5. VerDate Sep<11>2014 13:50 Nov 30, 2016 Jkt 241001 PO 00000 Frm 00019 Fmt 4700 Sfmt 4700 86573 process privilege; (3) codify the Department of Justice’s foreseeability of harm standard when rendering FOIA determinations; 3 (4) take reasonable steps to segregate exempt information from nonexempt information; (5) limit fees in unusual circumstances when the agency response is delayed; and (6) provide additional notice requirements to FOIA requesters in agency determination letters. 2. Section 3 of the Act requires agencies to revise their regulations to account for the new statutory mandates. The Act provides that agencies must revise their rules within 180 days to incorporate the statutory changes. Accordingly, the Commission is revising its regulations to implement the FOIA Improvement Act. Consistent with the FOIA administrative appeal provisions in section 388.110, the Commission also is clarifying under section 375.309 that the General Counsel or a designee may issue final determinations on administrative FOIA appeals. II. Discussion 3. After undertaking a review of Commission regulations in accordance with Section 3 of the Act, the Commission is revising its FOIA regulations in 18 CFR 388.106–388.10, as follows. A. Revisions to Section 375.309 4. The FOIA administrative appeal provisions in section 388.110 provide that a FOIA administrative appeal must be directed to the General Counsel for determination, and that the General Counsel or the General Counsel’s designee will make a determination on that appeal within the statutory timeframe.4 Consistent with the Commission’s FOIA administrative appeal provisions in section 388.110, the Commission is clarifying, in section 375.309, that the General Counsel or a designee will provide determinations in response to FOIA administrative appeals. B. Revisions to Section 388.106 5. The FOIA Improvement Act requires agencies to ‘‘make available for public inspection in an electronic format’’ records that have been released and ‘‘that have been requested 3 or more times.’’ Section 388.106 concerns Commission records available in the public reference room at the 3 See 5 U.S.C. 552(b)(5)(2012) (incorporating various privileges including the deliberative process privilege covering ‘‘inter-agency or intraagency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.’’) 4 See 5 U.S.C. 552(a)(6)(A)(ii) (2012). E:\FR\FM\01DER1.SGM 01DER1 86574 Federal Register / Vol. 81, No. 231 / Thursday, December 1, 2016 / Rules and Regulations Commission’s headquarters or on the Commission’s Web site. The Commission is revising that section to codify this requirement. C. Revisions to Section 388.107 6. The FOIA Improvement Act provides that the deliberative process privilege no longer exempts a document that is 25 years or older. Section 388.107 describes material that is exempt from public disclosure under the Commission’s regulations, and a provision in that section describes material that would traditionally fall under the protection of deliberative process privilege. The Commission is revising section 338.107(e) to reflect the 25 year limitation on material that would otherwise be exempt under the deliberative process privilege. D. Revisions to Section 388.108 7. The FOIA Improvement Act requires agencies to codify the Department of Justice’s foreseeable harm standard. Under that standard, agencies ‘‘shall withhold information’’ under the FOIA ‘‘only if the agency reasonably foresees that disclosure would harm an interest protected by an exemption’’ or ‘‘disclosure is prohibited by law.’’ The standard does not require the release of material ‘‘that is otherwise prohibited from disclosure by law, or otherwise exempted from disclosure under [Exemption] 3.’’ The Act also directs agencies to make reasonable efforts to segregate and release nonexempt material. Consistent with Section 3 of the Act, the Commission revises section 388.108 to codify these practices. jstallworth on DSK7TPTVN1PROD with RULES E. Revisions to Section 388.109 8. The Act directs agencies to waive processing fees, under certain unusual circumstances, where the agency’s response was delayed.5 The Commission is revising its regulations on FOIA processing fees, section 388.109, to provide for fee waivers in the unusual circumstances described in the Act. F. Revisions to Section 388.110 9. The FOIA Improvement Act also provides changes to administrative appeals and provides mandatory language that must go in initial response letters. The Act requires that all determination letters must notify the requester that they can seek assistance from the FOIA Public Liaison. Each adverse FOIA determination letter must notify the requester of the option to seek dispute resolution services from Office of Government Information Services (OGIS). 10. The Act also directs Agencies to extend the timeframe to file an administrative appeal from 45 days to at least 90 days. Additionally, the Act mandates that agencies advise requesters that they may seek the assistance of OGIS when the agency extends the response time by ten or more days for unusual circumstances. The Commission will take these steps and revises section 388.110 of its regulations to codify this practice. III. Information Collection Statement 11. Office of Management and Budget (OMB) regulations require OMB to approve certain information collection requirements imposed by agency rule.6 However, this instant Final Rule does not contain any information collection requirements. Therefore, compliance with OMB regulations is not required. IV. Environmental Analysis 12. The Commission is required to prepare an Environmental Assessment or an Environmental Impact Statement for any action that may have a significant adverse effect on the human environment.7 Issuance of this Final Rule does not represent a major federal action having a significant adverse effect on the human environment under the Commission’s regulations implementing the National Environmental Policy Act of 1969. Part 380 of the Commission’s regulations lists exemptions to the requirement to draft an Environmental Analysis or Environmental Impact Statement. Included is an exemption for procedural, ministerial, or internal administrative actions.8 This rulemaking is exempt under that provision. V. Regulatory Flexibility Act 13. The Regulatory Flexibility Act of 1980 (RFA) 9 generally requires a description and analysis of final rules that will have significant economic impact on a substantial number of small entities. This Final Rule makes procedural modifications as directed by statute. The Commission certifies that it will not have a significant economic impact upon participants in Commission proceedings. An analysis under the RFA is not required. 65 5 See Prohibition on Assessing Certain Fees When the FOIA’s Time Limits Are Not Met, OIP Guidance (Oct. 19, 2016), https://www.justice.gov/oip/oipguidance/prohibition_on_assessing_certain_fees_ when_foia_time_limits_not_met. VerDate Sep<11>2014 13:50 Nov 30, 2016 Jkt 241001 CFR 1320.12 (2016). Implementing the National Environmental Policy Act of 1969, Order No. 486, (Dec. 17, 1987), FERC Stats. & Regs. ¶ 30,783 (1987). 8 18 CFR 380.4(a)(1) (2016). 9 5 U.S.C. 601–12 (2012). 7 Regulations PO 00000 Frm 00020 Fmt 4700 Sfmt 4700 VI. Document Availability 14. In addition to publishing the full text of this document in the Federal Register, the Commission provides all interested persons an opportunity to view and/or print the contents of this document via the Internet through the Commission’s Home Page (https:// www.ferc.gov) and in the Commission’s Public Reference Room during normal business hours (8:30 a.m. to 5:00 p.m. Eastern time) at 888 First Street NE., Room 2A, Washington, DC 20426. 15. From the Commission’s Home Page on the Internet, this information is available on eLibrary. The full text of this document is available on eLibrary in PDF and Microsoft Word format for viewing, printing, and/or downloading. To access this document in eLibrary, type the docket number excluding the last three digits of this document in the docket number field. 16. User assistance is available for eLibrary and the Commission’s Web site during normal business hours from FERC Online Support at (202) 502–6652 (toll free at 1–866–208–3676) or email at ferconlinesupport@ferc.gov, or the Public Reference Room at (202) 502– 8371, TTY (202) 502–8659. Email the Public Reference Room at public. referenceroom@ferc.gov. VII. Effective Date 17. The Commission is issuing this rule as a Final Rule without a period for public comment. Under 5 U.S.C. 553(b)(3)(A), notice and comment procedures are unnecessary for ‘‘interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice . . .’’ This rule merely makes modification to existing procedures as directed by statute. The rule will not significantly affect regulated entities or the general public. 18. These regulations are effective January 3, 2017. List of Subjects 18 CFR Part 375 Authority delegations (Government agencies), Seals and insignia, Sunshine Act. 18 CFR Part 388 Confidential business information, Freedom of information. By the Commission. Issued: November 17, 2016. Nathaniel J. Davis, Sr., Deputy Secretary. In consideration of the foregoing, the Commission amends parts 375 and 388, Chapter I, Title 18, Code of Federal Regulations, as follows: E:\FR\FM\01DER1.SGM 01DER1 Federal Register / Vol. 81, No. 231 / Thursday, December 1, 2016 / Rules and Regulations PART 375—THE COMMISSION 1. The authority citation for part 375 continues to read as follows: ■ Authority: 5 U.S.C. 551–557; 15 U.S.C. 717–717w, 3301–3432; 16 U.S.C. 791–825r, 2601–2645; 42 U.S.C. 7101–7352. 2. In § 375.309, paragraph (h) is added and reserved, and paragraph (i) is added to read as follows ■ § 375.309 Counsel. Delegations to the General * * * * * (h) [Reserved] (i) Deny or grant, in whole or in part, an appeal of a Freedom of Information Act determination by the Director of the Office of External Affairs. PART 388—INFORMATION AND REQUESTS 3. The authority citation for part 388 continues to read as follows: ■ Authority: 5 U.S.C. 301–305, 551, 552 (as amended), 553–557; 42 U.S.C. 7101–7352. 4. Amend § 388.106 by adding paragraph (b)(24) to read as follows ■ § 388.106 Requests for Commission records available in the Public Reference Room and from the Commission’s Web site, https://www.ferc.gov. * * * * * (b) * * * (24) Records that have been requested three or more times and determined eligible for public disclosure will be made publicly available on the Commission’s Web site or through other electronic means. * * * * * ■ 5. Amend § 388.107 by revising paragraph (e) to read as follows § 388.107 Commission records exempt from public disclosure. * * * * (e) Interagency or intraagency memoranda or letters which would not be available by law to a party other than an agency in litigation with the agency, except that the deliberative process privilege shall not exempt any record 25 years or older. * * * * * ■ 6. Amend § 388.108 by revising paragraph (c)(4) and adding paragraph (c)(5) to read as follows: jstallworth on DSK7TPTVN1PROD with RULES * § 388.108 Requests for Commission records not available through the Public Reference Room (FOIA requests). * * * * (c) * * * (4) The Director will consider whether partial disclosure of information is possible whenever it is determined that * VerDate Sep<11>2014 13:50 Nov 30, 2016 Jkt 241001 a document is exempt and will take reasonable steps to segregate and release nonexempt information. (5) The Director will only withhold information where it is reasonably foreseeable that disclosure would harm an interest protected by an exemption or disclosure is prohibited by law or otherwise exempted from disclosure under FOIA Exemption 3. * * * * * ■ 7. Amend § 388.109 by adding paragraph (f) to read as follows § 388.109 Fees for record requests. * * * * * (f) The Commission will not charge search fees (or duplication fees for requesters with preferred fee status) where, after extending the time limit for unusual circumstances, as described in § 388.110, the Director does not provide a timely determination. (1) If there are unusual circumstances, as described in § 388.110, and there are more than 5,000 responsive pages to the request, the Commission may charge search fees (or, for requesters in preferred fee status, may charge duplication fees) where the requester received timely written notice and the Commission has discussed with the requester via written mail, electronic mail, or telephone (or made not less than 3 good-faith attempts to do so) how the requester could effectively limit the scope of the request; or (2) If a court determines that exceptional circumstances exist, the Commission’s failure to comply with a time limit will be excused for the length of time provided by the court order. ■ 8. Amend § 388.110 by revising paragraph (a) and adding paragraph (b)(5) to read as follows: § 388.110 Procedure for appeal of denial of requests for Commission records not publicly available or not available through the Public Reference Room, denial of . . . fee waiver or reduction, and denial of requests for expedited processing. * * * * * (a)(1) Determination letters shall indicate that a requester may seek assistance from the FOIA Public Liaison. A person whose request for records, request for fee waiver, or request for expedited processing is denied in whole or in part may seek dispute resolution services from the Office of Government Information Services, or may appeal the determination to the General Counsel or General Counsel’s designee within 90 days of the determination. (2) Appeals filed pursuant to this section must be in writing, addressed to the General Counsel of the Commission, PO 00000 Frm 00021 Fmt 4700 Sfmt 4700 86575 and clearly marked ‘‘Freedom of Information Act Appeal.’’ Such an appeal received by the Commission not addressed and marked as indicated in this paragraph will be so addressed and marked by Commission personnel as soon as it is properly identified and then will be forwarded to the General Counsel. Appeals taken pursuant to this paragraph will be considered to be received upon actual receipt by the General Counsel. (3) The General Counsel or the General Counsel’s designee will make a determination with respect to any appeal within 20 working days after the receipt of such appeal. An appeal of the denial of expedited processing will be considered as expeditiously as possible within the 20 working day period. If, on appeal, the denial of the request for records, fee reduction, or expedited processing is upheld in whole or in part, the General Counsel or the General Counsel’s designee will notify the person making the appeal of the provisions for judicial review of that determination. (b) * * * (5) Whenever the Commission extends the time limit, pursuant to paragraph (b)(1) of this section, by more than ten additional working days, the written notice will notify the requester of the right to seek dispute resolution services from the Office of Government Information Services. [FR Doc. 2016–28811 Filed 11–30–16; 8:45 am] BILLING CODE 6717–01–P INTERNATIONAL TRADE COMMISSION 19 CFR Part 201 FOIA Improvement Act; Rules of General Application United States International Trade Commission. ACTION: Final rule. AGENCY: The United States International Trade Commission (‘‘Commission’’) issues a final rule amending its Rules of Practice and Procedure concerning rules of general application to reflect amendments to the Freedom of Information Act (‘‘FOIA’’) made by the FOIA Improvement Act of 2016 (‘‘Improvement Act’’). Among other things, the Improvement Act requires the Commission to amend its FOIA regulations to extend the deadline for administrative appeals for FOIA decisions, to add information on dispute resolution services, and to amend the SUMMARY: E:\FR\FM\01DER1.SGM 01DER1

Agencies

[Federal Register Volume 81, Number 231 (Thursday, December 1, 2016)]
[Rules and Regulations]
[Pages 86573-86575]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-28811]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

18 CFR Parts 375 and 388

[Docket No. RM17-5-000; Order No.832]

Regulations Implementing the FOIA Improvement Act of 2016 and
Clarifying the FOIA Regulations

AGENCY: Federal Energy Regulatory Commission, Department of Energy.

ACTION:

-----------------------------------------------------------------------F
inal rule.

SUMMARY: On June 30, 2016, President Obama signed the Freedom of
Information Act Improvement Act of 2016. The Act requires agencies to
revise their regulations within 180 days to account for the new
statutory mandates. After undertaking a review of Commission
regulations in accordance with Section 3 of the Act, the Commission is
revising its FOIA regulations to incorporate the statutory mandates.
Additionally, this rule updates the delegation regulations with respect
to determinations made by the General Counsel in response to FOIA
administrative appeals.

DATES: This rule will become effective January 3, 2017.

FOR FURTHER INFORMATION CONTACT:
Mark Hershfield, Office of the General Counsel, 888 First Street NE.,
Washington, DC 20426, (202) 502-8597, mark.hershfield@ferc.gov.
Christopher MacFarlane, Office of the General Counsel, 888 First
Street NE., Washington, DC 20426, (202) 502-6761,
christopher.macfarlane@ferc.gov.

SUPPLEMENTARY INFORMATION:

ORDER NO. 832

FINAL RULE

I. Introduction

1. On June 30, 2016, President Obama signed the Freedom of
Information Act (FOIA) Improvement Act of 2016 (FOIA Improvement Act or
the Act).\1\ The Act directs agencies to: (1) Make information that has
been requested and disclosed three times publically accessible in an
electronic format; \2\ (2) institute a sunset period of 25 years on
records protected under the deliberative process privilege; (3) codify
the Department of Justice's foreseeability of harm standard when
rendering FOIA determinations; \3\ (4) take reasonable steps to
segregate exempt information from nonexempt information; (5) limit fees
in unusual circumstances when the agency response is delayed; and (6)
provide additional notice requirements to FOIA requesters in agency
determination letters.
---------------------------------------------------------------------------

\1\ FOIA Improvement Act of 2016, Public Law 114-185, 130 Stat.
538 (June 2016). The Act also requires several actions that do not
necessitate a revising of the regulations such as FOIA officers
offering additional FOIA training.
\2\ See Proactive Disclosure of Non-Exempt Agency Information:
Making Information Available Without the Need to File a FOIA
Request, OIP Guidance (Oct. 5, 2015), https://www.justice.gov/oip/oip-guidance-5.
\3\ See 5 U.S.C. 552(b)(5)(2012) (incorporating various
privileges including the deliberative process privilege covering
``inter-agency or intra-agency memorandums or letters which would
not be available by law to a party other than an agency in
litigation with the agency.'')
---------------------------------------------------------------------------

2. Section 3 of the Act requires agencies to revise their
regulations to account for the new statutory mandates. The Act provides
that agencies must revise their rules within 180 days to incorporate
the statutory changes. Accordingly, the Commission is revising its
regulations to implement the FOIA Improvement Act. Consistent with the
FOIA administrative appeal provisions in section 388.110, the
Commission also is clarifying under section 375.309 that the General
Counsel or a designee may issue final determinations on administrative
FOIA appeals.

II. Discussion

3. After undertaking a review of Commission regulations in
accordance with Section 3 of the Act, the Commission is revising its
FOIA regulations in 18 CFR 388.106-388.10, as follows.

A. Revisions to Section 375.309

4. The FOIA administrative appeal provisions in section 388.110
provide that a FOIA administrative appeal must be directed to the
General Counsel for determination, and that the General Counsel or the
General Counsel's designee will make a determination on that appeal
within the statutory timeframe.\4\ Consistent with the Commission's
FOIA administrative appeal provisions in section 388.110, the
Commission is clarifying, in section 375.309, that the General Counsel
or a designee will provide determinations in response to FOIA
administrative appeals.
---------------------------------------------------------------------------

\4\ See 5 U.S.C. 552(a)(6)(A)(ii) (2012).
---------------------------------------------------------------------------

B. Revisions to Section 388.106

5. The FOIA Improvement Act requires agencies to ``make available
for public inspection in an electronic format'' records that have been
released and ``that have been requested 3 or more times.'' Section
388.106 concerns Commission records available in the public reference
room at the

[[Page 86574]]

Commission's headquarters or on the Commission's Web site. The
Commission is revising that section to codify this requirement.

C. Revisions to Section 388.107

6. The FOIA Improvement Act provides that the deliberative process
privilege no longer exempts a document that is 25 years or older.
Section 388.107 describes material that is exempt from public
disclosure under the Commission's regulations, and a provision in that
section describes material that would traditionally fall under the
protection of deliberative process privilege. The Commission is
revising section 338.107(e) to reflect the 25 year limitation on
material that would otherwise be exempt under the deliberative process
privilege.

D. Revisions to Section 388.108

7. The FOIA Improvement Act requires agencies to codify the
Department of Justice's foreseeable harm standard. Under that standard,
agencies ``shall withhold information'' under the FOIA ``only if the
agency reasonably foresees that disclosure would harm an interest
protected by an exemption'' or ``disclosure is prohibited by law.'' The
standard does not require the release of material ``that is otherwise
prohibited from disclosure by law, or otherwise exempted from
disclosure under [Exemption] 3.'' The Act also directs agencies to make
reasonable efforts to segregate and release nonexempt material.
Consistent with Section 3 of the Act, the Commission revises section
388.108 to codify these practices.

E. Revisions to Section 388.109

8. The Act directs agencies to waive processing fees, under certain
unusual circumstances, where the agency's response was delayed.\5\ The
Commission is revising its regulations on FOIA processing fees, section
388.109, to provide for fee waivers in the unusual circumstances
described in the Act.
---------------------------------------------------------------------------

\5\ See Prohibition on Assessing Certain Fees When the FOIA's
Time Limits Are Not Met, OIP Guidance (Oct. 19, 2016), https://www.justice.gov/oip/oip-guidance/prohibition_on_assessing_certain_fees_when_foia_time_limits_not_met.
---------------------------------------------------------------------------

F. Revisions to Section 388.110

9. The FOIA Improvement Act also provides changes to administrative
appeals and provides mandatory language that must go in initial
response letters. The Act requires that all determination letters must
notify the requester that they can seek assistance from the FOIA Public
Liaison. Each adverse FOIA determination letter must notify the
requester of the option to seek dispute resolution services from Office
of Government Information Services (OGIS).
10. The Act also directs Agencies to extend the timeframe to file
an administrative appeal from 45 days to at least 90 days.
Additionally, the Act mandates that agencies advise requesters that
they may seek the assistance of OGIS when the agency extends the
response time by ten or more days for unusual circumstances. The
Commission will take these steps and revises section 388.110 of its
regulations to codify this practice.

III. Information Collection Statement

11. Office of Management and Budget (OMB) regulations require OMB
to approve certain information collection requirements imposed by
agency rule.\6\ However, this instant Final Rule does not contain any
information collection requirements. Therefore, compliance with OMB
regulations is not required.
---------------------------------------------------------------------------

\6\ 5 CFR 1320.12 (2016).
---------------------------------------------------------------------------

IV. Environmental Analysis

12. The Commission is required to prepare an Environmental
Assessment or an Environmental Impact Statement for any action that may
have a significant adverse effect on the human environment.\7\ Issuance
of this Final Rule does not represent a major federal action having a
significant adverse effect on the human environment under the
Commission's regulations implementing the National Environmental Policy
Act of 1969. Part 380 of the Commission's regulations lists exemptions
to the requirement to draft an Environmental Analysis or Environmental
Impact Statement. Included is an exemption for procedural, ministerial,
or internal administrative actions.\8\ This rulemaking is exempt under
that provision.
---------------------------------------------------------------------------

\7\ Regulations Implementing the National Environmental Policy
Act of 1969, Order No. 486, (Dec. 17, 1987), FERC Stats. & Regs. ]
30,783 (1987).
\8\ 18 CFR 380.4(a)(1) (2016).
---------------------------------------------------------------------------

V. Regulatory Flexibility Act

13. The Regulatory Flexibility Act of 1980 (RFA) \9\ generally
requires a description and analysis of final rules that will have
significant economic impact on a substantial number of small entities.
This Final Rule makes procedural modifications as directed by statute.
The Commission certifies that it will not have a significant economic
impact upon participants in Commission proceedings. An analysis under
the RFA is not required.
---------------------------------------------------------------------------

\9\ 5 U.S.C. 601-12 (2012).
---------------------------------------------------------------------------

VI. Document Availability

14. In addition to publishing the full text of this document in the
Federal Register, the Commission provides all interested persons an
opportunity to view and/or print the contents of this document via the
Internet through the Commission's Home Page (https://www.ferc.gov) and
in the Commission's Public Reference Room during normal business hours
(8:30 a.m. to 5:00 p.m. Eastern time) at 888 First Street NE., Room 2A,
Washington, DC 20426.
15. From the Commission's Home Page on the Internet, this
information is available on eLibrary. The full text of this document is
available on eLibrary in PDF and Microsoft Word format for viewing,
printing, and/or downloading. To access this document in eLibrary, type
the docket number excluding the last three digits of this document in
the docket number field.
16. User assistance is available for eLibrary and the Commission's
Web site during normal business hours from FERC Online Support at (202)
502-6652 (toll free at 1-866-208-3676) or email at
ferconlinesupport@ferc.gov, or the Public Reference Room at (202) 502-
8371, TTY (202) 502-8659. Email the Public Reference Room at
public.referenceroom@ferc.gov.

VII. Effective Date

17. The Commission is issuing this rule as a Final Rule without a
period for public comment. Under 5 U.S.C. 553(b)(3)(A), notice and
comment procedures are unnecessary for ``interpretative rules, general
statements of policy, or rules of agency organization, procedure, or
practice . . .'' This rule merely makes modification to existing
procedures as directed by statute. The rule will not significantly
affect regulated entities or the general public.
18. These regulations are effective January 3, 2017.

List of Subjects

18 CFR Part 375

Authority delegations (Government agencies), Seals and insignia,
Sunshine Act.

18 CFR Part 388

Confidential business information, Freedom of information.
By the Commission.

Issued: November 17, 2016.
Nathaniel J. Davis, Sr.,
Deputy Secretary.
In consideration of the foregoing, the Commission amends parts 375
and 388, Chapter I, Title 18, Code of Federal Regulations, as follows:

[[Page 86575]]

PART 375--THE COMMISSION

0
1. The authority citation for part 375 continues to read as follows:

Authority: 5 U.S.C. 551-557; 15 U.S.C. 717-717w, 3301-3432; 16
U.S.C. 791-825r, 2601-2645; 42 U.S.C. 7101-7352.

0
2. In Sec. 375.309, paragraph (h) is added and reserved, and paragraph
(i) is added to read as follows

Sec. 375.309 Delegations to the General Counsel.

* * * * *
(h) [Reserved]
(i) Deny or grant, in whole or in part, an appeal of a Freedom of
Information Act determination by the Director of the Office of External
Affairs.

PART 388--INFORMATION AND REQUESTS

0
3. The authority citation for part 388 continues to read as follows:

Authority: 5 U.S.C. 301-305, 551, 552 (as amended), 553-557; 42
U.S.C. 7101-7352.

0
4. Amend Sec. 388.106 by adding paragraph (b)(24) to read as follows

Sec. 388.106 Requests for Commission records available in the Public
Reference Room and from the Commission's Web site, https://www.ferc.gov.

* * * * *
(b) * * *
(24) Records that have been requested three or more times and
determined eligible for public disclosure will be made publicly
available on the Commission's Web site or through other electronic
means.
* * * * *

0
5. Amend Sec. 388.107 by revising paragraph (e) to read as follows

Sec. 388.107 Commission records exempt from public disclosure.

* * * * *
(e) Interagency or intraagency memoranda or letters which would not
be available by law to a party other than an agency in litigation with
the agency, except that the deliberative process privilege shall not
exempt any record 25 years or older.
* * * * *

0
6. Amend Sec. 388.108 by revising paragraph (c)(4) and adding
paragraph (c)(5) to read as follows:

Sec. 388.108 Requests for Commission records not available through
the Public

Reference Room (FOIA requests).
* * * * *
(c) * * *
(4) The Director will consider whether partial disclosure of
information is possible whenever it is determined that a document is
exempt and will take reasonable steps to segregate and release
nonexempt information.
(5) The Director will only withhold information where it is
reasonably foreseeable that disclosure would harm an interest protected
by an exemption or disclosure is prohibited by law or otherwise
exempted from disclosure under FOIA Exemption 3.
* * * * *

0
7. Amend Sec. 388.109 by adding paragraph (f) to read as follows

Sec. 388.109 Fees for record requests.

* * * * *
(f) The Commission will not charge search fees (or duplication fees
for requesters with preferred fee status) where, after extending the
time limit for unusual circumstances, as described in Sec. 388.110,
the Director does not provide a timely determination.
(1) If there are unusual circumstances, as described in Sec.
388.110, and there are more than 5,000 responsive pages to the request,
the Commission may charge search fees (or, for requesters in preferred
fee status, may charge duplication fees) where the requester received
timely written notice and the Commission has discussed with the
requester via written mail, electronic mail, or telephone (or made not
less than 3 good-faith attempts to do so) how the requester could
effectively limit the scope of the request; or
(2) If a court determines that exceptional circumstances exist, the
Commission's failure to comply with a time limit will be excused for
the length of time provided by the court order.

0
8. Amend Sec. 388.110 by revising paragraph (a) and adding paragraph
(b)(5) to read as follows:

Sec. 388.110 Procedure for appeal of denial of requests for
Commission records not publicly available or not available through the
Public Reference Room, denial of . . . fee waiver or reduction, and
denial of requests for expedited processing.

* * * * *
(a)(1) Determination letters shall indicate that a requester may
seek assistance from the FOIA Public Liaison. A person whose request
for records, request for fee waiver, or request for expedited
processing is denied in whole or in part may seek dispute resolution
services from the Office of Government Information Services, or may
appeal the determination to the General Counsel or General Counsel's
designee within 90 days of the determination.
(2) Appeals filed pursuant to this section must be in writing,
addressed to the General Counsel of the Commission, and clearly marked
``Freedom of Information Act Appeal.'' Such an appeal received by the
Commission not addressed and marked as indicated in this paragraph will
be so addressed and marked by Commission personnel as soon as it is
properly identified and then will be forwarded to the General Counsel.
Appeals taken pursuant to this paragraph will be considered to be
received upon actual receipt by the General Counsel.
(3) The General Counsel or the General Counsel's designee will make
a determination with respect to any appeal within 20 working days after
the receipt of such appeal. An appeal of the denial of expedited
processing will be considered as expeditiously as possible within the
20 working day period. If, on appeal, the denial of the request for
records, fee reduction, or expedited processing is upheld in whole or
in part, the General Counsel or the General Counsel's designee will
notify the person making the appeal of the provisions for judicial
review of that determination.
(b) * * *
(5) Whenever the Commission extends the time limit, pursuant to
paragraph (b)(1) of this section, by more than ten additional working
days, the written notice will notify the requester of the right to seek
dispute resolution services from the Office of Government Information
Services.

[FR Doc. 2016-28811 Filed 11-30-16; 8:45 am]
BILLING CODE 6717-01-P

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