Revisions to the Freedom of Information Act Regulation, 93792-93795 [2016-30748]
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§ 10000.7
For the reasons discussed in the
preamble, NCD amends 5 CFR part
10000 as follows:
PART 10000—PROCEDURES FOR
DISCLOSURE OF RECORDS UNDER
THE FREEDOM OF INFORMATION ACT
1. The authority citation for part
10000 continues to read as follows:
■
Authority: 5 U.S.C. 552, as amended; E.O.
12600, 52 FR 23781, 3 CFR 1987, 1987
Comp., p. 235; 3 CFR 235.
2. Amend § 10000.2 by revising
paragraphs (1) and (3) of the definition
for ‘‘Requester category’’ to read as
follows:
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§ 10000.2
*
*
Definitions.
*
*
*
Requester category * * *
(1) Commercial requesters;
*
*
*
*
*
(3) All other requesters.
*
*
*
*
*
§ 10000.8 Timeframe for Council’s
response to a FOIA request or
administrative appeal.
*
3. Amend § 10000.6 by revising
paragraphs (b)(3) and (5) and the first
sentence of paragraph (c) introductory
text to read as follows:
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§ 10000.6 Responsibility for responding to
requests.
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(b) * * *
(3) A brief statement of the reason(s)
for the denial, including any FOIA
exemption applied in denying the
request. The Chief FOIA Officer will
indicate, if technically feasible, the
amount of information deleted and the
exemption under which a deletion is
made on the released portion of the
record, unless including that indication
would harm an interest protected by the
exemption;
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*
*
*
*
(5) A statement of the right to seek
dispute resolution services from NCD’s
FOIA Public Liaison and the Office of
Government Information Services.
(c) Consultation, referral, and
coordination. When reviewing records
located by the Council in response to a
request, the Council shall determine
whether another agency of the Federal
Government or entity is better able to
determine whether the record is exempt
from disclosure under the FOIA and, if
so, whether it should be released as a
matter of discretion. * * *
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4. Amend § 10000.7 by revising
paragraph (a), the first sentence of
paragraph (b), and the fifth sentence of
paragraph (c) to read as follows:
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Administrative appeals.
(a) You may appeal an adverse
determination related to your FOIA
request, or the Council’s failure to
respond to your FOIA request within
the prescribed time limits, by email at
FOIA@ncd.gov, or write to the Executive
Director, National Council on Disability,
1331 F Street NW., Suite 850,
Washington, DC 20004.
(b) Your appeal must be in writing
and must be postmarked or
electronically received by the Executive
Director within 90 days of the date of
the letter denying your request, in
whole or in part. * * *
(c) * * * A requester may also seek
dispute resolution services from NCD’s
FOIA Public Liaison and OGIS. * * *
■ 5. Amend § 10000.8 by revising the
first sentence of paragraph (h)(4) to read
as follows.
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(h) * * *
(4) The Chief FOIA Officer will decide
whether to grant or deny your request
for expedited processing and notify the
requester within ten calendar days of
receipt. * * *
Dated: December 14, 2016.
Rebecca Cokley,
Executive Director.
except as noted in specific regulatory
provisions.
FOR FURTHER INFORMATION CONTACT: Tina
Namian, School Program Branch, Policy
and Program Development Division,
Food and Nutrition Service, 703–305–
2590.
SUPPLEMENTARY INFORMATION: The Food
and Nutrition Service published a final
rule in the Federal Register, 81 FR
50151, on July 29, 2016, to expand local
school wellness policy requirements
consistent with the requirements set
forth in section 204 of the Healthy,
Hunger-Free Kids Act of 2010. This
document is redesignating 7 CFR 210.30
and 7 CFR 210.31. This document also
makes a technical correction in 7 CFR
210.30(b)(1)(iv) to ensure readers clearly
understand where to locate the
established hiring standards.
List of Subjects in 7 CFR Part 210
Children, Commodity School
Program, Food assistance programs,
Grant programs-health, Grant programseducation, School breakfast and lunch
programs, Nutrition, Reporting and
recordkeeping requirements.
Accordingly, 7 CFR part 210 is
corrected by making the following
correcting amendments:
PART 210—NATIONAL SCHOOL
LUNCH PROGRAM
[FR Doc. 2016–30475 Filed 12–21–16; 8:45 am]
BILLING CODE 8421–03–P
1. The authority citation for part 210
continues to read as follows:
■
Authority: 42 U.S.C. 1751–1760, 1779.
DEPARTMENT OF AGRICULTURE
§§ 210.30 and 210.31 [Redesignated as
§§ 210.31 and 210.30]
Food and Nutrition Service
■
7 CFR Part 210
§ 210.30
[FNS–2014–0010]
■
2. Redesignate §§ 210.30 and 210.31
as §§ 210.31 and 210.30, respectively.
RIN 0584–AE25
Local School Wellness Policy
Implementation Under the Healthy,
Hunger-Free Kids Act of 2010
Food and Nutrition Service,
USDA.
ACTION: Correcting amendments.
AGENCY:
This document contains
technical corrections to the Code of
Federal Regulations regarding the final
rule published in the Federal Register
on July 29, 2016, ‘‘Local School
Wellness Policy Implementation Under
the Healthy, Hunger-Free Kids Act of
2010.’’
[Amended]
3. In the newly designated § 210.30,
paragraph (b)(1)(iv), remove
‘‘§ 230.30(b)(1)’’ and add in its place
‘‘§ 210.30(b)(1)’’.
Dated: December 15, 2016.
Audrey Rowe,
Administrator, Food and Nutrition Service.
[FR Doc. 2016–30861 Filed 12–21–16; 8:45 am]
BILLING CODE 3410–30–P
SUMMARY:
This document is effective
December 22, 2016. Compliance with
this final rule began on August 29, 2016,
DATES:
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NATIONAL CREDIT UNION
ADMINISTRATION
12 CFR Part 792
RIN 3133–AD44
Revisions to the Freedom of
Information Act Regulation
National Credit Union
Administration (NCUA).
AGENCY:
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Federal Register / Vol. 81, No. 246 / Thursday, December 22, 2016 / Rules and Regulations
ACTION:
Interim final rule with request
for comments.
Alexandria, VA 22314, or telephone:
(703) 518–6540.
The NCUA Board (Board) is
revising its Freedom of Information Act
(FOIA) regulation. The FOIA
Improvement Act of 2016 amended the
FOIA and requires agencies to review
their FOIA regulations and issue certain
specified amendments by December 27,
2016. Specifically, the regulatory
amendments include new procedures
for disclosing records under the FOIA,
assessing fees, and notifying requestors
of options for resolving disputes
through the NCUA FOIA Public Liaison
and the Office of Government
Information Services (OGIS) within the
National Archives and Records
Administration.
SUPPLEMENTARY INFORMATION:
SUMMARY:
This interim final rule is
effective December 22, 2016. Comments
must be received on or before January
23, 2017.
ADDRESSES: You may submit comments
by any of the following methods (Please
send comments by one method only):
• Federal eRulemaking Portal: https://
www.regulations.gov. Follow the
instructions for submitting comments.
• NCUA Web site: https://
www.ncua.gov/regulation-supervision/
Pages/rules/proposed.aspx. Follow the
instructions for submitting comments.
• Email: Address to regcomments@
ncua.gov. Include ‘‘[Your name]
Comments on ‘‘Revisions to the
Freedom of Information Act Regulation’’
in the email subject line.
• Fax: (703) 518–6319. Use the
subject line described above for email.
• Mail: Address to Gerard Poliquin,
Secretary of the Board, National Credit
Union Administration, 1775 Duke
Street, Alexandria, Virginia 22314–
3428.
• Hand Delivery/Courier: Same as
mail address.
Public Inspection: All public
comments are available on the agency’s
Web site at https://www.ncua.gov/
RegulationsOpinionsLaws/comments as
submitted, except as may not be
possible for technical reasons. Public
comments will not be edited to remove
any identifying or contact information.
Paper copies of comments may be
inspected in NCUA’s law library at 1775
Duke Street, Alexandria, Virginia 22314,
by appointment weekdays between 9:00
a.m. and 3:00 p.m. To make an
appointment, call (703) 518–6546 or
send an email to OGCMail@ncua.gov.
FOR FURTHER INFORMATION CONTACT:
Regina Metz, Senior Staff Attorney, or
Linda Dent, Associate General Counsel,
Administrative Law Section, Office of
General Counsel, at 1775 Duke Street,
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DATES:
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I. Legal Background and Regulatory
Changes
NCUA publishes its FOIA regulations
at part 792, subpart A of the agency’s
regulations.1 NCUA’s current FOIA
regulations address: (1) Types of agency
records; (2) their availability or
exemption from release; (3) procedures
for requesting access to records; (4)
processing times; (5) fees; (6) appeals;
and (7) handling of FOIA requests
involving confidential commercial
information.
The FOIA Improvement Act of 2016 2
(Act) was signed into law by the
President on June 30, 2016. The Act
consists of several amendments to the
FOIA affecting FOIA administration.
The Act requires the Board to review
NCUA’s FOIA regulations and revise
procedures for the disclosure of records,
including procedures for engaging in
dispute resolution through the FOIA
Public Liaison and the OGIS.
Specifically, the Act requires that
NCUA must make available to the
public ‘‘in an electronic format’’ certain
information that it previously only had
to make available for copying. The Act
amends FOIA exemption 5 to provide
that ‘‘the deliberative process privilege
shall not apply to records created 25
years or more before the date on which
the records were requested.’’ In
addition, the Act prohibits NCUA from
charging certain fees to FOIA requesters
if it does not respond to them within 20
business days, unless it provides timely
notice that unusual circumstances
apply, in which case it can take up to
10 extra days, or more if there are more
than 5,000 pages necessary to respond
to the request. However, the Act permits
NCUA to charge certain fees to FOIA
requesters if a court has determined
exceptional circumstances exist.
Furthermore, the Act requires that
NCUA must include in its written FOIA
responses the right of requesters to seek
assistance from the NCUA FOIA Public
Liaison. Moreover, for adverse
determinations, the requester will have
the right to appeal the initial decision
for 90 days (previously 30 days); and the
right to seek dispute resolution services
from the NCUA FOIA Public Liaison or
the OGIS. Accordingly, the Board is
making the above required regulatory
changes to the FOIA regulation.
1 12
CFR part 792.
Law 114–185, 130 Stat. 538.
2 Public
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93793
II. Regulatory Procedures
A. Interim Final Rule Under the
Administrative Procedure Act (APA)
The Board finds that notice-andcomment rulemaking in this instance
would be impracticable and
unnecessary under the APA because of:
(1) The legislative directive for federal
agencies to issue interim final
regulations; (2) the procedural nature of
the Act which affords federal agencies
limited discretion in promulgating their
rules; and (3) the statutory deadlines
imposed by Congress for issuing this
regulation. In these circumstances, the
Board finds good cause to issue an
interim final rule without issuing a
notice of proposed rulemaking.
Accordingly, this interim final rule is
issued without prior notice. However,
the Board invites comments on all
aspects of the interim final rule. The
interim final rule will become effective
immediately upon publication in the
Federal Register. The Board will review
and consider all comments before
issuing a final rule.
B. Paperwork Reduction Act
In accordance with the requirements
of the Paperwork Reduction Act (PRA)
of 1995,3 the Board has reviewed the
interim final rule and determined it
does not contain or modify a collection
of information subject to the PRA.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act
requires NCUA to prepare an analysis to
describe any significant economic
impact a rule may have on a substantial
number of small credit unions (those
under $100 million in assets). This
interim final rule does not impose any
requirements on federally insured credit
unions. Therefore, it will not have a
significant economic impact on a
substantial number of small credit
unions and a regulatory flexibility
analysis is not required. Because this
interim final rule would affect few, if
any, small entities, the Board certifies
that the interim final rule will not have
a significant economic impact on small
entities.
D. Executive Order 13132
Executive Order 13132 encourages
independent regulatory agencies to
consider the impact of their actions on
state and local interests. In adherence to
fundamental federalism principles,
NCUA, an independent regulatory
agency as defined in 44 U.S.C. 3502(5),
voluntarily complies with the executive
order. The interim final rule would not
3 44
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U.S.C. 3506; 5 CFR part 1320 Appendix A.1.
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have substantial direct effects on the
states, on the connection between the
national government and the states, or
on the distribution of power and
responsibilities among the various
levels of government. NCUA has
determined that this interim final rule
does not constitute a policy that has
federalism implications for purposes of
the executive order.
E. The Treasury and General
Government Appropriations Act, 1999—
Assessment of Federal Regulations and
Policies on Families
NCUA has determined that this
interim final rule would not affect
family well-being within the meaning of
section 654 of the Treasury and General
Government Appropriations Act of
1999.4
F. Small Business Regulatory
Enforcement Fairness Act
The Small Business Regulatory
Enforcement Fairness Act of 1996
(SBREFA) provides generally for
congressional review of agency rules. A
reporting requirement is triggered in
instances where the Board issues a final
rule as defined by Section 551 of the
APA. The Board has submitted this
interim final rule to the Office of
Management and Budget for it to
determine whether it is a ‘‘major rule’’
within the meaning of the relevant
sections of SBREFA.
List of Subjects in 12 CFR Part 792
Administrative practice and
procedure, Credit unions, Freedom of
Information, Information, Privacy,
Records, System of records.
By the National Credit Union
Administration Board on December 15, 2016.
Gerard Poliquin,
Secretary of the Board.
For the reasons stated above, the
National Credit Union Administration
amends 12 CFR part 792 as follows:
PART 792—REQUESTS FOR
INFORMATION UNDER THE FREEDOM
OF INFORMATION ACT AND PRIVACY
ACT, AND BY SUBPOENA; SECURITY
PROCEDURES FOR CLASSIFIED
INFORMATION
1. Revise the authority citation for part
792 to read as follows:
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Authority: 5 U.S.C. 301, 552, 552a, 552b;
12 U.S.C. 1752a(d), 1766, 1789, 1795f; E.O.
12600, 52 FR 23781, 3 CFR, 1987 Comp.,
p.235; E.O. 13526, 75 FR 707, 2009 Comp.
p.298.
4 Public
Law 105–277, 112 Stat. 2681.
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2. In § 792.02, revise the introductory
text and paragraph (d) to read as
follows:
■
§ 792.02 What records does NCUA make
available to the public for inspection and
copying?
Except for records that are exempt
from public disclosure under FOIA as
amended (5 U.S.C. 552) or are promptly
published and copies are available for
purchase, NCUA routinely makes the
following five types of records available
for you to inspect and copy and in an
electronic format:
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(d) Copies of all records, regardless of
form or format, which have been
released after March 31, 1997, in
response to a FOIA request and which,
because of the nature of their subject
matter, NCUA determines have been or
are likely to become the subject of
subsequent requests; or records that
have been requested three (3) or more
times; and
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*
■ 3. In § 792.03, revise the introductory
text and paragraph (c) to read as follows:
§ 792.03 How will I know which records to
request?
NCUA maintains current indices
providing identifying information for
the public for any matter referred to in
§ 792.02, issued, adopted, or
promulgated after July 4, 1967. The
listing of material in an index is for the
convenience of possible users and does
not constitute a determination that all of
the items listed will be disclosed. NCUA
has determined that publication of the
indices is unnecessary and impractical.
You may obtain copies of indices by
making a request to the NCUA, Office of
General Counsel, 1775 Duke Street,
Alexandria, VA 22314–2387, Attn: FOIA
Officer or as indicated on the NCUA
Web site at www.ncua.gov. The indices
are available for public inspection and
copying, provided at their duplication
cost, and in an electronic format. The
indices are:
*
*
*
*
*
(c) Popular FOIA Index: Records
released in response to a FOIA request,
that NCUA determines are likely to be
the subject of subsequent requests
because of the nature of their subject
matter, or records that have been
requested three (3) or more times. The
Popular FOIA Index is available on the
NCUA Web site.
■ 4. In § 792.10, revise paragraph (e) to
read as follows:
§ 792.10 What will NCUA do with my
request?
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(e) Upon a determination by the
appropriate Information Center to
comply with your initial request for
records, the records will be made
promptly available to you. NCUA will
also advise the requester of the right to
seek assistance from the FOIA Public
Liaison. If we notify you of a denial of
your request, we will include the reason
for the denial. NCUA will also advise
the requester of the right to utilize
dispute resolution services offered by
the FOIA Public Liaison and the Office
of Government Information Services.
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*
■ 5. In § 792.11, revise paragraph (a)(5)
to read as follows:
§ 792.11 What kinds of records are exempt
from public disclosure?
(a)* * *
(5) Inter-agency or intra-agency
memoranda or letters which would not
be available by law to a private party in
litigation with NCUA. This exemption
preserves the existing freedom of NCUA
officials and employees to engage in full
and frank written or taped
communications with each other and
with officials and employees of other
agencies. It includes, but is not limited
to, inter-agency and intra-agency
reports, memoranda, letters,
correspondence, work papers, and
minutes of meetings, as well as staff
papers prepared for use within NCUA or
in concert with other governmental
agencies. In applying this exemption,
the NCUA will not withhold records
based on the deliberative process
privilege if the records were created 25
years or more before the date on which
the records were requested.
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■ 6. In § 792.15, revise paragraph (b)(2)
to read as follows:
§ 792.15 How long will it take to process
my request?
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*
(b) * * *
(2) Such alternative time period as
mutually agreed by you and the
Information Office, when NCUA notifies
you that the request cannot be processed
in the specified time limit. In such
cases, NCUA will make available its
FOIA Public Liaison and notify the
requester of the right to seek dispute
resolution services from the Office of
Government Information Services.
■ 7. In § 792.16, revise paragraph (c) to
read as follows:
§ 792.16 What unusual circumstances can
delay NCUA’s response?
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*
*
*
(c) If NCUA sends you an extension
notice, it will also advise you that you
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can either limit the scope of your
request so that it can be processed
within the statutory time limit or agree
to an alternative time frame for
processing your request. In such cases,
NCUA will make available its FOIA
Public Liaison and notify the requester
of the right to seek dispute resolution
services from the Office of Government
Information Services.
■ 8. Revise § 792.17 to read as follows:
§ 792.17 What can I do if the time limit
passes and I still have not received a
response?
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(a) If NCUA does not comply with the
time limits under § 792.15, or as
extended under § 792.16, you do not
have to pay search fees; requesters
qualifying for free search fees will not
have to pay duplication fees. However,
if NCUA has extended the time limits
under § 792.16 and more than 5,000
pages are necessary to respond to the
request, NCUA may charge you search
fees (or for requesters qualifying for free
search fees, duplication fees), if NCUA
has discussed with you via written mail,
electronic mail, or telephone (or made
not less than 3 good-faith attempts to do
so) how you could effectively limit the
scope of the request.
(b) You can seek assistance from the
FOIA Public Liaison or dispute
resolution services from the Office of
Government Information Services. You
also can file suit against NCUA because
you will be deemed to have exhausted
your administrative remedies if NCUA
fails to comply with the time limit
provisions of this subpart. If NCUA can
show that exceptional circumstances
exist and that it is exercising due
diligence in responding to your request,
the court may retain jurisdiction and
allow NCUA to complete its review of
the records. You may have to pay search
or duplication fees if a court has
determined that exceptional
circumstances exist and has extended
the time limits for NCUA’s response by
a court order. In determining whether
exceptional circumstances exist, the
court may consider your refusal to
modify the scope of your request or
arrange an alternative time frame for
processing after being given the
opportunity to do so by NCUA, when it
notifies you of the existence of unusual
circumstances as set forth in § 792.16.
■ 9. In § 792.28, revise the introductory
text to read as follows:
§ 792.28 What if I am not satisfied with the
response I receive?
If you are not satisfied with NCUA’s
response to your request, you can seek
dispute resolution services from the
FOIA Public Liaison and the Office of
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Government Information Services, and
you can file an administrative appeal.
Your appeal must be in writing and
must be filed within 90 days from
receipt of the initial determination (in
cases of denials of the entire request or
denials of a fee waiver or reduction), or
from receipt of any records being made
available pursuant to the initial
determination (in cases of partial
denials). In the response to your initial
request, the Freedom of Information Act
Officer or the Inspector General (or
designee), will notify you that you may
appeal any adverse determination to the
Office of General Counsel. The General
Counsel, or designee, as set forth in this
paragraph, will:
*
*
*
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*
[FR Doc. 2016–30748 Filed 12–21–16; 8:45 am]
BILLING CODE 7535–01–P
DEPARTMENT OF TRANSPORTATION
Federal Aviation Administration
14 CFR Part 39
[Docket No. FAA–2015–7531; Directorate
Identifier 2015–NM–052–AD; Amendment
39–18747; AD 2016–25–21]
RIN 2120–AA64
Airworthiness Directives The Boeing
Company Airplanes
Federal Aviation
Administration (FAA), DOT.
ACTION: Final rule.
AGENCY:
We are adopting a new
airworthiness directive (AD) for certain
The Boeing Company Model 787–8
airplanes. This AD was prompted by
reports of electrical shorts of the motor
stator wiring burning a hole through the
housing of the motor of the cabin air
compressor (CAC). This AD requires
installing modified inboard and
outboard CAC modules on the left-hand
(LH) side and right-hand (RH) side cabin
air conditioning and temperature
control system (CACTCS) packs. We are
issuing this AD to prevent the unsafe
condition on these products.
DATES: This AD is effective January 26,
2017.
The Director of the Federal Register
approved the incorporation by reference
of a certain publication listed in this AD
as of January 26, 2017.
ADDRESSES: For service information
identified in this final rule, contact
Boeing Commercial Airplanes,
Attention: Contractual & Data Services
(C&DS), 2600 Westminster Blvd., MC
110–SK57, Seal Beach, CA 90740;
telephone 562–797–1717; Internet
SUMMARY:
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93795
https://www.myboeingfleet.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–2015–
7531.
Examining the AD Docket
You may examine the AD docket on
the Internet at https://
www.regulations.gov by searching for
and locating Docket No. FAA–2015–
7531; 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 (phone: 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: Eric
Brown, Aerospace Engineer, Cabin
Safety and Environmental Systems
Branch, ANM–150S, FAA, Seattle
Aircraft Certification Office (ACO), 1601
Lind Avenue SW., Renton, WA 98057–
3356; phone: 425–917–6476; fax: 425–
917–6590; email: eric.m.brown@faa.gov.
SUPPLEMENTARY INFORMATION:
Discussion
We issued a notice of proposed
rulemaking (NPRM) to amend 14 CFR
part 39 by adding an AD that would
apply to certain The Boeing Company
Model 787–8 airplanes. The NPRM
published in the Federal Register on
December 29, 2015 (80 FR 81220) (‘‘the
NPRM’’). The NPRM was prompted by
reports of electrical shorts of the motor
stator wiring burning a hole through the
housing of the motor of the CAC. The
NPRM proposed to require installing
modified inboard and outboard CAC
modules on the LH side and RH side
CACTCS packs. We are issuing this AD
to prevent an electrical short from
burning through the housing of the
motor of the CAC. This condition, in
combination with flammable fuel
vapors, could result in a fire in the pack
bay and consequent reduced
controllability of the airplane.
Comments
We gave the public the opportunity to
participate in developing this AD. The
following presents the comments
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Agencies
[Federal Register Volume 81, Number 246 (Thursday, December 22, 2016)]
[Rules and Regulations]
[Pages 93792-93795]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-30748]
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NATIONAL CREDIT UNION ADMINISTRATION
12 CFR Part 792
RIN 3133-AD44
Revisions to the Freedom of Information Act Regulation
AGENCY: National Credit Union Administration (NCUA).
[[Page 93793]]
ACTION: Interim final rule with request for comments.
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SUMMARY: The NCUA Board (Board) is revising its Freedom of Information
Act (FOIA) regulation. The FOIA Improvement Act of 2016 amended the
FOIA and requires agencies to review their FOIA regulations and issue
certain specified amendments by December 27, 2016. Specifically, the
regulatory amendments include new procedures for disclosing records
under the FOIA, assessing fees, and notifying requestors of options for
resolving disputes through the NCUA FOIA Public Liaison and the Office
of Government Information Services (OGIS) within the National Archives
and Records Administration.
DATES: This interim final rule is effective December 22, 2016. Comments
must be received on or before January 23, 2017.
ADDRESSES: You may submit comments by any of the following methods
(Please send comments by one method only):
Federal eRulemaking Portal: https://www.regulations.gov.
Follow the instructions for submitting comments.
NCUA Web site: https://www.ncua.gov/regulation-supervision/Pages/rules/proposed.aspx. Follow the instructions for
submitting comments.
Email: Address to regcomments@ncua.gov. Include ``[Your
name] Comments on ``Revisions to the Freedom of Information Act
Regulation'' in the email subject line.
Fax: (703) 518-6319. Use the subject line described above
for email.
Mail: Address to Gerard Poliquin, Secretary of the Board,
National Credit Union Administration, 1775 Duke Street, Alexandria,
Virginia 22314-3428.
Hand Delivery/Courier: Same as mail address.
Public Inspection: All public comments are available on the
agency's Web site at https://www.ncua.gov/RegulationsOpinionsLaws/comments as submitted, except as may not be possible for technical
reasons. Public comments will not be edited to remove any identifying
or contact information. Paper copies of comments may be inspected in
NCUA's law library at 1775 Duke Street, Alexandria, Virginia 22314, by
appointment weekdays between 9:00 a.m. and 3:00 p.m. To make an
appointment, call (703) 518-6546 or send an email to OGCMail@ncua.gov.
FOR FURTHER INFORMATION CONTACT: Regina Metz, Senior Staff Attorney, or
Linda Dent, Associate General Counsel, Administrative Law Section,
Office of General Counsel, at 1775 Duke Street, Alexandria, VA 22314,
or telephone: (703) 518-6540.
SUPPLEMENTARY INFORMATION:
I. Legal Background and Regulatory Changes
NCUA publishes its FOIA regulations at part 792, subpart A of the
agency's regulations.\1\ NCUA's current FOIA regulations address: (1)
Types of agency records; (2) their availability or exemption from
release; (3) procedures for requesting access to records; (4)
processing times; (5) fees; (6) appeals; and (7) handling of FOIA
requests involving confidential commercial information.
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\1\ 12 CFR part 792.
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The FOIA Improvement Act of 2016 \2\ (Act) was signed into law by
the President on June 30, 2016. The Act consists of several amendments
to the FOIA affecting FOIA administration. The Act requires the Board
to review NCUA's FOIA regulations and revise procedures for the
disclosure of records, including procedures for engaging in dispute
resolution through the FOIA Public Liaison and the OGIS.
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\2\ Public Law 114-185, 130 Stat. 538.
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Specifically, the Act requires that NCUA must make available to the
public ``in an electronic format'' certain information that it
previously only had to make available for copying. The Act amends FOIA
exemption 5 to provide that ``the deliberative process privilege shall
not apply to records created 25 years or more before the date on which
the records were requested.'' In addition, the Act prohibits NCUA from
charging certain fees to FOIA requesters if it does not respond to them
within 20 business days, unless it provides timely notice that unusual
circumstances apply, in which case it can take up to 10 extra days, or
more if there are more than 5,000 pages necessary to respond to the
request. However, the Act permits NCUA to charge certain fees to FOIA
requesters if a court has determined exceptional circumstances exist.
Furthermore, the Act requires that NCUA must include in its written
FOIA responses the right of requesters to seek assistance from the NCUA
FOIA Public Liaison. Moreover, for adverse determinations, the
requester will have the right to appeal the initial decision for 90
days (previously 30 days); and the right to seek dispute resolution
services from the NCUA FOIA Public Liaison or the OGIS. Accordingly,
the Board is making the above required regulatory changes to the FOIA
regulation.
II. Regulatory Procedures
A. Interim Final Rule Under the Administrative Procedure Act (APA)
The Board finds that notice-and-comment rulemaking in this instance
would be impracticable and unnecessary under the APA because of: (1)
The legislative directive for federal agencies to issue interim final
regulations; (2) the procedural nature of the Act which affords federal
agencies limited discretion in promulgating their rules; and (3) the
statutory deadlines imposed by Congress for issuing this regulation. In
these circumstances, the Board finds good cause to issue an interim
final rule without issuing a notice of proposed rulemaking.
Accordingly, this interim final rule is issued without prior
notice. However, the Board invites comments on all aspects of the
interim final rule. The interim final rule will become effective
immediately upon publication in the Federal Register. The Board will
review and consider all comments before issuing a final rule.
B. Paperwork Reduction Act
In accordance with the requirements of the Paperwork Reduction Act
(PRA) of 1995,\3\ the Board has reviewed the interim final rule and
determined it does not contain or modify a collection of information
subject to the PRA.
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\3\ 44 U.S.C. 3506; 5 CFR part 1320 Appendix A.1.
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C. Regulatory Flexibility Act
The Regulatory Flexibility Act requires NCUA to prepare an analysis
to describe any significant economic impact a rule may have on a
substantial number of small credit unions (those under $100 million in
assets). This interim final rule does not impose any requirements on
federally insured credit unions. Therefore, it will not have a
significant economic impact on a substantial number of small credit
unions and a regulatory flexibility analysis is not required. Because
this interim final rule would affect few, if any, small entities, the
Board certifies that the interim final rule will not have a significant
economic impact on small entities.
D. Executive Order 13132
Executive Order 13132 encourages independent regulatory agencies to
consider the impact of their actions on state and local interests. In
adherence to fundamental federalism principles, NCUA, an independent
regulatory agency as defined in 44 U.S.C. 3502(5), voluntarily complies
with the executive order. The interim final rule would not
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have substantial direct effects on the states, on the connection
between the national government and the states, or on the distribution
of power and responsibilities among the various levels of government.
NCUA has determined that this interim final rule does not constitute a
policy that has federalism implications for purposes of the executive
order.
E. The Treasury and General Government Appropriations Act, 1999--
Assessment of Federal Regulations and Policies on Families
NCUA has determined that this interim final rule would not affect
family well-being within the meaning of section 654 of the Treasury and
General Government Appropriations Act of 1999.\4\
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\4\ Public Law 105-277, 112 Stat. 2681.
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F. Small Business Regulatory Enforcement Fairness Act
The Small Business Regulatory Enforcement Fairness Act of 1996
(SBREFA) provides generally for congressional review of agency rules. A
reporting requirement is triggered in instances where the Board issues
a final rule as defined by Section 551 of the APA. The Board has
submitted this interim final rule to the Office of Management and
Budget for it to determine whether it is a ``major rule'' within the
meaning of the relevant sections of SBREFA.
List of Subjects in 12 CFR Part 792
Administrative practice and procedure, Credit unions, Freedom of
Information, Information, Privacy, Records, System of records.
By the National Credit Union Administration Board on December
15, 2016.
Gerard Poliquin,
Secretary of the Board.
For the reasons stated above, the National Credit Union
Administration amends 12 CFR part 792 as follows:
PART 792--REQUESTS FOR INFORMATION UNDER THE FREEDOM OF INFORMATION
ACT AND PRIVACY ACT, AND BY SUBPOENA; SECURITY PROCEDURES FOR
CLASSIFIED INFORMATION
0
1. Revise the authority citation for part 792 to read as follows:
Authority: 5 U.S.C. 301, 552, 552a, 552b; 12 U.S.C. 1752a(d),
1766, 1789, 1795f; E.O. 12600, 52 FR 23781, 3 CFR, 1987 Comp.,
p.235; E.O. 13526, 75 FR 707, 2009 Comp. p.298.
0
2. In Sec. 792.02, revise the introductory text and paragraph (d) to
read as follows:
Sec. 792.02 What records does NCUA make available to the public for
inspection and copying?
Except for records that are exempt from public disclosure under
FOIA as amended (5 U.S.C. 552) or are promptly published and copies are
available for purchase, NCUA routinely makes the following five types
of records available for you to inspect and copy and in an electronic
format:
* * * * *
(d) Copies of all records, regardless of form or format, which have
been released after March 31, 1997, in response to a FOIA request and
which, because of the nature of their subject matter, NCUA determines
have been or are likely to become the subject of subsequent requests;
or records that have been requested three (3) or more times; and
* * * * *
0
3. In Sec. 792.03, revise the introductory text and paragraph (c) to
read as follows:
Sec. 792.03 How will I know which records to request?
NCUA maintains current indices providing identifying information
for the public for any matter referred to in Sec. 792.02, issued,
adopted, or promulgated after July 4, 1967. The listing of material in
an index is for the convenience of possible users and does not
constitute a determination that all of the items listed will be
disclosed. NCUA has determined that publication of the indices is
unnecessary and impractical. You may obtain copies of indices by making
a request to the NCUA, Office of General Counsel, 1775 Duke Street,
Alexandria, VA 22314-2387, Attn: FOIA Officer or as indicated on the
NCUA Web site at www.ncua.gov. The indices are available for public
inspection and copying, provided at their duplication cost, and in an
electronic format. The indices are:
* * * * *
(c) Popular FOIA Index: Records released in response to a FOIA
request, that NCUA determines are likely to be the subject of
subsequent requests because of the nature of their subject matter, or
records that have been requested three (3) or more times. The Popular
FOIA Index is available on the NCUA Web site.
0
4. In Sec. 792.10, revise paragraph (e) to read as follows:
Sec. 792.10 What will NCUA do with my request?
* * * * *
(e) Upon a determination by the appropriate Information Center to
comply with your initial request for records, the records will be made
promptly available to you. NCUA will also advise the requester of the
right to seek assistance from the FOIA Public Liaison. If we notify you
of a denial of your request, we will include the reason for the denial.
NCUA will also advise the requester of the right to utilize dispute
resolution services offered by the FOIA Public Liaison and the Office
of Government Information Services.
* * * * *
0
5. In Sec. 792.11, revise paragraph (a)(5) to read as follows:
Sec. 792.11 What kinds of records are exempt from public disclosure?
(a)* * *
(5) Inter-agency or intra-agency memoranda or letters which would
not be available by law to a private party in litigation with NCUA.
This exemption preserves the existing freedom of NCUA officials and
employees to engage in full and frank written or taped communications
with each other and with officials and employees of other agencies. It
includes, but is not limited to, inter-agency and intra-agency reports,
memoranda, letters, correspondence, work papers, and minutes of
meetings, as well as staff papers prepared for use within NCUA or in
concert with other governmental agencies. In applying this exemption,
the NCUA will not withhold records based on the deliberative process
privilege if the records were created 25 years or more before the date
on which the records were requested.
* * * * *
0
6. In Sec. 792.15, revise paragraph (b)(2) to read as follows:
Sec. 792.15 How long will it take to process my request?
* * * * *
(b) * * *
(2) Such alternative time period as mutually agreed by you and the
Information Office, when NCUA notifies you that the request cannot be
processed in the specified time limit. In such cases, NCUA will make
available its FOIA Public Liaison and notify the requester of the right
to seek dispute resolution services from the Office of Government
Information Services.
0
7. In Sec. 792.16, revise paragraph (c) to read as follows:
Sec. 792.16 What unusual circumstances can delay NCUA's response?
* * * * *
(c) If NCUA sends you an extension notice, it will also advise you
that you
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can either limit the scope of your request so that it can be processed
within the statutory time limit or agree to an alternative time frame
for processing your request. In such cases, NCUA will make available
its FOIA Public Liaison and notify the requester of the right to seek
dispute resolution services from the Office of Government Information
Services.
0
8. Revise Sec. 792.17 to read as follows:
Sec. 792.17 What can I do if the time limit passes and I still have
not received a response?
(a) If NCUA does not comply with the time limits under Sec.
792.15, or as extended under Sec. 792.16, you do not have to pay
search fees; requesters qualifying for free search fees will not have
to pay duplication fees. However, if NCUA has extended the time limits
under Sec. 792.16 and more than 5,000 pages are necessary to respond
to the request, NCUA may charge you search fees (or for requesters
qualifying for free search fees, duplication fees), if NCUA has
discussed with you via written mail, electronic mail, or telephone (or
made not less than 3 good-faith attempts to do so) how you could
effectively limit the scope of the request.
(b) You can seek assistance from the FOIA Public Liaison or dispute
resolution services from the Office of Government Information Services.
You also can file suit against NCUA because you will be deemed to have
exhausted your administrative remedies if NCUA fails to comply with the
time limit provisions of this subpart. If NCUA can show that
exceptional circumstances exist and that it is exercising due diligence
in responding to your request, the court may retain jurisdiction and
allow NCUA to complete its review of the records. You may have to pay
search or duplication fees if a court has determined that exceptional
circumstances exist and has extended the time limits for NCUA's
response by a court order. In determining whether exceptional
circumstances exist, the court may consider your refusal to modify the
scope of your request or arrange an alternative time frame for
processing after being given the opportunity to do so by NCUA, when it
notifies you of the existence of unusual circumstances as set forth in
Sec. 792.16.
0
9. In Sec. 792.28, revise the introductory text to read as follows:
Sec. 792.28 What if I am not satisfied with the response I receive?
If you are not satisfied with NCUA's response to your request, you
can seek dispute resolution services from the FOIA Public Liaison and
the Office of Government Information Services, and you can file an
administrative appeal. Your appeal must be in writing and must be filed
within 90 days from receipt of the initial determination (in cases of
denials of the entire request or denials of a fee waiver or reduction),
or from receipt of any records being made available pursuant to the
initial determination (in cases of partial denials). In the response to
your initial request, the Freedom of Information Act Officer or the
Inspector General (or designee), will notify you that you may appeal
any adverse determination to the Office of General Counsel. The General
Counsel, or designee, as set forth in this paragraph, will:
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[FR Doc. 2016-30748 Filed 12-21-16; 8:45 am]
BILLING CODE 7535-01-P