Rules Regarding Availability of Information, 94934-94937 [2016-30674]

Agencies

• FEDERAL RESERVE SYSTEM

[Federal Register Volume 81, Number 248 (Tuesday, December 27, 2016)]
[Rules and Regulations]
[Pages 94934-94937]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-30674]


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FEDERAL RESERVE SYSTEM

12 CFR Part 271


Rules Regarding Availability of Information

AGENCY: Federal Open Market Committee, Federal Reserve System.

ACTION: Interim final rule.

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SUMMARY: The Federal Open Market Committee (Committee) invites comments 
on this interim final rule amending its Rules Regarding Availability of 
Information (Rules). These revisions conform to recent statutory 
amendments to the Freedom of Information Act (FOIA) made by the FOIA 
Improvement Act of 2016 (FOIA Improvement Act), as well as other 
technical changes intended to clarify existing procedures for 
requesting information and updating contact information.

DATES: This interim final rule is effective on December 27, 2016. 
Comments shall be received on or before February 27, 2017.

ADDRESSES: Interested persons are invited to submit comments regarding 
this interim final rule, identified by ``Federal Reserve System: 
Federal Open Market Committee 12 CR Part 271,'' by any of the following 
methods:

[[Page 94935]]

     Electronic submission of comments: Interested persons may 
submit comments electronically through the Federal eRulemaking Portal 
at https://www.regulations.gov. Electronic submission of comments allows 
the commenter maximum time to prepare and submit a comment, ensures 
timely receipt, and enables the Committee to make them available to the 
public. Comments submitted electronically through the https://www.regulations.gov Web site can be viewed by other commenters and 
interested members of the public. Commenters should follow the 
instructions provided on that site to submit comments electronically.
     Facsimile: (202) 452-2921.
     Mail: Mr. Brian Madigan, Secretary, Federal Open Market 
Committee, 20th Street and Constitution Avenue NW., Washington, DC 
20551.
     Public Inspection of Comments: All public comments may be 
viewed electronically or in paper form at the Freedom of Information 
Office of the Board of Governors of the Federal Reserve System (Board) 
in Room 3515, at 1801 K Street NW., (between 18th and 19th Streets) 
Washington, DC 20006, between 9:00 a.m. and 5:00 p.m. on weekdays. For 
security reasons, the Board requires that visitors make an appointment 
to inspect comments. You may do so by calling (202) 452-3684. Upon 
arrival, visitors will be required to present valid government-issued 
photo identification and to submit to security screening in order to 
inspect and photocopy comments. Please be advised that your comments 
are part of the public record and will not be edited to remove any 
identifying or contact information.

FOR FURTHER INFORMATION CONTACT: Matthew M. Luecke, Deputy Secretary, 
(202) 452-2576, Federal Open Market Committee, 20th Street and 
Constitution Avenue NW., Washington, DC 20551; or Amory Goldberg, 
Counsel, (202) 452-3124, Legal Division, Board of Governors of the 
Federal Reserve System, 20th Street and Constitution Avenue NW., 
Washington, DC 20551. Users of Telecommunications Device for Deaf (TDD) 
only, please call (202) 263-4869.

SUPPLEMENTARY INFORMATION: 

I. Background

    On June 30, 2016, the Freedom of Information Act \1\ (FOIA) was 
amended by the FOIA Improvement Act of 2016 \2\ (FOIA Improvement Act). 
Among other things, section 3 of the FOIA Improvement Act requires each 
federal agency to revise its disclosure regulations and procedures for 
processing FOIA requests in order to conform to the substantive 
amendments made by section 2 of the FOIA Improvement Act by December 
27, 2016. As it pertains to the Committee's Rules Regarding 
Availability of Information (Rules), the Committee is required to make 
a number of changes to comply with the FOIA Improvement Act's 
amendments. In addition, the Committee is making certain technical 
changes to the Rules to make the FOIA process easier for the public to 
navigate, to make certain provisions clearer (removing obsolete 
language), and inform the public of additional electronic methods for 
submitting FOIA requests and administrative appeals. In drafting the 
amendments to the Rules, the Committee consulted the ``Guidance for 
Agency FOIA Regulations'' issued by the U.S. Department of Justice's 
Office for Information Policy. The following is a section-by-section 
discussion of the changes.
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    \1\ 5 U.S.C. 552.
    \2\ Public Law 114-185, 130 Stat. 538 (June 30, 2016).
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II. Description of the Interim Final Rule

    This interim final rule amends the Committee's Rules, as described 
below.

Section 271.3--Published Information

    The Committee has made a technical change to section 271.3(c) of 
its Rules to delete certain outdated information about publishing 
Committee information in the Federal Reserve Bulletin and to clarify 
that members of the public no longer need to contact the Publications 
Services section of the Federal Reserve Board (Board) to obtain certain 
information, because such information is already made publicly 
available on the Web sites of the Board or Federal Reserve Banks.

Section 271.4--Records Available for Public Inspection

    As required by the FOIA Improvement Act, the Committee is revising 
this section to clarify that the Committee's records, which are 
available for public inspection pursuant to 5 U.S.C. 552(a)(2), 
specifically include records requested three or more times, and that 
such records will be made available in electronic format. Thus, the 
Committee is revising section 271.4(a) and (b) of its Rules to 
specifically reference the availability of records described in 5 
U.S.C. 552(a)(2) for public inspection in electronic format. The 
Committee also is adding language to paragraph (b)(1) of section 271.4 
to direct members of the public to the Web site of the Committee's 
electronic reading room. Additionally, in paragraph (b)(1) of section 
271.4, the Committee updated information on how to obtain access to the 
Committee's reading room at the Board's Freedom of Information Office 
to reflect updated security procedures and because the Board's Freedom 
of Information Office has moved from the location at 20th Street and 
Constitution Avenue NW. Lastly, because all the records described in 5 
U.S.C. 552(a)(2) are now required to be made available in electronic 
format, which necessarily would also include records created on or 
after 1996, the Committee removed and reserved paragraph (c) of section 
271.4.

Section 271.5--Records Available to the Public on Request

    The Committee is adding language to section 271.5 of its Rules to 
inform members of the public that they have the option to 
electronically submit FOIA requests using the Committee's online FOIA 
request form.

Section 271.6--Processing Requests

    The Committee is making a technical correction to paragraph (c)(2) 
of section 271.6 of its Rules, to remove the reference to paragraph (i) 
and replace it with paragraph (h).
    The FOIA, as revised by the FOIA Improvement Act, requires that, 
whenever an agency extends the 20-day time limit to respond to a FOIA 
request by more than ten working days due to ``unusual circumstances,'' 
then the agency must provide the requester with an opportunity to limit 
the request's scope and must notify the requester of the availability 
of dispute resolution services from the FOIA Public Liaison and the 
Office of Government Information Services (OGIS). Accordingly, the 
revisions to paragraph (d) of section 271.6 reflect these statutory 
requirements.
    The Committee's amendments to paragraph (e) of section 271.6 
conform to the amendments of the FOIA Improvement Act, which require 
that all determination letters advise requesters of the right to seek 
assistance from the Committee's FOIA Public Liaison and, in the case of 
an adverse determination, that requesters be informed of the right to 
seek dispute resolution services from the Committee's FOIA Public 
Liaison or OGIS.
    In order to mirror the more expansive language of the FOIA and to 
reflect the Committee's current practice, the Committee also has made 
technical edits to paragraphs (e) and (h) of section 271.6 to clarify 
that a requester has the right to administratively appeal any ``adverse 
determination'' by the Secretary of the Committee (not just to

[[Page 94936]]

appeal denials or partial denials of requests for records). The new 
language in paragraph (e) provides examples of the adverse 
determinations that may be appealed. In paragraph (h) of section 271.6, 
the Committee is adding language to inform members of the public that 
they also have the option to submit administrative appeals via email to 
the Secretary of the Committee and providing the email address to use 
for such administrative appeals.
    Lastly, in paragraph (g) of section 271.6, the Committee has added 
language providing that a requester also may be sent copies of 
requested records in electronic format to the requester's email 
address. This technical change clarifies that requesters are not 
limited to receiving records by U.S. postal mail.

Section 271.9--Fee Schedules; Waiver of Fees

    The FOIA Improvement Act restricts an agency's ability to charge 
search or duplication fees in certain circumstances. The Committee has 
added paragraph (i) to section 271.9 to reflect the statutory 
restrictions on charging fees.

III. Request for Comments

    The Committee invites comment on all aspects of the interim final 
rule.

IV. Administrative Law Matters

A. Administrative Procedure Act

    Pursuant to the Administrative Procedure Act, 5 U.S.C. 
553(b)(3)(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, this interim final rule 
implements the substantive amendments made by the FOIA Improvement Act. 
Congress provided federal agencies with no discretion in amending their 
disclosure rules to comply with the statutory amendments made to the 
FOIA, and required that such conforming amendments become effective by 
December 27, 2016. Given that the substantive amendments to the 
Committee's Rules are mandated by the FOIA Improvement Act, and that 
the other amendments made to the Committee's Rules are technical in 
nature, the Committee for good cause finds that prior notice and 
comment on this rulemaking is impracticable, unnecessary, or contrary 
to the public interest pursuant to 5 U.S.C. 553(b)(3)(B). For these 
same reasons, the Committee finds good cause to dispense with the 
delayed effective date otherwise required by 5 U.S.C. 553(d)(3). While 
the interim final rule is effective immediately upon publication, the 
Committee is inviting public comment on the interim final rule during a 
60-day period and will consider all comments in developing a final 
rule.

B. Regulatory Flexibility Act

    The Regulatory Flexibility Act, 5 U.S.C. 601 et seq., applies only 
to rules for which an agency publishes a general notice of proposed 
rulemaking. Because the Committee has determined for good cause that a 
notice of proposed rulemaking for this rule is unnecessary, the 
Regulatory Flexibility Act does not apply to this final rule. 5 U.S.C. 
601(2).

List of Subjects in 12 CFR Part 271

    Federal Open Market Committee, Freedom of Information.

Authority and Issuance

    For the reasons set forth in the SUPPLEMENTARY INFORMATION, the 
Federal Open Market Committee amends part 271 to 12 CFR chapter II to 
read as follows:

PART 271--RULES REGARDING AVAILABILITY OF INFORMATION

0
1. The authority citation for part 271 continues to read as follows:

    Authority:  5 U.S.C. 552; 12 U.S.C. 263.


0
2. Section 271.3 (c) is revised to read as follows:


Sec.  271.3   Published information.

* * * * *
    (c) Other published information. Other information relating to the 
Committee, including its open market operations, is made publicly 
available on the Web sites of the Board and the Federal Reserve Banks.

0
3. In Sec.  271.4, revise the section heading and paragraphs (a) and 
(b), and remove and reserve paragraph (c) to read as follows:


Sec.  271.4   Records available for public inspection.

    (a) Types of records made available. Unless they were published 
promptly and made available for sale or without charge, records 
described in 5 U.S.C. 552(a)(2) shall be made available for inspection 
in an electronic format by the Committee.
    (b) Reading room procedures. (1) Information described in 5 U.S.C. 
552(a)(2), such as statements of policy and records requested three or 
more times under Sec.  271.5, is made available for public inspection 
in the Committee's electronic reading room at https://www.federalreserve.gov/foia/fomc/readingrooms.htm#rr1, in its 
conventional reading room located in the Freedom of Information Office 
of the Board of Governors of the Federal Reserve System, or both. For 
security reasons, the Board requires that visitors make an appointment 
to inspect documents. You may do so by calling the Board's Freedom of 
Information Office at (202) 452-3684.
    (2) The Committee may determine that certain classes of publicly 
available filings shall be made available for inspection in electronic 
format only by the Federal Reserve Bank where those records are 
maintained.
    (c) [Reserved]
* * * * *

0
4. In Sec.  271.5, revise paragraph (b)(2) to read as follows:


Sec.  271.5   Records available to the public on request.

* * * * *
    (b) * * *
    (2) The request shall be submitted in writing to the Secretary of 
the Committee, Federal Open Market Committee, 20th & C Streets NW., 
Washington, DC 20551; or sent by facsimile to the Secretary of the 
Committee, (202) 452-2921; or sent electronically using the online 
request form located at www.federalreserve.gov/forms/FOMCForm.aspx. The 
request shall be clearly marked FREEDOM OF INFORMATION ACT REQUEST.
* * * * *

0
5. In Sec.  271.6, revise paragraphs (c)(2), (d)(3), (e)(4), (e)(5), 
(g)(1), introductory text to paragraph (h), and (h)(1) to read as 
follows:


Sec.  271.6   Processing requests.

* * * * *
    (c) * * *
    (2) In response to a request for expedited processing, the 
Secretary of the Committee shall notify a requester of the 
determination within ten working days of receipt of the request. In 
exceptional situations, the Secretary of the Committee has the 
discretion to waive the formality of certification. If the Secretary of 
the Committee denies a request for expedited processing, the requester 
may file an appeal pursuant to the procedures set forth in paragraph 
(h) of this section, and the Committee shall respond to the appeal 
within ten working days after the appeal was received by the Committee.
    (d) * * *
    (3) In unusual circumstances, as defined in 5 U.S.C. 552(a)(6)(B), 
the Committee may:
    (i) Extend the 20-day time limit for a period of time not to exceed 
10 working

[[Page 94937]]

days, where the Committee has provided written notice to the requester, 
setting forth the reasons for the extension and the date on which a 
determination is expected to be dispatched; and
    (ii) Extend the 20-day time limit for a period of more than 10 
working days where the Committee has provided the requester with an 
opportunity to limit the scope of the request so that it may be 
processed within that time frame or with an opportunity to arrange an 
alternative time frame for processing the original request or a 
modified request, and has notified the requester that the Committee's 
FOIA Public Liaison is available to assist the requester for this 
purpose and in the resolution of any disputes between the requester and 
the Committee and of the requester's right to seek dispute resolution 
services from the Office of Government Information Services.
    (e) * * *
    (4) The right of the requester to seek assistance from the 
Committee's FOIA Public Liaison; and
    (5) When an adverse determination is made (including determinations 
that the requested record is exempt, in whole or in part; the request 
does not reasonably describe the records sought; the information 
requested is not a record subject to the FOIA; the requested record 
does not exist, cannot be located, or has been destroyed; the requested 
record is not readily reproducible in the form or format sought by the 
requester; to deny a fee waiver request or other fee categorization 
matter; and to deny a request for expedited processing), the Secretary 
will advise the requester in writing of that determination and will 
further advise the requester of:
    (i) The right to appeal to the Committee any adverse determination, 
as specified in paragraph (h) of this section;
    (ii) The right to seek dispute resolution services from the 
Committee's FOIA Public Liaison or from the Office of Government 
Information Services; and
    (iii) The name and title or position of the person responsible for 
the adverse determination.
* * * * *
    (g) Providing responsive records. (1) Copies of requested records 
shall be sent to the requester by regular U.S. mail to the address 
indicated in the request, or sent in electronic format to the email 
address indicated in the request, unless the requester elects to take 
delivery of the documents at the Board's Freedom of Information Office 
or makes other acceptable arrangements, or the Committee deems it 
appropriate to send the documents by another means.
* * * * *
    (h) Appeal of an adverse determination. A requester may appeal an 
adverse determination by filing a written appeal with the Committee, as 
follows:
    (1) The appeal shall prominently display the phrase FREEDOM OF 
INFORMATION ACT APPEAL on the first page, and shall be addressed to the 
Secretary of the Committee, Federal Open Market Committee, 20th and C 
Streets NW., Washington, DC 20551; or sent by facsimile to the 
Secretary of the Committee, (202) 452-2921; or sent by email to the 
Secretary of the Committee at FOMC-FOIA-Mailbox@frb.gov.
* * * * *

0
6. In Sec.  271.7, revise paragraph (a) to read as follows:


Sec.  271.7   Exemptions from disclosure.

    (a) Types of records exempt from disclosure. Pursuant to 5 U.S.C. 
552(b), the following records of the Committee are exempt from 
disclosure under this part. The Committee will withhold records or 
information only when it reasonably foresees that disclosure would harm 
an interest protected by an exemption described in 5 U.S.C. 552(b) and 
in this paragraph (a), or when disclosure is prohibited by law. In 
applying the exemption in paragraph (a)(5) of this section, the 
Committee 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
7. In Sec.  271.9, add paragraph (i) to read as follows:


Sec.  271.9   Fee schedules; waiver of fees.

* * * * *
    (i) Restrictions on charging fees. (1) If the Committee fails to 
comply with the time limits specified in the FOIA in which to respond 
to a request, the Committee will not charge search fees, or, in the 
case of requests from requesters described in paragraph (c)(2) of this 
section, will not charge duplication fees, except as permitted under 
paragraphs (i)(2) through (i)(4) of this section.
    (2) If the Committee has determined that unusual circumstances 
exist, as described in 5 U.S.C. 552(a)(6)(B), and has provided timely 
written notice to the requester and subsequently responds within the 
additional 10 days provided in Sec.  271.6(d)(3), the Board may charge 
search fees, or in the case of requesters described in paragraph (c)(2) 
of this section, may charge duplication fees.
    (3) If the Committee has determined that unusual circumstances 
exist, as described in 5 U.S.C. 552(a)(6)(B), and more than 5,000 pages 
are necessary to respond to the request, the Committee may charge 
search fees, or, in the case of requesters described in paragraph 
(c)(2) of this section, may charge duplication fees, if the Committee 
has:
    (i) Provided timely written notice of unusual circumstances to the 
requester in accordance with the FOIA; and
    (ii) Discussed with the requester via written mail, email, or 
telephone (or made not less than three good-faith attempts to do so) 
how the requester could effectively limit the scope of the request in 
accordance with 5 U.S.C. 552(a)(6)(B)(ii).
    (4) If a court has determined that exceptional circumstances exist, 
as defined by the FOIA, a failure to comply with the time limits shall 
be excused for the length of time provided by the court order.
* * * * *

    By order of the Federal Open Market Committee, December 13, 
2016.
Brian Madigan,
Secretary, Federal Open Market Committee.
[FR Doc. 2016-30674 Filed 12-23-16; 8:45 am]
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