[Federal Register Volume 81, Number 182 (Tuesday, September 20, 2016)]
[Proposed Rules]
[Pages 64401-64403]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-22166]
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DEPARTMENT OF THE INTERIOR
Office of the Secretary
43 CFR Part 2
[No. DOI-2016-0006; 16XD4523WS DS10200000 DWSN00000.000000 WBS DP10202]
RIN 1093-AA21
Freedom of Information Act Regulations
AGENCY: Office of the Secretary, Interior.
ACTION: Proposed rule.
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SUMMARY: This rulemaking would revise the regulations that the
Department of the Interior (Department) follows in processing records
under the Freedom of Information Act in part to comply with the FOIA
Improvement Act of 2016. The revisions would clarify and update
procedures for requesting information from the Department and
procedures that the Department follows in responding to requests from
the public.
DATES: Comments on the rulemaking must be submitted on or before
November 21, 2016.
ADDRESSES: You may submit comments on the rulemaking by either of the
methods listed below. Please use Regulation Identifier Number 1093-AA21
in your message.
1. Federal eRulemaking Portal: http://www.regulations.gov. In the
``Search'' bar, enter DOI-2016-0006 (the docket number for this rule)
and then click ``Search.'' Follow the instructions on the Web site for
submitting comments.
2. U.S. mail, courier, or hand delivery: Executive Secretariat--
FOIA regulations, Department of the Interior, 1849 C Street NW.,
Washington, DC 20240.
FOR FURTHER INFORMATION CONTACT: Cindy Cafaro, Office of Executive
Secretariat and Regulatory Affairs, 202-208-5342.
SUPPLEMENTARY INFORMATION:
I. Why We're Publishing This Proposed Rule and What It Does
In late 2012, the Department published a final rule updating and
replacing the Department's previous Freedom of Information Act (FOIA)
regulations. In early 2016, the Department updated that final rule,
primarily to authorize the Office of Inspector General (OIG) to process
their own FOIA appeals. On June 30, 2016, the FOIA Improvement Act of
2016, Pub. L. 114-185, 130 Stat. 538 (the Act) was enacted. The Act
specifically requires all agencies to review and update their FOIA
regulations in accordance with its provisions, and the Department is
making changes to its regulations accordingly. Finally, the Department
has received feedback from its FOIA practitioners and requesters and
identified areas where it would be possible to further update, clarify,
and streamline the language of some procedural provisions. Therefore,
the Department is proposing to make the following changes:
Section 2.4(e) would be amended to provide additional
guidance on how bureaus handle misdirected requests.
Section 2.15 would be amended to bring attention to the
Department's existing FOIA Request Tracking Tool (https://foia.doi.gov/requeststatus).
Section 2.19 would be amended to bring further attention
to the services provided by the Office of Government Information
Services (OGIS), in accordance with the provisions of the Act.
Section 2.21 would be amended to reflect that the OGIS
would be defined earlier in the regulations than it previously had
been.
Section 2.24 would be amended to require a foreseeable
harm analysis, in accordance with the provisions of the Act, and to
require bureaus to provide an explanation to the requester when an
estimate of the volume of any records withheld in full or in part is
not provided.
[[Page 64402]]
Section 2.37(f) would be amended to reflect the provisions
of the Act.
Section 2.39 would be amended to remove what would be
superfluous language, after the changes to section 2.37(f).
Section 2.58 would be amended to provide more time for
requesters to appeal, in accordance with the provisions of the Act.
II. Compliance With Laws and Executive Orders
1. Regulatory Planning and Review (Executive Orders 12866 and 13563)
Executive Order (E.O) 12866 provides that the Office of Information
and Regulatory Affairs will review all significant rules. The Office of
Information and Regulatory Affairs has determined that this rulemaking
is not significant.
Executive Order 13563 reaffirms the principles of E.O. 12866 while
calling for improvements in the nation's regulatory system to promote
predictability, to reduce uncertainty, and to use the best, most
innovative, and least burdensome tools for achieving regulatory ends.
The Executive Order directs agencies to consider regulatory approaches
that reduce burdens and maintain flexibility and freedom of choice for
the public where these approaches are relevant, feasible, and
consistent with regulatory objectives. E.O. 13563 emphasizes further
that regulations must be based on the best available science and that
the rulemaking process must allow for public participation and an open
exchange of ideas. We have developed this proposed rule in a manner
consistent with these requirements.
2. Regulatory Flexibility Act
The Department of the Interior certifies that this rulemaking will
not have a significant economic effect on a substantial number of small
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
3. Small Business Regulatory Enforcement Fairness Act
This is not a major rule under 5 U.S.C. 804(2), the Small Business
Regulatory Enforcement Fairness Act. This rule:
a. Does not have an annual effect on the economy of $100 million or
more.
b. Will not cause a major increase in costs or prices for
consumers, individual industries, Federal, State, or local government
agencies, or geographic regions.
c. Does not have significant adverse effects on competition,
employment, investment, productivity, innovation, or the ability of
U.S.-based enterprises to compete with foreign-based enterprises.
4. Unfunded Mandates Reform Act
This rulemaking does not impose an unfunded mandate on State,
local, or tribal governments or the private sector of more than $100
million per year. This rulemaking does not have a significant or unique
effect on State, local, or tribal governments or the private sector. A
statement containing the information required by the Unfunded Mandates
Reform Act (2 U.S.C. 1531 et seq.) is not required.
5. Takings (E.O. 12630)
In accordance with Executive Order 12630, this rulemaking does not
have significant takings implications. A takings implication assessment
is not required.
6. Federalism (E.O. 13132)
In accordance with Executive Order 13132, this proposed rule does
not have sufficient federalism implications to warrant the preparation
of a federalism summary impact statement. It would not substantially
and directly affect the relationship between the Federal and state
governments. A federalism summary impact statement is not required.
7. Civil Justice Reform (E.O. 12988)
In accordance with Executive Order 12988, the Office of the
Solicitor has determined that this rulemaking does not unduly burden
the judicial system and meets the requirements of sections 3(a) and
3(b)(2) of the Executive Order.
8. Consultation With Indian Tribes (E.O. 13175)
Under the criteria in Executive Order 13175, we have evaluated this
proposed rule and determined that it has no potential effects on
federally recognized Indian tribes. This rulemaking does not have
tribal implications that impose substantial direct compliance costs on
Indian Tribal governments.
9. Paperwork Reduction Act
This proposed rule does not contain information collection
requirements, and a submission to the Office of Management and Budget
under the Paperwork Reduction Act is not required.
10. National Environmental Policy Act
This rulemaking does not constitute a major Federal action
significantly affecting the quality of the human environment. A
detailed statement under the National Environmental Policy Act of 1969,
42 U.S.C. 4321 et seq. (NEPA), is not required. Pursuant to 43 CFR
46.205(b) and 43 CFR 46.210(i), the Department of the Interior NEPA
implementing procedures exclude from preparation of an environmental
assessment or impact statement ``[p]olicies, directives, regulations,
and guidelines: that are of an administrative, financial, legal,
technical, or procedural nature. . . .'' None of the extraordinary
circumstances listed in 43 CFR 46.215 exists for this rulemaking.
Accordingly, this proposed rule is categorically excluded from
environmental analysis under 43 CFR 46.210(i).
11. Effects on the Energy Supply (E.O. 13211)
This rulemaking is not a significant energy action under the
definition in Executive Order 13211. A Statement of Energy Effects is
not required. This rulemaking will not have a significant effect on the
nation's energy supply, distribution, or use.
12. Clarity of This Proposed Regulation
We are required by Executive Orders 12866 and 12988 and by the
Presidential Memorandum of June 1, 1998, to write all rules in plain
language. This means that each rule we publish must:
(a) Be logically organized;
(b) Use the active voice to address readers directly;
(c) Use clear language rather than jargon;
(d) Be divided into short sections and sentences; and
(e) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us
comments by one of the methods listed in the ADDRESSES section. To
better help us revise the rule, your comments should be as specific as
possible. For example, you should tell us the numbers of the sections
or paragraphs that you find unclear, which sections or sentences are
too long, the sections where you feel lists or tables would be useful,
etc.
13. Public Availability of Comments
Before including your address, phone number, email address, or
other personal identifying information in your comment, you should be
aware that your entire comment--including your personal identifying
information--may be made publicly available at any time. While you can
ask us in your comment to withhold your personal identifying
information from public review, we cannot guarantee that we will be
able to do so.
[[Page 64403]]
List of Subjects in 43 CFR Part 2
Freedom of information.
Kristen J. Sarri,
Principal Deputy Assistant Secretary for Policy, Management, and
Budget.
For the reasons stated in the preamble, the Department of the
Interior proposes to amend part 2 of title 43 of the Code of Federal
Regulations as follows:
PART 2--FREEDOM OF INFORMATION ACT; RECORDS AND TESTIMONY
0
1. The authority citation for part 2 continues to read as follows:
Authority: 5 U.S.C. 301, 552, 552a, 553; 31 U.S.C. 3717; 43
U.S.C. 1460, 1461.
Subpart B--How to Make a Request
0
2. In Sec. 2.4, revise paragraph (e) to read as follows:
Sec. 2.4 Does where you send your request affect its processing?
* * * * *
(e) If your request is received by a bureau that believes it is not
the appropriate bureau to process your request, the bureau that
received your request will attempt to contact you (if possible, via
telephone or email) to confirm that you deliberately sent your request
to that bureau for processing. If you do not confirm this, the bureau
will deem your request misdirected and route the misdirected request to
the appropriate bureau to respond under the basic time limit outlined
in Sec. 2.17 of this part.
* * * * *
Subpart D--Timing of Responses to Requests
Sec. 2.15 [Amended]
0
3. In Sec. 2.15, add paragraph (g) to read as follows:
Sec. 2.15 What is multitrack processing and how does it affect your
request?
* * * * *
(g) You may track the status of your request, including its
estimated processing completion date, at https://foia.doi.gov/requeststatus/.
Sec. 2.19 [Amended]
0
4. In Sec. 2.19(b)(2), add the words ``, and notify you of your right
to seek dispute resolution from the Office of Government Information
Services (OGIS)'' after the words ``you and the bureau''.
Subpart E--Responses to Requests
Sec. 2.21 [Amended]
0
5. In Sec. 2.21(a), the second sentence, remove the words ``Office of
Government Information Services (OGIS)'' and add in their place ``the
OGIS''.
Sec. 2.24 [Amended]
0
6. Amend Sec. 2.24 by:
a. In paragraph (b)(3), adding the words ``, along with a statement
that the bureau reasonably foresees that disclosure would harm an
interest protected by the applied exemption(s) or disclosure is
prohibited by law'' after the words ``or in part''; and
b. In paragraph (b)(4), adding the word ``including'' after the
word ``unless'' and adding the words ``and the bureau explains this
harm to you'' after the words ``withhold the records''.
Subpart G--Fees
Sec. 2.37 [Amended]
0
7. In Sec. 2.37, revise paragraph (f) to read as follows:
Sec. 2.37 What general principles govern fees?
* * * * *
(f) If the bureau does not comply with any time limit in the FOIA:
(1) Except as provided in paragraph (f)(2) of this section, the
bureau cannot assess any search fees (or, if you are in the fee
category of a representative of the news media or an educational and
noncommercial scientific institution, duplication fees).
(2)(i) If the bureau has determined that unusual circumstances
apply (as the term is defined in Sec. 2.70 of this part) and the
bureau provided you a timely written notice to extend the basic time
limit in accordance with Sec. 2.19 of this part, the noncompliance is
excused for an additional 10 calendar days. If the bureau fails to
comply with the extended time limit, the bureau may not assess any
search fees (or, if you are in the fee category of a representative of
the news media or an educational and noncommercial scientific
institution, duplication fees).
(ii) If the bureau has determined that unusual circumstances apply
and more than 5,000 pages are necessary to respond to the request, the
noncompliance is excused if, in accordance with Sec. 2.19 of this
part, the bureau has provided you a timely written notice and has
discussed with you via written mail, email, or telephone (or made not
less than 3 good-faith attempts to do so) how you could effectively
limit the scope of the request.
(iii) If a court has determined that exceptional circumstances
exist (as that term is defined in Sec. 2.70 of this part), the
noncompliance is excused for the length of time provided by the court
order.
* * * * *
Sec. 2.39 [Amended]
0
8. In Sec. 2.39, remove the paragraph (a) designation and remove
paragraph (b).
Subpart H--Administrative Appeals
Sec. 2.58 [Amended]
0
9. In Sec. 2.58(a) and (b), remove the number ``30'' and add in its
place the number ``90''.
[FR Doc. 2016-22166 Filed 9-19-16; 8:45 am]
BILLING CODE 4334-63-P