[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: http://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 [email protected]. 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 http://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 [email protected].
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:
* * * * *
[FR Doc. 2016-30748 Filed 12-21-16; 8:45 am]
BILLING CODE 7535-01-P