80 FR 52638 - Amendments to Regulations Governing Access to Commission Information and Records; Freedom of Information Act

FEDERAL MARITIME COMMISSION

Federal Register Volume 80, Issue 169 (September 1, 2015)

The Federal Maritime Commission amends its regulations governing access to Commission information and records and its regulations implementing the Freedom of Information Act (FOIA). The revisions update and consolidate the provisions identifying records available without the need for a FOIA request, including records available on the Commission's public Web site; revise response time procedures for processing FOIA requests; affirmatively indicate that the Commission uses a multitrack system for processing FOIA requests; modify the criteria for a FOIA request to qualify for expedited processing; and extend the administrative appeal deadline.

[Federal Register Volume 80, Number 169 (Tuesday, September 1, 2015)]
[Rules and Regulations]
[Pages 52638-52641]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2015-21453]


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FEDERAL MARITIME COMMISSION

46 CFR Part 503

[DOCKET NO. 15-05]
RIN 3072-AC60


Amendments to Regulations Governing Access to Commission 
Information and Records; Freedom of Information Act

AGENCY: Federal Maritime Commission.

ACTION: Direct final rule; and request for comments.

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SUMMARY: The Federal Maritime Commission amends its regulations 
governing access to Commission information and records and its 
regulations implementing the Freedom of Information Act (FOIA). The 
revisions update and consolidate the provisions identifying records 
available without the need for a FOIA request, including records 
available on the Commission's public Web site; revise response time 
procedures for processing FOIA requests; affirmatively indicate that 
the Commission uses a multitrack system for processing FOIA requests; 
modify the criteria for a FOIA request to qualify for expedited 
processing; and extend the administrative appeal deadline.

DATES: This rule is effective without further action on November 2, 
2015, unless significant adverse comment is received by October 1, 
2015. If significant adverse comment is received, the Federal Maritime 
Commission will publish a timely withdrawal of the rule in the Federal 
Register.

ADDRESSES: You may submit comments, identified by the docket number in 
the heading of this document, by any of the following methods:
     Email: [email protected]. Include in the subject line: 
``Docket No. 15-05, Comments on Amendments to Regulations Governing 
Access to Commission Information and Records; Freedom of Information 
Act.'' Comments should be attached to the email as a Microsoft Word or 
text-searchable PDF document. Comments containing confidential 
information should not be submitted by email.
     Mail: Karen V. Gregory, Secretary, Federal Maritime 
Commission, 800 North Capitol Street NW., Washington, DC 20573-0001.
     Docket: To read background documents or comments received 
in this docket, go to: http://www.fmc.gov/15-05/.

FOR FURTHER INFORMATION CONTACT: Karen V. Gregory, Secretary, Federal 
Maritime Commission, 800 North Capitol Street NW., Washington, DC 
20573-0001. Phone: (202) 523-5725. Email: [email protected].

SUPPLEMENTARY INFORMATION: The Federal Maritime Commission amends its 
regulations governing access to Commission information and records and 
its regulations implementing the Freedom of Information Act, 5 U.S.C. 
552, found in part 503 of title 46 of the Code of Federal Regulations. 
The provisions in part 503 are designed to facilitate public 
availability of information; thereby furthering the spirit of FOIA in 
ensuring an informed citizenry.
    On July 2, 2015, the Federal Maritime Commission (FMC or 
Commission) published a Direct Final Rule (80 FR 37997) amending its 
regulations governing access to Commission information and records and 
its regulations implementing the Freedom of Information Act (FOIA). In 
response to the rule, the Commission received two comments recommending 
that the Commission extend the administrative appeal deadline. Both 
commenters, America Rising Advanced Research, a non-profit 
organization, and the National Archives and Records Administration, 
Office of Government Information Services (OGIS), suggested that 
extending the administrative appeal deadline will align the Commission 
with general agency practices.\*\ The Commission agrees, and therefore, 
is withdrawing its Direct Final Rule published on July 2, 2015 (80 FR 
37997), and issuing this new Direct Final Rule to extend the 
administrative appeal deadline from 10 working days to 30 calendar 
days.
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    \*\ The Commission appreciates the recommendations of OGIS. 
While the remaining recommendations are outside the scope of the 
revisions implemented in this Direct Final Rule, the Commission will 
address them in a subsequent rulemaking.
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    In addition, the Commission is incorporating the revisions issued 
in the July 2, 2015 Direct Final Rule (80 FR 37997) into this Direct 
Final Rule. The revisions update and consolidate the provisions 
identifying records available without the need for a FOIA request, 
including records available on the Commission's public Web site; revise 
response time procedures for processing FOIA requests; affirmatively 
indicate that the Commission uses a multitrack system for processing 
FOIA requests; modify the criteria for a FOIA request to qualify for 
expedited processing; and extend the administrative appeal deadline.
    The Commission last revised part 503 in 1998 to reflect 
requirements of the Electronic Freedom of Information Act Amendments of 
1996 (Pub. L. 04-231). On December 31, 2007, the OPEN Government Act of 
2007 (Pub. L. 110-175) amended procedural aspects of FOIA and 
established new agency requirements for processing FOIA requests. On 
October 28, 2009, the OPEN FOIA Act of 2009 (Pub. L. 110-175) further 
amended FOIA.
    The amendments to part 503 update the Commission's regulations to 
reflect its practices and provisions of the OPEN Government Act of 2007 
and the OPEN FOIA Act of 2009.
    The Commission is making the following revisions to the subparts of 
part 503: revise Subpart A--General, Statement of Policy to repurpose 
this subpart to state the purpose and scope of the rules contained in 
part 503; update Subpart B--Publication in the Federal Register to 
recognize that in addition to publishing records in the Federal 
Register, the Commission also posts records listed in this Subpart on 
its Web site (www.fmc.gov); revise Subpart C--Records, Information and 
Materials Generally Available to the Public Without Resort to Freedom 
of Information Act Procedures to describe records available to the 
public without the need for a FOIA request, including records available 
on the Commission's public Web site; amend Subpart D--Requests for 
Records under the Freedom of Information Act to include procedures for 
tolling response times, processing FOIA requests under the 
multitracking system, and expedited processing of FOIA requests; and 
revise Subpart H--Public Observation of Federal Maritime Commission 
Meetings

[[Page 52639]]

and Public Access to Information Pertaining to Commission Meetings to 
amend a subpart reference.

Subpart A--General

    The Commission revises the heading and language in Sec.  503.1 to 
describe the scope and purpose of the provisions contained in part 503. 
Specifically, the Commission changes the section heading from 
``Statement of Policy'' to ``Scope and Purpose.'' The Commission also 
amends this section to include a list of the subparts contained in part 
503.

Subpart B--Publication in the Federal Register

    To promote greater access to information and records, the 
Commission amends and updates Sec.  503.11 to inform the public that 
the Commission posts records listed in this subpart on its Web site 
(www.fmc.gov), in addition to publishing these records in the Federal 
Register.

Subpart C--Records, Information and Materials Generally Available to 
the Public Without Resort to Freedom of Information Act Procedures

    Sections 503.21 to 503.24 describe records available to the public 
without the need for a FOIA request. The Commission last revised these 
sections in 1998 and further revises these sections to reflect the 
availability of information on the Commission's Web site, eliminate 
outdated information, and remove duplicative language.

Subpart D--Requests for Records Under the Freedom of Information Act

    Section 503.31 provides information on the process for requesting 
records. The Commission is adding a new paragraph encouraging 
requesters to review the records on the Commission's public Web site 
prior to initiating a FOIA request. In addition, the Commission amends 
this section to include requirements for submitting FOIA requests 
electronically.

Administrative Appeal Deadline

    In accordance with general Federal agency practices, the Commission 
amends Sec.  503.32(a)(3)(i)(B) to extend the administrative appeal 
deadline from 10 working days to 30 calendar days.

Tolling

    FOIA, as amended, allows an agency to make one reasonable request 
for information from the FOIA requester and stop, or toll, the 20-day 
clock for responding to a FOIA requester while the agency is waiting 
for the requested information from the FOIA requester. 5 U.S.C. 
552(a)(6)(A)(ii)(I). Agencies may also toll the 20-day response clock 
as many times as necessary in order to clarify any issues with fee 
assessment. 5 U.S.C. 552(a)(6)(A)(ii)(II).
    Section 503.32 sets forth procedures for responding to requests 
made under FOIA. This section does not currently include a provision 
for tolling the statutory 20-day FOIA response period should the 
Commission need to contact the FOIA requestor to clarify or narrow the 
scope of the FOIA request. The Commission is adding language that would 
allow for tolling of response times to implement the Commission's 
authority to stop the 20-day clock should the Commission need 
information from the requestor or to clarify issues with fee 
assessment.
    The Commission is adding two new paragraphs, (b)(4) and (5) to 
Sec.  503.32 to reflect Commission processes used to work with a 
requestor to clarify or narrow the scope of a FOIA request, and to 
confirm that the requestor understands and authorizes the assessment of 
fees. The new paragraphs require the Commission to submit its request 
to clarify the scope of records requested or fee assessments in writing 
to the requestor.

Multitrack Processing of Requests

    FOIA expressly authorizes agencies to promulgate regulations 
providing for ``multitrack processing'' of FOIA requests and allows 
agencies to process requests on a first-in, first-out basis within each 
track. 5 U.S.C. 552(a)(6)(D). During FY 2012, the Commission initiated 
a multitrack processing system for FOIA requests to better manage and 
more efficiently respond to FOIA requests. The Commission revises Sec.  
503.32(d) to reflect the Commission's current practices regarding 
multitrack processing of FOIA requests in which the Commission labels 
requests as either ``simple'' or ``complex''. The rephrasing of the 
section clarifies the Commission's current practices and provides that 
a request may be considered ``simple'' if the type of records being 
requested are routinely requested and readily available. Initiating a 
simple track process has permitted the Commission to respond to 
relatively simple requests more quickly than requests involving complex 
and/or voluminous records.

Expedited Processing of Requests

    Section 503.32(e) currently provides for expedited processing of a 
FOIA request when (1) the person requesting the records can demonstrate 
a compelling need; or (2) in other cases, in the Secretary's 
discretion. The Commission deletes paragraph (2) from Sec.  503.32(e). 
This revision simplifies the Commission's criteria for determining 
which FOIA requests qualify for expedited processing and establish a 
practice consistent with other Federal agencies that only provide 
expedited processing when a ``compelling need'' can be demonstrated.
    To ensure timely responses to requests for expedited processing, 
the Commission revises Sec.  503.32(e)(4) to change ``working days'' to 
``calendar days'' to coincide with FOIA.

Annual Report

    The Commission must submit an annual report on its FOIA related 
activities to the Attorney General. The Commission revises Sec.  502.23 
to reference the activities cited in FOIA, 5 U.S.C. 552(e), rather than 
list out all activities reported upon.

Subpart I--Public Observation of Federal Maritime Commission Meetings 
and Public Access to Information Pertaining to Commission Meetings

    A technical revision and update of Sec.  503.87(b) accounts for a 
recent redesignation of subparts with the addition of new subpart E.

Regulatory Analysis and Notices

Regulatory Flexibility Act

    This direct final rule is not a ``major rule'' under 5 U.S.C. 
804(2). No notice of proposed rulemaking is required; therefore, the 
provisions of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., do 
not apply.
    The Regulatory Flexibility Act, 5 U.S.C. 601-612, requires an 
agency to review regulations to assess their impact on small entities 
and prepare an initial regulatory flexibility analysis (IRFA), unless 
the agency determines that a rule is not expected to have a significant 
impact on a substantial number of small entities. This rulemaking will 
affect only persons who file FOIA requests, and therefore, the Chairman 
certifies that this rulemaking will not have a significant or negative 
economic impact on a substantial number of small entities.

Paperwork Reduction Act

    The Paperwork Reduction Act of 1995, 44 U.S.C. 3501-3521, requires 
an agency to seek and receive approval from the Office of Management 
and Budget (OMB) before making most requests for information if the 
agency is requesting information from more than ten persons. 44 U.S.C. 
3507. The agency must submit collections of information in proposed 
rules to OMB in conjunction with the publication of the proposed 
rulemaking. 5 CFR 1320.11. The Commission is not proposing any

[[Page 52640]]

collections of information, as defined by 44 U.S.C. 3502(3) and 5 CFR 
1320.3(c), as part of this rule.

Regulation Identifier Number

    The Commission assigns a regulation identifier number (RIN) to each 
regulatory action listed in the Unified Agenda of Federal Regulatory 
and Deregulatory Actions (Unified Agenda). The Regulatory Information 
Service Center publishes the Unified Agenda in April and October of 
each year. The RIN contained in the heading at the beginning of this 
document may be used to find this action in the Unified Agenda, 
available at http://www.reginfo.gov/public/do/eAgendaMain.

Direct Final Rule Justification

    The Commission expects the amendments to be noncontroversial. 
Therefore, pursuant to 5 U.S.C. 553, notice and comment are not 
required and this rule may become effective after publication in the 
Federal Register unless the Commission receives significant adverse 
comments within the specified period. The Commission recognizes that 
parties may have information that could impact the Commission's views 
and intentions with respect to the revised regulations, and the 
Commission intends to consider any comments filed. The Commission will 
withdraw the rule if it receives significant adverse comments. Filed 
comments that are not adverse may be considered for modifications to 
part 503 at a future date. If no significant adverse comment is 
received, the rule will become effective without additional action.

List of Subjects in 46 CFR Part 503

    Administrative practices and procedures, Archives and records, 
Classified information, Confidential business information, Freedom of 
information, Information, Privacy, Records, Reporting and recordkeeping 
requirements, Sunshine Act.

    For the reasons set forth in the preamble, the Federal Maritime 
Commission amends 46 CFR part 503 as follows:

PART 503--PUBLIC INFORMATION

0
1. The authority citation for part 503 is revised to read:

    Authority: 5 U.S.C. 552, 552a, 552b, 553; 31 U.S.C. 9701; E.O. 
13526, 75 FR 707, 3 CFR, 2010 Comp., p. 298.

Subpart A--General

0
2. Revise Sec.  503.1 to read as follows:


Sec.  503.1  Scope and purpose.

    This part implements the Freedom of Information Act (FOIA), 5 
U.S.C. 552, as amended, the Privacy Act of 1974, 5 U.S.C. 552a, and the 
Government in the Sunshine Act (1976), 5 U.S.C. 552b; and sets forth 
the Commission's regulations governing:
    (a) Public availability of Commission information and records at 
its Office of the Secretary, published in the Federal Register, or 
posted on the Commission's public Web site (www.fmc.gov);
    (b) Procedures for requests for testimony by current or former FMC 
employees relating to official information and production of official 
Commission records in litigation;
    (c) The type of services and amount of fees charged for certain 
Commission services; and
    (d) The Commission's Information Security Program.

Subpart B--Publication in the Federal Register

0
3. Amend Sec.  503.11 by revising the introductory text to read as 
follows:


Sec.  503.11  Materials to be published.

    The Commission shall separately state and concurrently publish the 
following materials in the Federal Register or on its public Web site 
(www.fmc.gov) for the guidance of the public:
* * * * *

Subpart C--Records, Information and Materials Generally Available 
to the Public Without Resort to Freedom of Information Act 
Procedures

0
4. Amend Sec.  503.21 by revising paragraphs (a) introductory text and 
(c) to read as follows:


Sec.  503.21  Mandatory public records.

    (a) The Commission, as required by the Freedom of Information Act, 
5 U.S.C. 552, makes the following materials available for public 
inspection and copying in its Office of the Secretary, or on its Web 
site at www.fmc.gov:
* * * * *
    (c) The Commission maintains and makes available for public 
inspection at the Office of the Secretary, Federal Maritime Commission, 
Washington, DC 20573, or on its public Web site at www.fmc.gov, a 
current log or index providing identifying information for the public 
as to any matter which is issued, adopted, or promulgated, and which is 
required by paragraph (a) of this section to be made available or 
published.
    (1) No final order, opinion, statement of policy, interpretation, 
or staff manual or instruction that affects any member of the public 
will be relied upon, used, or cited as precedent by the Commission 
against any private party unless:
    (i) It has been logged or indexed and either made available or 
published on its public Web site as provided by this subpart; or
    (ii) That private party shall have actual and timely notice of the 
terms thereof.
    (2) [Reserved]
* * * * *

0
5. Revise Sec.  503.22 to read as follows:


Sec.  503.22  Records available through the Commission's Web site or at 
the Office of the Secretary.

    The following records are also available without the requirement of 
a FOIA request on the Commission's Web site or by contacting the Office 
of the Secretary, Federal Maritime Commission, 800 North Capitol St. 
NW., Washington, DC 20573, [email protected]. Access to requested 
records may be delayed if they have been sent to archives. Certain fees 
may be assessed for duplication of records made available by this 
section as prescribed in subpart F of this part.
    (a) Proposed and final rules and regulations of the Commission 
including general substantive rules, statements of policy and 
interpretations, and rules of practice and procedure.
    (b) Federal Maritime Commission reports.
    (c) Official docket files in all formal proceedings including, but 
not limited to, orders, final decisions, notices, pertinent 
correspondence, transcripts, exhibits, and briefs, except for materials 
which are the subject of a protective order.
    (d) News releases, consumer alerts, Commissioner statements, and 
speeches.
    (e) Approved summary minutes of Commission actions showing final 
votes, except for minutes of closed Commission meetings which are not 
available until the Commission publicly announces the results of such 
deliberations.
    (f) Annual reports of the Commission.
    (g) Agreements filed or in effect pursuant to section 5 (46 U.S.C. 
40301(d)-(e), 40302-40303, 40305) and section 6 (46 U.S.C. 40304, 
40306, 41307(b)-(d)) of the Shipping Act of 1984.
    (h) List of FMC-licensed and bonded ocean transportation 
intermediaries.
    (i) Notification of ocean transportation intermediaries license 
applications, revocations, and suspensions.
    (j) General descriptions of the functions, bureaus, and offices of 
the

[[Page 52641]]

Commission, phone numbers and email addresses, as well as locations of 
Area Representatives.
    (k) Information about how to file a complaint alleging violations 
of the Shipping Act, and how to seek mediation or alternative dispute 
resolution services.
    (l) Commonly used forms.
    (m) Final and pending proposed rules.
    (n) Access to statements of policy and interpretations as published 
in part 545 of this chapter.
    (o) Lists of the location of all common carrier and conference 
tariffs and publically available terminal schedules of marine terminal 
operators.


Sec. Sec.  503.23 and 503.24  [Removed and Reserved]

0
6. Remove and reserve Sec. Sec.  503.23 and 503.24.

Subpart D--Requests for Records Under the Freedom of Information 
Act

0
7. Revise the subpart D heading to read as set forth above.

0
8. Amend Sec.  503.31 by revising paragraphs (a) and (d) to read as 
follows:


Sec.  503.31  Records available upon written request under the Freedom 
of Information Act.

    (a) Generally. Many documents are available on the Commission's 
public Web site and the Commission encourages requesters visit the Web 
site before making a request for records under FOIA.
    (1) Electronic or written requests. A member of the public may 
request permission to inspect, copy or be provided with any Commission 
record not described in subpart C of this part or posted on the 
Commission's Web site at www.fmc.gov. Such a request must:
    (i) Reasonably describe the record or records sought;
    (ii) Be submitted electronically to [email protected] or in writing to 
the Secretary, Federal Maritime Commission, 800 North Capitol Street 
NW., Washington, DC 20573.
    (iii) Be clearly marked on the subject line of an email or on the 
exterior of the envelope with the term ``FOIA.''
    (2) [Reserved]
* * * * *
    (d) Certain fees may be assessed for processing requests under this 
subpart as prescribed in subpart F of this part.

0
9. Amend Sec.  503.32 by revising paragraphs (a)(1), (a)(3)(i)(B), 
(a)(3)(ii), (d), and (e)(1) and (4) and adding paragraphs (b)(4) and 
(5) to read as follows:


Sec.  503.32  Procedures for responding to requests made under the 
Freedom of Information Act.

    (a) * * *
    (1) Such determination shall be made by the Secretary within twenty 
(20) business days after receipt of such request, except as provided in 
paragraphs (b) and (e)(4) of this section.
* * * * *
    (3)(i) * * *
    (B) Be filed not later than thirty (30) calendar days following 
receipt of notification of full or partial denial of records requested.
    (ii) The Chairman or the Chairman's specific delegate, in his or 
her absence, shall make a determination with respect to that appeal 
within twenty (20) business days after receipt of such appeal, except 
as provided in paragraph (b) of this section.
* * * * *
    (b) * * *
    (4) The Secretary may make an initial written request to the 
requestor for information to clarify the request which will toll the 
20-day processing period until such information has been received. The 
20-day processing period will recommence after receipt of the requested 
information.
    (5) The Secretary may also make written requests to clarify issues 
regarding fee assessments. Such written requests will toll the 20-day 
processing period until such information has been received from the 
requestor. The 20-day processing period will recommence after receipt 
of the requested information.
* * * * *
    (d) Multitrack processing of requests. The Secretary uses 
multitrack processing of FOIA requests. Requests which seek and are 
granted expedited processing are put on the expedited track. All other 
requests are designated either simple or complex requests based on the 
amount of time and/or complexity needed to process the request. A 
request may be considered simple if it involves records that are 
routinely requested and readily available.
    (e) Expedited processing of requests. (1) The Secretary will 
provide for expedited processing of requests for records when the 
person requesting the records can demonstrate a compelling need.
* * * * *
    (4) The Secretary shall determine whether to provide expedited 
processing, and provide notice of the determination to the person 
making the request, within ten (10) calendar days after the receipt 
date of the request.
* * * * *

0
10. Amend Sec.  503.34 by revising paragraph (a) to read as follows:


Sec.  503.34  Annual report of public information request activity.

    (a) On or before February 1 of each year, the Commission must 
submit to the Attorney General of the United States, in the format 
required by the Attorney General, a report on FOIA activities which 
shall cover the preceding fiscal year pursuant to 5 U.S.C. 552(e).
* * * * *

Subpart I--Public Observation of Federal Maritime Commission 
Meetings and Public Access to Information Pertaining to Commission 
Meetings

0
11. Amend Sec.  503.87 by revising paragraph (b) to read as follows:


Sec.  503.87  Effect of provisions of this subpart on other subparts.

* * * * *
    (b) Nothing in this subpart shall permit the withholding from any 
individual to whom a record pertains any record required by this 
subpart to be maintained by the agency which record is otherwise 
available to such an individual under the provisions of subpart H of 
this part.

    By the Commission.
Karen V. Gregory,
Secretary.
[FR Doc. 2015-21453 Filed 8-31-15; 8:45 am]
BILLING CODE 6731-AA-P