81 FR 83643 - Revision of the FDIC's Freedom of Information Act Regulations

FEDERAL DEPOSIT INSURANCE CORPORATION

Federal Register Volume 81, Issue 225 (November 22, 2016)

Page Range		83643-83648
FR Document		2016-27961
This rule amends the Federal Deposit Insurance Corporation's (FDIC) regulations under the Freedom of Information Act (FOIA) to incorporate certain changes made to the FOIA by the FOIA Improvement Act of 2016 (FOIA Improvement Act). In addition, this rule amends certain provisions to reflect changes brought about by prior amendments to the FOIA that had been incorporated into agency practice and corrects inaccurate contact information and adjusts numbering and lettering of current provisions because of additions to the regulations.
Federal Register, Volume 81 Issue 225 (Tuesday, November 22, 2016)
[Federal Register Volume 81, Number 225 (Tuesday, November 22, 2016)]
[Rules and Regulations]
[Pages 83643-83648]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-27961]


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FEDERAL DEPOSIT INSURANCE CORPORATION

12 CFR Part 309

RIN 3064-AE53


Revision of the FDIC's Freedom of Information Act Regulations

AGENCY: Federal Deposit Insurance Corporation.

ACTION: Interim final rule and request for comment.

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SUMMARY: This rule amends the Federal Deposit Insurance Corporation's 
(FDIC) regulations under the Freedom of Information Act (FOIA) to 
incorporate certain changes made to the FOIA by the FOIA Improvement 
Act of 2016 (FOIA Improvement Act). In addition, this rule amends 
certain provisions to reflect changes brought about by prior amendments 
to the FOIA that had been incorporated into agency practice and 
corrects inaccurate contact information and adjusts numbering and 
lettering of current provisions because of additions to the 
regulations.

DATES: This rule is effective November 22, 2016. Comments must be 
submitted by January 23, 2017.

ADDRESSES: You may submit written comments, which must include the 
agency name and RIN 3064-AE53, by one of the following methods:
     Agency Web site: www.fdic.gov/regulations/laws/federal/. 
Follow instructions for submitting comments on the Agency Web site.
     Email: [email protected]. Include ``Disclosure of 
Information'' in the subject line of the message.
     Mail: Robert E. Feldman, Executive Secretary, Attention: 
Comments, Federal Deposit Insurance Corporation, 550 17th Street NW., 
Washington, DC 20429.
     Hand Delivery: Comments may be hand-delivered to the guard 
station at the rear of the 550 17th Street Building (located on F 
Street) on business days between 7:00 a.m. and 5:00 p.m.
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
    Public Inspection: All comments received will be posted without 
change to http://www.fdic.gov/regulations/laws/federal/, including any 
personal information provided. Paper copies of public comments may be 
ordered from the FDIC Public Information Center, 3501 North Fairfax 
Drive, Room E-1002, Arlington, VA 22226, or by telephone at (877) 275-
3342 or (703) 562-2200.

FOR FURTHER INFORMATION CONTACT: Hugo Zia, Supervisory Counsel, FDIC, 
FOIA/Privacy Act Group, Legal Division, at [email protected] or (703) 562-
2671; or John Elmore, Counsel, FDIC, FOIA/Privacy Act Group, Legal 
Division, at [email protected] or (703) 562-2047; or Sarah Jirousek, 
Counsel, FDIC, FOIA/Privacy Act Group, Legal Division, at 
[email protected] or (703) 562-2125.

SUPPLEMENTARY INFORMATION:

I. Policy Objectives

    The policy objective of this interim final rule is to bring the 
FDIC's FOIA regulations \1\ into accord with the changes to the FOIA 
made by the FOIA Improvement Act,\2\ the OPEN Government Act,\3\ and 
the OPEN FOIA Act.\4\
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    \1\ 12 CFR 309.2, 309.4, 309.5.
    \2\ Public Law 114-185, 130 Stat. 538 (2016).
    \3\ Public Law 110-175, 121 Stat. 2524 (2007).
    \4\ Public Law 111-83, 123 Stat. 2142, 2184 (2009).
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II. Background

    This rule amends the FDIC's regulations under the FOIA to 
incorporate certain changes made to the FOIA, 5 U.S.C. 552, by the FOIA 
Improvement Act. Among other things, the FOIA Improvement Act requires 
agencies to provide a minimum of 90 days for requesters to file an 
administrative appeal. The FOIA Improvement Act also requires agency 
regulations to address dispute resolution procedures and to provide 
notification to requesters about the availability of dispute resolution 
services. The FOIA Improvement Act requires the FDIC to issue 
regulations which incorporate the changes made by the FOIA Improvement 
Act not later than 180 days after the date of its enactment (i.e., by 
December 27, 2016). This rule updates the FDIC's regulations in 12 CFR 
part 309 to reflect those statutory changes.
    In addition, as explained below, this rule amends certain 
provisions to reflect changes brought about by the amendments to the 
FOIA in the OPEN Government Act and the OPEN FOIA Act. These amendments 
to the FOIA from 2007 and 2009 have been followed by the FDIC even 
though the agency's regulations had not been amended.
    Finally, the rule corrects one instance of inaccurate contact 
information and adjusts the numbering and lettering of current 
provisions because of additions made to the regulations.

III. Description of the Rule

    The following changes have been made to the FDIC's FOIA 
regulations:

Section 309.2 Definitions

    Paragraph (e) of Sec.  309.2 (Definitions) is revised to include 
the current definition for a record under the FOIA. Section 9 of the 
OPEN Government Act amended the definitions section of the FOIA, 5 
U.S.C. 552(f), by including within the definition of ``record'' any 
information ``maintained for an agency by an entity under Government 
contract, for the purposes of records management.'' This amendment made 
clear that records, in the possession of Government contractors for 
purposes of records management, are considered agency records for 
purposes of the FOIA. Through this change to the regulations, the FDIC 
adopts the statutory definition of ``record.''

Section 309.4 Publicly Available Records

    Paragraph (a)(2) of Sec.  309.4 (Records available on the FDIC's 
World Wide Web page) is revised to replace outdated wording concerning 
the inspection of records that are required to be made available to the 
public. In the current version of the FDIC's regulations, the phrase 
``via computer telecommunications'' is used. The FOIA Improvement Act 
changed this wording to ``for inspection in an electronic format.'' 
Through this change to the regulations, the FDIC adopts the language 
concerning public inspection of records in the FOIA Improvement Act.
    Paragraph (a)(2)(i)(D) of Sec.  309.4 (Records available on the 
FDIC's World Wide Web page) is revised to include

[[Page 83644]]

the requirement that the FDIC make available for public inspection in 
an electronic format any record that has been released and (i) that the 
FDIC determines has become or is likely to become the subject of 
subsequent requests for substantially the same records, or (ii) that 
has been requested three or more times. This requirement has been the 
practice of the FDIC for a number of years, is in accord with the 
current practice of the FDIC and is required by the FOIA Improvement 
Act.
    Paragraph (b) of Sec.  309.4 (Public Information Center) is revised 
to correct inaccurate contact information for the FDIC's Public 
Information Center. This revision to the regulations is required so 
that requesters have the correct contact information when inquiring 
about publicly available records.

Section 309.5 Procedures for Requesting Records

    Paragraph (a)(6) of Sec.  309.5 (Representative of the news media) 
is revised to include the current definition of ``representative of the 
news media'' under the FOIA. Section 3 of the OPEN Government Act 
amended 5 U.S.C. 552(a)(4)(A)(ii) of the FOIA by expressly providing a 
definition of ``representative of the news media.'' Through this change 
to the regulations, the FDIC adopts the definition of ``representative 
of the news media'' that is in the OPEN Government Act.
    Paragraph (d)(1) of Sec.  309.5 (Receipt of requests) is revised to 
specify that the FDIC will provide a requester with an individualized 
tracking number for any FOIA request that satisfies 12 CFR 309.5(b), no 
matter how long it will take to process the request. Section 7 of the 
OPEN Government Act amended 5 U.S.C. 552(a) by requiring agencies to 
assign an individualized tracking number for each request that will 
require more than ten days to process. This section codified existing 
requirements set forth in Executive Order 13,392. Providing tracking 
numbers for every FOIA request that satisfies Sec.  309.5(b), including 
those that will take less than ten days to process, has been the 
practice of the FDIC for a number of years, is in accord with the 
current practice of the FDIC and adopts the language of the OPEN 
Government Act.
    Paragraph (d)(4) of Sec.  309.5 is revised to account for a change 
in numbering because of the addition of Sec.  309.5(h) (Dispute 
resolution). Previously, the paragraph covering procedures concerning 
appeals that is cross-referenced in this paragraph was Sec.  309.5(h); 
it is now Sec.  309.5(i). This adjustment to numbering is necessary to 
maintain the organizational integrity of the regulations.
    Paragraph (d)(6) of Sec.  309.5 (Checking status of request) is 
added to notify requesters of the contact information for FDIC's FOIA 
Service Center (telephone number and Web site address), thereby 
enabling requesters to obtain certain information about the status of 
their request. Section 7 of the OPEN Government Act amended 5 U.S.C. 
552(a) by requiring agencies to establish a telephone number or a Web 
site to allow requesters to inquire about the status of their request, 
obtain the date an agency originally received their request, and obtain 
an estimated date for the completion of the agency's processing of 
their request. This section of the OPEN Government Act codified 
existing requirements set forth in Executive Order 13,392. The FDIC has 
a FOIA Service Center that is accessible via the internet and telephone 
and, through either method, requesters are provided with the date of 
the FDIC's receipt of their request and the estimated date on which the 
FDIC will complete its processing of their request. The FDIC has made 
these services and information available to requesters for a number of 
years. The addition of this notification provision to the regulations 
is in accord with the FDIC's current practice and adopts the language 
in the OPEN Government Act.
    Paragraph (d)(7) of Sec.  309.5 (Notification) is revised in 
numbering because of the addition of Sec.  309.5(d)(6) (Checking status 
of request). Previously this paragraph was Sec.  309.5(d)(6) 
(Notification); it is now Sec.  309.5(d)(7) (Notification). This 
adjustment to numbering is necessary to maintain the organizational 
integrity of the regulations.
    Paragraph (d)(8) of Sec.  309.5 (Response to request) is revised in 
numbering because of the addition of Sec.  309.5(d)(6) (Checking status 
of request). Previously this paragraph was Sec.  309.5(d)(7); it is now 
Sec.  309.5(d)(8). This adjustment to numbering is necessary to 
maintain the organizational integrity of the regulations.
    Paragraph (d)(8)(iii) of Sec.  309.5 (Response to request) is added 
to require the FDIC to notify requesters, in its response to their 
request, of their right to seek assistance from the FDIC's FOIA Public 
Liaison, if the FDIC determines such request satisfies 12 CFR 309.5(b). 
Section 2 of the FOIA Improvement Act added 5 U.S.C. 
552(a)(6)(A)(i)(II), which requires agencies to offer the services of 
their FOIA Public Liaison when issuing their determinations of 
requests. The addition of this notification provision to the 
regulations is in accord with the FDIC's current practice and is 
required by the FOIA Improvement Act.
    Paragraph (d)(8)(iv) of Sec.  309.5 (Response to request) is 
revised in numbering because of the addition of Sec.  309.5(d)(8)(iii) 
(Checking status of request). Previously this paragraph was Sec.  
309.5(d)(8)(iii); it is now Sec.  309.5(d)(8)(iv). This adjustment to 
numbering is necessary to maintain the organizational integrity of the 
regulations.
    Paragraph (d)(8)(iv)(C) of Sec.  309.5 (Response to request) is 
revised to remove an ``and'' because of the addition of Sec.  
309.5(d)(8)(iv)(E). This removal is necessary to maintain the 
organizational integrity of the regulations.
    Paragraph (d)(8)(iv)(D) of Sec.  309.5 (Response to request) is 
revised to provide for notification to the requester that the deadline 
to file an administrative appeal is extended to 90 days, in conformity 
with the 90-day time period established by the FOIA Improvement Act. 
Section 2 of the FOIA Improvement Act amended 5 U.S.C. 552(a)(6)(A)(i) 
by changing the time period for an appeal of adverse determinations, 
from 30 days to 90 days. This paragraph is also revised to add an 
``and'' because of the addition of Sec.  309.5(d)(8)(iv)(E). These 
changes are required by the FOIA Improvement Act and for the regulation 
to remain organized.
    Paragraph (d)(8)(iv)(E) of Sec.  309.5 (Response to request) is 
added to include a requirement that the FDIC notify requesters, in 
response to an adverse determination of a request that satisfies Sec.  
309.5(b), of their right to seek assistance from the FDIC's FOIA Public 
Liaison and/or the Office of Government Information Services (OGIS) at 
the National Archives and Records Administration. Section 2 of the FOIA 
Improvement Act added 5 U.S.C. 552(a)(6)(A)(i)(III), which requires 
that when agencies make adverse determinations on requests, they must 
offer the services of their FOIA Public Liaison and/or OGIS. The 
addition of this provision concerning notification to the regulations 
is required by the FOIA Improvement Act.
    Paragraph (f)(1)(x) of Sec.  309.5 is revised to account for a 
change in numbering because of the addition of Sec.  309.5(h) (Dispute 
resolution). Previously, the paragraph referring to procedures 
concerning appeals that is cross-referenced in this paragraph was Sec.  
309.5(h); it is now Sec.  309.5(i). This adjustment to numbering is 
necessary to maintain the organizational integrity of the regulations.

[[Page 83645]]

    Paragraph (g)(3)(i) of Sec.  309.5 (Exempt information) is revised 
in numbering and by adding an ``and'' because of the addition of Sec.  
309.5(g)(3)(ii). Previously this paragraph was Sec.  309.5(d)(8)(iii); 
it is now Sec.  309.5(d)(8)(iv). This adjustment to numbering and the 
addition of an ``and'' is necessary to maintain the organizational 
integrity of the regulations.
    Paragraph (g)(3)(ii) of Sec.  309.5 (Exempt information) is added 
to include a requirement codified in the OPEN FOIA Act that statutes 
enacted after the date of the enactment of the OPEN FOIA Act must 
specifically cite to Exemption 3 of the FOIA in order to qualify under 
Exemption 3. The OPEN FOIA Act was enacted on October 28, 2009, and so 
this amendment impacts statutes enacted after that date. In order for 
any statute enacted after that date to qualify as an Exemption 3 
statute, it must satisfy one of the traditional requirements, i.e., it 
must ``require that the matters be withheld from the public in such a 
manner as to leave no discretion on the issue'' or it must ``establish 
particular criteria for withholding or refer to particular types of 
matters to be withheld;'' and, the statute enacted after October 28, 
2009, must also specifically cite to Exemption 3. Through this change 
to the regulations, the FDIC is bringing the language concerning 
withholdings made pursuant to Exemption 3 into accord with the OPEN 
FOIA Act.
    Paragraph (h) of Sec.  309.5 (Dispute resolution) is added to 
include procedures for engaging in dispute resolution through the FOIA 
Public Liaison and OGIS. Section 3 of the FOIA Improvement Act requires 
agencies to amend their regulations to include procedures for engaging 
in dispute resolution through the FOIA Public Liaison and OGIS. The 
FDIC has pointed requesters to its FOIA Service Center at http://www.fdic.gov, which contains details about the procedures for 
contacting these entities in order to engage in dispute resolution. The 
addition of these procedures to the FDIC's regulations is required by 
the FOIA Improvement Act.
    Paragraph (i) of Sec.  309.5 (Appeals) is revised in numbering 
because of the addition of Sec.  309.5(h) (Dispute resolution). 
Previously this paragraph was Sec.  309.5(h); it is now Sec.  309.5(i). 
This adjustment to numbering is necessary to maintain the 
organizational integrity of the regulations.
    Paragraph (i)(2) of Sec.  309.5 (Appeals) is revised to extend the 
time to file an administrative appeal to 90 days, in conformity with 
the 90-day time period established by the FOIA Improvement Act. Section 
2 of the FOIA Improvement Act amended 5 U.S.C. 552(a)(6)(A)(i), 
changing the time period for appeal of adverse determinations from 30 
days to 90 days. This change to the regulations is required by the FOIA 
Improvement Act.
    Paragraph (j) of Sec.  309.5 (Records of another agency) is revised 
in numbering because of the addition of Sec.  309.5(h) (Dispute 
resolution). Previously this paragraph was Sec.  309.5(i); it is now 
Sec.  309.5(j). This adjustment to numbering is necessary to maintain 
the organizational integrity of the regulations.

IV. Expected Effects of the Rule

    The FDIC has analyzed the expected effects of the interim final 
rule and estimates them to be relatively small. The rule makes two 
primary changes to the existing regulations: Extending the deadline for 
requesters to file an appeal, and establishing procedures for dispute 
resolution and requiring notice to requesters about the availability of 
dispute resolution services. These changes help support the policy 
objective of the FOIA, which is to provide public access to government 
information.
    The provision in the interim final rule that extends the time 
period for which an appeal will be considered will likely result in a 
small increase in administrative costs associated with FOIA requests, 
but that may be offset by a decrease in lawsuits brought since 
requesters will now have a larger window for seeking administrative 
review of an adverse request determination. In the past ten fiscal 
years, the FDIC has received 238 appeals from FOIA requesters, an 
average of 24 appeals per fiscal year. The extension of the appeal time 
period from 30 business days to 90 calendar days will likely result in 
a general increase in number of appeals, given the larger window for 
filing an appeal. A general increase in the number of appeals will 
likely increase administrative costs for the FDIC. Any potential 
increase in administrative costs as a result of the extension of the 
appeal period rule is difficult to estimate given that costs will 
depend upon both the volume of requests received and the extent to 
which the requests may be subject, in whole or in part, to denial. 
However, the extension of the appeal period will benefit the public by 
expanding the deadline for requesters to file an administrative appeal 
of adverse determinations made by the FDIC.
    The establishment of a dispute resolution process also supports 
public access to government information while likely posing a small 
increase in administrative costs for the FDIC and/or the OGIS. The 
establishment of a dispute resolutions process, in addition to the FDIC 
appeal process, will support public access to government records by 
providing requesters with an additional mechanism for the review of 
adverse determinations, in the event of a dispute. Any potential 
increase in administrative costs as a result of the establishment of a 
dispute resolution process by the interim final rule is difficult to 
estimate, given the unpredictable elements noted above.
    The interim final rule also makes changes to the FDIC's FOIA 
regulations to reflect FDIC FOIA practices initially prompted by the 
OPEN Government Act and the OPEN FOIA Act. Most of the changes to the 
FDIC FOIA regulations are procedural and either codify current practice 
or make benign changes to the FOIA regulations that are unlikely to 
pose any costs or benefits for the Public.
    In conclusion, there is potential for a small increase in 
administrative costs for the FDIC posed by the revisions, but the 
policy objective of public access to government information continues 
to be supported and would in fact be enhanced--as required by the FOIA 
Improvement Act.

V. Alternatives Considered

    The changes in the interim final rule are mandated by the FOIA 
Improvement Act and are in accord with the OPEN Government Act and the 
OPEN FOIA Act. Under the FOIA Improvement Act, the FDIC has no 
discretion to make or consider alternative specifications to the 
provisions in the interim final rule. The other technical changes to 12 
CFR part 309 are minor and designed to improve the transparency and 
readability of the CFR, and therefore FDIC staff did not actively 
consider alternative approaches to these changes.

VI. Request for Comment

    Pursuant to the Administrative Procedure Act (the ``APA''), at 5 
U.S.C. 553(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, the FOIA 
Improvement Act requires the FDIC to issue regulations which 
incorporate the changes made by the FOIA Improvement Act not later than 
180 days after the date of its enactment (i.e., by December 27, 2016). 
Because the statutory changes under the FOIA Improvement Act were 
effective

[[Page 83646]]

immediately and due to the statutory deadline imposed for rulemaking, 
the FDIC has concluded that publishing notice and taking comment before 
issuing a final rule would be impracticable. In addition, since these 
changes merely bring the regulations into alignment with the provisions 
contained in the FOIA Improvement Act, the OPEN Government Act, and the 
OPEN FOIA Act, and improve the rule's accuracy and organization, 
publishing prior notice would be unnecessary. Therefore, the FDIC finds 
good cause exists to publish this rule as final without prior notice 
and comment and with an effective date as of the date of its 
publication in the Federal Register to allow the public to benefit 
immediately. Nevertheless, the FDIC welcomes public comments from any 
interested person on any aspect of the changes made by this interim 
final rule. Please refer to the ADDRESSES section above. The FDIC will 
carefully consider all public comments, if any, in any further 
development of this rule.

VII. Regulatory Analysis

Riegle Community Development and Regulatory Improvement Act
    Section 302 of the Riegle Community Development and Regulatory 
Improvement Act \5\ generally requires that regulations prescribed by 
federal banking agencies which impose additional reporting, 
disclosures, or other new requirements on insured depository 
institutions take effect on the first day of a calendar quarter unless 
the regulation is required to take effect on another date pursuant to 
another act of Congress or the agency determines for good cause that 
the regulation should become effective on an earlier date. This interim 
final rule makes revisions in the FDIC's FOIA regulations, because 
these changes are merely bringing the regulations into alignment with 
the provisions contained in the FOIA Improvement Act, the OPEN 
Government Act, and the OPEN FOIA Act, as well as for purposes of 
accuracy and organization. It does not impose any new or additional 
reporting, disclosures, or other requirements on insured depository 
institutions. Additionally, as previously noted, the FOIA Improvement 
Act requires the FDIC to issue regulations which incorporate the 
changes made by the FOIA Improvement Act not later than 180 days after 
the date of its enactment (i.e., by December 27, 2016). Accordingly, 
this interim final rule will be effective upon publication.
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    \5\ 12 U.S.C. 4802.
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Regulatory Flexibility Act
    The Regulatory Flexibility Act (RFA) \6\ applies only to rules for 
which an agency publishes a general notice of proposed rulemaking 
pursuant to 5 U.S.C. 553(b). As discussed above, consistent with 
section 553(b)(B) of the APA, the FDIC has determined for good cause 
that general notice and opportunity for public comment is not 
necessary. Accordingly, the RFA's requirements relating to initial and 
final regulatory flexibility analysis do not apply. Nonetheless, the 
FDIC observes that because this interim final rule only amends the 
FDIC's regulations under the FOIA to incorporate certain changes made 
by the FOIA Improvement Act, the OPEN Government Act, and the OPEN FOIA 
Act, and for purposes of accuracy and organization, it should not have 
a significant economic impact on a substantial number of small 
entities. The FDIC requests comment on these conclusions.
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    \6\ Public Law 96-354, Sept. 19, 1980, codified to 5 U.S.C. 601 
et seq.
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The Omnibus Consolidated and Emergency Supplemental Appropriations Act, 
1999: Assessment of Federal Regulations and Policies on Families
    The FDIC determined that this interim final rule will not affect 
family wellbeing within the meaning of section 654 of the Omnibus 
Consolidated and Emergency Supplemental Appropriations Act, 1999.\7\
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    \7\ Public Law 105-277, 112 Stat. 2681 (1998).
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Paperwork Reduction Act
    The Paperwork Reduction Act of 1995 \8\ states that no agency may 
conduct or sponsor, nor is the respondent required to respond to, an 
information collection unless it displays a currently valid Office of 
Management and Budget (OMB) control number. The FDIC has determined 
that this interim final rule does not create any new, or revise any 
existing, collections of information under the Paperwork Reduction Act. 
Consequently, no information collection request will be submitted to 
the OMB for review. The FDIC invites comment on its PRA determination.
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    \8\ 44 U.S.C. 3501-3521.
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Plain Language Act
    Section 722 of the Gramm-Leach-Bliley Act requires the FDIC to use 
plain language in all proposed and final rules published after January 
1, 2000.\9\ The FDIC invites comment on how to make this rule easier to 
understand. For example:
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    \9\ Public Law 106-102, 113 Stat. 1338 (1999).
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     Has the FDIC organized the material to suit your needs? If 
not, how could the FDIC present the rule more clearly?
     Are the requirements in the rule clearly stated? If not, 
how could the rule be more clearly stated?
     Does the rule contain technical language or jargon that is 
not clear? If so, which language requires clarification?
     Would a different format (grouping and order of sections, 
use of headings, paragraphing) make the rule easier to understand? If 
so, what changes would achieve that?
     Is this section format adequate? If not, which of the 
sections should be changed and how?
     What other changes can the FDIC incorporate to make the 
rule easier to understand?

List of Subjects in 12 CFR Part 309

    Federal Deposit Insurance Corporation, Procedure and Rules of 
Practice, Disclosure of Information.

    Accordingly, for the reasons stated in the preamble, 12 CFR chapter 
3, subchapter A, part 309 is amended as follows:

PART 309--DISCLOSURE OF INFORMATION

0
1. The authority citation for part 309 continues to read as follows:

    Authority:  5 U.S.C. 552; 12 U.S.C. 1819 ``Seventh'' and 
``Tenth.''


0
2. Section 309.2 is amended by revising paragraph (e) to read as 
follows:


Sec.  309.2  Definitions.

* * * * *
    (e) The term record means:
    (1) Any information that would be an agency record subject to the 
requirements of this section when maintained by the FDIC in any format, 
including an electronic format; and
    (2) Any information described under paragraph (e)(1) of this 
section that is maintained for the FDIC by an entity under Government 
contract, for purposes of records management.
* * * * *

0
3. Section 309.4 is amended by revising the paragraph (a)(2) subject 
heading and paragraphs (a)(2)(i) introductory text, (a)(2)(i)(D), and 
(b) to read as follows:


Sec.  309.4  Publicly available records.

    (a) * * *
    (2) Documents required to be made available for inspection in an 
electronic

[[Page 83647]]

format. (i) The following types of documents created on or after 
November 1, 1996, and required to be made available for inspection in 
an electronic format, may be found on the FDIC's World Wide Web page 
located at: http://www.fdic.gov:
* * * * *
    (D) Copies of all records released to any person under Sec.  309.5:
    (1) That, because of the nature of their subject matter, the FDIC 
determines have become or are likely to become the subject of 
subsequent requests for substantially the same records; or
    (2) That have been requested 3 or more times; and
* * * * *
    (b) Public Information Center. The FDIC maintains a Public 
Information Center or ``PIC'' that contains Corporate records that the 
Freedom of Information Act requires be made available for regular 
inspection and copying, as well as any records or information the FDIC, 
in its discretion, has regularly made available, to the public. The PIC 
has extensive materials of interest to the public, including many 
Reports, Summaries and Manuals used or published by the Corporation 
that are made available, by appointment, for inspection and copying. 
The PIC is open from 9 a.m. to 4 p.m., Monday through Friday, excepting 
Federal holidays. It is located at 3501 North Fairfax Drive, Room E-
1005, Arlington, VA 22226. The PIC may be reached during business hours 
by calling 1(877) 275-3342 or 1-(703) 562-2200.
* * * * *

0
4. Section 309.5 is amended by:
0
a. Revising paragraphs (a)(6), (d)(1), and (d)(4);
0
b. Redesignating paragraphs (d)(6) and (d)(7) as paragraphs (d)(7) and 
(d)(8), respectively and adding new paragraph (d)(6);
0
c. Redesignating newly redesignated paragraph (d)(8)(iii) as paragraph 
(d)(8)(iv) and adding a new paragraph (d)(8)(iii);
0
d. Revising newly redesignated paragraphs (d)(8)(iv)(C) and 
(d)(8)(iv)(D) and adding paragraph (d)(8)(iv)(E);
0
e. Revising paragraphs (f)(1)(x) and (g)(3);
0
f. Redesignating paragraphs (h) and (i) as paragraphs (i) and (j), 
respectively;
0
g. Adding new paragraph (h); and
0
h. Revising newly redesignated paragraph (i)(2).
    The revisions and additions read as follows:


Sec.  309.5  Procedures for requesting records.

    (a) * * *
    (6) Representative of the news media means any person or entity 
that gathers information of potential interest to a segment of the 
public, uses its editorial skills to turn the raw materials into a 
distinct work, and distributes that work to an audience. The term news 
means information that is about current events or that would be of 
current interest to the public. Examples of news-media entities are 
television or radio stations broadcasting to the public at large and 
publishers of periodicals (but only if such entities qualify as 
disseminators of news) who make their products available for purchase 
by or subscription by or free distribution to the general public. These 
examples are not all-inclusive. Moreover, as methods of news delivery 
evolve (for example, the adoption of the electronic dissemination of 
newspapers through telecommunications services), such alternative media 
will be considered to be news-media entities. A freelance journalist 
will be regarded as working for a news-media entity if the journalist 
can demonstrate a solid basis for expecting publication through that 
entity, whether or not the journalist is actually employed by that 
entity. A publication contract would present a solid basis for such an 
expectation; the FDIC may also consider the past publication record of 
the requester in making this determination.
    (d) * * *
    (1) Receipt of requests. Upon receipt of a request that satisfies 
paragraph (b) of this section, the FOIA/PA Group will acknowledge 
receipt of the request in writing to the requester and provide the 
requester with an individualized tracking number for the request. The 
date of receipt for such request, including one that is addressed 
incorrectly or that is referred by another agency, is the date the 
FOIA/PA Group actually receives the request.
* * * * *
    (4) A requester seeking expedited processing will be notified 
whether expedited processing has been granted within ten (10) working 
days of the receipt of the request. If the request for expedited 
processing is denied, the requester may file an appeal pursuant to the 
procedures set forth in paragraph (i) of this section, and the FDIC 
shall respond to the appeal within ten (10) working days after receipt 
of the appeal.
* * * * *
    (6) Checking status of request. A requester may check on the status 
of a request using the tracking number assigned to the request to 
obtain information about the request including the date on which the 
FDIC originally received the request and an estimated date on which the 
FDIC will complete action on the request. The status of a request may 
be obtained:
    (i) Online at the FDIC's FOIA Service Center, at http://www.fdic.gov, if the request was submitted electronically using the 
FDIC's online FOIA request form; or
    (ii) By calling the FDIC's FOIA Service Center at (202) 898-7021, 
if the request was submitted by email, facsimile or regular mail.
* * * * *
    (8) * * *
    (iii) The right of the requester to seek assistance from the FDIC's 
FOIA Public Liaison; and
    (iv) * * *
    (C) The exemptions relied on for the denial;
    (D) The right of the requester to appeal the denial to the FDIC's 
General Counsel within 90 calendar days following receipt of the 
notification, as specified in paragraph (i) of this section; and
    (E) The right of the requester to seek dispute resolution services 
from the FDIC's FOIA Public Liaison and/or the Office of Government 
Information Services (OGIS).
    (f) * * *
    (1) * * *
    (x) As part of the initial request, a requester may ask that the 
FDIC waive or reduce fees if disclosure of the records is in the public 
interest because it is likely to contribute significantly to public 
understanding of the operations or activities of the government and is 
not primarily in the commercial interest of the requester. 
Determinations as to a waiver or reduction of fees will be made by the 
FOIA/PA Group, Legal Division (or designee) and the requester will be 
notified in writing of his/her determination. A determination not to 
grant a request for a waiver or reduction of fees under this paragraph 
may be appealed to the FDIC's General Counsel (or designee) pursuant to 
the procedure set forth in paragraph (i) of this section.
* * * * *
    (g) * * *
    (3) Records specifically exempted from disclosure by statute, 
provided that such statute:
    (i)(A) Requires that the matters be withheld from the public in 
such a manner as to leave no discretion on the issue; or
    (B) Establishes particular criteria for withholding or refers to 
particular types of matters to be withheld; and
    (ii) if enacted after the date of enactment of the OPEN FOIA Act of 
2009, specifically cites to 5 U.S.C. 552(b)(3);
* * * * *

[[Page 83648]]

    (h) Dispute resolution. A requester seeking to engage in dispute 
resolution may make a request to the FOIA Public Liaison and/or OGIS by 
following the procedures set forth online in the FDIC's FOIA Service 
Center at http://www.fdic.gov.
    (i) * * *
    (2) A person whose initial request for records under this section, 
or whose request for a waiver of fees under paragraph (f)(1)(x) of this 
section, has been denied, either in part or in whole, has the right to 
appeal the denial to the FDIC's General Counsel (or designee) within 90 
calendar days after receipt of notification of the denial. Appeals of 
denials of initial requests or for a waiver of fees must be in writing 
and include any additional information relevant to consideration of the 
appeal.
* * * * *

    Dated at Washington, DC, this 15th day of November, 2016.

    By order of the Board of Directors.

Federal Deposit Insurance Corporation.
Valerie J. Best,
Assistant Executive Secretary.
[FR Doc. 2016-27961 Filed 11-21-16; 8:45 am]
 BILLING CODE 6714-01-P
Federal Register / Vol. 81, No. 225 / Tuesday, November 22, 2016 / Rules and Regulations 83643

Title 44—Emergency Management and instructions for submitting comments services. The FOIA Improvement Act
Assistance on the Agency Web site. requires the FDIC to issue regulations
• Email: Comments@fdic.gov. Include which incorporate the changes made by
PART 5—PRODUCTION OR ‘‘Disclosure of Information’’ in the the FOIA Improvement Act not later
DISCLOSURE OF INFORMATION subject line of the message. than 180 days after the date of its
• Mail: Robert E. Feldman, Executive enactment (i.e., by December 27, 2016).
■ 6. The authority citation for part 5 is Secretary, Attention: Comments, Federal This rule updates the FDIC’s regulations
revised to read as follows: Deposit Insurance Corporation, 550 17th in 12 CFR part 309 to reflect those
Authority: Pub. L. 107–296, 116 Stat. Street NW., Washington, DC 20429. statutory changes.
2135; 5 U.S.C. 301. • Hand Delivery: Comments may be In addition, as explained below, this
hand-delivered to the guard station at rule amends certain provisions to reflect
Subparts A through E—[Removed and the rear of the 550 17th Street Building changes brought about by the
Reserved] (located on F Street) on business days amendments to the FOIA in the OPEN
■ 7. Remove and reserve subparts A between 7:00 a.m. and 5:00 p.m. Government Act and the OPEN FOIA
• Federal eRulemaking Portal: http:// Act. These amendments to the FOIA
through E of part 5.
www.regulations.gov. Follow the from 2007 and 2009 have been followed
■ 8. Revise § 5.86 to read as follows:
instructions for submitting comments. by the FDIC even though the agency’s
§ 5.86 Records involved in litigation or Public Inspection: All comments regulations had not been amended.
other judicial process. received will be posted without change Finally, the rule corrects one instance
Subpoenas duces tecum issued to http://www.fdic.gov/regulations/laws/ of inaccurate contact information and
pursuant to litigation or any other federal/, including any personal adjusts the numbering and lettering of
adjudicatory proceeding in which the information provided. Paper copies of current provisions because of additions
United States is a party shall be referred public comments may be ordered from made to the regulations.
to the Chief Counsel. the FDIC Public Information Center,
3501 North Fairfax Drive, Room E–1002, III. Description of the Rule
Jeh Charles Johnson, Arlington, VA 22226, or by telephone at The following changes have been
Secretary. (877) 275–3342 or (703) 562–2200. made to the FDIC’s FOIA regulations:
[FR Doc. 2016–28095 Filed 11–21–16; 8:45 am] FOR FURTHER INFORMATION CONTACT:
Section 309.2 Definitions
BILLING CODE 9110–9L–P Hugo Zia, Supervisory Counsel, FDIC,
FOIA/Privacy Act Group, Legal Paragraph (e) of § 309.2 (Definitions)
Division, at hzia@fdic.gov or (703) 562– is revised to include the current
FEDERAL DEPOSIT INSURANCE 2671; or John Elmore, Counsel, FDIC, definition for a record under the FOIA.
CORPORATION FOIA/Privacy Act Group, Legal Section 9 of the OPEN Government Act
Division, at joelmore@fdic.gov or (703) amended the definitions section of the
12 CFR Part 309 562–2047; or Sarah Jirousek, Counsel, FOIA, 5 U.S.C. 552(f), by including
FDIC, FOIA/Privacy Act Group, Legal within the definition of ‘‘record’’ any
RIN 3064–AE53
Division, at sjirousek@fdic.gov or (703) information ‘‘maintained for an agency
Revision of the FDIC’s Freedom of 562–2125. by an entity under Government contract,
Information Act Regulations SUPPLEMENTARY INFORMATION:
for the purposes of records
management.’’ This amendment made
AGENCY: Federal Deposit Insurance I. Policy Objectives clear that records, in the possession of
Corporation. The policy objective of this interim Government contractors for purposes of
ACTION: Interim final rule and request final rule is to bring the FDIC’s FOIA records management, are considered
for comment. regulations 1 into accord with the agency records for purposes of the
changes to the FOIA made by the FOIA FOIA. Through this change to the
SUMMARY: This rule amends the Federal regulations, the FDIC adopts the
Deposit Insurance Corporation’s (FDIC) Improvement Act,2 the OPEN
Government Act,3 and the OPEN FOIA statutory definition of ‘‘record.’’
regulations under the Freedom of
Information Act (FOIA) to incorporate Act.4 Section 309.4 Publicly Available
certain changes made to the FOIA by the II. Background Records
FOIA Improvement Act of 2016 (FOIA Paragraph (a)(2) of § 309.4 (Records
This rule amends the FDIC’s
Improvement Act). In addition, this rule available on the FDIC’s World Wide
regulations under the FOIA to
amends certain provisions to reflect Web page) is revised to replace outdated
incorporate certain changes made to the
changes brought about by prior wording concerning the inspection of
FOIA, 5 U.S.C. 552, by the FOIA
amendments to the FOIA that had been records that are required to be made
Improvement Act. Among other things,
incorporated into agency practice and available to the public. In the current
the FOIA Improvement Act requires
corrects inaccurate contact information version of the FDIC’s regulations, the
agencies to provide a minimum of 90
and adjusts numbering and lettering of phrase ‘‘via computer
days for requesters to file an
current provisions because of additions telecommunications’’ is used. The FOIA
administrative appeal. The FOIA
to the regulations. Improvement Act changed this wording
Improvement Act also requires agency
DATES: This rule is effective November to ‘‘for inspection in an electronic
regulations to address dispute
22, 2016. Comments must be submitted resolution procedures and to provide format.’’ Through this change to the
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by January 23, 2017. notification to requesters about the regulations, the FDIC adopts the
ADDRESSES: You may submit written availability of dispute resolution language concerning public inspection
comments, which must include the of records in the FOIA Improvement
agency name and RIN 3064–AE53, by 1 12CFR 309.2, 309.4, 309.5. Act.
one of the following methods: 2 Public Law 114–185, 130 Stat. 538 (2016). Paragraph (a)(2)(i)(D) of § 309.4
• Agency Web site: www.fdic.gov/ 3 Public Law 110–175, 121 Stat. 2524 (2007). (Records available on the FDIC’s World
regulations/laws/federal/. Follow 4 Public Law 111–83, 123 Stat. 2142, 2184 (2009). Wide Web page) is revised to include

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83644 Federal Register / Vol. 81, No. 225 / Tuesday, November 22, 2016 / Rules and Regulations

the requirement that the FDIC make maintain the organizational integrity of FDIC’s current practice and is required
available for public inspection in an the regulations. by the FOIA Improvement Act.
electronic format any record that has Paragraph (d)(6) of § 309.5 (Checking Paragraph (d)(8)(iv) of § 309.5
been released and (i) that the FDIC status of request) is added to notify (Response to request) is revised in
determines has become or is likely to requesters of the contact information for numbering because of the addition of
become the subject of subsequent FDIC’s FOIA Service Center (telephone § 309.5(d)(8)(iii) (Checking status of
requests for substantially the same number and Web site address), thereby request). Previously this paragraph was
records, or (ii) that has been requested enabling requesters to obtain certain § 309.5(d)(8)(iii); it is now
three or more times. This requirement information about the status of their § 309.5(d)(8)(iv). This adjustment to
has been the practice of the FDIC for a request. Section 7 of the OPEN numbering is necessary to maintain the
number of years, is in accord with the Government Act amended 5 U.S.C. organizational integrity of the
current practice of the FDIC and is 552(a) by requiring agencies to establish regulations.
required by the FOIA Improvement Act. a telephone number or a Web site to Paragraph (d)(8)(iv)(C) of § 309.5
Paragraph (b) of § 309.4 (Public allow requesters to inquire about the (Response to request) is revised to
Information Center) is revised to correct status of their request, obtain the date an remove an ‘‘and’’ because of the
inaccurate contact information for the agency originally received their request, addition of § 309.5(d)(8)(iv)(E). This
FDIC’s Public Information Center. This and obtain an estimated date for the removal is necessary to maintain the
revision to the regulations is required so completion of the agency’s processing of organizational integrity of the
that requesters have the correct contact their request. This section of the OPEN regulations.
information when inquiring about Government Act codified existing Paragraph (d)(8)(iv)(D) of § 309.5
publicly available records. requirements set forth in Executive (Response to request) is revised to
Order 13,392. The FDIC has a FOIA provide for notification to the requester
Section 309.5 Procedures for
Service Center that is accessible via the that the deadline to file an
Requesting Records
internet and telephone and, through administrative appeal is extended to 90
Paragraph (a)(6) of § 309.5 either method, requesters are provided
(Representative of the news media) is days, in conformity with the 90-day
with the date of the FDIC’s receipt of time period established by the FOIA
revised to include the current definition their request and the estimated date on
of ‘‘representative of the news media’’ Improvement Act. Section 2 of the FOIA
which the FDIC will complete its
under the FOIA. Section 3 of the OPEN Improvement Act amended 5 U.S.C.
processing of their request. The FDIC
Government Act amended 5 U.S.C. 552(a)(6)(A)(i) by changing the time
has made these services and information
552(a)(4)(A)(ii) of the FOIA by expressly period for an appeal of adverse
available to requesters for a number of
providing a definition of ‘‘representative determinations, from 30 days to 90 days.
years. The addition of this notification
of the news media.’’ Through this This paragraph is also revised to add an
provision to the regulations is in accord
change to the regulations, the FDIC ‘‘and’’ because of the addition of
with the FDIC’s current practice and
adopts the definition of ‘‘representative § 309.5(d)(8)(iv)(E). These changes are
adopts the language in the OPEN
of the news media’’ that is in the OPEN required by the FOIA Improvement Act
Government Act.
Government Act. Paragraph (d)(7) of § 309.5 and for the regulation to remain
Paragraph (d)(1) of § 309.5 (Receipt of (Notification) is revised in numbering organized.
requests) is revised to specify that the because of the addition of § 309.5(d)(6) Paragraph (d)(8)(iv)(E) of § 309.5
FDIC will provide a requester with an (Checking status of request). Previously (Response to request) is added to
individualized tracking number for any this paragraph was § 309.5(d)(6) include a requirement that the FDIC
FOIA request that satisfies 12 CFR (Notification); it is now § 309.5(d)(7) notify requesters, in response to an
309.5(b), no matter how long it will take (Notification). This adjustment to adverse determination of a request that
to process the request. Section 7 of the numbering is necessary to maintain the satisfies § 309.5(b), of their right to seek
OPEN Government Act amended 5 organizational integrity of the assistance from the FDIC’s FOIA Public
U.S.C. 552(a) by requiring agencies to regulations. Liaison and/or the Office of Government
assign an individualized tracking Paragraph (d)(8) of § 309.5 (Response Information Services (OGIS) at the
number for each request that will to request) is revised in numbering National Archives and Records
require more than ten days to process. because of the addition of § 309.5(d)(6) Administration. Section 2 of the FOIA
This section codified existing (Checking status of request). Previously Improvement Act added 5 U.S.C.
requirements set forth in Executive this paragraph was § 309.5(d)(7); it is 552(a)(6)(A)(i)(III), which requires that
Order 13,392. Providing tracking now § 309.5(d)(8). This adjustment to when agencies make adverse
numbers for every FOIA request that numbering is necessary to maintain the determinations on requests, they must
satisfies § 309.5(b), including those that organizational integrity of the offer the services of their FOIA Public
will take less than ten days to process, regulations. Liaison and/or OGIS. The addition of
has been the practice of the FDIC for a Paragraph (d)(8)(iii) of § 309.5 this provision concerning notification to
number of years, is in accord with the (Response to request) is added to require the regulations is required by the FOIA
current practice of the FDIC and adopts the FDIC to notify requesters, in its Improvement Act.
the language of the OPEN Government response to their request, of their right Paragraph (f)(1)(x) of § 309.5 is revised
Act. to seek assistance from the FDIC’s FOIA to account for a change in numbering
Paragraph (d)(4) of § 309.5 is revised Public Liaison, if the FDIC determines because of the addition of § 309.5(h)
to account for a change in numbering such request satisfies 12 CFR 309.5(b). (Dispute resolution). Previously, the
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because of the addition of § 309.5(h) Section 2 of the FOIA Improvement Act paragraph referring to procedures
(Dispute resolution). Previously, the added 5 U.S.C. 552(a)(6)(A)(i)(II), which concerning appeals that is cross-
paragraph covering procedures requires agencies to offer the services of referenced in this paragraph was
concerning appeals that is cross- their FOIA Public Liaison when issuing § 309.5(h); it is now § 309.5(i). This
referenced in this paragraph was their determinations of requests. The adjustment to numbering is necessary to
§ 309.5(h); it is now § 309.5(i). This addition of this notification provision to maintain the organizational integrity of
adjustment to numbering is necessary to the regulations is in accord with the the regulations.

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Document Created: 2018-02-14 08:29:12
Document Modified: 2018-02-14 08:29:12
Category		Regulatory Information
Collection		Federal Register
sudoc Class		AE 2.7: GS 4.107: AE 2.106:
Publisher		Office of the Federal Register, National Archives and Records Administration
Section		Rules and Regulations
Action		Interim final rule and request for comment.
Dates		This rule is effective November 22, 2016. Comments must be submitted by January 23, 2017.
Contact		Hugo Zia, Supervisory Counsel, FDIC, FOIA/Privacy Act Group, Legal Division, at [email protected] or (703) 562- 2671; or John Elmore, Counsel, FDIC, FOIA/Privacy Act Group, Legal Division, at [email protected] or (703) 562-2047; or Sarah Jirousek, Counsel, FDIC, FOIA/Privacy Act Group, Legal Division, at [email protected] or (703) 562-2125.
FR Citation		81 FR 83643
RIN Number		3064-AE53
CFR Associated		Federal Deposit Insurance Corporation; Procedure and Rules of Practice and Disclosure of Information