81 FR 86573 - Regulations Implementing the FOIA Improvement Act of 2016 and Clarifying the FOIA Regulations

DEPARTMENT OF ENERGY
Federal Energy Regulatory Commission

Federal Register Volume 81, Issue 231 (December 1, 2016)

On June 30, 2016, President Obama signed the Freedom of Information Act Improvement Act of 2016. The Act requires agencies to revise their regulations within 180 days to account for the new statutory mandates. After undertaking a review of Commission regulations in accordance with Section 3 of the Act, the Commission is revising its FOIA regulations to incorporate the statutory mandates. Additionally, this rule updates the delegation regulations with respect to determinations made by the General Counsel in response to FOIA administrative appeals.

[Federal Register Volume 81, Number 231 (Thursday, December 1, 2016)]
[Rules and Regulations]
[Pages 86573-86575]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-28811]


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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

18 CFR Parts 375 and 388

[Docket No. RM17-5-000; Order No.832]


Regulations Implementing the FOIA Improvement Act of 2016 and 
Clarifying the FOIA Regulations

AGENCY: Federal Energy Regulatory Commission, Department of Energy.

ACTION: 

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inal rule.

SUMMARY: On June 30, 2016, President Obama signed the Freedom of 
Information Act Improvement Act of 2016. The Act requires agencies to 
revise their regulations within 180 days to account for the new 
statutory mandates. After undertaking a review of Commission 
regulations in accordance with Section 3 of the Act, the Commission is 
revising its FOIA regulations to incorporate the statutory mandates. 
Additionally, this rule updates the delegation regulations with respect 
to determinations made by the General Counsel in response to FOIA 
administrative appeals.

DATES: This rule will become effective January 3, 2017.

FOR FURTHER INFORMATION CONTACT:
Mark Hershfield, Office of the General Counsel, 888 First Street NE., 
Washington, DC 20426, (202) 502-8597, [email protected].
    Christopher MacFarlane, Office of the General Counsel, 888 First 
Street NE., Washington, DC 20426, (202) 502-6761, 
[email protected].

SUPPLEMENTARY INFORMATION:

ORDER NO. 832

FINAL RULE

I. Introduction

    1. On June 30, 2016, President Obama signed the Freedom of 
Information Act (FOIA) Improvement Act of 2016 (FOIA Improvement Act or 
the Act).\1\ The Act directs agencies to: (1) Make information that has 
been requested and disclosed three times publically accessible in an 
electronic format; \2\ (2) institute a sunset period of 25 years on 
records protected under the deliberative process privilege; (3) codify 
the Department of Justice's foreseeability of harm standard when 
rendering FOIA determinations; \3\ (4) take reasonable steps to 
segregate exempt information from nonexempt information; (5) limit fees 
in unusual circumstances when the agency response is delayed; and (6) 
provide additional notice requirements to FOIA requesters in agency 
determination letters.
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    \1\ FOIA Improvement Act of 2016, Public Law 114-185, 130 Stat. 
538 (June 2016). The Act also requires several actions that do not 
necessitate a revising of the regulations such as FOIA officers 
offering additional FOIA training.
    \2\ See Proactive Disclosure of Non-Exempt Agency Information: 
Making Information Available Without the Need to File a FOIA 
Request, OIP Guidance (Oct. 5, 2015), https://www.justice.gov/oip/oip-guidance-5.
    \3\ See 5 U.S.C. 552(b)(5)(2012) (incorporating various 
privileges including the deliberative process privilege covering 
``inter-agency or intra-agency memorandums or letters which would 
not be available by law to a party other than an agency in 
litigation with the agency.'')
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    2. Section 3 of the Act requires agencies to revise their 
regulations to account for the new statutory mandates. The Act provides 
that agencies must revise their rules within 180 days to incorporate 
the statutory changes. Accordingly, the Commission is revising its 
regulations to implement the FOIA Improvement Act. Consistent with the 
FOIA administrative appeal provisions in section 388.110, the 
Commission also is clarifying under section 375.309 that the General 
Counsel or a designee may issue final determinations on administrative 
FOIA appeals.

II. Discussion

    3. After undertaking a review of Commission regulations in 
accordance with Section 3 of the Act, the Commission is revising its 
FOIA regulations in 18 CFR 388.106-388.10, as follows.

A. Revisions to Section 375.309

    4. The FOIA administrative appeal provisions in section 388.110 
provide that a FOIA administrative appeal must be directed to the 
General Counsel for determination, and that the General Counsel or the 
General Counsel's designee will make a determination on that appeal 
within the statutory timeframe.\4\ Consistent with the Commission's 
FOIA administrative appeal provisions in section 388.110, the 
Commission is clarifying, in section 375.309, that the General Counsel 
or a designee will provide determinations in response to FOIA 
administrative appeals.
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    \4\ See 5 U.S.C. 552(a)(6)(A)(ii) (2012).
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B. Revisions to Section 388.106

    5. The FOIA Improvement Act requires agencies to ``make available 
for public inspection in an electronic format'' records that have been 
released and ``that have been requested 3 or more times.'' Section 
388.106 concerns Commission records available in the public reference 
room at the

[[Page 86574]]

Commission's headquarters or on the Commission's Web site. The 
Commission is revising that section to codify this requirement.

C. Revisions to Section 388.107

    6. The FOIA Improvement Act provides that the deliberative process 
privilege no longer exempts a document that is 25 years or older. 
Section 388.107 describes material that is exempt from public 
disclosure under the Commission's regulations, and a provision in that 
section describes material that would traditionally fall under the 
protection of deliberative process privilege. The Commission is 
revising section 338.107(e) to reflect the 25 year limitation on 
material that would otherwise be exempt under the deliberative process 
privilege.

D. Revisions to Section 388.108

    7. The FOIA Improvement Act requires agencies to codify the 
Department of Justice's foreseeable harm standard. Under that standard, 
agencies ``shall withhold information'' under the FOIA ``only if the 
agency reasonably foresees that disclosure would harm an interest 
protected by an exemption'' or ``disclosure is prohibited by law.'' The 
standard does not require the release of material ``that is otherwise 
prohibited from disclosure by law, or otherwise exempted from 
disclosure under [Exemption] 3.'' The Act also directs agencies to make 
reasonable efforts to segregate and release nonexempt material. 
Consistent with Section 3 of the Act, the Commission revises section 
388.108 to codify these practices.

E. Revisions to Section 388.109

    8. The Act directs agencies to waive processing fees, under certain 
unusual circumstances, where the agency's response was delayed.\5\ The 
Commission is revising its regulations on FOIA processing fees, section 
388.109, to provide for fee waivers in the unusual circumstances 
described in the Act.
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    \5\ See Prohibition on Assessing Certain Fees When the FOIA's 
Time Limits Are Not Met, OIP Guidance (Oct. 19, 2016), https://www.justice.gov/oip/oip-guidance/prohibition_on_assessing_certain_fees_when_foia_time_limits_not_met.
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F. Revisions to Section 388.110

    9. The FOIA Improvement Act also provides changes to administrative 
appeals and provides mandatory language that must go in initial 
response letters. The Act requires that all determination letters must 
notify the requester that they can seek assistance from the FOIA Public 
Liaison. Each adverse FOIA determination letter must notify the 
requester of the option to seek dispute resolution services from Office 
of Government Information Services (OGIS).
    10. The Act also directs Agencies to extend the timeframe to file 
an administrative appeal from 45 days to at least 90 days. 
Additionally, the Act mandates that agencies advise requesters that 
they may seek the assistance of OGIS when the agency extends the 
response time by ten or more days for unusual circumstances. The 
Commission will take these steps and revises section 388.110 of its 
regulations to codify this practice.

III. Information Collection Statement

    11. Office of Management and Budget (OMB) regulations require OMB 
to approve certain information collection requirements imposed by 
agency rule.\6\ However, this instant Final Rule does not contain any 
information collection requirements. Therefore, compliance with OMB 
regulations is not required.
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    \6\ 5 CFR 1320.12 (2016).
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IV. Environmental Analysis

    12. The Commission is required to prepare an Environmental 
Assessment or an Environmental Impact Statement for any action that may 
have a significant adverse effect on the human environment.\7\ Issuance 
of this Final Rule does not represent a major federal action having a 
significant adverse effect on the human environment under the 
Commission's regulations implementing the National Environmental Policy 
Act of 1969. Part 380 of the Commission's regulations lists exemptions 
to the requirement to draft an Environmental Analysis or Environmental 
Impact Statement. Included is an exemption for procedural, ministerial, 
or internal administrative actions.\8\ This rulemaking is exempt under 
that provision.
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    \7\ Regulations Implementing the National Environmental Policy 
Act of 1969, Order No. 486, (Dec. 17, 1987), FERC Stats. & Regs. ] 
30,783 (1987).
    \8\ 18 CFR 380.4(a)(1) (2016).
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V. Regulatory Flexibility Act

    13. The Regulatory Flexibility Act of 1980 (RFA) \9\ generally 
requires a description and analysis of final rules that will have 
significant economic impact on a substantial number of small entities. 
This Final Rule makes procedural modifications as directed by statute. 
The Commission certifies that it will not have a significant economic 
impact upon participants in Commission proceedings. An analysis under 
the RFA is not required.
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    \9\ 5 U.S.C. 601-12 (2012).
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VI. Document Availability

    14. In addition to publishing the full text of this document in the 
Federal Register, the Commission provides all interested persons an 
opportunity to view and/or print the contents of this document via the 
Internet through the Commission's Home Page (http://www.ferc.gov) and 
in the Commission's Public Reference Room during normal business hours 
(8:30 a.m. to 5:00 p.m. Eastern time) at 888 First Street NE., Room 2A, 
Washington, DC 20426.
    15. From the Commission's Home Page on the Internet, this 
information is available on eLibrary. The full text of this document is 
available on eLibrary in PDF and Microsoft Word format for viewing, 
printing, and/or downloading. To access this document in eLibrary, type 
the docket number excluding the last three digits of this document in 
the docket number field.
    16. User assistance is available for eLibrary and the Commission's 
Web site during normal business hours from FERC Online Support at (202) 
502-6652 (toll free at 1-866-208-3676) or email at 
[email protected], or the Public Reference Room at (202) 502-
8371, TTY (202) 502-8659. Email the Public Reference Room at 
[email protected].

VII. Effective Date

    17. The Commission is issuing this rule as a Final Rule without a 
period for public comment. Under 5 U.S.C. 553(b)(3)(A), notice and 
comment procedures are unnecessary for ``interpretative rules, general 
statements of policy, or rules of agency organization, procedure, or 
practice . . .'' This rule merely makes modification to existing 
procedures as directed by statute. The rule will not significantly 
affect regulated entities or the general public.
    18. These regulations are effective January 3, 2017.

List of Subjects

18 CFR Part 375

    Authority delegations (Government agencies), Seals and insignia, 
Sunshine Act.

18 CFR Part 388

    Confidential business information, Freedom of information.
    By the Commission.

    Issued: November 17, 2016.
Nathaniel J. Davis, Sr.,
Deputy Secretary.
    In consideration of the foregoing, the Commission amends parts 375 
and 388, Chapter I, Title 18, Code of Federal Regulations, as follows:

[[Page 86575]]

PART 375--THE COMMISSION

0
1. The authority citation for part 375 continues to read as follows:

    Authority: 5 U.S.C. 551-557; 15 U.S.C. 717-717w, 3301-3432; 16 
U.S.C. 791-825r, 2601-2645; 42 U.S.C. 7101-7352.


0
2. In Sec.  375.309, paragraph (h) is added and reserved, and paragraph 
(i) is added to read as follows


Sec.  375.309  Delegations to the General Counsel.

* * * * *
    (h) [Reserved]
    (i) Deny or grant, in whole or in part, an appeal of a Freedom of 
Information Act determination by the Director of the Office of External 
Affairs.

PART 388--INFORMATION AND REQUESTS

0
3. The authority citation for part 388 continues to read as follows:

    Authority: 5 U.S.C. 301-305, 551, 552 (as amended), 553-557; 42 
U.S.C. 7101-7352.

0
4. Amend Sec.  388.106 by adding paragraph (b)(24) to read as follows


Sec.  388.106  Requests for Commission records available in the Public 
Reference Room and from the Commission's Web site, http://www.ferc.gov.

* * * * *
    (b) * * *
    (24) Records that have been requested three or more times and 
determined eligible for public disclosure will be made publicly 
available on the Commission's Web site or through other electronic 
means.
* * * * *

0
5. Amend Sec.  388.107 by revising paragraph (e) to read as follows


Sec.  388.107  Commission records exempt from public disclosure.

* * * * *
    (e) Interagency or intraagency memoranda or letters which would not 
be available by law to a party other than an agency in litigation with 
the agency, except that the deliberative process privilege shall not 
exempt any record 25 years or older.
* * * * *

0
6. Amend Sec.  388.108 by revising paragraph (c)(4) and adding 
paragraph (c)(5) to read as follows:


Sec.  388.108   Requests for Commission records not available through 
the Public

    Reference Room (FOIA requests).
* * * * *
    (c) * * *
    (4) The Director will consider whether partial disclosure of 
information is possible whenever it is determined that a document is 
exempt and will take reasonable steps to segregate and release 
nonexempt information.
    (5) The Director will only withhold information where it is 
reasonably foreseeable that disclosure would harm an interest protected 
by an exemption or disclosure is prohibited by law or otherwise 
exempted from disclosure under FOIA Exemption 3.
* * * * *

0
7. Amend Sec.  388.109 by adding paragraph (f) to read as follows


Sec.  388.109  Fees for record requests.

* * * * *
    (f) The Commission will not charge search fees (or duplication fees 
for requesters with preferred fee status) where, after extending the 
time limit for unusual circumstances, as described in Sec.  388.110, 
the Director does not provide a timely determination.
    (1) If there are unusual circumstances, as described in Sec.  
388.110, and there are more than 5,000 responsive pages to the request, 
the Commission may charge search fees (or, for requesters in preferred 
fee status, may charge duplication fees) where the requester received 
timely written notice and the Commission has discussed with the 
requester via written mail, electronic mail, or telephone (or made not 
less than 3 good-faith attempts to do so) how the requester could 
effectively limit the scope of the request; or
    (2) If a court determines that exceptional circumstances exist, the 
Commission's failure to comply with a time limit will be excused for 
the length of time provided by the court order.

0
8. Amend Sec.  388.110 by revising paragraph (a) and adding paragraph 
(b)(5) to read as follows:


Sec.  388.110   Procedure for appeal of denial of requests for 
Commission records not publicly available or not available through the 
Public Reference Room, denial of . . . fee waiver or reduction, and 
denial of requests for expedited processing.

* * * * *
    (a)(1) Determination letters shall indicate that a requester may 
seek assistance from the FOIA Public Liaison. A person whose request 
for records, request for fee waiver, or request for expedited 
processing is denied in whole or in part may seek dispute resolution 
services from the Office of Government Information Services, or may 
appeal the determination to the General Counsel or General Counsel's 
designee within 90 days of the determination.
    (2) Appeals filed pursuant to this section must be in writing, 
addressed to the General Counsel of the Commission, and clearly marked 
``Freedom of Information Act Appeal.'' Such an appeal received by the 
Commission not addressed and marked as indicated in this paragraph will 
be so addressed and marked by Commission personnel as soon as it is 
properly identified and then will be forwarded to the General Counsel. 
Appeals taken pursuant to this paragraph will be considered to be 
received upon actual receipt by the General Counsel.
    (3) The General Counsel or the General Counsel's designee will make 
a determination with respect to any appeal within 20 working days after 
the receipt of such appeal. An appeal of the denial of expedited 
processing will be considered as expeditiously as possible within the 
20 working day period. If, on appeal, the denial of the request for 
records, fee reduction, or expedited processing is upheld in whole or 
in part, the General Counsel or the General Counsel's designee will 
notify the person making the appeal of the provisions for judicial 
review of that determination.
    (b) * * *
    (5) Whenever the Commission extends the time limit, pursuant to 
paragraph (b)(1) of this section, by more than ten additional working 
days, the written notice will notify the requester of the right to seek 
dispute resolution services from the Office of Government Information 
Services.

[FR Doc. 2016-28811 Filed 11-30-16; 8:45 am]
 BILLING CODE 6717-01-P