81 FR 86575 - FOIA Improvement Act; Rules of General Application
INTERNATIONAL TRADE COMMISSION Federal Register Volume 81, Issue 231 (December 1, 2016)
Federal Register Volume 81, Issue 231 (December 1, 2016)
| Page Range | 86575-86577 | |
| FR Document | 2016-28819 |
[Federal Register Volume 81, Number 231 (Thursday, December 1, 2016)] [Rules and Regulations] [Pages 86575-86577] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2016-28819] ======================================================================= ----------------------------------------------------------------------- INTERNATIONAL TRADE COMMISSION 19 CFR Part 201 FOIA Improvement Act; Rules of General Application AGENCY: United States International Trade Commission. ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: The United States International Trade Commission (``Commission'') issues a final rule amending its Rules of Practice and Procedure concerning rules of general application to reflect amendments to the Freedom of Information Act (``FOIA'') made by the FOIA Improvement Act of 2016 (``Improvement Act''). Among other things, the Improvement Act requires the Commission to amend its FOIA regulations to extend the deadline for administrative appeals for FOIA decisions, to add information on dispute resolution services, and to amend the [[Page 86576]] way the Commission charges fees for FOIA requests. DATES: This regulation is effective January 3, 2017. FOR FURTHER INFORMATION CONTACT: Lisa R. Barton, Secretary, telephone (202) 205-2000 or Brian R. Battles, Esquire, Office of the General Counsel, United States International Trade Commission, telephone (202) 708-4737. Hearing-impaired individuals are advised that information on this matter can be obtained by contacting the Commission's TDD terminal at 202-205-1810. General information concerning the Commission may also be obtained by accessing its Web site at https://www.usitc.gov. SUPPLEMENTARY INFORMATION: The preamble below is designed to assist readers in understanding these amendments to the Commission's Rules of Practice and Procedure. Background Section 335 of the Tariff Act of 1930 (19 U.S.C. 1335) authorizes the Commission to adopt such reasonable procedures, rules, and regulations as it deems necessary to carry out its functions and duties. This rulemaking amends the Commission's existing Rules of Practice and Procedure and reflects changes to the FOIA by the Improvement Act. The Improvement Act addresses a range of procedural issues. Among other things, it requires that agencies establish a minimum of 90 days for requesters to file an administrative appeal and that they provide dispute resolution services at various times throughout the FOIA process. The Improvement Act also updates how fees are charged. The United States International Trade Commission amends 19 CFR part 201 as follows:By amending Sec. 201.18: [cir] To change the appeals deadline from sixty days to ninety days; [cir] To indicate that the Commission's FOIA Public Liaison is available to offer dispute resolution services and to provide contact information for the Commission's FOIA Public Liaison and the Office of Government Information Services. By amending Sec. 201.20, to add new paragraphs (c)(5), (c)(6), and (c)(7) to provide additional limitations on the fees charged by the Commission. Good Cause for Final Adoption The Commission ordinarily promulgates amendments to the Code of Federal Regulations in accordance with the notice-and-comment rulemaking procedure in section 553 of the Administrative Procedure Act (APA) (5 U.S.C. 553). That procedure entails publication of notice of proposed rulemaking in the Federal Register that solicits public comment on the proposed amendments, consideration by the Commission of public comments on the content of the amendments, and publication of the final amendments at least 30 days prior to their effective date. In this instance, however, the Commission has determined that the notice and public comment procedure is unnecessary. Section 553(b)(3)(B) of the APA authorizes agencies to dispense with notice and comment procedures for rules when the agency finds that there is ``good cause'' in concluding that those procedures are ``impracticable, unnecessary, or contrary to the public interest.'' Under this section, an agency, upon finding good cause, may issue a final rule without seeking comment prior to the rulemaking. The proposed amendments are required by statute, do not involve Commission discretion, and provide additional protections to the public. Given these factors, the Commission finds good cause to conclude that the notice and public comment procedure are unnecessary. Regulatory Analysis of Proposed Amendments to the Commission's Rules The Commission has determined that these rules do not meet the criteria described in section 3(f) of Executive Order 12866 (58 FR 51735, October 4, 1993) and thus do not constitute a ``significant regulatory action'' for purposes of the Executive Order. The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) is inapplicable to this rulemaking because it is not one for which a notice of proposed rulemaking is required under 5 U.S.C. 553(b) or any other statute. These rules do not contain federalism implications warranting the preparation of a federalism summary impact statement pursuant to Executive Order 13132 (64 FR 43255, August 4, 1999). No actions are necessary under title II of the Unfunded Mandates Reform Act of 1995, Pubic Law 104-4 (2 U.S.C. 1531-1538) because the rules will not result in the expenditure by state, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more in any one year (adjusted annually for inflation), and will not significantly or uniquely affect small governments. These rules are not ``major rules'' as defined by section 251 of the Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 801 et seq.). Moreover, they are exempt from the reporting requirements of that Act because they contain rules of agency organization, procedure, or practice that do not substantially affect the rights or obligations of non-agency parties. These rules are not subject to section 3504(h) of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.), since they do not contain any new information collection requirements. List of Subjects in 19 CFR Part 201 Administrative practice and procedure, Claims, Classified information, Confidential business information, Freedom of information, Privacy, Reporting and recordkeeping requirements. As stated in the preamble, part 201 of chapter II, title 19 of the Code of Federal Regulations is amended as follows: PART 201--RULES OF GENERAL APPLICATION 0 1. The authority citation for part 201 continues to read as follows: Authority: 19 U.S.C. 1335; 19 U.S.C. 2482, unless otherwise noted. 0 2. In Sec. 201.18, paragraphs (b) and (f) are revised to read as follows: Sec. 201.18 Denial of requests, appeals from denial. * * * * * (b) An appeal from a denial of a request must be received within ninety days of the date of the letter of denial and shall be made to the Commission and addressed to the Chairman, United States International Trade Commission, 500 E Street SW., Washington, DC 20436. Any such appeal shall be in writing, and shall indicate clearly in the appeal, and if the appeal is in paper form on the envelope, that it is a ``Freedom of Information Act Appeal.'' An appeal may be made either in paper form, or electronically by contacting the Commission at http://www.usitc.gov/foia.htm. * * * * * (f) A response to an appeal will advise the requester that the Commission's FOIA Public Liaison officer and the Office of Government Information Services both offer mediation services to resolve disputes between FOIA requesters and Federal agencies as a non-exclusive alternative to litigation. The requester may contact the Commission's FOIA Public Liaison officer by telephone (202-205-2595) or email (foia.se.se@usitc.gov">foia.se.se@usitc.gov) or the Office of Government Information Services at National Archives and Records Administration, 8601 Adelphi Road-- OGIS, College Park, Maryland 20740-6001. [[Page 86577]] 0 3. In Sec. 201.20, add paragraphs (c)(5) through (7) to read as follows: Sec. 201.20 Fees. * * * * * (c) * * * (5) The Commission will not charge fees if it fails to comply with any time limit under the FOIA or these regulations, and if it has not timely notified the requester, in writing, that an unusual circumstance exists. If an unusual circumstance exists, and timely written notice is given to the requester, the Commission will have an additional 10 working days to respond to the request before fees are automatically waived under this paragraph. (6) If the Commission determines that unusual circumstances apply and that more than 5,000 pages are necessary to respond to a request, it may charge fees if it has provided a timely written notice to the requester and discusses with the requester via mail, Email, or telephone how the requester could effectively limit the scope of the request (or make at least three good faith attempts to do so). (7) If a court has determined that exceptional circumstances exist, a failure to comply with time limits imposed by these regulations or FOIA shall be excused for the length of time provided by court order. * * * * * By order of the Commission. Issued: November 25, 2016. Katherine M. Hiner, Acting Supervisory Attorney. [FR Doc. 2016-28819 Filed 11-30-16; 8:45 am] BILLING CODE 7020-02-P
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PART 375—THE COMMISSION a document is exempt and will take and clearly marked ‘‘Freedom of
reasonable steps to segregate and release Information Act Appeal.’’ Such an
■ 1. The authority citation for part 375 nonexempt information. appeal received by the Commission not
continues to read as follows: (5) The Director will only withhold addressed and marked as indicated in
Authority: 5 U.S.C. 551–557; 15 U.S.C. information where it is reasonably this paragraph will be so addressed and
717–717w, 3301–3432; 16 U.S.C. 791–825r, foreseeable that disclosure would harm marked by Commission personnel as
2601–2645; 42 U.S.C. 7101–7352. an interest protected by an exemption or soon as it is properly identified and
■ 2. In § 375.309, paragraph (h) is added disclosure is prohibited by law or then will be forwarded to the General
and reserved, and paragraph (i) is added otherwise exempted from disclosure Counsel. Appeals taken pursuant to this
to read as follows under FOIA Exemption 3. paragraph will be considered to be
* * * * * received upon actual receipt by the
§ 375.309 Delegations to the General ■ 7. Amend § 388.109 by adding General Counsel.
Counsel. (3) The General Counsel or the
paragraph (f) to read as follows
* * * * * General Counsel’s designee will make a
(h) [Reserved] § 388.109 Fees for record requests. determination with respect to any
(i) Deny or grant, in whole or in part, * * * * * appeal within 20 working days after the
an appeal of a Freedom of Information (f) The Commission will not charge receipt of such appeal. An appeal of the
Act determination by the Director of the search fees (or duplication fees for denial of expedited processing will be
Office of External Affairs. requesters with preferred fee status) considered as expeditiously as possible
where, after extending the time limit for within the 20 working day period. If, on
PART 388—INFORMATION AND unusual circumstances, as described in appeal, the denial of the request for
REQUESTS § 388.110, the Director does not provide records, fee reduction, or expedited
■ 3. The authority citation for part 388 a timely determination. processing is upheld in whole or in part,
(1) If there are unusual circumstances, the General Counsel or the General
continues to read as follows:
as described in § 388.110, and there are Counsel’s designee will notify the
Authority: 5 U.S.C. 301–305, 551, 552 (as more than 5,000 responsive pages to the person making the appeal of the
amended), 553–557; 42 U.S.C. 7101–7352. request, the Commission may charge provisions for judicial review of that
■ 4. Amend § 388.106 by adding search fees (or, for requesters in determination.
paragraph (b)(24) to read as follows preferred fee status, may charge (b) * * *
§ 388.106 Requests for Commission
duplication fees) where the requester (5) Whenever the Commission
records available in the Public Reference received timely written notice and the extends the time limit, pursuant to
Room and from the Commission’s Web site, Commission has discussed with the paragraph (b)(1) of this section, by more
http://www.ferc.gov. requester via written mail, electronic than ten additional working days, the
* * * * * mail, or telephone (or made not less written notice will notify the requester
(b) * * * than 3 good-faith attempts to do so) how of the right to seek dispute resolution
(24) Records that have been requested the requester could effectively limit the services from the Office of Government
three or more times and determined scope of the request; or Information Services.
eligible for public disclosure will be (2) If a court determines that [FR Doc. 2016–28811 Filed 11–30–16; 8:45 am]
made publicly available on the exceptional circumstances exist, the BILLING CODE 6717–01–P
Commission’s Web site or through other Commission’s failure to comply with a
electronic means. time limit will be excused for the length
* * * * * of time provided by the court order.
■ 8. Amend § 388.110 by revising INTERNATIONAL TRADE
■ 5. Amend § 388.107 by revising
paragraph (e) to read as follows paragraph (a) and adding paragraph COMMISSION
(b)(5) to read as follows:
§ 388.107 Commission records exempt 19 CFR Part 201
from public disclosure. § 388.110 Procedure for appeal of denial of
requests for Commission records not FOIA Improvement Act; Rules of
* * * * * publicly available or not available through
(e) Interagency or intraagency General Application
the Public Reference Room, denial of . . .
memoranda or letters which would not fee waiver or reduction, and denial of AGENCY: United States International
be available by law to a party other than requests for expedited processing. Trade Commission.
an agency in litigation with the agency, * * * * * ACTION: Final rule.
except that the deliberative process (a)(1) Determination letters shall
privilege shall not exempt any record 25 indicate that a requester may seek SUMMARY: The United States
years or older. assistance from the FOIA Public International Trade Commission
* * * * * Liaison. A person whose request for (‘‘Commission’’) issues a final rule
■ 6. Amend § 388.108 by revising records, request for fee waiver, or amending its Rules of Practice and
paragraph (c)(4) and adding paragraph request for expedited processing is Procedure concerning rules of general
(c)(5) to read as follows: denied in whole or in part may seek application to reflect amendments to the
dispute resolution services from the Freedom of Information Act (‘‘FOIA’’)
§ 388.108 Requests for Commission Office of Government Information made by the FOIA Improvement Act of
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records not available through the Public Services, or may appeal the 2016 (‘‘Improvement Act’’). Among
Reference Room (FOIA requests). determination to the General Counsel or other things, the Improvement Act
* * * * * General Counsel’s designee within 90 requires the Commission to amend its
(c) * * * days of the determination. FOIA regulations to extend the deadline
(4) The Director will consider whether (2) Appeals filed pursuant to this for administrative appeals for FOIA
partial disclosure of information is section must be in writing, addressed to decisions, to add information on dispute
possible whenever it is determined that the General Counsel of the Commission, resolution services, and to amend the
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■ 3. In § 201.20, add paragraphs (c)(5) that order, the Court stated that the Northern District of Ohio; and (4)
through (7) to read as follows: agency had not responded meaningfully FBME’s facilitation of U.S. sanctions
to FBME’s comments regarding the evasion through its extensive customer
§ 201.20 Fees. agency’s treatment of aggregate base of shell companies, including at
* * * * * Suspicious Activity Report (SAR) data. least one FBME customer that was a
(c) * * * The Court found that those comments front company for a U.S.-sanctioned
(5) The Commission will not charge challenged FinCEN’s interpretation of Syrian entity, the Scientific Studies and
fees if it fails to comply with any time SAR data on at least four distinct Research Center, which used its FBME
limit under the FOIA or these grounds. In this supplement to the final account to process transactions through
regulations, and if it has not timely rule, FinCEN provides further the U.S. financial system.
notified the requester, in writing, that an explanation addressing FBME’s Set forth below are summaries of
unusual circumstance exists. If an comments. FBME’s four arguments in its comments
unusual circumstance exists, and timely surrounding FinCEN’s interpretation of
DATES: December 1, 2016.
written notice is given to the requester, SARs and the agency’s responses.
the Commission will have an additional FOR FURTHER INFORMATION CONTACT: The
1. FBME argues that SARs are so over-
10 working days to respond to the FinCEN Resource Center at (800) 767–
inclusive—‘‘sweeping in [so many]
request before fees are automatically 2825 or regcomments@fincen.gov.
transactions that are perfectly
waived under this paragraph. SUPPLEMENTARY INFORMATION: legitimate’’—that ‘‘categorically’’
(6) If the Commission determines that I. Background viewing SARs as indicative of illicit
unusual circumstances apply and that transactions is ‘‘invalid and improper.’’
more than 5,000 pages are necessary to In its September 20, 2016 order, the
In its January 26, 2016 comments,
respond to a request, it may charge fees U.S. District Court for the District of
FBME asserted that:
if it has provided a timely written notice Columbia remanded to FinCEN the final
rule imposing a prohibition on covered To paint FBME as posing a significant
to the requester and discusses with the threat to U.S. and other financial institutions,
requester via mail, Email, or telephone financial institutions from opening or
FinCEN relies on limited and misleading
how the requester could effectively limit maintaining correspondent accounts for, statistical data regarding ‘‘suspicious wire
the scope of the request (or make at least or on behalf of, FBME Bank, Ltd. transfers’’ as well as biased reports from
three good faith attempts to do so). (FBME). In its memorandum opinion financial institutions seeking to offload
(7) If a court has determined that accompanying that order, the Court responsibility for their own actions. During
stated that the agency had not the hearing before Judge Cooper, FinCEN
exceptional circumstances exist, a revealed that the statistical data relied upon
failure to comply with time limits responded meaningfully to FBME’s
comments regarding the agency’s in the NOF was based on SARs. But such
imposed by these regulations or FOIA reliance is categorically invalid and
shall be excused for the length of time treatment of aggregate SAR data. In this improper. To begin, we know of no instance,
provided by court order. supplement to the final rule, FinCEN prior to this proceeding, in which FinCEN
notes that FBME’s comments regarding has equated any particular SARs data or rate
* * * * * FinCEN’s use of SARs in the rulemaking as indicative of a problem under Section 311
By order of the Commission. process reflect a misunderstanding of [of the USA PATRIOT Act]. Nor is such use
Issued: November 25, 2016. SARs generally and how FinCEN valid. To the contrary, it ignores the purpose
Katherine M. Hiner, analyzed and used SARs in this of a SAR, which involves a designedly low
rulemaking. threshold for the sake of erring on the side
Acting Supervisory Attorney. of over-inclusion—sweeping in transactions
[FR Doc. 2016–28819 Filed 11–30–16; 8:45 am] As an initial matter, FBME overstates
that are perfectly legitimate, simply to ensure
BILLING CODE 7020–02–P
the centrality of the use of SARs in there is scrutiny of them to ensure against
FinCEN’s determination that FBME is of any issue. It is spurious in this light to take
primary money laundering concern. As a SAR or any number of them as evidencing
reflected in the agency’s Notice of the illegitimacy of any transaction or set
DEPARTMENT OF THE TREASURY
Finding (NOF), Final Rule, and thereof—not to mention as evidence that a
Administrative Record, far from being particular bank is one of ‘‘primary money
Financial Crimes Enforcement Network laundering concern’’ under Section 311.1
the only evidence that informed
31 CFR Part 1010 FinCEN’s determination that FBME is of Contrary to FBME’s assumptions,
primary money laundering concern, the FinCEN analyzed the SARs as
RIN 1506–AB27 agency’s analysis of SARs simply qualitative evidence of activity
affirmed FinCEN’s concern surrounding conducted by FBME that reflected one
Supplemental Information Regarding FBME’s involvement in money of FinCEN’s primary concerns about
the Final Rule Imposing the Fifth laundering that was informed by other FBME—specifically, a ‘‘[s]ignificant
Special Measure Against FBME Bank, information in the Administrative [v]olume’’ of ‘‘[o]bscured [t]ransactions’’
Ltd. Record. For instance, as detailed in the as indicated in part by the size and
AGENCY: Financial Crimes Enforcement NOF, this information included: (1) An number of ‘‘[w]ire transfers related to
Network (‘‘FinCEN’’). FBME customer’s receipt of a deposit of suspected shell company activities.’’
ACTION: Supplement to final rule. hundreds of thousands of dollars from NOF, 79 FR at 42640. While FinCEN
a financier for Lebanese Hezbollah; (2) recognizes that actual wrongdoing does
SUMMARY: In its September 20, 2016 providing financial services to a not necessarily underlie the suspicious
order, the U.S. District Court for the financial advisor for a major activity described in any particular
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District of Columbia remanded to transnational organized crime figure; (3) SAR, many of the SARs relating to
FinCEN the final rule imposing a FBME’s facilitation of funds transfers to FBME described typical indicators of
prohibition on covered financial an FBME account involved in fraud shell company activity. As FinCEN has
institutions from opening or against a U.S. person, with the FBME explained, it is particularly concerned,
maintaining correspondent accounts for, customer operating the alleged fraud among other things, by the lack of
or on behalf of, FBME Bank, Ltd. In its scheme later being indicted in the
memorandum opinion accompanying United States District Court for the 1 FBME’s January 26, 2016 Comments, pp. 50–51.
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Document Created: 2018-02-14 09:00:28
Document Modified: 2018-02-14 09:00:28
| 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 | Final rule. | |
| Dates | This regulation is effective January 3, 2017. | |
| Contact | Lisa R. Barton, Secretary, telephone (202) 205-2000 or Brian R. Battles, Esquire, Office of the General Counsel, United States International Trade Commission, telephone (202) 708-4737. Hearing-impaired individuals are advised that information on this matter can be obtained by contacting the Commission's TDD terminal at 202-205-1810. General information concerning the Commission may also be obtained by accessing its Web site at https://www.usitc.gov. | |
| FR Citation | 81 FR 86575 | |
| CFR Associated | Administrative Practice and Procedure; Claims; Classified Information; Confidential Business Information; Freedom of Information; Privacy and Reporting and Recordkeeping Requirements |
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