81 FR 94215 - Freedom of Information Act Regulation

OFFICE OF GOVERNMENT ETHICS

Federal Register Volume 81, Issue 247 (December 23, 2016)

The U.S. Office of Government Ethics (OGE) is updating its Freedom of Information Act (FOIA) regulation to implement changes in accordance with the FOIA Improvement Act of 2016.

[Federal Register Volume 81, Number 247 (Friday, December 23, 2016)]
[Rules and Regulations]
[Pages 94215-94217]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-31004]



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Rules and Regulations
                                                Federal Register
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Federal Register / Vol. 81, No. 247 / Friday, December 23, 2016 / 
Rules and Regulations

[[Page 94215]]


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OFFICE OF GOVERNMENT ETHICS

5 CFR Part 2604

RIN 3209-AA39


Freedom of Information Act Regulation

AGENCY: Office of Government Ethics (OGE).

ACTION: Interim final rule.

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SUMMARY: The U.S. Office of Government Ethics (OGE) is updating its 
Freedom of Information Act (FOIA) regulation to implement changes in 
accordance with the FOIA Improvement Act of 2016.

DATES: This interim final rule is effective December 23, 2016. Written 
comments are invited and must be received on or before January 23, 
2017.

ADDRESSES: You may submit written comments to OGE on the interim final 
rule by any of the following methods:
     Email: [email protected]. Include the appropriate Regulation 
Identifier Number in the subject line of the message.
     Fax: (202) 482-9237.
     Mail/Hand Delivery/Courier: U.S. Office of Government 
Ethics, Suite 500, 1201 New York Avenue NW., Washington, DC 20005-3917, 
Attention: Jennifer Matis, Assistant Counsel.
    Instructions: All submissions must include OGE's agency name and 
the appropriate Regulation Identifier Number (RIN) 3209-AA39 for this 
proposed rulemaking. OGE will post all comments on its Web site 
(www.oge.gov). All comments received will be posted without change; OGE 
generally does not edit a commenter's personal identifying information 
from submissions. You should submit only information that you wish to 
make available publicly.

FOR FURTHER INFORMATION CONTACT: Jennifer Matis, Assistant Counsel, 
Office of Government Ethics, Suite 500, 1201 New York Avenue NW., 
Washington, DC 20005-3917; Telephone: 202-482-9216; TTY: 800-877-8339; 
FAX: 202-482-9237.

SUPPLEMENTARY INFORMATION:

I. Substantive Discussion

    On June 30, 2016, the FOIA Improvement Act of 2016, Public Law 114-
185, 130 Stat. 538 (the Act) was enacted. The Act specifically requires 
all agencies to review and update their Freedom of Information Act 
(FOIA) regulations in accordance with its provisions. OGE is making 
changes to its regulations accordingly, including correcting citations, 
highlighting the electronic availability of records, implementing the 
``rule of three'' for frequently requested records, notifying 
requesters of their right to seek assistance from the FOIA Public 
Liaison and the Office of Government Information Services, changing the 
time limit for appeals, implementing the foreseeable harm standard, 
describing limitations on assessing search fees if the response time is 
delayed, and adding new annual reporting requirements.

II. Matters of Regulatory Procedure

Administrative Procedure Act

    Pursuant to 5 U.S.C. 553(b), I find that good cause exists for 
waiving the general notice of proposed rulemaking and public comment 
procedures as to these technical amendments. The notice and comment 
procedures are being waived because these amendments, which concern 
matters of agency organization, procedure and practice, are being 
adopted in accordance with mandates required by the FOIA Improvement 
Act of 2016, which requires that agencies amend their FOIA regulations 
not later than 180 days after the date of enactment. It is also in the 
public interest in order to provide notice to requestors of the 
additional time to file appeals.

Regulatory Flexibility Act

    As the Director of the Office of Government Ethics, I certify under 
the Regulatory Flexibility Act (5 U.S.C. chapter 6) that this interim 
final rule would not have a significant economic impact on a 
substantial number of small entities because it primarily affects 
individuals requesting records under the FOIA.

Paperwork Reduction Act

    The Paperwork Reduction Act (44 U.S.C. chapter 35) does not apply 
because this regulation does not contain information collection 
requirements that require approval of the Office of Management and 
Budget.

Unfunded Mandates Reform Act

    For purposes of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 
chapter 5, subchapter II), this rule would not significantly or 
uniquely affect small governments and will not result in increased 
expenditures by State, local, and tribal governments, in the aggregate, 
or by the private sector, of $100 million or more (as adjusted for 
inflation) in any one year.

Executive Order 13563 and Executive Order 12866

    Executive Orders 13563 and 12866 direct agencies to assess all 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select the regulatory approaches that 
maximize net benefits (including economic, environmental, public health 
and safety effects, distributive impacts, and equity). Executive Order 
13563 emphasizes the importance of quantifying both costs and benefits, 
of reducing costs, of harmonizing rules, and of promoting flexibility. 
In promulgating this rulemaking, OGE has adhered to the regulatory 
philosophy and the applicable principles of regulation set forth in 
Executive Orders 12866 and 13563. The rule has not been reviewed by the 
Office of Management and Budget because it is not a significant 
regulatory action for the purposes of Executive Order 12866.

Executive Order 12988

    As Director of the Office of Government Ethics, I have reviewed 
this rule in light of section 3 of Executive Order 12988, Civil Justice 
Reform, and certify that it meets the applicable standards provided 
therein.

List of Subjects in 5 CFR Part 2604

    Administrative practice and procedure, Archives and records, 
Confidential business information, Freedom of information, Reporting 
and recordkeeping requirements.


[[Page 94216]]


    Approved: December 20, 2016.
Walter M. Shaub, Jr.,
Director, Office of Government Ethics.

    For the reasons set out above, OGE amends 5 CFR part 2604 as 
follows:

PART 2604--FREEDOM OF INFORMATION ACT RULES AND SCHEDULE OF FEES 
FOR THE PRODUCTION OF PUBLIC FINANCIAL DISCLOSURE REPORTS

0
1. The authority citation for part 2604 continues to read as follows:

    Authority:  5 U.S.C. 552; 5 U.S.C. App. 101-505; E.O. 12600, 52 
FR 23781, 3 CFR, 1987 Comp., p. 235; E.O. 13392, 70 FR 75373, 3 CFR, 
2005 Comp., p. 216.


0
2. Amend Sec.  2604.103 by revising the definition of ``Chief FOIA 
Officer'' to read as follows:


Sec.  2604.103   Definitions.

* * * * *
    Chief FOIA Officer means the OGE official designated in 5 U.S.C. 
552(j)(1) to provide oversight of all of OGE's FOIA program operations.
* * * * *

0
3. Amend Sec.  2604.201 by revising paragraphs (b) introductory text 
and (b)(4), removing paragraph (c), and redesignating paragraph (d) as 
paragraph (c) to read as follows:


Sec.  2604.201   Public reading room facility and Web site.

* * * * *
    (b) Records available. The OGE Web site contains OGE records which 
are required by 5 U.S.C. 552(a)(2) to be made available for public 
inspection in an electronic format, including:
* * * * *
    (4) Copies of records created by OGE that have been released to any 
person under subpart C of this part and that, because of the nature of 
their subject matter, OGE determines have become or are likely to 
become the subject of subsequent requests for substantially the same 
records or that have been requested three or more times; and
* * * * *

0
4. Amend Sec.  2604.202 by revising paragraph (a) to read as follows:


Sec.  2604.202   Index identifying information for the public.

    (a) OGE will maintain and make available for public inspection in 
an electronic format a current index of the materials available on its 
Web site that are required to be indexed under 5 U.S.C. 552(a)(2).
* * * * *

0
5. Amend Sec.  2604.303 by revising paragraphs (a) and (b)(4), and 
adding paragraph (b)(5) to read as follows:


Sec.  2604.303  Form and content of responses.

    (a) Form of notice granting a request. After the FOIA Officer has 
made a determination to grant a request in whole or in part, the 
requester will be notified in writing. The notice will describe the 
manner in which the record will be disclosed, whether by providing a 
copy of the record with the response or at a later date, or by making a 
copy of the record available to the requester for inspection at a 
reasonable time and place. The procedure for such an inspection may not 
unreasonably disrupt OGE operations. The response letter will inform 
the requester of the right of the requester to seek assistance from the 
FOIA Public Liaison. The response letter will also inform the requester 
in the response of any fees to be charged in accordance with the 
provisions of subpart E of this part.
    (b) * * *
    (4) A statement that the denial may be appealed under Sec.  
2604.304, and a description of the requirements of that section; and
    (5) A statement of the right of the requester to seek dispute 
resolution services from the FOIA Public Liaison or the Office of 
Government Information Services (OGIS).

0
6. Amend Sec.  2604.304 by revising paragraph (b) to read as follows:


Sec.  2604.304  Appeal of denials.

* * * * *
    (b) Letter of appeal. The appeal must be in writing and must be 
sent within 90 calendar days of receipt of the denial letter. An appeal 
should include a copy of the initial request, a copy of the letter 
denying the request in whole or in part, and a statement of the 
circumstances, reasons or arguments advanced in support of disclosure 
of the record.
* * * * *

0
7. Amend Sec.  2604.305 by revising paragraph (c) to read as follows:


Sec.  2604.305  Time limits.

* * * * *
    (c) Extension of time limits. When additional time is required for 
one of the reasons stated in paragraph (d) of this section, OGE will, 
within the statutory 20-working day period, issue written notice to the 
requester setting forth the reasons for the extension and the date on 
which a determination is expected to be made. If more than 10 
additional working days are needed, the requester will be notified and 
provided an opportunity to limit the scope of the request or to arrange 
for an alternative time frame for processing the request or a modified 
request. To aid the requester, OGE will make available its FOIA Public 
Liaison to assist in the resolution of any disputes. Additionally, OGE 
will notify the requester of the right of the requester to seek dispute 
resolution services from OGIS.
* * * * *

0
8. Amend Sec.  2604.401 by revising paragraph (a) to read as follows:


Sec.  2604.401   Application of exemptions.

    (a) Foreseeable harm standard. A requested record will not be 
withheld from inspection or copying unless it comes within one of the 
classes of records exempted by 5 U.S.C. 552 and OGE reasonably foresees 
that disclosure would harm an interest protected by an exemption 
described in 5 U.S.C. 552(b) or is prohibited by law. Nothing in this 
paragraph requires disclosure of information that is otherwise 
prohibited from disclosure by law, or otherwise exempted from 
disclosure under 5 U.S.C. 552(b)(3).
* * * * *

0
9. Amend Sec.  2604.503 by revising paragraph (d) to read as follows:


Sec.  2604.503   Limitations on charging fees.

* * * * *
    (d) If OGE does not comply with one of the time limits under Sec.  
2604.305, it will not assess search fees (or in the case of a requester 
described under Sec.  2604.502(c), duplication fees), except as 
provided in paragraphs (d)(1) through (d)(3) of this section.
    (1) If OGE has determined that unusual circumstances apply, as 
defined in 5 U.S.C. 552(a)(6)(B), and OGE provided timely written 
notice to the requester in accordance with 5 U.S.C. 552(a)(6)(B), a 
failure to comply with the time limit is excused for an additional 10 
days.
    (2) If OGE has determined that unusual circumstances apply, as 
defined in 5 U.S.C. 552(a)(6)(B), and more than 5,000 pages are 
necessary to respond to the request, OGE may charge search fees (or in 
the case of requesters described under Sec.  2604.502(c), duplication 
fees) if OGE has provided timely written notice to the requester in 
accordance with 5 U.S.C. 552(a)(6)(B) and OGE has discussed with the 
requester via written mail, email, or telephone (or made not less than 
three good-faith attempts to do so) how the requester could effectively 
limit the scope of the request in accordance with 5. U.S.C. 
552(a)(6)(B)(ii).
    (3) If a court has determined that exceptional circumstances exist, 
as

[[Page 94217]]

defined in 5 U.S.C. 552(a)(6)(B), a failure to comply with the time 
limits shall be excused for the length of time provided by the court 
order.

0
10. Revise Sec.  2604.601 to read as follows:


Sec.  2604.601   Electronic posting and submission of annual OGE FOIA 
report.

    On or before February 1 of each year, OGE will submit to the Office 
of Information Policy at the United States Department of Justice and to 
the Director of OGIS an Annual FOIA Report. The report will include the 
information required by 5 U.S.C. 552(e). OGE will electronically post 
on its Web site the report and the raw statistical data used in each 
report, in accordance with 5 U.S.C. 552(e)(3).

[FR Doc. 2016-31004 Filed 12-22-16; 8:45 am]
 BILLING CODE 6345-03-P