81 FR 94240 - Availability of Information Under the Freedom of Information Act
DEPARTMENT OF THE TREASURY
Office of the Comptroller of the Currency Federal Register Volume 81, Issue 247 (December 23, 2016)
Office of the Comptroller of the Currency
Federal Register Volume 81, Issue 247 (December 23, 2016)
| Page Range | 94240-94246 | |
| FR Document | 2016-30725 |
[Federal Register Volume 81, Number 247 (Friday, December 23, 2016)] [Rules and Regulations] [Pages 94240-94246] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2016-30725] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF THE TREASURY Office of the Comptroller of the Currency 12 CFR Part 4 [Docket ID OCC-2016-0033] RIN 1557-AE12 Availability of Information Under the Freedom of Information Act AGENCY: Office of the Comptroller of the Currency ACTION: Interim final rule. ----------------------------------------------------------------------- SUMMARY: The Office of the Comptroller of the Currency (OCC) is amending its regulations governing the disclosure of information pursuant to requests made under the Freedom of Information Act (FOIA) to reflect changes to the FOIA made by the FOIA Improvement Act of 2016 and the OPEN FOIA Act of 2009 and to make other technical changes that update the OCC's FOIA regulations. DATES: The interim final rule is effective on December 23, 2016. Comments on the rule must be received by February 21, 2017. ADDRESSES: You may submit comments to the OCC by any of the methods set forth below. Because paper mail in the Washington, DC area and at the OCC is subject to delay, commenters are encouraged to submit comments through the Federal eRulemaking Portal or email, if possible. Please use the title ``Availability of Information Under the Freedom of Information Act'' to facilitate the organization and distribution of the comments. You may submit comments by any of the following methods:Federal eRulemaking Portal--``Regulations.gov'': Go to www.regulations.gov. Enter ``Docket ID OCC-2016-0033'' in the Search Box and click ``Search.'' Click on ``Comment Now'' to submit public comments. Click on the ``Help'' tab on the Regulations.gov home page to get information on using Regulations.gov, including instructions for submitting public comments. Email: [email protected]. Mail: Legislative and Regulatory Activities Division, Office of the Comptroller of the Currency, 400 7th Street SW., Suite 3E-218, mail stop 9W-11, Washington, DC 20219. Hand Delivery/Courier: 400 7th Street SW., Suite 3E-218, mail stop 9W-11, Washington, DC 20219. Fax: (571) 465-4326. Instructions: You must include ``OCC'' as the agency name and ``Docket ID OCC-2016-0033'' in your comment. In general, the OCC will enter all comments received into the docket and publish them on the Regulations.gov Web site without change, including any business or personal information that you provide such as name and address information, email addresses, or phone numbers. Comments received, including attachments and other supporting materials, are part of the public record and subject to public disclosure. Do not include any information in your comment or supporting materials that you consider confidential or inappropriate for public disclosure. You may review comments and other related materials that pertain to this rulemaking action by any of the following methods: [[Page 94241]] Viewing Comments Electronically: Go to www.regulations.gov. Enter ``Docket ID OCC-2016-0033'' in the Search box and click ``Search.'' Click on ``Open Docket Folder'' on the right side of the screen. Comments and supporting materials can be viewed and filtered by clicking on ``View all documents and comments in this docket'' and then using the filtering tools on the left side of the screen. Click on the ``Help'' tab on the Regulations.gov home page to get information on using Regulations.gov. The docket may be viewed after the close of the comment period in the same manner as during the comment period. Viewing Comments Personally: You may personally inspect and photocopy comments at the OCC, 400 7th Street SW., Washington, DC 20219. For security reasons, the OCC requires that visitors make an appointment to inspect comments. You may do so by calling (202) 649- 6700 or, for persons who are deaf or hard of hearing, TTY, (202) 649- 5597. Upon arrival, visitors will be required to present valid government-issued photo identification and submit to security screening in order to inspect and photocopy comments. FOR FURTHER INFORMATION CONTACT: For additional information, contact Melissa Lisenbee, Attorney, Legislative and Regulatory Activities Division, (202) 649-5490, or, for persons who are deaf or hard of hearing, TTY, (202) 649-5597. SUPPLEMENTARY INFORMATION: I. Background The Freedom of Information Act (FOIA) sets forth the process for obtaining federal agency records, unless the records (or any portion thereof) are protected from disclosure by one of the FOIA's nine exemptions or by one of its three special law enforcement record exclusions.\1\ On June 30, 2016, the FOIA Improvement Act of 2016 (the FOIA Improvement Act or the Act) \2\ amended the FOIA to, among other changes, require Federal agencies to make certain records electronically available, extend the time available for a requester to appeal an adverse determination, amend the circumstances under which an agency can assess search and duplication fees, establish FOIA dispute resolution procedures, and establish a new standard for the withholding of information pursuant to a FOIA exemption. --------------------------------------------------------------------------- \1\ 5 U.S.C. 552 et seq. \2\ Public Law 114-185 (2016). --------------------------------------------------------------------------- Additionally, under section 2222 of the Economic Growth and Regulatory Paperwork Reduction Act of 1996 (EGRPRA),\3\ the OCC is required to conduct a review at least once every 10 years to identify any outdated or otherwise unnecessary regulations. The OCC completed the last comprehensive review of its regulations under EGRPRA in 2006 and is concluding the current decennial review. As part of its current EGRPRA review, the OCC issued a notice of proposed rulemaking on March 14, 2016, that included proposed technical amendments to the OCC's part 4 FOIA regulations. The OCC did not receive any specific comments on the proposed FOIA amendments, and those changes will be reflected in this rulemaking to the extent they have not been superseded by the FOIA Improvement Act.\4\ --------------------------------------------------------------------------- \3\ Public Law 104-208, 110 Stat. 3009 (1996). \4\ 81 FR 13608 (March 14, 2016). --------------------------------------------------------------------------- Finally, the OPEN FOIA Act of 2009 (the OPEN FOIA Act),\5\ limited Exemption 3, which applies to information specifically exempted by statute. To be exempt under Exemption 3 following the OPEN FOIA Act, information must be exempt pursuant to a statute that requires: (1) That the matters be withheld from the public in such a manner as to leave no discretion on the issue, or establishes particular criteria for withholding or refers to particular types of matters to be withheld and, (2) if enacted after the date of enactment of the OPEN FOIA Act, specifically cites to Exemption 3 of the FOIA. Previously, statutes did not need to specifically cite to Exemption 3 of the FOIA. --------------------------------------------------------------------------- \5\ Public Law 111-83, 123 Stat. 2142, 2184 (2009). --------------------------------------------------------------------------- II. Description of the Interim Final Rule Twelve CFR part 4, subpart B, sets forth OCC policies regarding the availability of information under the FOIA and establishes procedures for requesters to follow when seeking information. This interim final rule amends 12 CFR part 4, subpart B, to implement the FOIA Improvement Act and the OPEN FOIA Act and to make technical changes to the regulations as a result of the OCC's EGRPRA review. Section 4.11 Purpose and Scope As part of the EGRPRA proposed rule, the OCC proposed to remove Sec. 4.11(b)(4), which stated that the OCC's FOIA rules did not apply to FOIA requests filed with the former Office of Thrift Supervision (OTS) before July 21, 2011, because the OTS's rules would apply to those requests instead. The OCC adopted this provision when it amended part 4 to reflect the transfer of certain powers, authorities, rights, and duties of the OTS to the OCC pursuant to Title III of the Dodd- Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act).\6\ There are no remaining open FOIA requests that had been submitted to the OTS prior to its integration with the OCC. Therefore, Sec. 4.11(b)(4) is no longer necessary and is removed by this interim final rule. --------------------------------------------------------------------------- \6\ Public Law 111-203, 124 Stat. 1376 (2010). --------------------------------------------------------------------------- Section 4.12 Information Available Under the FOIA Pursuant to the Act, the interim final rule amends 12 CFR 4.12 to revise the language about the availability of records in subsection (a), consistent with the FOIA Improvement Act; limit the deliberative process exemption; expand the information segregation provisions; update 12 CFR 4.12(b)(3) to be consistent with the OPEN FOIA Act; and implement proposed clarifications from the EGRPRA review. Section 4.12(a) currently provides that OCC records are available to the public except for records that the FOIA exempts from disclosure. The FOIA Improvement Act adds new language to the statute that relates to an agency's decision to disclose information that is covered by an exemption. This language provides for the withholding of information pursuant to a FOIA exemption only if an agency ``reasonably foresees that disclosure would harm an interest protected by an exemption'' or if the disclosure is prohibited by law.\7\ --------------------------------------------------------------------------- \7\ 5 U.S.C. 552(a)(8)(A)(i). --------------------------------------------------------------------------- These considerations will inform the OCC's future determinations about whether to disclose information covered by an exemption. Accordingly, the interim final rule removes the existing reference to ``exempt records'' in subsection (a) and replaces it with the phrase ``[e]xcept as otherwise provided by the FOIA.'' This language is broad enough to encompass the ``reasonable foreseeability'' and the ``prohibited by law'' language added by the FOIA Improvement Act, and it encompasses the former reference to coverage by an exemption as well. Based on legislative history, in which the sponsors of the Act expressed their intent to preserve the longstanding protections afforded by Exemption 8,\8\ the OCC does not [[Page 94242]] anticipate that the Act or revised Sec. 4.12(a) will alter the application of FOIA Exemption 8, which protects matters that are ``contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions.'' \9\ --------------------------------------------------------------------------- \8\ The Senate Judiciary Committee report on the FOIA Improvement Act states that: Extreme care should be taken with respect to disclosure under Exemption 8 which protects matters that are `contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions.' Currently, financial regulators rely on Exemption 8, and other relevant exemptions in Section 552(b), to protect sensitive information received from regulated entities, or prepared in connection with the regulation of such entities, in fulfilling their goals of ensuring safety and soundness of the financial system, compliance with federal consumer financial law, and promoting fair, orderly, and efficient financial markets. Exemption 8 was intended by Congress, and has been interpreted by the courts, to be very broadly construed to ensure the security of financial institutions and to safeguard the relationship between the banks and their supervising agencies. The D.C. Circuit has gone so far as to state that in Exemption 8 Congress has provided ``absolute protection regardless of the circumstances underlying the regulatory agency's receipt or preparation of examination, operating or condition reports.'' Nothing in this legislation shall be interpreted to compromise the stability of any financial institution or the financial system, disrupt the operation of financial markets or undermine consumer protection efforts due to the release of confidential information about individuals or information that a financial institution may have, or encourage the release of confidential information about individuals. This legislation is not intended to lessen the protection under Exemption 8 created by Congress and traditionally afforded by the courts. S. Rep. No 114-4 (February 23, 2015). \9\ 5 U.S.C. 552(b)(8). --------------------------------------------------------------------------- The interim final rule also amends the deliberative process exemption in Sec. 4.12(b)(5) to reflect the Act's limitations on records created 25 years or more before the date of an information request. Previously, the deliberative process exemption protected all intra-agency and interagency memoranda and letters not routinely available by law to a private party in litigation, including memoranda, reports, and other documents prepared by OCC employees and records of deliberations and discussions at meetings of OCC employees. After the change, the deliberative process provision as amended by the interim final rule will exempt only those memoranda and letters created within 25 years of the date on which they were requested. Additionally, although the OCC's rules already provide for the separation and provision of nonexempt information, the interim final rule clarifies that, in cases in which full disclosure is not possible, the OCC considers whether partial disclosure of information is possible and takes reasonable steps necessary to segregate and release nonexempt information. This provision is consistent with current OCC practice. The interim final rule also amends Sec. 4.12(b)(3) to reflect the OPEN FOIA Act provision that requires 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, so the requirement applies to statutes enacted after that date. Finally, the interim final rule adopts the changes to Sec. 4.12(a) and (b) that the OCC proposed as part of its EGRPRA review. Previously, Sec. 4.12(b)(10) exempted from disclosure any OTS information similar to that listed in the exemptions in Sec. 4.12(b)(1) to (b)(9) to the extent the information is in the possession of the OCC. For purposes of clarification, we are amending the Sec. 4.12(a) disclosure standard so that it applies to OTS records, in addition to OCC records, and removing the resulting unnecessary exemption in paragraph (b)(10). Section 4.14 Public Inspection in an Electronic Format Section 4.14(a) lists the types of information the OCC makes available for public inspection. Consistent with the Act's amendments to 5 U.S.C. 552(a)(2), the interim final rule adds two categories of information to Sec. 4.14(a). New Sec. 4.14(a)(11) specifies that the OCC will make available for public inspection in an electronic format any records, regardless of form or format, that have been released to any person under 5 U.S.C. 552(a)(3) provided that: (1) The OCC determines that, because of the nature of their subject matter, the records are or are likely to become the subject of subsequent requests for substantially the same record; or (2) the records have been requested three or more times. New Sec. 4.14(a)(12) states that the OCC will provide reference materials or a guide for requesting records or information from the OCC, including an index of all major OCC information systems, a description of major information and record locator systems maintained by the OCC, and a handbook for obtaining various types and categories of public information from the OCC pursuant to FOIA and chapter 35 of title 44. Finally, the interim final rule makes clarifying and conforming changes to Sec. 4.14, including amending Sec. 4.14(a) and (b) to specify that information will be made available for public inspection in an electronic format to implement section 2 of the Act. Section 4.15 How To Request Records Pursuant to the Act, the interim final rule amends Sec. 4.15, which describes the process for requesting OCC records. Specifically, to implement section 2 of the Act, the interim final rule amends Sec. 4.15(c)(4) to specify that if a request for information is denied, the OCC will notify the requester of the right to seek dispute resolution services from the OCC's FOIA Public Liaison or the Office of Government Information Services through the processes described in new Sec. 4.15(h). Pursuant to the Act's amendments to 5 U.S.C. 552(a)(6)(A)(i), the interim final rule also extends the time available for administrative appeal of a denial to release records from 35 days to 90 days. Under new Sec. 4.15(d), requesters will have 90 days after the date of an initial denial determination to submit a written administrative appeal of denial of a request for records. Additionally, the interim final rule expands Sec. 4.15(f), which addresses the time limits for FOIA request responses and provides for extensions in certain situations, including a 10-day extension for unusual circumstances.\10\ Pursuant to the Act's amendments to 5 U.S.C. 552(a)(6)(A)(i), the interim final rule adds a new Sec. 4.15(f)(4) that provides additional information and alternatives for requesters when the OCC determines that a request will require more than a 10-day extension to process. Under this provision, if unusual circumstances apply to a request for records, and the OCC determines that it cannot respond to the request within the 10-day extension, the OCC will: (1) Notify the requester that the request cannot be processed within the 10-day extension; (2) provide the requester with an opportunity to limit the scope of the request so that it may be processed within the 10-day period or to arrange with the OCC an alternative time frame for processing the request or a modified request; (3) make available the FOIA Public Liaison, who shall assist in the resolution of any disputes between the requester and the OCC; and (4) notify the requester of the right of the requester to seek dispute resolution services from the Office of Government Information Services. --------------------------------------------------------------------------- \10\ 12 CFR 4.15(f)(3)(i). --------------------------------------------------------------------------- Finally, the interim final rule makes other clarifying and conforming changes to Sec. 4.15, including amending Sec. 4.15(d)(4) to specify that the OCC will provide notification of a denial of an appeal ``in writing,'' rather than ``by mail.'' The OCC expects this change will provide greater flexibility and efficiency [[Page 94243]] by permitting other forms of communication, such as electronic mail. The interim final rule also amends Sec. 4.15 to provide updated contact information for the Office of Management and Budget's (OMB) request portal, the OCC's Chief FOIA Officer, and the Federal Deposit Insurance Corporation. Section 4.17 FOIA Request Fees Section 4.17 provides information for the assessment and payment of FOIA request fees. As stated in Sec. 4.17(b)(1), the OCC generally charges fees to fulfill FOIA requests. However, Sec. 4.17(b)(6) provided that the OCC will not assess search or duplication fees, as applicable, if the OCC did not respond within the time limits set forth in Sec. 4.15(f) and no unusual or exceptional circumstances applied. The FOIA Improvement Act provided additional information about the circumstances in which an agency may charge search or duplication fees if the agency does not meet the time limits provided by the FOIA. Thus, pursuant to the Act, the interim final rule amends Sec. 4.17(b)(6) to update the circumstances in which the OCC is permitted to assess search or duplication fees, even if the OCC does not respond within the Sec. 4.15(f) time limits. For example, amended Sec. 4.17(b)(6) permits the OCC to assess search or duplication fees if the OCC has determined ``unusual circumstances'' (as defined in Sec. 4.15(f)(3)(i)) apply, has provided timely written notice to the requester, and complies with the extended time limit.\11\ The interim final rule also permits the OCC to assess search or duplication fees if the OCC has determined that unusual circumstances apply and more than 5,000 pages are necessary to respond to the request. In such a situation, the OCC must provide a timely written notice to the requester in accordance with 5 U.S.C. 552(a)(6)(B) and discuss with the requester via written mail, electronic mail, or telephone (or make 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). Finally, if a court has determined that exceptional circumstances (as defined in 5 U.S.C. 552(a)(6)(C)) apply to the processing of a request, the OCC may assess search or duplication fees for the length of time provided by the court order. --------------------------------------------------------------------------- \11\ Section 4.15(f)(3)(i) states that the OCC may extend the time limits in unusual circumstances for a maximum of 10 business days. If the OCC extends the time limits, the OCC provides written notice to the person making the request or appeal, containing the reason for the extension and the date on which the OCC expects to make a determination. Unusual circumstances exist when the OCC requires additional time to: Search for and collect the requested records from field facilities or other buildings that are separate from the office processing the request or appeal; search for, collect, and appropriately examine a voluminous amount of requested records; consult with another agency that has a substantial interest in the determination of the request; or allow two or more components of the OCC that have substantial interest in the determination of the request to consult with each other. . . .'' --------------------------------------------------------------------------- The interim final rule also updates the payment of fees contact information listed in Sec. 4.17(c). Section 4.18 How To Track a FOIA Request The interim final rule makes a technical amendment to Sec. 4.18(b) to provide updated contact information for the OCC's Communications Division that requesters may use to track the progress of their requests. III. Effective Date/Request for Comment The OCC is issuing the interim final rule without prior notice and the opportunity for public comment and the 30-day delayed effective date ordinarily prescribed by the Administrative Procedure Act (APA).\12\ Pursuant to section 553(b)(B) of the APA, general notice and the opportunity for public comment are not required with respect to a rulemaking when an ``agency for good cause finds (and incorporates the finding and a brief statement of the reasons therefor in the rule issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.'' \13\ The interim final rule's changes to 12 CFR part 4 are limited to technical changes and those that are necessary to implement the provisions of the FOIA Improvement Act and OPEN FOIA Act. Because the OCC is not exercising discretion with respect to the interim final rule's substantive revisions that implement the Act, the OCC believes the public interest is best served by implementing the interim final rule as soon as possible. --------------------------------------------------------------------------- \12\ 5 U.S.C. 553. \13\ 5 U.S.C. 553(b)(B). --------------------------------------------------------------------------- In addition, the OCC believes that providing a notice and comment period prior to issuance of the interim final rule is unnecessary because the OCC does not expect public objection to the regulations being promulgated, as this rule implements the substantive changes specified in the Act and technical, non-substantive updates and clarifications to part 4. Moreover, the OCC expects that the majority of the changes will provide additional services and critical updates that will assist FOIA requesters. The APA also requires a 30-day delayed effective date, except for (1) substantive rules that grant or recognize an exemption or relieve a restriction; (2) interpretative rules and statements of policy; or (3) as otherwise provided by the agency for good cause.\14\ The OCC concludes that, because the rules recognize an exemption, the interim final rule is exempt from the APA's delayed effective date requirement.\15\ Additionally, the OCC finds good cause to publish the interim final rule with an immediate effective date for the same reasons set forth above under the discussion of section 553(b)(B) of the APA. --------------------------------------------------------------------------- \14\ 5 U.S.C. 553(d). \15\ 5 U.S.C. 553(d)(1). --------------------------------------------------------------------------- Pursuant to section 302(a) of the Riegle Community Development and Regulatory Improvement Act (RCDRIA),\16\ in determining the effective date and administrative compliance requirements for a new regulation that imposes additional reporting, disclosure, or other requirements on insured depository institutions (IDIs), the OCC must consider any administrative burdens that such regulation would place on depository institutions and the benefits of such regulation. In addition, section 302(b) of the RCDRIA requires any such new regulation to take effect on the first day of a calendar quarter that begins on or after the date on which the regulation is published in final form, with certain exceptions, including for good cause. The OCC has considered the administrative burdens that such regulations would place on institutions and the benefits of such regulations in determining the effective date and compliance requirements. Due to the nature of the rule's changes to the OCC's existing FOIA regulations, the interim final rule does not impose additional reporting, disclosure, or other requirements on IDIs, and section 302 of the RCDRIA therefore does not apply. Therefore, for the same reasons set forth above under the discussion of section 553(b)(B) of the APA, the OCC finds good cause exists under section 302 of RCDRIA to publish the interim final rule with an immediate effective date. --------------------------------------------------------------------------- \16\ 12 U.S.C. 4802(a). --------------------------------------------------------------------------- While the OCC believes there is good cause to issue the rule without notice and comment and with an immediate effective date, the OCC is interested in the views of the public and requests comment on all aspects of the interim final rule. [[Page 94244]] IV. Regulatory Flexibility Act The Regulatory Flexibility Act (RFA) \17\ 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 agencies have 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. --------------------------------------------------------------------------- \17\ Public Law 96-354, Sept. 19, 1980, codified to 5 U.S.C. 601 et seq. --------------------------------------------------------------------------- V. Paperwork Reduction Act The Paperwork Reduction Act of 1995 \18\ 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 OMB control number. Because the interim final rule does not create a new, or revise an existing, collection of information, no information collection request submission needs to be made to the OMB. --------------------------------------------------------------------------- \18\ 44 U.S.C. 3501-3521. --------------------------------------------------------------------------- VI. OCC Unfunded Mandates Reform Act of 1995 Determination Consistent with section 202 of the Unfunded Mandates Reform Act of 1995,\19\ before promulgating any final rule for which a general notice of proposed rulemaking was published, the OCC prepares an economic analysis of the final rule. As discussed above, the OCC has determined that the publication of a general notice of proposed rulemaking was unnecessary. Accordingly, the OCC has not prepared an economic analysis of the joint interim final rules. --------------------------------------------------------------------------- \19\ 2 U.S.C. 1532. --------------------------------------------------------------------------- List of Subjects in 12 CFR Part 4 Administrative practice and procedure, Freedom of information, Individuals with disabilities, Minority businesses, Organization and functions (Government agencies), Reporting and recordkeeping requirements, Women. Authority and Issuance For the reasons set forth in the preamble, the OCC hereby amends 12 CFR part 4 as set forth below. PART 4--ORGANIZATION AND FUNCTIONS, AVAILABILITY AND RELEASE OF INFORMATION, CONTRACTING OUTREACH PROGRAM, POST-EMPLOYMENT RESTRICTIONS FOR SENIOR EXAMINERS 0 1. The authority citation for part 4 continues to read as follows: Authority: 5 U.S.C. 301, 552; 12 U.S.C. 1, 93a, 161, 481, 482, 484(a), 1442, 1462a, 1463, 1464, 1817(a), 1818, 1820, 1821, 1831m, 1831p-1, 1831o, 1833e, 1867, 1951 et seq., 2601 et seq., 2801 et seq., 2901 et seq., 3101 et seq., 3401 et seq., 5321, 5412, 5414; 15 U.S.C. 77uu(b), 78q(c)(3); 18 U.S.C. 641, 1905, 1906; 29 U.S.C. 1204; 31 U.S.C. 5318(g)(2), 9701; 42 U.S.C. 3601; 44 U.S.C. 3506, 3510; E.O. 12600 (3 CFR, 1987 Comp., p. 235). Sec. 4.11 [Amended] 0 2. Section 4.11 is amended by removing paragraph (b)(4). 0 3. Section 4.12 is amended by: 0 a. Revising paragraphs (a), (b)(3), and (b)(5); 0 b. In paragraph (b)(8), adding ``and'' at the end; 0 c. In paragraph (b)(9), removing ``; and'' at the end and adding in its place a period; 0 d. Removing paragraph (b)(10); and 0 e. Revising the first sentence of paragraph (d). The revisions read as set forth below. Sec. 4.12 Information available under the FOIA. (a) General. Except as otherwise provided by the FOIA, OCC and Office of Thrift Supervision (OTS) records are available to the public. (b) * * * (3) A record specifically exempted from disclosure by statute (other than 5 U.S.C. 552b), provided that the statute requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue; establishes particular criteria for withholding, or refers to particular types of matters to be withheld; and, if enacted after the date of enactment of the OPEN FOIA Act of 2009, specifically cites to 5 U.S.C. 552(b)(3); * * * * * (5) An intra-agency or interagency memorandum or letter not routinely available by law to a private party in litigation, including memoranda, reports, and other documents prepared by OCC employees, and records of deliberations and discussions at meetings of OCC employees, provided that the deliberative process privilege shall not apply to records created 25 years or more before the date on which the records were requested; * * * * * (d) * * * If the OCC determines that full disclosure of a requested record is not possible, the OCC considers whether partial disclosure of information is possible and takes reasonable steps necessary to segregate and release nonexempt information. * * * 0 4. Section 4.14 is amended by: 0 a. Revising the section heading and paragraphs (a) and (c); and 0 b. Amending paragraph (b) by removing the phrase ``and copying'', and adding in its place ``in an electronic format''. The revisions read as set forth below. Sec. 4.14 Public inspection in an electronic format. (a) Available information. Subject to the exemptions listed in Sec. 4.12(b), the OCC makes the following information available for public inspection in an electronic format: (1) Any final order, agreement, or other enforceable document issued in the adjudication of an OCC enforcement case, including a final order published pursuant to 12 U.S.C. 1818(u); (2) Any final opinion issued in the adjudication of an OCC enforcement case; (3) Any statement of general policy or interpretation of general applicability not published in the Federal Register; (4) Any administrative staff manual or instruction to staff that may affect a member of the public as such; (5) A current index identifying the information referred to in paragraphs (a)(1) through (a)(4) of this section issued, adopted, or promulgated after July 4, 1967; (6) A list of available OCC publications; (7) A list of forms available from the OCC, and specific forms and instructions; \1\ --------------------------------------------------------------------------- \1\ Some forms and instructions that national banks and Federal savings associations use are not available from the OCC. The OCC will provide information on where persons may obtain these forms and instructions upon request. --------------------------------------------------------------------------- (8) Any public Community Reinvestment Act performance evaluation; (9) Any public securities-related filing required under parts 11, 16, 194 or 197 of this chapter; (10) Any public comment letter regarding a proposed rule; (11) Any records, regardless of form or format, that have been released to any person under 5 U.S.C. 552(a)(3) provided that: (i) The OCC determines that, because of the nature of their subject matter, the [[Page 94245]] records are or are likely to become the subject of subsequent requests for substantially the same records; or (ii) The records have been requested three or more times; (12) Reference materials or a guide for requesting records or information from the OCC, including an index of all major OCC information systems, a description of major information and record locator systems maintained by the OCC, and a handbook for obtaining various types and categories of public information from the OCC pursuant to FOIA and chapter 35 of title 44; (13) The public file (as defined in 12 CFR 5.9) with respect to a pending application described in part 5 of this chapter; and (14) Any OTS information similar to that listed in paragraphs (a)(1) through (a)(13) of this section, to the extent this information is in the possession of the OCC. * * * * * (c) Addresses. The information described in paragraphs (a)(1) through (14) of this section is available from the Chief FOIA Officer, Communications Division, Office of the Comptroller of the Currency, 400 7th Street SW., Washington, DC 20219. The information described in paragraph (a)(13) of this section in the case of both national banks and Federal savings associations is available from the Licensing Manager at the appropriate district office at the address listed in Sec. 4.5(a), or in the case of national banks and Federal savings associations supervised by the Large Bank Supervision Department, from the Large Bank Licensing Expert, Licensing Division, Office of the Comptroller of the Currency, 400 7th Street SW., Washington, DC 20219. 0 5. Section 4.15 is amended by: 0 a. Revising paragraph (b)(1), and revising paragraph (b)(2)(i) introductory text; 0 b. Revising paragraphs (c)(2), (c)(4), and (d)(1) and (4); 0 c. Removing ``Saturday'' in paragraph (f)(1) and adding it its place ``Saturdays''; 0 d. Adding paragraph (f)(4); 0 e. Republishing paragraph (g); and 0 f. Adding paragraph (h). The additions and revisions read as set forth below. Sec. 4.15 How to request records. * * * * * (b) * * * (1) General. Except as provided in paragraph (b)(2) of this section, a person requesting a record or filing an administrative appeal must submit the request or appeal: (i) Through the OCC's FOIA Web portal at https://foia-pal.occ.gov/palMain.aspx; (ii) Through the consolidated online request portal maintained by the Office of Management and Budget pursuant to 5 U.S.C. 552(m)(1); or (iii) Under this section to the Chief FOIA Officer, Communications Division, Office of the Comptroller of the Currency, 400 7th Street SW., Washington, DC 20219. (2) Exceptions--(i) Records at the Federal Deposit Insurance Corporation. A person requesting any of the following records, other than blank forms (see Sec. 4.14(a)(7)), must submit the request to the FDIC, Legal Division, FOIA/PA Group, 550-17th Street NW., Washington, DC 20429, or fax to (703) 562-2797: * * * * * (c) * * * (2) Initial determination. The Comptroller or the Comptroller's delegate initially determines whether to grant a request for OCC records and notifies the requester, in accordance with the time limits set forth in paragraph (f) of this section, of the determination and the reasons therefore and of the right to seek assistance from the OCC's FOIA Public Liaison. * * * * * (4) If request is denied. If the OCC denies a request for records, in whole or in part, the OCC will notify the requester in writing. The notification is dated and contains a brief statement of the reasons for the denial, sets forth the name and title or position of the official making the decision, advises the requester of the right to seek dispute resolution services from the OCC's FOIA Public Liaison or the Office of Government Information Services, and advises the requester of the right to appeal to the Comptroller of the Currency in accordance with paragraph (d) of this section. (d) Administrative appeal of a denial--(1) Procedure. A requester must submit an administrative appeal of denial of a request for records in writing within 90 days after the date of the initial determination. The appeal must include the circumstances and arguments supporting disclosure of the requested records. * * * * * (4) If appeal is denied. If the OCC denies an appeal, in whole or in part, the OCC notifies the requester in writing. The notification contains a brief statement of the reasons for the denial, sets forth the name and title or position of the official making the decision, and advises the requester of the right to judicial review of the denial under 5 U.S.C. 552(a)(4)(B). * * * * * (f) * * * (4) Requests that require more than a 10-day extension to process. If the OCC determines unusual circumstances apply to a request for records, and the OCC determines it cannot respond to the request within the 10-day extension set forth in paragraph (f)(3)(i) of this section, the OCC will: (i) Notify the requester that the request cannot be processed within the time limit set forth in paragraph (f)(3)(i) of this section; (ii) Provide the requester with an opportunity to limit the scope of the request so that it may be processed within that 10-day period or to arrange with the OCC an alternative time frame for processing the request or a modified request; (iii) Make available the FOIA Public Liaison, who shall assist in the resolution of any disputes between the requester and the OCC; and (iv) Notify the requester of the right of the requester to seek dispute resolution services from the Office of Government Information Services. (g) Date of receipt of request or appeal. The date of receipt of a request for records or an appeal is the date that Disclosure Services, Communications Division receives a request that satisfies the requirements of paragraph (c)(1) or (d)(1) of this section, except as provided in Sec. 4.17(d). (h) Dispute resolution services. Requesters with concerns about the handling of their FOIA requests may contact the FOIA Public Liaison or the Office of Government Information Services for dispute resolution services. (1) To apply for dispute resolution assistance from the FOIA Public Liaison, requesters should submit a written request to the FOIA Public Liaison, Communications Division, Office of the Comptroller of the Currency, 400 7th Street SW., Washington, DC 20219. (2) For dispute resolution services through the Office of Government Services, requesters should contact the Office of Government Services as set forth at 36 CFR 1250.32. 0 6. Section 4.17 is amended by: 0 a. Revising paragraph (b)(6); and 0 b. Amending paragraph (c)(1) by removing the phrase ``Communications Division'', and adding in its place the phrase ``Financial Management, Accounts Receivable''. The revisions read as set forth below. Sec. 4.17 FOIA request fees. * * * * * [[Page 94246]] (b) * * * (6) No fee if the time limit passes and the OCC has not responded to the request. The OCC will not assess search or duplication fees, as applicable, if it fails to respond to a requester's FOIA request within the time limits specified under 5 U.S.C. 552(a)(6) and 12 CFR 4.15(f), except as follows: (i) Unusual circumstances--(A) General. If the OCC has determined that unusual circumstances (as defined in 5 U.S.C. 552(a)(6)(B) and Sec. 4.15(f)(3)(i)) apply and the OCC provides timely written notice to the requester in accordance with 5 U.S.C. 552(a)(6)(B), the OCC may assess search or duplication fees, as applicable, for an additional 10 days. If the OCC fails to comply with the extended time limit, the OCC will not assess any search or duplication fees, as applicable. (B) Voluminous Requests. Notwithstanding paragraph (b)(6)(i)(A) of this section, if the OCC has determined that unusual circumstances (as defined in 5 U.S.C. 552(a)(6)(B) and Sec. 4.15(f)(3)(i)) apply and more than 5,000 pages are necessary to respond to the request, the OCC may assess search or duplication fees, as appropriate, if the OCC provides a timely written notice to the requester in accordance with 5 U.S.C. 552(a)(6)(B) and discusses with the requester via written mail, electronic mail, or telephone (or makes 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). (ii) In exceptional circumstances. If a court has determined that exceptional circumstances (as defined in 5 U.S.C. 552(a)(6)(C)) apply to the processing of a request, the OCC may assess search or duplication fees, as applicable, for the length of time provided by the court order. * * * * * Sec. 4.18 [Amended] 0 7. Section 4.18 is amended by: 0 a. In paragraph (a), removing the word ``Department'' and adding in its place the word ``Division'', wherever it appears; and 0 b. In paragraph (b), removing the phrase ``Disclosure Officer'', and adding in its place the phrase ``Chief FOIA Officer''. Dated: December 14, 2016. Thomas J. Curry, Comptroller of the Currency. [FR Doc. 2016-30725 Filed 12-22-16; 8:45 am] BILLING CODE P
![94240 Federal Register / Vol. 81, No. 247 / Friday, December 23, 2016 / Rules and Regulations
■ 4. Revise the heading of part 5 to read and add, in its place, ‘‘Public Disclosure information pursuant to requests made
as set forth above. and Media Relations Division’’. under the Freedom of Information Act
(FOIA) to reflect changes to the FOIA
§ 5.1 [Amended] PART 113—PERMITTED AND made by the FOIA Improvement Act of
■ 5. Amend paragraph (f) of § 5.1 to PROHIBITED USES OF CAMPAIGN 2016 and the OPEN FOIA Act of 2009
remove ‘‘Public Disclosure Division’’ ACCOUNTS and to make other technical changes
and add, in its place, ‘‘Public Disclosure that update the OCC’s FOIA regulations.
and Media Relations Division’’. ■ 15. The authority citation for part 113
DATES: The interim final rule is effective
continues to read as follows:
on December 23, 2016. Comments on
§ 5.4 [Amended] Authority: 52 U.S.C. 30102(h), 30111(a)(8), the rule must be received by February
■ 6. Amend § 5.4 in paragraphs (a) 30114, and 30116. 21, 2017.
introductory text and (c) by removing § 113.2 [Amended] ADDRESSES: You may submit comments
‘‘Public Disclosure Division’’ and to the OCC by any of the methods set
adding, in its place, ‘‘Public Disclosure ■ 16. Remove paragraph (f) of § 113.2 forth below. Because paper mail in the
and Media Relations Division’’. and redesignate paragraph (g) as Washington, DC area and at the OCC is
paragraph (f). subject to delay, commenters are
§ 5.5 [Amended]
PART 300—NON-FEDERAL FUNDS encouraged to submit comments
■ 7. Amend § 5.5 in paragraphs (a) and through the Federal eRulemaking Portal
(c) by removing ‘‘Public Disclosure ■ 17. The authority citation for part 300 or email, if possible. Please use the title
Division’’ and adding, in its place, continues to read as follows: ‘‘Availability of Information Under the
‘‘Public Disclosure and Media Relations Freedom of Information Act’’ to
Division’’. Authority: 52 U.S.C. 30104(e), 30111(a)(8),
facilitate the organization and
30116(a), 30125, and 30143.
distribution of the comments. You may
PART 100—SCOPE AND DEFINITIONS § 300.1 [Amended] submit comments by any of the
(52 U.S.C. 30101) following methods:
■ 18. Amend § 300.1 as follows:
• Federal eRulemaking Portal—
■ 8. The authority citation for part 100 ■ a. In paragraph (b)(1), remove the last
‘‘Regulations.gov’’: Go to
continues to read as follows: sentence.
www.regulations.gov. Enter ‘‘Docket ID
■ b. In paragraph (c)(1), remove the
Authority: 52 U.S.C. 30101, 30104, OCC–2016–0033’’ in the Search Box and
30111(a)(8), and 30114(c). phrase ‘‘transition rules as BCRA takes
click ‘‘Search.’’ Click on ‘‘Comment
effect,’’.
Now’’ to submit public comments.
§ 100.94 [Amended]
§ 300.12 [Removed and Reserved] • Click on the ‘‘Help’’ tab on the
■ 9. Amend paragraph (b) of § 100.94 to Regulations.gov home page to get
add a comma after the word ■ 19. Remove and reserve § 300.12. information on using Regulations.gov,
‘‘maintaining’’. § 300.13 [Amended] including instructions for submitting
public comments.
§ 100.155 [Amended] ■ 20. Amend § 300.13 as follows: • Email: regs.comments@
■ 10. Amend paragraph (b) of § 100.155 ■ a. Remove paragraphs (b) and (c). occ.treas.gov.
to add a comma after the word ■ c. Redesignate paragraph (a) as an • Mail: Legislative and Regulatory
‘‘creating’’ and a comma after the word undesignated paragraph and remove the Activities Division, Office of the
‘‘maintaining’’. paragraph heading. Comptroller of the Currency, 400 7th
Dated: December 12, 2016. Street SW., Suite 3E–218, mail stop 9W–
PART 110—CONTRIBUTION AND On behalf of the Commission. 11, Washington, DC 20219.
EXPENDITURE LIMITATIONS AND Matthew S. Petersen, • Hand Delivery/Courier: 400 7th
PROHIBITIONS Street SW., Suite 3E–218, mail stop 9W–
Chairman, Federal Election Commission.
11, Washington, DC 20219.
■ 11. The authority citation for part 110 [FR Doc. 2016–30699 Filed 12–22–16; 8:45 am] • Fax: (571) 465–4326.
continues to read as follows: BILLING CODE 6715–01–P Instructions: You must include
Authority: 52 U.S.C. 30101(8), 30101(9), ‘‘OCC’’ as the agency name and ‘‘Docket
30102(c)(2), 30104(i)(3), 30111(a)(8), 30116, ID OCC–2016–0033’’ in your comment.
30118, 30120, 30121, 30122, 30123, 30124, DEPARTMENT OF THE TREASURY In general, the OCC will enter all
and 36 U.S.C. 510. comments received into the docket and
Office of the Comptroller of the publish them on the Regulations.gov
§ 110.6 [Amended] Currency Web site without change, including any
■ 12. Amend § 110.6 in paragraphs business or personal information that
(c)(2)(i) and (c)(2)(ii)(C) by removing 12 CFR Part 4 you provide such as name and address
‘‘calendar year’’ and adding, in its place, [Docket ID OCC–2016–0033] information, email addresses, or phone
‘‘election cycle’’. numbers. Comments received, including
RIN 1557–AE12 attachments and other supporting
PART 112—ADVISORY OPINIONS (52 materials, are part of the public record
U.S.C. 30108) Availability of Information Under the
and subject to public disclosure. Do not
Freedom of Information Act
include any information in your
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■ 13. The authority citation for part 112 AGENCY: Office of the Comptroller of the comment or supporting materials that
continues to read as follows: Currency you consider confidential or
Authority: 52 U.S.C. 30108, 30111(a)(8). ACTION: Interim final rule. inappropriate for public disclosure.
You may review comments and other
§ 112.2 [Amended] SUMMARY: The Office of the Comptroller related materials that pertain to this
■ 14. Amend paragraph (b) of § 112.2 to of the Currency (OCC) is amending its rulemaking action by any of the
remove ‘‘Public Disclosure Division’’ regulations governing the disclosure of following methods:
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![Federal Register / Vol. 81, No. 247 / Friday, December 23, 2016 / Rules and Regulations 94241
• Viewing Comments Electronically: Paperwork Reduction Act of 1996 duties of the OTS to the OCC pursuant
Go to www.regulations.gov. Enter (EGRPRA),3 the OCC is required to to Title III of the Dodd-Frank Wall Street
‘‘Docket ID OCC–2016–0033’’ in the conduct a review at least once every 10 Reform and Consumer Protection Act
Search box and click ‘‘Search.’’ Click on years to identify any outdated or (Dodd-Frank Act).6 There are no
‘‘Open Docket Folder’’ on the right side otherwise unnecessary regulations. The remaining open FOIA requests that had
of the screen. Comments and supporting OCC completed the last comprehensive been submitted to the OTS prior to its
materials can be viewed and filtered by review of its regulations under EGRPRA integration with the OCC. Therefore,
clicking on ‘‘View all documents and in 2006 and is concluding the current § 4.11(b)(4) is no longer necessary and is
comments in this docket’’ and then decennial review. As part of its current removed by this interim final rule.
using the filtering tools on the left side EGRPRA review, the OCC issued a
Section 4.12 Information Available
of the screen. notice of proposed rulemaking on
Under the FOIA
• Click on the ‘‘Help’’ tab on the March 14, 2016, that included proposed
Regulations.gov home page to get technical amendments to the OCC’s part Pursuant to the Act, the interim final
information on using Regulations.gov. 4 FOIA regulations. The OCC did not rule amends 12 CFR 4.12 to revise the
The docket may be viewed after the receive any specific comments on the language about the availability of
close of the comment period in the same proposed FOIA amendments, and those records in subsection (a), consistent
manner as during the comment period. changes will be reflected in this with the FOIA Improvement Act; limit
• Viewing Comments Personally: You rulemaking to the extent they have not the deliberative process exemption;
may personally inspect and photocopy been superseded by the FOIA expand the information segregation
comments at the OCC, 400 7th Street Improvement Act.4 provisions; update 12 CFR 4.12(b)(3) to
SW., Washington, DC 20219. For Finally, the OPEN FOIA Act of 2009 be consistent with the OPEN FOIA Act;
security reasons, the OCC requires that (the OPEN FOIA Act),5 limited and implement proposed clarifications
visitors make an appointment to inspect Exemption 3, which applies to from the EGRPRA review.
comments. You may do so by calling information specifically exempted by Section 4.12(a) currently provides that
(202) 649–6700 or, for persons who are statute. To be exempt under Exemption OCC records are available to the public
deaf or hard of hearing, TTY, (202) 649– 3 following the OPEN FOIA Act, except for records that the FOIA
5597. Upon arrival, visitors will be information must be exempt pursuant to exempts from disclosure. The FOIA
required to present valid government- a statute that requires: (1) That the Improvement Act adds new language to
matters be withheld from the public in the statute that relates to an agency’s
issued photo identification and submit
such a manner as to leave no discretion decision to disclose information that is
to security screening in order to inspect
on the issue, or establishes particular covered by an exemption. This language
and photocopy comments.
criteria for withholding or refers to provides for the withholding of
FOR FURTHER INFORMATION CONTACT: For information pursuant to a FOIA
additional information, contact Melissa particular types of matters to be
withheld and, (2) if enacted after the exemption only if an agency
Lisenbee, Attorney, Legislative and ‘‘reasonably foresees that disclosure
Regulatory Activities Division, (202) date of enactment of the OPEN FOIA
Act, specifically cites to Exemption 3 of would harm an interest protected by an
649–5490, or, for persons who are deaf exemption’’ or if the disclosure is
or hard of hearing, TTY, (202) 649– the FOIA. Previously, statutes did not
need to specifically cite to Exemption 3 prohibited by law.7
5597. These considerations will inform the
of the FOIA.
SUPPLEMENTARY INFORMATION: OCC’s future determinations about
II. Description of the Interim Final Rule whether to disclose information covered
I. Background by an exemption. Accordingly, the
Twelve CFR part 4, subpart B, sets
The Freedom of Information Act forth OCC policies regarding the interim final rule removes the existing
(FOIA) sets forth the process for availability of information under the reference to ‘‘exempt records’’ in
obtaining federal agency records, unless FOIA and establishes procedures for subsection (a) and replaces it with the
the records (or any portion thereof) are requesters to follow when seeking phrase ‘‘[e]xcept as otherwise provided
protected from disclosure by one of the information. This interim final rule by the FOIA.’’ This language is broad
FOIA’s nine exemptions or by one of its amends 12 CFR part 4, subpart B, to enough to encompass the ‘‘reasonable
three special law enforcement record implement the FOIA Improvement Act foreseeability’’ and the ‘‘prohibited by
exclusions.1 On June 30, 2016, the FOIA and the OPEN FOIA Act and to make law’’ language added by the FOIA
Improvement Act of 2016 (the FOIA technical changes to the regulations as Improvement Act, and it encompasses
Improvement Act or the Act) 2 amended a result of the OCC’s EGRPRA review. the former reference to coverage by an
the FOIA to, among other changes, exemption as well. Based on legislative
require Federal agencies to make certain Section 4.11 Purpose and Scope history, in which the sponsors of the
records electronically available, extend As part of the EGRPRA proposed rule, Act expressed their intent to preserve
the time available for a requester to the OCC proposed to remove the longstanding protections afforded by
appeal an adverse determination, amend § 4.11(b)(4), which stated that the OCC’s Exemption 8,8 the OCC does not
the circumstances under which an FOIA rules did not apply to FOIA
agency can assess search and requests filed with the former Office of 6 Public Law 111–203, 124 Stat. 1376 (2010).
75 U.S.C. 552(a)(8)(A)(i).
duplication fees, establish FOIA dispute Thrift Supervision (OTS) before July 21,
8 The Senate Judiciary Committee report on the
resolution procedures, and establish a 2011, because the OTS’s rules would FOIA Improvement Act states that:
new standard for the withholding of apply to those requests instead. The
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Extreme care should be taken with respect to
information pursuant to a FOIA OCC adopted this provision when it disclosure under Exemption 8 which protects
exemption. amended part 4 to reflect the transfer of matters that are ‘contained in or related to
Additionally, under section 2222 of certain powers, authorities, rights, and examination, operating, or condition reports
prepared by, on behalf of, or for the use of an
the Economic Growth and Regulatory agency responsible for the regulation or supervision
3 Public Law 104–208, 110 Stat. 3009 (1996). of financial institutions.’ Currently, financial
15 U.S.C. 552 et seq. 4 81FR 13608 (March 14, 2016). regulators rely on Exemption 8, and other relevant
2 Public Law 114–185 (2016). 5 Public Law 111–83, 123 Stat. 2142, 2184 (2009). Continued
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![94244 Federal Register / Vol. 81, No. 247 / Friday, December 23, 2016 / Rules and Regulations
IV. Regulatory Flexibility Act PART 4—ORGANIZATION AND years or more before the date on which
FUNCTIONS, AVAILABILITY AND the records were requested;
The Regulatory Flexibility Act RELEASE OF INFORMATION, * * * * *
(RFA) 17 applies only to rules for which CONTRACTING OUTREACH (d) * * * If the OCC determines that
an agency publishes a general notice of PROGRAM, POST-EMPLOYMENT full disclosure of a requested record is
proposed rulemaking pursuant to 5 RESTRICTIONS FOR SENIOR not possible, the OCC considers whether
U.S.C. 553(b). As discussed above, EXAMINERS partial disclosure of information is
consistent with section 553(b)(B) of the possible and takes reasonable steps
APA, the agencies have determined for ■ 1. The authority citation for part 4 necessary to segregate and release
good cause that general notice and continues to read as follows: nonexempt information. * * *
opportunity for public comment is not Authority: 5 U.S.C. 301, 552; 12 U.S.C. 1, ■ 4. Section 4.14 is amended by:
necessary. Accordingly, the RFA’s 93a, 161, 481, 482, 484(a), 1442, 1462a, 1463, ■ a. Revising the section heading and
requirements relating to initial and final 1464, 1817(a), 1818, 1820, 1821, 1831m, paragraphs (a) and (c); and
regulatory flexibility analysis do not 1831p–1, 1831o, 1833e, 1867, 1951 et seq., ■ b. Amending paragraph (b) by
apply. 2601 et seq., 2801 et seq., 2901 et seq., 3101 removing the phrase ‘‘and copying’’,
et seq., 3401 et seq., 5321, 5412, 5414; 15 and adding in its place ‘‘in an electronic
V. Paperwork Reduction Act U.S.C. 77uu(b), 78q(c)(3); 18 U.S.C. 641,
1905, 1906; 29 U.S.C. 1204; 31 U.S.C.
format’’.
The Paperwork Reduction Act of 5318(g)(2), 9701; 42 U.S.C. 3601; 44 U.S.C. The revisions read as set forth below.
1995 18 states that no agency may 3506, 3510; E.O. 12600 (3 CFR, 1987 Comp., § 4.14 Public inspection in an electronic
conduct or sponsor, nor is the p. 235). format.
respondent required to respond to, an § 4.11 [Amended] (a) Available information. Subject to
information collection unless it displays the exemptions listed in § 4.12(b), the
a currently valid OMB control number. ■ 2. Section 4.11 is amended by OCC makes the following information
Because the interim final rule does not removing paragraph (b)(4). available for public inspection in an
create a new, or revise an existing, ■ 3. Section 4.12 is amended by: electronic format:
collection of information, no ■ a. Revising paragraphs (a), (b)(3), and (1) Any final order, agreement, or
information collection request (b)(5); other enforceable document issued in
submission needs to be made to the ■ b. In paragraph (b)(8), adding ‘‘and’’ at the adjudication of an OCC enforcement
OMB. the end; case, including a final order published
■ c. In paragraph (b)(9), removing ‘‘; pursuant to 12 U.S.C. 1818(u);
VI. OCC Unfunded Mandates Reform and’’ at the end and adding in its place (2) Any final opinion issued in the
Act of 1995 Determination a period; adjudication of an OCC enforcement
■ d. Removing paragraph (b)(10); and case;
Consistent with section 202 of the (3) Any statement of general policy or
■ e. Revising the first sentence of
Unfunded Mandates Reform Act of interpretation of general applicability
1995,19 before promulgating any final paragraph (d).
not published in the Federal Register;
rule for which a general notice of The revisions read as set forth below.
(4) Any administrative staff manual or
proposed rulemaking was published, § 4.12 Information available under the instruction to staff that may affect a
the OCC prepares an economic analysis FOIA. member of the public as such;
of the final rule. As discussed above, the (a) General. Except as otherwise (5) A current index identifying the
OCC has determined that the provided by the FOIA, OCC and Office information referred to in paragraphs
publication of a general notice of of Thrift Supervision (OTS) records are (a)(1) through (a)(4) of this section
proposed rulemaking was unnecessary. available to the public. issued, adopted, or promulgated after
Accordingly, the OCC has not prepared (b) * * * July 4, 1967;
an economic analysis of the joint (6) A list of available OCC
(3) A record specifically exempted publications;
interim final rules. from disclosure by statute (other than 5 (7) A list of forms available from the
List of Subjects in 12 CFR Part 4 U.S.C. 552b), provided that the statute OCC, and specific forms and
requires that the matters be withheld instructions; 1
Administrative practice and from the public in such a manner as to (8) Any public Community
procedure, Freedom of information, leave no discretion on the issue; Reinvestment Act performance
Individuals with disabilities, Minority establishes particular criteria for evaluation;
businesses, Organization and functions withholding, or refers to particular types (9) Any public securities-related filing
(Government agencies), Reporting and of matters to be withheld; and, if required under parts 11, 16, 194 or 197
recordkeeping requirements, Women. enacted after the date of enactment of of this chapter;
the OPEN FOIA Act of 2009, specifically (10) Any public comment letter
Authority and Issuance cites to 5 U.S.C. 552(b)(3); regarding a proposed rule;
* * * * * (11) Any records, regardless of form or
For the reasons set forth in the
(5) An intra-agency or interagency format, that have been released to any
preamble, the OCC hereby amends 12
memorandum or letter not routinely person under 5 U.S.C. 552(a)(3)
CFR part 4 as set forth below.
available by law to a private party in provided that:
jstallworth on DSK7TPTVN1PROD with RULES
litigation, including memoranda, (i) The OCC determines that, because
reports, and other documents prepared of the nature of their subject matter, the
by OCC employees, and records of
1 Some forms and instructions that national banks
17 Public Law 96–354, Sept. 19, 1980, codified to deliberations and discussions at
and Federal savings associations use are not
5 U.S.C. 601 et seq. meetings of OCC employees, provided available from the OCC. The OCC will provide
18 44 U.S.C. 3501–3521. that the deliberative process privilege information on where persons may obtain these
19 2 U.S.C. 1532. shall not apply to records created 25 forms and instructions upon request.
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![94246 Federal Register / Vol. 81, No. 247 / Friday, December 23, 2016 / Rules and Regulations
(b) * * * SMALL BUSINESS ADMINISTRATION prime contract with an executive
(6) No fee if the time limit passes and agency, as required by Section 8(d) of
the OCC has not responded to the 13 CFR Parts 121 and 125 the Small Business Act, the prime
request. The OCC will not assess search RIN 3245–AG71 contractor will receive credit towards its
or duplication fees, as applicable, if it subcontracting plan goals for awards
fails to respond to a requester’s FOIA Credit for Lower Tier Small Business made to small business concerns at any
request within the time limits specified Subcontracting tier under the contract, to the extent
under 5 U.S.C. 552(a)(6) and 12 CFR reported under the subcontracting plan
AGENCY: U.S. Small Business of a lower tier other than small
4.15(f), except as follows: Administration. subcontractor. When a prime contractor
(i) Unusual circumstances—(A) ACTION: Final rule. awards a subcontract to a firm, it is
General. If the OCC has determined that generally considered a first tier
unusual circumstances (as defined in 5 SUMMARY: The U.S. Small Business subcontract. That subcontractor may
U.S.C. 552(a)(6)(B) and § 4.15(f)(3)(i)) Administration (SBA) is amending its award a subcontract, which would be
apply and the OCC provides timely regulations to implement section 1614 considered a second tier subcontract,
written notice to the requester in of the National Defense Authorization and so on. Currently, with few
accordance with 5 U.S.C. 552(a)(6)(B), Act for Fiscal Year 2014 (NDAA 2014). exceptions, a prime contractor cannot
the OCC may assess search or Section 1614 amended the Small receive credit towards its small business
duplication fees, as applicable, for an Business Act to provide that where a subcontracting plan goals for awards
additional 10 days. If the OCC fails to prime contractor has an individual made below the first tier.
comply with the extended time limit, subcontracting plan for a specific prime
the OCC will not assess any search or contract with an executive agency, the SBA is amending its regulations to
duplication fees, as applicable. prime contractor shall receive credit require other than small business prime
towards its subcontracting plan goals for contractors to count lower tier small
(B) Voluminous Requests. business subcontract awards towards
Notwithstanding paragraph (b)(6)(i)(A) awards made to small business concerns
at any tier under the contract. The their federal small business
of this section, if the OCC has subcontracting goals on unrestricted
determined that unusual circumstances changes authorized by this statute will
allow an other than small prime federal contracts, to the extent the lower
(as defined in 5 U.S.C. 552(a)(6)(B) and tier subcontractor are required to report
§ 4.15(f)(3)(i)) apply and more than contractor that has an individual
subcontracting plan for a contract to the information. With limited
5,000 pages are necessary to respond to exceptions, unrestricted federal
the request, the OCC may assess search receive credit towards its small business
subcontracting goals for subcontract procurements and subcontracts over
or duplication fees, as appropriate, if the $700,000 ($1.5 million for construction
OCC provides a timely written notice to awards made to small business concerns
at any tier, to the extent reported on the of any public facility) include Federal
the requester in accordance with 5 Acquisition Regulation (FAR) clause
U.S.C. 552(a)(6)(B) and discusses with subcontracting plans of its lower tier
subcontractors. The final rule also 52.219–9 (Small Business
the requester via written mail, electronic Subcontracting Plan), which requires
mail, or telephone (or makes not less implements the statutory requirements
related to the subcontracting plans of all other than small contractors and their
than three good-faith attempts to do so) lower tier subcontractors to make a good
how the requester could effectively limit subcontractors that are required to
maintain such plans, including the faith effort to meet or to exceed the
the scope of the request in accordance small business subcontracting goals
with 5 U.S.C. 552(a)(6)(B)(ii). requirement to monitor subcontractors’
performance and compliance toward established in their respective
(ii) In exceptional circumstances. If a reaching the goals set out in those plans subcontracting plans. Failure to make
court has determined that exceptional as well as their compliance with this effort could result in liquidated
circumstances (as defined in 5 U.S.C. subcontracting reporting requirements. damages, default termination, and
552(a)(6)(C)) apply to the processing of SBA is also clarifying that the size negative performance reviews. For a
a request, the OCC may assess search or standard for a particular subcontract subcontracting plan for a specific prime
duplication fees, as applicable, for the must appear in the solicitation for the contract, the contractor or subcontractor
length of time provided by the court subcontract. is required to submit an Individual
order. Subcontract Report (ISR) and Summary
DATES: This rule is effective on January Subcontracting Report (SSR). The ISR is
* * * * *
23, 2017. submitted semiannually during contract
§ 4.18 [Amended] FOR FURTHER INFORMATION CONTACT: performance and upon contract
Michael McLaughlin, Office of Policy, completion. The SSR is submitted
■ 7. Section 4.18 is amended by: Planning and Liaison, 409 Third Street annually to procuring agencies. Both
■ a. In paragraph (a), removing the word SW., Washington, DC 20416; (202) 205– forms are submitted through the
‘‘Department’’ and adding in its place 5353; michael.mclaughlin@sba.gov. Electronic Subcontracting Reporting
the word ‘‘Division’’, wherever it SUPPLEMENTARY INFORMATION: System (eSRS). Until this final rule, a
appears; and large prime contractor could not take
Introduction credit for a subcontract award to a
■ b. In paragraph (b), removing the
phrase ‘‘Disclosure Officer’’, and adding The final rule implements Section second-tier small business
in its place the phrase ‘‘Chief FOIA 1614 of the National Defense subcontractor. Lastly, large prime
jstallworth on DSK7TPTVN1PROD with RULES
Officer’’. Authorization Act for Fiscal Year 2014, contractors are already required to
Public Law 113–66, December 26, 2013 identify the size standard that applies to
Dated: December 14, 2016.
(hereinafter NDAA 2014). Section 1614 a subcontract. 13 CFR 121.410, 121.411,
Thomas J. Curry, amended section 8(d)(6)(D) of the Small 125.3(c)(1)(v). Subcontractor size
Comptroller of the Currency. Business Act, 15 U.S.C. 637(d)(6)(d), to representation is reviewed during
[FR Doc. 2016–30725 Filed 12–22–16; 8:45 am] provide that where a prime contractor compliance reviews (See 13 CFR
BILLING CODE P has a subcontracting plan for a specific 125.3(f)(2)(i)) and size representations at
VerDate Sep<11>2014 15:20 Dec 22, 2016 Jkt 241001 PO 00000 Frm 00032 Fmt 4700 Sfmt 4700 E:\FR\FM\23DER1.SGM 23DER1](https://thefederalregister.org/doc/81_FR_94487/page/7.svg)
Document Created: 2016-12-23 12:30:02
Document Modified: 2016-12-23 12:30:02
| 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. | |
| Dates | The interim final rule is effective on December 23, 2016. Comments on the rule must be received by February 21, 2017. | |
| Contact | For additional information, contact Melissa Lisenbee, Attorney, Legislative and Regulatory Activities Division, (202) 649-5490, or, for persons who are deaf or hard of hearing, TTY, (202) 649-5597. | |
| FR Citation | 81 FR 94240 | |
| RIN Number | 1557-AE12 | |
| CFR Associated | Administrative Practice and Procedure; Freedom of Information; Individuals with Disabilities; Minority Businesses; Organization and Functions (government Agencies); Reporting and Recordkeeping Requirements and Women |
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