82_FR_12548 82 FR 12506 - Revising Procedures for the Freedom of Information Act

82 FR 12506 - Revising Procedures for the Freedom of Information Act

POSTAL REGULATORY COMMISSION

Federal Register Volume 82, Issue 42 (March 6, 2017)

Page Range12506-12508
FR Document2017-04308

The Commission issuing a set of rules amending existing regulations governing requests for agency records made under the Freedom of Information Act (FOIA), in accordance in with the FOIA Improvement Act of 2016.

Federal Register, Volume 82 Issue 42 (Monday, March 6, 2017)
[Federal Register Volume 82, Number 42 (Monday, March 6, 2017)]
[Rules and Regulations]
[Pages 12506-12508]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2017-04308]


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POSTAL REGULATORY COMMISSION

39 CFR Part 3004

[Docket No. RM2017-2; Order No. 3812]


Revising Procedures for the Freedom of Information Act

AGENCY: Postal Regulatory Commission.

ACTION: Final rule.

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SUMMARY: The Commission issuing a set of rules amending existing 
regulations governing requests for agency records made under the 
Freedom of Information Act (FOIA), in accordance in with the FOIA 
Improvement Act of 2016.

DATES: Effective April 5, 2017.

FOR FURTHER INFORMATION CONTACT: David A. Trissell, General Counsel, at 
202-789-6820.

SUPPLEMENTARY INFORMATION:

Regulatory History

81 FR 95069 (Dec. 27, 2016)

Table of Contents

I. Introduction
II. Background
III. Review of Comments
IV. Changes to Proposed Rules
V. Ordering Paragraphs

I. Introduction

    On December 19, 2016, the Commission issued a notice of proposed 
rulemaking to revise its regulations governing requests for agency 
records made under the Freedom of Information Act (FOIA), 5 U.S.C. 552, 
to comply with the FOIA Improvement Act of 2016 (the Act), Public Law 
114-185, 130 Stat. 538 (2016).\1\ For the reasons discussed below, the 
Commission adopts the following final rules, which include minor 
revisions to the proposed rules.
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    \1\ Notice of Proposed Rulemaking to Revise Procedures for the 
Freedom of Information Act, December 19, 2016 (Order No. 3671).
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II. Background

    The FOIA Improvement Act of 2016 was signed into law on June 30, 
2016. Among other things, the Act expands the dispute resolution 
process available to requesters, limits the use of FOIA exemptions, and 
codifies the so-called ``Rule of 3'' for frequently requested records.
    On December 19, 2016, the Commission issued Order No. 3671, 
introducing proposed revisions to its rules. As Order No. 3671 
indicates, revisions to the affected sections of 39 CFR part 3004 are 
necessary to implement the Act.

III. Review of Comments

    The Commission received two sets of comments on the proposed rules. 
The National Archives and Records Administration's Office of Government 
Information Services (OGIS) and the Public Representative submitted 
comments.\2\
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    \2\ Comments of National Archives and Records Administration on 
Proposed Rulemaking to Change its Freedom of Information Act 
Regulation, 39 CFR part 3004, Docket No. 2016-30905, January 26, 
2017 (OGIS Comments); Public Representative Comments on Notice of 
Proposed Rulemaking to Revise Procedures for the Freedom of 
Information Act, January 26, 2017 (PR Comments).
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A. OGIS Comments

    Comments. OGIS notes that it has a statutory mandate under FOIA to 
offer

[[Page 12507]]

mediation services to resolve disputes between requesters and federal 
agencies. OGIS Comments at 1. As part of this mission, OGIS states that 
it regularly monitors and comments on FOIA-related proposed rules. Id.
    OGIS has reviewed the Commission's proposed rules and commends the 
Commission for its efforts in reviewing its disclosure policies and 
revising its regulations to comply with the Act. Id. OGIS also suggests 
two modifications to the Commission's rules related to OGIS' mediation 
services. Id. at 1-3.
    First, OGIS suggests that the Commission clarify proposed Sec.  
3004.43, governing request responses. Id. at 2. OGIS notes that FOIA 
requires the Commission to notify requesters of their ability to seek 
dispute resolution services from the Commission's FOIA Public Liaison 
or OGIS when the Commission makes an adverse determination on a given 
request. Id. OGIS recommends that the Commission restructure proposed 
Sec.  3004.43 to more clearly state that these dispute resolution 
services are available even when the adverse determination is not a 
denial. Id.
    Second, OGIS recommends that the Commission supplement its rule on 
final denials of appeals, set out in Sec.  3004.44(c)(1). Id. at 2-3. 
OGIS proposes additional language to ensure requesters are made aware 
that dispute resolution with OGIS is available as a non-exclusive 
alternative to litigation. Id.

B. Public Representative Comments

    Comments. The Public Representative comments that the proposed 
rules are ``effective in implementing the Act.'' PR Comments at 2. 
Furthermore, she commends the Commission for clarifying how requesters 
can file FOIA requests with the Commission and for making its records 
more accessible to the public. Id. She also offers several editorial 
suggestions designed to provide additional clarity.
    Specifically, the Public Representative recommends that proposed 
Sec.  3004.13 be revised to define how the Commission determines that a 
record is frequently requested. Id. The proposed language replaces the 
words ``frequently requested agency records'' with ``agency records 
that have been requested three or more times'' to explicitly state the 
standard. Id. Furthermore, the Public Representative suggests that the 
Commission add corresponding language to Sec.  3004.12(b) and (c) to 
make clear that the Commission will provide frequently requested 
records for review in its public reading room. Id.
    The Public Representative also recommends that the Commission 
include its deadline for requesters to appeal adverse determinations in 
Sec.  3004.44, the section addressing FOIA appeals. Id. at 3. The 
current Commission rules provide the deadline in Sec.  3004.43(d)(3), 
which covers responses to FOIA requests.

IV. Changes to Proposed Rules

    The Commission's final rules incorporate the commenters' suggested 
revisions, as well as several additional changes that the Commission 
determined would be prudent upon review of guidance published by the 
Department of Justice, Office of Information Policy (OIP).\3\ These 
changes provide greater clarity and improve the accessibility of the 
FOIA process. For this reason, the Commission adopts the changes in its 
final rules.
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    \3\ OIP issued suggested language, in template form, to assist 
agencies in revising their regulations on its Web site, https://www.justice.gov/oip/template-agency-foia-regulations (last updated 
on February 22, 2017).
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    The Commission accepts OGIS' proposed changes to help accommodate 
OGIS' statutory role as a mediator between agencies and FOIA 
requesters. The Commission finds that the proposed revisions will 
assist requesters by raising awareness that dispute resolution is 
available through OGIS. Furthermore, the Commission makes conforming 
changes to proposed Sec.  3004.44 to clarify that administrative appeal 
is available even when the adverse determination is not a denial.
    The Commission finds that the Public Representative's suggested 
changes supplement the proposed rules with additional explanation and 
improve their accessibility to the public. Accordingly, the Commission 
accepts the Public Representative's proposed changes.
    The final rules also incorporate OIP's guidance on two of the FOIA 
request fee rules. The revisions eliminate a cross reference in 
proposed Sec.  3004.52(e)(2) and revise proposed Sec.  3004.52(f) to 
clarify which fees the Commission can collect when it issues a timely 
partial response but an untimely complete response. These changes 
clarify the Act's modifications to the FOIA fee structure in accordance 
with OIP's template.

V. Ordering Paragraphs

    It is ordered:
    1. Part 3004 of title 39, Code of Federal Regulations, is amended 
as set forth below the signature of this Order, effective 30 days after 
publication in the Federal Register.
    2. The Secretary shall arrange for publication of this order in the 
Federal Register.

    By the Commission.
Stacy L. Ruble,
Secretary.

List of Subjects in 39 CFR Part 3004

    Administrative practice and procedure, Freedom of information, 
Reporting and recordkeeping requirements.

    For the reasons stated in the preamble, the Commission amends 
chapter III of title 39 of the Code of Federal Regulations as follows:

PART 3004--PUBLIC RECORDS AND FREEDOM OF INFORMATION ACT

0
1. The authority citation for part 3004 continues to read as follows:

    Authority:  5 U.S.C. 552; 39 U.S.C. 503.


0
2. Revise Sec.  3004.2 to read as follows:


Sec.  3004.2  Presumption of openness.

    (a) The Commission shall be proactive and timely in identifying and 
posting public records and other frequently requested records to its 
Web site.
    (b) It is the stated policy of the Commission that FOIA requests 
shall be administered with a clear presumption of openness. The 
Commission will only withhold information if it reasonably foresees 
that disclosure would harm an interest protected by a FOIA exemption, 
as enumerated in Sec.  3004.11, or disclosure is otherwise prohibited 
by law.

0
3. Add Sec.  3004.3 to read as follows:


Sec.  3004.3  How to make a request.

    (a) To request Commission records, please contact the Secretary of 
the Commission via letter or use the online request form provided on 
the Commission's Web site at http://www.prc.gov/foia/onlinerequest.
    (b) Requests must describe the records sought in sufficient detail 
to enable the Commission to locate them with a reasonable amount of 
effort. To the extent possible, the requests should provide any 
specific information that might assist the Commission in responding to 
the request.
    (c) Requesters must provide contact information to assist the 
Commission in communicating with them concerning requests and 
responding to the request.

0
4. Amend Sec.  3004.11 by revising paragraph (f) to read as follows:


Sec.  3004.11  Use of exemptions.

* * * * *

[[Page 12508]]

    (f) Inter-agency or intra-agency memoranda or letters that would 
not be available by law to a party other than an agency in litigation 
with the agency. This exemption shall not apply to records created 25 
years or more before the date on which the records were requested.
* * * * *

0
5. Amend Sec.  3004.12 by revising paragraph (c) to read as follows:


Sec.  3004.12  Reading room.

* * * * *
    (c) The Commission shall make available, in an electronic and 
physical reading room, records previously released under FOIA and which 
the Commission determines are or are likely to become of significant 
public interest, including agency records that have been requested 
three or more times.

0
6. Amend Sec.  3004.13 by revising paragraph (a) to read as follows:


Sec.  3004.13  Notice and publication of public information.

    (a) Decisions, advisory opinions, orders, public reports, and 
agency records that have been requested three or more times will be 
made available to the public by posting on the Commission's Web site at 
http://www.prc.gov.
* * * * *

0
7. Amend Sec.  3004.43 by revising paragraph (a) to read as follows:


Sec.  3004.43  Response to requests.

    (a) Within 20 days (excluding Saturdays, Sundays, and legal 
holidays) after receipt of a request for a Commission record, the 
Secretary or Assistant Secretary will notify the requester of its 
determination to grant or deny the request and the right to seek 
assistance from the Commission's FOIA Public Liaison. In the case of an 
adverse determination, the Commission will notify the requester of 
their right to appeal and right to seek dispute resolution services 
from the Commission's FOIA Public Liaison or the Office of Government 
Information Services.
* * * * *

0
8. Amend Sec.  3004.44 by revising paragraphs (b) and (c)(1) to read as 
follows:


Sec.  3004.44  Appeals.

* * * * *
    (b) A requester who seeks to appeal any adverse determination must 
file an appeal with the Commission within 1 year of the date of the 
Commission's response.
    (c)(1) The Commission will grant or deny the appeal in writing 
within 20 days (excluding Saturdays, Sundays, and legal holidays) of 
the date the appeal is received. If on appeal the adverse determination 
is upheld, the Commission will notify the requester of the availability 
of dispute resolution services from the Office of Government 
Information Services as a voluntary, non-exclusive alternative to 
litigation and the provisions for judicial review of that determination 
pursuant to 5 U.S.C. 552(c).
* * * * *

0
9. Revise Sec.  3004.45 to read as follows:


Sec.  3004.45  Extension of response time limit.

    (a) The Commission may extend the time limit for a response to a 
request or appeal for up to 10 business days due to unusual 
circumstances, as specified in 5 U.S.C. 552(a)(6)(B)(iii). In such a 
case, the Commission will notify the requester in writing of the 
unusual circumstance causing the extension and the date by which the 
Commission estimates that the request can be processed.
    (b) If an extension will exceed 10 business days, the Commission 
will:
    (1) Provide the requester with an opportunity to limit the scope of 
the request or to arrange an alternative timeframe for processing the 
request or a modified request. The applicable time limits are not 
tolled while the Commission waits for a response from the requester 
under this subsection; and
    (2) Make its FOIA Public Liaison available to the requester and 
apprise the requester of their right to seek dispute resolution 
services from the Office of Government Information Services.

0
10. Amend Sec.  3004.52 by revising paragraph (e) and adding paragraph 
(f) to read as follows:


Sec.  3004.52  Fees--general provisions.

* * * * *
    (e) No requester will be charged a fee after any search or response 
which occurs after the applicable time limits as described in 
Sec. Sec.  3004.43 and 3004.44, unless:
    (1) The Commission extends the time limit for its response due to 
unusual circumstances, pursuant to Sec.  3004.45(a), and the Commission 
completes its response within the extension of time provided under that 
section; or
    (2) The Commission extends the time limit for its response due to 
unusual circumstances and more than 5,000 pages are necessary to 
respond to the request and the Commission has discussed with the 
requester how they could effectively limit the scope of the request or 
made at least three good faith attempts to do so; or
    (3) A court has determined that exceptional circumstances exist and 
excused the Commission from responding by court order.
    (f) The Commission may, however, charge fees for review, and in 
some cases duplication, for a partial grant of a request while it 
reviews records that may be exempt and may be responsive to the 
request, so long as the partial grant is made within the applicable 
time limits.

[FR Doc. 2017-04308 Filed 3-3-17; 8:45 am]
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                                                  12506               Federal Register / Vol. 82, No. 42 / Monday, March 6, 2017 / Rules and Regulations

                                                  and effective September 15, 2016. FAA                   Lists of Subjects in 14 CFR Part 71                     DATES:   Effective April 5, 2017.
                                                  Order 7400.11A is publicly available as                  Airspace, Incorporation by reference,                  FOR FURTHER INFORMATION CONTACT:
                                                  listed in the ADDRESSES section of this                 Navigation (air).                                       David A. Trissell, General Counsel, at
                                                  document. FAA Order 7400.11A lists                                                                              202–789–6820.
                                                  Class A, B, C, D, and E airspace areas,                 Adoption of the Amendment
                                                                                                                                                                  SUPPLEMENTARY INFORMATION:
                                                  air traffic service routes, and reporting                 In consideration of the foregoing, the
                                                  points.                                                 Federal Aviation Administration                         Regulatory History
                                                  The Rule                                                amends 14 CFR part 71 as follows:                       81 FR 95069 (Dec. 27, 2016)

                                                    This amendment to Title 14, Code of                   PART 71—DESIGNATION OF CLASS A,                         Table of Contents
                                                  Federal Regulations (14 CFR) part 71                    B, C, D, AND E AIRSPACE AREAS; AIR                      I. Introduction
                                                  modifies Class E airspace extending                     TRAFFIC SERVICE ROUTES; AND                             II. Background
                                                  upward from 700 feet above the surface                  REPORTING POINTS                                        III. Review of Comments
                                                  within a 6.6-mile radius (increased from                                                                        IV. Changes to Proposed Rules
                                                  the 6.3-mile radius) of James G. Whiting                ■ 1. The authority citation for Part 71                 V. Ordering Paragraphs
                                                  Memorial Field Airport, Mapleton, IA,                   continues to read as follows:                           I. Introduction
                                                  with an extension southwest of the                        Authority: 49 U.S.C. 106(f), 106(g); 40103,
                                                                                                                                                                     On December 19, 2016, the
                                                  airport from the 6.6-mile radius to 10.3                40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR,
                                                                                                          1959–1963 Comp., p. 389.                                Commission issued a notice of proposed
                                                  miles. The segment extending 10 miles
                                                                                                                                                                  rulemaking to revise its regulations
                                                  northeast of the airport is removed.
                                                                                                          § 71.1       [Amended]                                  governing requests for agency records
                                                    Airspace reconfiguration is necessary                                                                         made under the Freedom of Information
                                                  due to the decommissioning of the                       ■ 2. The incorporation by reference in
                                                                                                          14 CFR 71.1 of FAA Order 7400.11A,                      Act (FOIA), 5 U.S.C. 552, to comply
                                                  Mapleton NDB, cancellation of NDB                                                                               with the FOIA Improvement Act of 2016
                                                  approaches, and implementation of                       Airspace Designations and Reporting
                                                                                                          Points, dated August 3, 2016, and                       (the Act), Public Law 114–185, 130 Stat.
                                                  RNAV procedures at the airport and for                                                                          538 (2016).1 For the reasons discussed
                                                  the safety and management of the                        effective September 15, 2016, is
                                                                                                          amended as follows:                                     below, the Commission adopts the
                                                  standard instrument approach                                                                                    following final rules, which include
                                                  procedures for IFR operations at the                    Paragraph 6005 Class E Airspace Areas                   minor revisions to the proposed rules.
                                                  airport.                                                Extending Upward From 700 Feet or More
                                                                                                          Above the Surface of the Earth.                         II. Background
                                                  Regulatory Notices and Analyses
                                                                                                          *        *      *      *       *                           The FOIA Improvement Act of 2016
                                                     The FAA has determined that this                                                                             was signed into law on June 30, 2016.
                                                                                                          ACE IA E5 Mapleton, IA [Amended]
                                                  regulation only involves an established                                                                         Among other things, the Act expands
                                                  body of technical regulations for which                 Mapleton, James G. Whiting Memorial Field
                                                                                                               Airport, IA                                        the dispute resolution process available
                                                  frequent and routine amendments are                                                                             to requesters, limits the use of FOIA
                                                                                                            (Lat. 42°10′42″ N., long. 95°47′37″ W.)
                                                  necessary to keep them operationally                                                                            exemptions, and codifies the so-called
                                                                                                            That airspace extending upward from 700
                                                  current, is non-controversial and                                                                               ‘‘Rule of 3’’ for frequently requested
                                                                                                          feet above the surface within a 6.6-mile
                                                  unlikely to result in adverse or negative               radius of James G. Whiting Memorial Field               records.
                                                  comments. It, therefore: (1) Is not a                   Airport, and within 4 miles each side of the               On December 19, 2016, the
                                                  ‘‘significant regulatory action’’ under                 204° bearing from the airport extending from            Commission issued Order No. 3671,
                                                  Executive Order 12866; (2) is not a                     the 6.6-mile radius to 10.3 miles southwest             introducing proposed revisions to its
                                                  ‘‘significant rule’’ under DOT                          of the airport.                                         rules. As Order No. 3671 indicates,
                                                  Regulatory Policies and Procedures (44                    Issued in Fort Worth, Texas, on February              revisions to the affected sections of 39
                                                  FR 11034; February 26, 1979); and (3)                   22, 2017.                                               CFR part 3004 are necessary to
                                                  does not warrant preparation of a                       Walter Tweedy                                           implement the Act.
                                                  Regulatory Evaluation as the anticipated                Acting Manager, Operations Support Group,
                                                  impact is so minimal. Since this is a                                                                           III. Review of Comments
                                                                                                          ATO Central Service Center.
                                                  routine matter that only affects air traffic            [FR Doc. 2017–04186 Filed 3–3–17; 8:45 am]                The Commission received two sets of
                                                  procedures and air navigation, it is                                                                            comments on the proposed rules. The
                                                                                                          BILLING CODE 4910–13–P
                                                  certified that this rule, when                                                                                  National Archives and Records
                                                  promulgated, does not have a significant                                                                        Administration’s Office of Government
                                                  economic impact on a substantial                                                                                Information Services (OGIS) and the
                                                  number of small entities under the                      POSTAL REGULATORY COMMISSION
                                                                                                                                                                  Public Representative submitted
                                                  criteria of the Regulatory Flexibility Act.             39 CFR Part 3004                                        comments.2
                                                  Environmental Review                                    [Docket No. RM2017–2; Order No. 3812]                   A. OGIS Comments
                                                     The FAA has determined that this                                                                               Comments. OGIS notes that it has a
                                                  action qualifies for categorical exclusion              Revising Procedures for the Freedom                     statutory mandate under FOIA to offer
                                                  under the National Environmental                        of Information Act
                                                  Policy Act in accordance with FAA                       AGENCY:       Postal Regulatory Commission.                1 Notice of Proposed Rulemaking to Revise
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                                                  Order 1050.1F, ‘‘Environmental                                                                                  Procedures for the Freedom of Information Act,
                                                                                                          ACTION:      Final rule.                                December 19, 2016 (Order No. 3671).
                                                  Impacts: Policies and Procedures,’’                                                                                2 Comments of National Archives and Records
                                                  paragraph 5–6.5.a. This airspace action                 SUMMARY:   The Commission issuing a set                 Administration on Proposed Rulemaking to Change
                                                  is not expected to cause any potentially                of rules amending existing regulations                  its Freedom of Information Act Regulation, 39 CFR
                                                  significant environmental impacts, and                  governing requests for agency records                   part 3004, Docket No. 2016–30905, January 26, 2017
                                                                                                                                                                  (OGIS Comments); Public Representative Comments
                                                  no extraordinary circumstances exist                    made under the Freedom of Information                   on Notice of Proposed Rulemaking to Revise
                                                  that warrant preparation of an                          Act (FOIA), in accordance in with the                   Procedures for the Freedom of Information Act,
                                                  environmental assessment.                               FOIA Improvement Act of 2016.                           January 26, 2017 (PR Comments).



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                                                                      Federal Register / Vol. 82, No. 42 / Monday, March 6, 2017 / Rules and Regulations                                                  12507

                                                  mediation services to resolve disputes                    The Public Representative also                         effective 30 days after publication in the
                                                  between requesters and federal agencies.                recommends that the Commission                           Federal Register.
                                                  OGIS Comments at 1. As part of this                     include its deadline for requesters to                      2. The Secretary shall arrange for
                                                  mission, OGIS states that it regularly                  appeal adverse determinations in                         publication of this order in the Federal
                                                  monitors and comments on FOIA-                          § 3004.44, the section addressing FOIA                   Register.
                                                  related proposed rules. Id.                             appeals. Id. at 3. The current                             By the Commission.
                                                     OGIS has reviewed the Commission’s                   Commission rules provide the deadline                    Stacy L. Ruble,
                                                  proposed rules and commends the                         in § 3004.43(d)(3), which covers
                                                  Commission for its efforts in reviewing                                                                          Secretary.
                                                                                                          responses to FOIA requests.
                                                  its disclosure policies and revising its                                                                         List of Subjects in 39 CFR Part 3004
                                                  regulations to comply with the Act. Id.                 IV. Changes to Proposed Rules
                                                                                                                                                                     Administrative practice and
                                                  OGIS also suggests two modifications to                    The Commission’s final rules                          procedure, Freedom of information,
                                                  the Commission’s rules related to OGIS’                 incorporate the commenters’ suggested                    Reporting and recordkeeping
                                                  mediation services. Id. at 1–3.                         revisions, as well as several additional
                                                     First, OGIS suggests that the                                                                                 requirements.
                                                                                                          changes that the Commission
                                                  Commission clarify proposed § 3004.43,                                                                             For the reasons stated in the
                                                                                                          determined would be prudent upon
                                                  governing request responses. Id. at 2.                                                                           preamble, the Commission amends
                                                                                                          review of guidance published by the
                                                  OGIS notes that FOIA requires the                                                                                chapter III of title 39 of the Code of
                                                                                                          Department of Justice, Office of
                                                  Commission to notify requesters of their                                                                         Federal Regulations as follows:
                                                                                                          Information Policy (OIP).3 These
                                                  ability to seek dispute resolution                      changes provide greater clarity and
                                                  services from the Commission’s FOIA                                                                              PART 3004—PUBLIC RECORDS AND
                                                                                                          improve the accessibility of the FOIA                    FREEDOM OF INFORMATION ACT
                                                  Public Liaison or OGIS when the                         process. For this reason, the
                                                  Commission makes an adverse                             Commission adopts the changes in its                     ■ 1. The authority citation for part 3004
                                                  determination on a given request. Id.                   final rules.                                             continues to read as follows:
                                                  OGIS recommends that the Commission                        The Commission accepts OGIS’
                                                  restructure proposed § 3004.43 to more                                                                               Authority: 5 U.S.C. 552; 39 U.S.C. 503.
                                                                                                          proposed changes to help accommodate
                                                  clearly state that these dispute                        OGIS’ statutory role as a mediator                       ■   2. Revise § 3004.2 to read as follows:
                                                  resolution services are available even                  between agencies and FOIA requesters.
                                                  when the adverse determination is not                                                                            § 3004.2      Presumption of openness.
                                                                                                          The Commission finds that the
                                                  a denial. Id.                                                                                                      (a) The Commission shall be proactive
                                                                                                          proposed revisions will assist requesters
                                                     Second, OGIS recommends that the                                                                              and timely in identifying and posting
                                                                                                          by raising awareness that dispute
                                                  Commission supplement its rule on                                                                                public records and other frequently
                                                                                                          resolution is available through OGIS.
                                                  final denials of appeals, set out in                                                                             requested records to its Web site.
                                                                                                          Furthermore, the Commission makes
                                                  § 3004.44(c)(1). Id. at 2–3. OGIS                                                                                  (b) It is the stated policy of the
                                                                                                          conforming changes to proposed
                                                  proposes additional language to ensure                                                                           Commission that FOIA requests shall be
                                                                                                          § 3004.44 to clarify that administrative
                                                  requesters are made aware that dispute                                                                           administered with a clear presumption
                                                                                                          appeal is available even when the
                                                  resolution with OGIS is available as a                                                                           of openness. The Commission will only
                                                                                                          adverse determination is not a denial.
                                                  non-exclusive alternative to litigation.                                                                         withhold information if it reasonably
                                                                                                             The Commission finds that the Public                  foresees that disclosure would harm an
                                                  Id.
                                                                                                          Representative’s suggested changes                       interest protected by a FOIA exemption,
                                                  B. Public Representative Comments                       supplement the proposed rules with                       as enumerated in § 3004.11, or
                                                     Comments. The Public Representative                  additional explanation and improve                       disclosure is otherwise prohibited by
                                                  comments that the proposed rules are                    their accessibility to the public.                       law.
                                                  ‘‘effective in implementing the Act.’’ PR               Accordingly, the Commission accepts
                                                                                                                                                                   ■ 3. Add § 3004.3 to read as follows:
                                                  Comments at 2. Furthermore, she                         the Public Representative’s proposed
                                                  commends the Commission for                             changes.                                                 § 3004.3      How to make a request.
                                                  clarifying how requesters can file FOIA                    The final rules also incorporate OIP’s                  (a) To request Commission records,
                                                  requests with the Commission and for                    guidance on two of the FOIA request fee                  please contact the Secretary of the
                                                  making its records more accessible to                   rules. The revisions eliminate a cross                   Commission via letter or use the online
                                                  the public. Id. She also offers several                 reference in proposed § 3004.52(e)(2)                    request form provided on the
                                                  editorial suggestions designed to                       and revise proposed § 3004.52(f) to                      Commission’s Web site at http://
                                                  provide additional clarity.                             clarify which fees the Commission can                    www.prc.gov/foia/onlinerequest.
                                                     Specifically, the Public                             collect when it issues a timely partial                    (b) Requests must describe the records
                                                  Representative recommends that                          response but an untimely complete                        sought in sufficient detail to enable the
                                                  proposed § 3004.13 be revised to define                 response. These changes clarify the                      Commission to locate them with a
                                                  how the Commission determines that a                    Act’s modifications to the FOIA fee                      reasonable amount of effort. To the
                                                  record is frequently requested. Id. The                 structure in accordance with OIP’s                       extent possible, the requests should
                                                  proposed language replaces the words                    template.                                                provide any specific information that
                                                  ‘‘frequently requested agency records’’                 V. Ordering Paragraphs                                   might assist the Commission in
                                                  with ‘‘agency records that have been                                                                             responding to the request.
                                                  requested three or more times’’ to                        It is ordered:                                           (c) Requesters must provide contact
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                                                  explicitly state the standard. Id.                        1. Part 3004 of title 39, Code of                      information to assist the Commission in
                                                  Furthermore, the Public Representative                  Federal Regulations, is amended as set                   communicating with them concerning
                                                  suggests that the Commission add                        forth below the signature of this Order,                 requests and responding to the request.
                                                  corresponding language to § 3004.12(b)                                                                           ■ 4. Amend § 3004.11 by revising
                                                                                                            3 OIP issued suggested language, in template
                                                  and (c) to make clear that the                                                                                   paragraph (f) to read as follows:
                                                                                                          form, to assist agencies in revising their regulations
                                                  Commission will provide frequently                      on its Web site, https://www.justice.gov/oip/
                                                  requested records for review in its                     template-agency-foia-regulations (last updated on
                                                                                                                                                                   § 3004.11      Use of exemptions.
                                                  public reading room. Id.                                February 22, 2017).                                      *       *       *    *     *


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                                                  12508               Federal Register / Vol. 82, No. 42 / Monday, March 6, 2017 / Rules and Regulations

                                                    (f) Inter-agency or intra-agency                      days (excluding Saturdays, Sundays,                      (3) A court has determined that
                                                  memoranda or letters that would not be                  and legal holidays) of the date the                   exceptional circumstances exist and
                                                  available by law to a party other than an               appeal is received. If on appeal the                  excused the Commission from
                                                  agency in litigation with the agency.                   adverse determination is upheld, the                  responding by court order.
                                                  This exemption shall not apply to                       Commission will notify the requester of                  (f) The Commission may, however,
                                                  records created 25 years or more before                 the availability of dispute resolution                charge fees for review, and in some
                                                  the date on which the records were                      services from the Office of Government                cases duplication, for a partial grant of
                                                  requested.                                              Information Services as a voluntary,                  a request while it reviews records that
                                                  *      *     *    *     *                               non-exclusive alternative to litigation               may be exempt and may be responsive
                                                  ■ 5. Amend § 3004.12 by revising                        and the provisions for judicial review of             to the request, so long as the partial
                                                  paragraph (c) to read as follows:                       that determination pursuant to 5 U.S.C.               grant is made within the applicable time
                                                                                                          552(c).                                               limits.
                                                  § 3004.12   Reading room.                               *     *     *     *     *                             [FR Doc. 2017–04308 Filed 3–3–17; 8:45 am]
                                                  *     *     *     *     *                               ■ 9. Revise § 3004.45 to read as follows:             BILLING CODE 7710–FW–P
                                                    (c) The Commission shall make
                                                  available, in an electronic and physical                § 3004.45    Extension of response time limit.
                                                  reading room, records previously                          (a) The Commission may extend the                   DEPARTMENT OF HEALTH AND
                                                  released under FOIA and which the                       time limit for a response to a request or             HUMAN SERVICES
                                                  Commission determines are or are likely                 appeal for up to 10 business days due
                                                  to become of significant public interest,               to unusual circumstances, as specified                42 CFR Part 10
                                                  including agency records that have been                 in 5 U.S.C. 552(a)(6)(B)(iii). In such a
                                                  requested three or more times.                          case, the Commission will notify the                  RIN 0906–AA89
                                                  ■ 6. Amend § 3004.13 by revising                        requester in writing of the unusual
                                                                                                                                                                340B Drug Pricing Program Ceiling
                                                  paragraph (a) to read as follows:                       circumstance causing the extension and
                                                                                                          the date by which the Commission                      Price and Manufacturer Civil Monetary
                                                  § 3004.13 Notice and publication of public              estimates that the request can be                     Penalties; Delay of Effective Date
                                                  information.                                            processed.                                            AGENCY:  Health Resources and Services
                                                    (a) Decisions, advisory opinions,                       (b) If an extension will exceed 10                  Administration (HRSA), HHS.
                                                  orders, public reports, and agency                      business days, the Commission will:                   ACTION: Final rule; delay of effective
                                                  records that have been requested three                    (1) Provide the requester with an
                                                  or more times will be made available to                                                                       date.
                                                                                                          opportunity to limit the scope of the
                                                  the public by posting on the                            request or to arrange an alternative                  SUMMARY:    In accordance with the
                                                  Commission’s Web site at http://                        timeframe for processing the request or               memorandum of January 20, 2017, from
                                                  www.prc.gov.                                            a modified request. The applicable time               the Assistant to the President and Chief
                                                  *     *    *     *     *                                limits are not tolled while the                       of Staff, entitled ‘‘Regulatory Freeze
                                                  ■ 7. Amend § 3004.43 by revising                        Commission waits for a response from                  Pending Review,’’ this action
                                                  paragraph (a) to read as follows:                       the requester under this subsection; and              temporarily delays for 60 days from the
                                                                                                            (2) Make its FOIA Public Liaison                    date of the memorandum the effective
                                                  § 3004.43   Response to requests.                       available to the requester and apprise                date of the final rule titled ‘‘340B Drug
                                                     (a) Within 20 days (excluding                        the requester of their right to seek                  Pricing Program Ceiling Price and
                                                  Saturdays, Sundays, and legal holidays)                 dispute resolution services from the                  Manufacturer Civil Monetary Penalties
                                                  after receipt of a request for a                        Office of Government Information                      Regulation,’’ published in the January 5,
                                                  Commission record, the Secretary or                     Services.                                             2017, Federal Register. This document
                                                  Assistant Secretary will notify the                     ■ 10. Amend § 3004.52 by revising                     announces that the effective date is
                                                  requester of its determination to grant or              paragraph (e) and adding paragraph (f)                delayed until March 21, 2017.
                                                  deny the request and the right to seek                  to read as follows:                                   DATES: Effective date: This regulation is
                                                  assistance from the Commission’s FOIA
                                                                                                          § 3004.52    Fees—general provisions.                 effective March 3, 2017. The effective
                                                  Public Liaison. In the case of an adverse
                                                                                                                                                                date of the final rule published in the
                                                  determination, the Commission will                      *      *     *    *     *
                                                                                                                                                                January 5, 2017, Federal Register (82 FR
                                                  notify the requester of their right to                     (e) No requester will be charged a fee
                                                                                                                                                                1210), is delayed until March 21, 2017.
                                                  appeal and right to seek dispute                        after any search or response which
                                                  resolution services from the                                                                                  Compliance date: HHS recognizes that
                                                                                                          occurs after the applicable time limits as
                                                  Commission’s FOIA Public Liaison or                                                                           the effective date falls in the middle of
                                                                                                          described in §§ 3004.43 and 3004.44,
                                                  the Office of Government Information                                                                          a quarter. As such, HHS plans to begin
                                                                                                          unless:
                                                  Services.                                                  (1) The Commission extends the time                enforcing the requirements of this final
                                                                                                          limit for its response due to unusual                 rule at the start of the next quarter,
                                                  *      *    *      *    *                                                                                     which begins April 1, 2017.
                                                  ■ 8. Amend § 3004.44 by revising                        circumstances, pursuant to § 3004.45(a),
                                                                                                          and the Commission completes its                      FOR FURTHER INFORMATION CONTACT:
                                                  paragraphs (b) and (c)(1) to read as                                                                          CAPT Krista Pedley, Director, Office of
                                                  follows:                                                response within the extension of time
                                                                                                          provided under that section; or                       Pharmacy Affairs (OPA), Healthcare
                                                  § 3004.44   Appeals.                                       (2) The Commission extends the time                Systems Bureau (HSB), HRSA, 5600
asabaliauskas on DSK3SPTVN1PROD with RULES




                                                  *     *     *     *     *                               limit for its response due to unusual                 Fishers Lane, Mail Stop 08W05A,
                                                    (b) A requester who seeks to appeal                   circumstances and more than 5,000                     Rockville, MD 20857, or by telephone at
                                                  any adverse determination must file an                  pages are necessary to respond to the                 301–594–4353.
                                                  appeal with the Commission within 1                     request and the Commission has                        SUPPLEMENTARY INFORMATION: The
                                                  year of the date of the Commission’s                    discussed with the requester how they                 January 20, 2017 memorandum from the
                                                  response.                                               could effectively limit the scope of the              Assistant to the President and Chief of
                                                    (c)(1) The Commission will grant or                   request or made at least three good faith             Staff, titled ‘‘Regulatory Freeze Pending
                                                  deny the appeal in writing within 20                    attempts to do so; or                                 Review,’’ published in the Federal


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Document Created: 2017-03-04 00:06:44
Document Modified: 2017-03-04 00:06:44
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionRules and Regulations
ActionFinal rule.
DatesEffective April 5, 2017.
ContactDavid A. Trissell, General Counsel, at 202-789-6820.
FR Citation82 FR 12506 
CFR AssociatedAdministrative Practice and Procedure; Freedom of Information and Reporting and Recordkeeping Requirements

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