82 FR 3619 - Revision of Freedom of Information Act Regulation
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT Federal Register Volume 82, Issue 8 (January 12, 2017)
Federal Register Volume 82, Issue 8 (January 12, 2017)
| Page Range | 3619-3623 | |
| FR Document | 2017-00178 |
[Federal Register Volume 82, Number 8 (Thursday, January 12, 2017)] [Rules and Regulations] [Pages 3619-3623] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2017-00178] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT 24 CFR Part 15 [Docket No. FR-5986-F-01] RIN 2501-AD81 Revision of Freedom of Information Act Regulation AGENCY: Office of the Secretary, HUD. ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: This final rule amends HUD's Freedom of Information Act (FOIA) regulation to implement the FOIA Improvement Act of 2016. The FOIA Improvement Act enacted a range of procedural issues, including requirements that agencies establish a minimum of 90 days for requesters to file an administrative appeal, and codifies the foreseeable harm standard. [[Page 3620]] In addition, this final rule revises a section of HUD's FOIA regulations to more accurately reflect statutory language. DATES: Effective Date: February 13, 2017. FOR FURTHER INFORMATION CONTACT: Helen Foster, Deputy Chief Administrative Officer, Office of Administration, Department of Housing and Urban Development, 451 7th Street SW., Room 10139, Washington, DC 20410-0500, telephone number 202-402-2671 (this is not a toll-free number). Hearing- or speech-impaired individuals may access this number via TTY by calling the toll-free Federal Relay Service at telephone number 1-800-877-8339. SUPPLEMENTARY INFORMATION: I. Background On June 30, 2016, the President signed into law the FOIA Improvement Act of 2016 (2016 Act) (Pub. L. 114-185, 130 Stat. 538), which contains several substantive and procedural amendments to the Freedom of Information Act (FOIA). The 2016 Act addresses a range of procedural issues, including requirements that agencies establish a minimum of 90 days for requesters to file an administrative appeal, and that agencies provide dispute resolution services at various times throughout the FOIA process. The 2016 Act also codifies a ``foreseeable harm'' standard, amends Exemption 5 to the FOIA, creates a new Chief FOIA Officer Council within the Executive Branch, and adds two new elements to agency Annual FOIA Reports. The amendments apply to any request made after the date of enactment, which was June 30, 2016. Section 3 of the 2016 Act requires agencies to review and issue updated regulations on procedures for the disclosure of records under the FOIA, in accordance with the amendments made by the 2016 Act, within 180 days of enactment. Accordingly, HUD revises its FOIA regulation to incorporate changes enacted by the 2016 Act. II. Changes Made in This Final Rule The following is an overview of the changes made in this final rule. Section 15.101 Proactive Disclosures of Department Records The 2016 Act requires agencies to ``make available for public inspection in an electronic format'' records that, because of their subject matter, the agency determines ``have become or are likely to become the subject of subsequent requests for substantially the same records,'' or that have been requested 3 or more times. In response, HUD is amending Sec. Sec. 15.101(a) and 15.101(b)(7) to comply with this requirement. The revisions mirror the language from the 2016 Act. The 2016 Act also adds agency reporting requirements for agencies' annual FOIA reports. The 2016 Act requires that a report covering the preceding fiscal year is to be submitted to the Attorney General of the United States and to the Director of the Office of Government Information Services (OGIS). The raw statistical data used in each report must be made available without charge, license, or registration requirement; in an aggregated, searchable format, and in a format that may be downloaded in bulk. Both the report and the raw statistical data used in the report must be made available for public inspection in an electronic format. In response to this requirement, HUD is adding Sec. 15.101(b)(8) in conformance with these new reporting requirements. Section 15.103 Timing of Responses to Requests When a FOIA request involves ``unusual circumstances,'' agencies have long been required to provide written notice to the requester, and in those instances where an extension of time of more than ten working days is specified, agencies have been required to provide the requester with an opportunity to limit the scope of the request so that it can be processed more quickly or to arrange an alternative time to respond. The 2016 Act adds an additional requirement when unusual circumstances exist. Specifically, whenever agencies extend the time limits by more than ten additional working days, in the written notice to the requester they must notify the requester of their right to seek dispute resolution services from the OGIS. To address this requirement, HUD is revising Sec. 15.103(c) to incorporate the change enacted by the 2016 Act. HUD is also using this final rule to update several specific provisions of Sec. 15.103 to more accurately reflect the statutory language in 5 U.S.C. 552(a)(6)(A)(i). First, HUD is revising Sec. 15.103(a) to state that HUD will generally ``make a determination whether to comply with a FOIA request within 20 working days.'' Second, HUD is revising Sec. 15.103(c), which addresses when HUD may extend the time periods for processing a FOIA request, to remove the sentence that limited extensions to 10 working days. HUD is removing this language as inconsistent with the plain reading of the statute, the logic of the rest of the language in Sec. 15.103(c), and Department of Justice guidance. Finally, in accordance with 5 U.S.C. 552(a)(6)(B)(ii), HUD has updated Sec. 15.103(c) to include the provision that HUD shall make available its FOIA Public Liaison, who shall assist in the resolution of any disputes between the requester and HUD. Section 15.105 Responses to Requests When an agency makes a determination regarding whether to comply with a FOIA request, the 2016 Act provides that the agency is required to immediately notify the requester of such determination and the reasons therefore, and also notify the requester that they have a right to seek assistance from the agency's FOIA Public Liaison. For adverse determinations, the 2016 Act requires that agencies afford the requester no less than 90 days from the date of the adverse determination on the request to file an appeal. In addition, the 2016 Act requires that agencies notify the requester that they may seek dispute resolution services from the FOIA Public Liaison or from OGIS. Consistent with this requirement, HUD has revised Sec. 15.105(d) to provide that, once HUD makes a determination regarding compliance within the time line provided in Sec. 15.103(a), HUD will immediately notify the requester of such determination, the reasons therefore, and their right to seek assistance from the FOIA Public Liaison. For adverse determinations, HUD has added Sec. 15.105(d)(2)(iv) to provide that HUD will notify the requester of their right to file an appeal no less than 90 days after the date of receiving the adverse determination. Finally, Sec. 15.105(d)(2)(v) has been added to provide that HUD will notify the requester of their right to seek dispute resolution services from the FOIA Public Liaison or from OGIS. Section 15.106 Fees The 2016 Act contains several new provisions regarding agencies' ability to assess search and duplication fees. First, the 2016 Act provides that an agency shall not assess any search fees, or in some cases, duplication fees, if the agency has failed to comply with any time limit described in Sec. 15.103, with limited exceptions. Second, if an agency determines that unusual circumstances apply to the processing of a FOIA request, and the agency has provided timely written notice to the requester, then a delayed response time is excused for an additional ten days; if the agency fails to comply with the extended time limit, it may not charge search fees, or, in some cases, duplication fees, with limited exceptions. Third, the 2016 Act [[Page 3621]] provides an exception allowing agencies to charge search fees, or in some cases, duplication fees, if unusual circumstances apply, more than 5,000 pages are necessary to respond to the request, timely written notice has been made to the requester, and the agency has discussed with the requester via written mail, electronic mail, or telephone (or made not less than 3 good-faith attempts to do so) how the requester could effectively limit the scope of the request. Fourth, the 2016 Act maintains that if a court determines that ``exceptional circumstances'' exist, as defined in 5 U.S.C. 552(a)(6)(C), the agency's failure to comply with a time limit ``shall be excused for the length of time provided by the court order.'' In accordance with the first change, HUD is updating Sec. 15.106(d) to provide that HUD will not assess search fees or, for requesters that are educational or noncommercial scientific institutions or representatives of the news media requesting records not sought for commercial use, duplication fees, if it fails to comply with the extended time limits as described in Sec. 15.103. To comply with the second change, HUD is adding Sec. 15.106(d)(5) to grant HUD an additional ten days when unusual circumstances apply and timely written notice has been provided to the requester and to terminate HUD's ability to assess search fees or duplication fees, as applicable, if HUD does not comply with the additional ten days. Regarding the third change, HUD is adding Sec. 15.106(d)(6) to allow HUD to charge search fees when unusual circumstances apply and more than 5,000 pages are necessary to respond to the FOIA request. Regarding the fourth amendment, HUD is adding Sec. 15.106(d)(7)(i) to excuse a failure to comply with any time limit if a court determines that exceptional circumstances exist; and Sec. 15.106(d)(7)(ii), which provides the definition of ``exceptional circumstances'' as defined in 5 U.S.C. 552(a)(6)(C), has also been added for clarifying purposes. Section 15.107 Documents Generally Protected From Disclosure The 2016 Act requires that agencies withhold information under FOIA ``only if the agency reasonably foresees that disclosure would harm an interest protected by an exemption'' or if disclosure is prohibited by law. The 2016 Act further directs agencies to consider whether partial disclosure of information is possible whenever the agency determines that a full disclosure of a requested record is not possible, and to take reasonable steps necessary to segregate and release nonexempt information. The 2016 Act does not require disclosure of information that is otherwise prohibited from disclosure by law, or otherwise exempted from disclosure under Exemption 3. Consistent with these changes, HUD is restructuring Sec. 15.107 and adding paragraph (a) to provide that HUD shall withhold information only if it is reasonably foreseeable that disclosure would harm an interest protected by an exemption, or if disclosure is prohibited by law. Paragraph (a) also emphasizes that HUD will consider whether partial disclosure of information is possible if it determines that a full disclosure of a requested record is not possible, and that HUD will take reasonable steps necessary to segregate and release nonexempt information. In addition, the 2016 Act sunsets the deliberative process privilege, as protected from disclosure under Exemption 5 of the FOIA. Specifically, the 2016 Act amends Exemption 5 to provide that the deliberative process privilege does not apply to records created 25 years or more before the date on which the records were requested. In accordance with the 2016 Act, HUD is revising Sec. 15.107(b)(5) to state that the deliberative process privilege ``shall not apply to records created 25 years or more before the date on which the records were requested.'' III. Justification for Final Rulemaking In general, HUD publishes a rule for public comment before issuing a rule for effect, in accordance with HUD's regulations on rulemaking at 24 CFR part 10. Part 10, however, provides in Sec. 10.1 for exceptions from that general rule where HUD finds good cause to omit advance notice and public participation. The good cause requirement is satisfied when the prior public procedure is ``impracticable, unnecessary or contrary to the public interest.'' HUD finds that good cause exists to publish this rule for effect without first soliciting public comment because prior public comment is unnecessary. This final rule follows the statutory directive in Section 3 of the 2016 Act, which requires agencies to review and issue updated regulations on procedures for the disclosure of records under the FOIA, in accordance with the amendments made by the 2016 Act, within 180 days of enactment. The 2016 Act codifies a number of transparency and openness principles and enacts a number of procedural requirements, including requiring that agencies establish a minimum of 90 days for requesters to file an administrative appeal and that they provide dispute resolution services at various times throughout the FOIA process. This final rule reflects the changes required by the 2016 Act. Finally, the rule revises provisions Sec. 15.103 to more accurately reflect the statutory language in 5 U.S.C. 552(a)(6)(A)(i). IV. Findings and Certifications Executive Order 12866 and Executive Order 13563 Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if the regulation is necessary, to select the regulatory approach that maximizes net benefits. Because this final rule incorporates changes enacted by the 2016 Act, this rule was determined to not be a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and therefore was not reviewed by OMB. Environmental Impact This rule is categorically excluded from environmental review under the National Environmental Policy Act (42 U.S.C. 4321). The revision of the FOIA-related provisions of 24 CFR part 15 falls within the exclusion provided by 24 CFR 50.19(c)(1), in that it does not direct, provide for assistance or loan and mortgage insurance for, or otherwise govern or regulate, real property acquisition, disposition, leasing, rehabilitation, alteration, demolition, or new construction, or establish, revise, or provide for standards for construction or construction materials, manufactured housing, or occupancy. Regulatory Flexibility Act The Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.) generally requires an agency to conduct a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements, unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. This final rule establishes procedures by which HUD will respond to requests for information under FOIA. Costs assessed by HUD for search, review, and duplication required to process the information requested by a requester are limited by FOIA to direct costs and are not significant. Accordingly, the undersigned certifies that this rule will not have a significant economic impact on a substantial number of small entities. [[Page 3622]] Executive Order 13132, Federalism Executive Order 13132 (entitled ``Federalism'') prohibits an agency from publishing any rule that has federalism implications if the rule either imposes substantial direct compliance costs on state and local governments and is not required by statute, or the rule preempts state law, unless the agency meets the consultation and funding requirements of section 6 of the Executive Order. This final rule does not have federalism implications and does not impose substantial direct compliance costs on state and local governments or preempt state law within the meaning of the Executive Order. Unfunded Mandates Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) establishes requirements for federal agencies to assess the effects of their regulatory actions on state, local, and tribal governments, and on the private sector. This final rule does not impose any federal mandates on any state, local, or tribal governments, or on the private sector, within the meaning of the Unfunded Mandates Reform Act of 1995. List of Subjects in 24 CFR Part 15 Classified information, Courts, Freedom of information, Government employees, Reporting and recordkeeping requirements. For the reasons stated in the preamble, HUD amends 24 CFR part 15 as follows: PART 15--PUBLIC ACCESS TO HUD RECORDS UNDER THE FREEDOM OF INFORMATION ACT AND TESTIMONY AND PRODUCTION OF INFORMATION BY HUD EMPLOYEES 0 1. The authority for 24 CFR part 15 is revised to read as follows: Authority: 42 U.S.C. 3535(d), 5 U.S.C. 552. 0 2. Amend Sec. 15.101 by removing in paragraph (a) ``and copying'' and adding in its place ``in an electronic format'', and by adding paragraphs (b)(7) and (b)(8), to read as follows: Sec. 15.101 Proactive disclosures of departmental records. * * * * * (b) * * * (7) Copies of all records, regardless of form or format that have been released to any person under Sec. 15.105; and (i) Because of the nature of their subject matter, the agency determines that the records have become or are likely to become the subject of subsequent requests for substantially the same records; or (ii) Have been requested three or more times. (8) Report for the preceding fiscal year submitted to the U.S. Attorney General and the Director of the Office of Government Information Services (OGIS) as required by 5 U.S.C. 552(e) and the raw statistical data used in each report. This report will be made available: (i) Without charge, license, or registration requirement; (ii) In an aggregated, searchable format; and (iii) In a format that may be downloaded in bulk. * * * * * 0 3. In Sec. 15.103, amend paragraph (a) by removing ``respond to'' and adding in its place ``make a determination whether to comply with'', and revise paragraph (c) introductory text, to read as follows: Sec. 15.103 Timing of responses to requests. * * * * * (c) Extension of time periods for processing a request. In unusual circumstances, as defined in this paragraph, HUD may extend the time period for processing a FOIA request. In such circumstances, HUD will provide the requester with written notice setting forth the unusual circumstances for the extension and the date on which a determination is expected to be dispatched. If processing a request would require more than 10 working days beyond the general time limit established in paragraph (a) of this section, HUD will offer the requester an opportunity to limit the scope of the request so that HUD may process it within the extra 10-day working period or arrange an alternative time period within which the FOIA request will be processed. To aid the requester, HUD shall make available its FOIA Public Liaison, who shall assist in the resolution of any disputes between the requester and HUD, and notify the requester of the right of the requester to seek dispute resolution services from the Office of Government Information Services. For purposes of this section, unusual circumstances include: * * * * * Sec. 15.104 [Amended] 0 4. Amend paragraph (b) by adding ``the'' between ``contacting'' and ``FOIA''. 0 5. Amend Sec. 15.105 as follows: 0 a. Add paragraph (d) introductory text; 0 b. In paragraph (d)(1) remove ``Once'' and replace it with ``If ''. 0 c. Redesignate paragraph (d)(2)(iv) as (d)(2)(vi); and 0 d. Add paragraphs (d)(2)(iv) and (v). Revisions and additions to read as follows: Sec. 15.105 Responses to requests. * * * * * (d) Forms of response. Once HUD makes a determination regarding whether to comply with a request pursuant to time limits established in Sec. 15.103(a), HUD shall immediately notify the requester of such determination and the reasons therefor, and the requester's right to seek assistance from the FOIA Public Liaison. * * * * * (2) * * * (iv) Notice of the right of the requester to appeal to the head of the agency, within a period determined by the head of the agency that is not less than 90 days after the date of such adverse determination; and (v) Notice of the right of the requester to seek dispute resolution services from the FOIA Public Liaison of the agency or the Office of Government Information Services; and * * * * * 0 6. In Sec. 15.106 revise paragraph (d)(1) and add paragraphs (d)(5), (6) and (7) to read as follows: Sec. 15.106 Fees. * * * * * (d) Restrictions on charging fees. (1) No search fee will be charged for requests by educational institutions, noncommercial scientific institutions, or representatives of the news media. In addition, except as provided in paragraphs (d)(5), (d)(6), and (d)(7) of this section, HUD shall not assess any search fees (or, for requesters that are educational institutions, noncommercial scientific institutions or representatives of the news media requesting records not sought for commercial use, duplication fees) if HUD has failed to comply with any time limit described in Sec. 15.103. * * * * * (5) If HUD determines that unusual circumstances apply and HUD provides timely written notice to the requester pursuant to requirements provided in Sec. 15.103(c), a failure to comply with any time limit as described in Sec. 15.103 is excused for an additional 10 days. If HUD fails to comply with the extended time limit, HUD may not assess any search fees (or for requesters that are educational or noncommercial scientific institutions or representatives of the news media requesting records not sought for commercial use, duplication fees). [[Page 3623]] (6) If unusual circumstances apply and more than 5000 pages are necessary to respond to the request, HUD may charge search fees or, for requesters that are educational or noncommercial scientific institutions or representatives of the news media requesting records not sought for commercial use, duplication fees, if timely written notice has been made to the requester pursuant to requirements provided in Sec. 15.103(c) and HUD has discussed with the requester through written mail, electronic mail, or telephone (or made not less than 3 good-faith attempts to do so) how the requester could effectively limit the scope of the request as stipulated in Sec. 15.103(c). (7)(i) If a court has determined that exceptional circumstances exist, a failure to comply with any time limit as described in Sec. 15.103 shall be excused for the length of time provided by the court order. (ii) For purposes of this section, the term ``exceptional circumstances'' does not include a delay that results from a predictable workload of requests, unless HUD demonstrates reasonable progress in reducing its backlog of pending requests. However, refusal by the requester to reasonably modify the scope of a request or arrange an alternative time frame for processing a request (or a modified request) after HUD gives them an opportunity to do so shall be considered a factor in determining whether exceptional circumstances exist. * * * * * 0 7. Amend Sec. 15.107 as follows: 0 a. Remove paragraph (b); 0 b. Redesignate the introductory text as new paragraph (b); 0 c. Revise paragraph (a); 0 d. Redesignate paragraphs (c) through (i) as (b)(1) through (b)(9), respectively, and 0 e. Revise redesignated paragraph (b)(5); Revisions and addition to read as follows: Sec. 15.107 Documents generally protected from disclosure. (a) HUD shall withhold information only if HUD reasonably foresees that disclosure would harm an interest protected by an exemption as provided in paragraph (b) of this section, or disclosure is prohibited by law. HUD will consider whether partial disclosure of information is possible whenever HUD determines that a full disclosure of a requested record is not possible, and will take reasonable steps necessary to segregate and release nonexempt information. Nothing in this section requires disclosure of information that is otherwise prohibited from disclosure by law, or otherwise exempted from disclosure as provided in paragraph (b)(3) of this section. * * * * * (b) * * * (5) Certain interagency or intra-agency communications. Exemption 5 (5 U.S.C. 552(b)(5)) protects interagency or intra-agency communications that are protected by legal privileges, such as the attorney-client privilege, attorney work-product privilege, or communications reflecting the agency's deliberative process. The deliberative process privilege shall not apply to records created 25 years or more before the date on which the records were requested. * * * * * Dated: December 27, 2016. Nani A. Coloretti, Deputy Secretary. [FR Doc. 2017-00178 Filed 1-11-17; 8:45 am] BILLING CODE 4210-67-P
![Federal Register / Vol. 82, No. 8 / Thursday, January 12, 2017 / Rules and Regulations 3619
devices has serious public health consultation with the Centers for be acceptable and appropriate. The
implications. Disease Control and Prevention (CDC) procedure and location of testing may
(b) Classification. Class II (special and sourced from CDC or an FDA- depend on the nature of the emerging
controls). The special controls for this designated source. If the annual strains virus.
device are: are not available from CDC, FDA will (ii) Within 60 days from the date that
(1) The device’s sensitivity and identify an alternative source for FDA notifies manufacturers that
specificity performance characteristics obtaining the requisite strains. characterized viral samples are available
or positive percent agreement and (ii) The testing must be conducted for test evaluation and continuing until
negative percent agreement, for each according to a standardized protocol 3 years from that date, the results of the
specimen type claimed in the intended considered and determined by FDA to influenza emergency analytical
use of the device, must meet one of the be acceptable and appropriate. reactivity testing, including the detailed
following two minimum clinical (iii) By July 31 of each calendar year, information for the virus tested as
performance criteria: the results of the last 3 years of annual described in the certificate of
(i) For devices evaluated as compared analytical reactivity testing must be authentication, must be included as part
to an FDA-cleared nucleic acid based- included as part of the device’s labeling. of the device’s labeling in a tabular
test or other currently appropriate and If a device has not been on the market format, either by:
FDA accepted comparator method other long enough for 3 years of annual (A) Placing the results directly in the
than correctly performed viral culture analytical reactivity testing to have been device’s § 809.10(b) of this chapter
method: conducted since the device received compliant labeling that physically
(A) The positive percent agreement marketing authorization from FDA, then accompanies the device in a separate
estimate for the device when testing for the results of every annual analytical section of the labeling where analytical
influenza A and influenza B must be at reactivity testing since the device reactivity testing data can be found, but
the point estimate of at least 80 percent received marketing authorization from separate from the annual analytical
with a lower bound of the 95 percent FDA must be included. The results must reactivity testing results; or
confidence interval that is greater than be presented as part of the device’s (B) In a section of the device’s label
or equal to 70 percent. labeling in a tabular format, which or in other labeling that physically
(B) The negative percent agreement includes the detailed information for accompanies the device, prominently
estimate for the device when testing for each virus tested as described in the providing a hyperlink to the
influenza A and influenza B must be at certificate of authentication, either by: manufacturer’s public Web site where
the point estimate of at least 95 percent (A) Placing the results directly in the
the analytical reactivity testing data can
with a lower bound of the 95 percent device’s § 809.10(b) of this chapter
be found. The manufacturer’s home
confidence interval that is greater than compliant labeling that physically
page, as well as the primary part of the
or equal to 90 percent. accompanies the device in a separate
manufacturer’s Web site that discusses
(ii) For devices evaluated as compared section of the labeling where the
the device, must provide a prominently
to correctly performed viral culture analytical reactivity testing data can be
found; or placed hyperlink to the Web page
method as the comparator method: containing this information and must
(A) The sensitivity estimate for the (B) In the device’s label or in other
labeling that physically accompanies allow unrestricted viewing access.
device when testing for influenza A
must be at the point estimate of at least the device, prominently providing a Dated: January 4, 2017.
90 percent with a lower bound of the 95 hyperlink to the manufacturer’s public Leslie Kux,
percent confidence interval that is Web site where the analytical reactivity Associate Commissioner for Policy.
greater than or equal to 80 percent. The testing data can be found. The [FR Doc. 2017–00199 Filed 1–11–17; 8:45 am]
sensitivity estimate for the device when manufacturer’s home page, as well as BILLING CODE 4164–01–P
testing for influenza B must be at the the primary part of the manufacturer’s
point estimate of at least 80 percent Web site that discusses the device, must
with a lower bound of the 95 percent provide a prominently placed hyperlink
to the Web page containing this DEPARTMENT OF HOUSING AND
confidence interval that is greater than URBAN DEVELOPMENT
or equal to 70 percent. information and must allow unrestricted
(B) The specificity estimate for the viewing access. 24 CFR Part 15
device when testing for influenza A and (4) If one of the actions listed at
influenza B must be at the point section 564(b)(1)(A)–(D) of the Federal [Docket No. FR–5986–F–01]
estimate of at least 95 percent with a Food, Drug, and Cosmetic Act occurs
with respect to an influenza viral strain, RIN 2501–AD81
lower bound of the 95 percent
confidence interval that is greater than or if the Secretary of Health and Human Revision of Freedom of Information
or equal to 90 percent. Services (HHS) determines, under Act Regulation
(2) When performing testing to section 319(a) of the Public Health
demonstrate the device meets the Service Act, that a disease or disorder AGENCY: Office of the Secretary, HUD.
requirements in paragraph (b)(1) of this presents a public health emergency, or ACTION: Final rule.
section, a currently appropriate and that a public health emergency
FDA accepted comparator method must otherwise exists, with respect to an SUMMARY: This final rule amends HUD’s
be used to establish assay performance influenza viral strain: Freedom of Information Act (FOIA)
in clinical studies. (i) Within 30 days from the date that regulation to implement the FOIA
mstockstill on DSK3G9T082PROD with RULES
(3) Annual analytical reactivity testing FDA notifies manufacturers that Improvement Act of 2016. The FOIA
of the device must be performed with characterized viral samples are available Improvement Act enacted a range of
contemporary influenza strains. This for test evaluation, the manufacturer procedural issues, including
annual analytical reactivity testing must must have testing performed on the requirements that agencies establish a
meet the following criteria: device with those viral samples in minimum of 90 days for requesters to
(i) The appropriate strains to be tested accordance with a standardized protocol file an administrative appeal, and
will be identified by FDA in considered and determined by FDA to codifies the foreseeable harm standard.
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Executive Order 13132, Federalism (ii) Have been requested three or more ■ d. Add paragraphs (d)(2)(iv) and (v).
Executive Order 13132 (entitled times. Revisions and additions to read as
‘‘Federalism’’) prohibits an agency from (8) Report for the preceding fiscal year follows:
publishing any rule that has federalism submitted to the U.S. Attorney General
and the Director of the Office of § 15.105 Responses to requests.
implications if the rule either imposes
Government Information Services * * * * *
substantial direct compliance costs on
(OGIS) as required by 5 U.S.C. 552(e) (d) Forms of response. Once HUD
state and local governments and is not
and the raw statistical data used in each makes a determination regarding
required by statute, or the rule preempts
report. This report will be made whether to comply with a request
state law, unless the agency meets the
available: pursuant to time limits established in
consultation and funding requirements
(i) Without charge, license, or § 15.103(a), HUD shall immediately
of section 6 of the Executive Order. This
registration requirement; notify the requester of such
final rule does not have federalism
(ii) In an aggregated, searchable determination and the reasons therefor,
implications and does not impose
format; and and the requester’s right to seek
substantial direct compliance costs on
(iii) In a format that may be assistance from the FOIA Public
state and local governments or preempt
state law within the meaning of the downloaded in bulk. Liaison.
Executive Order. * * * * * * * * * *
■ 3. In § 15.103, amend paragraph (a) by (2) * * *
Unfunded Mandates (iv) Notice of the right of the requester
removing ‘‘respond to’’ and adding in its
Title II of the Unfunded Mandates place ‘‘make a determination whether to to appeal to the head of the agency,
Reform Act of 1995 (2 U.S.C. 1531– comply with’’, and revise paragraph (c) within a period determined by the head
1538) establishes requirements for introductory text, to read as follows: of the agency that is not less than 90
federal agencies to assess the effects of days after the date of such adverse
their regulatory actions on state, local, § 15.103 Timing of responses to requests. determination; and
and tribal governments, and on the * * * * * (v) Notice of the right of the requester
private sector. This final rule does not (c) Extension of time periods for to seek dispute resolution services from
impose any federal mandates on any processing a request. In unusual the FOIA Public Liaison of the agency
state, local, or tribal governments, or on circumstances, as defined in this or the Office of Government Information
the private sector, within the meaning of paragraph, HUD may extend the time Services; and
the Unfunded Mandates Reform Act of period for processing a FOIA request. In * * * * *
1995. such circumstances, HUD will provide ■ 6. In § 15.106 revise paragraph (d)(1)
List of Subjects in 24 CFR Part 15 the requester with written notice setting and add paragraphs (d)(5), (6) and (7) to
forth the unusual circumstances for the read as follows:
Classified information, Courts, extension and the date on which a
Freedom of information, Government determination is expected to be § 15.106 Fees.
employees, Reporting and dispatched. If processing a request * * * * *
recordkeeping requirements. would require more than 10 working (d) Restrictions on charging fees. (1)
For the reasons stated in the days beyond the general time limit No search fee will be charged for
preamble, HUD amends 24 CFR part 15 established in paragraph (a) of this requests by educational institutions,
as follows: section, HUD will offer the requester an noncommercial scientific institutions,
opportunity to limit the scope of the or representatives of the news media. In
PART 15—PUBLIC ACCESS TO HUD request so that HUD may process it addition, except as provided in
RECORDS UNDER THE FREEDOM OF
within the extra 10-day working period paragraphs (d)(5), (d)(6), and (d)(7) of
INFORMATION ACT AND TESTIMONY
or arrange an alternative time period this section, HUD shall not assess any
AND PRODUCTION OF INFORMATION
within which the FOIA request will be search fees (or, for requesters that are
BY HUD EMPLOYEES
processed. To aid the requester, HUD educational institutions, noncommercial
■ 1. The authority for 24 CFR part 15 is shall make available its FOIA Public scientific institutions or representatives
revised to read as follows: Liaison, who shall assist in the of the news media requesting records
resolution of any disputes between the not sought for commercial use,
Authority: 42 U.S.C. 3535(d), 5 U.S.C. 552.
requester and HUD, and notify the duplication fees) if HUD has failed to
■ 2. Amend § 15.101 by removing in requester of the right of the requester to comply with any time limit described in
paragraph (a) ‘‘and copying’’ and adding seek dispute resolution services from § 15.103.
in its place ‘‘in an electronic format’’, the Office of Government Information * * * * *
and by adding paragraphs (b)(7) and Services. For purposes of this section, (5) If HUD determines that unusual
(b)(8), to read as follows: unusual circumstances include: circumstances apply and HUD provides
§ 15.101 Proactive disclosures of * * * * * timely written notice to the requester
departmental records. pursuant to requirements provided in
§ 15.104 [Amended]
* * * * * § 15.103(c), a failure to comply with any
(b) * * * ■ 4. Amend paragraph (b) by adding time limit as described in § 15.103 is
(7) Copies of all records, regardless of ‘‘the’’ between ‘‘contacting’’ and excused for an additional 10 days. If
form or format that have been released ‘‘FOIA’’. HUD fails to comply with the extended
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to any person under § 15.105; and ■ 5. Amend § 15.105 as follows: time limit, HUD may not assess any
(i) Because of the nature of their ■ a. Add paragraph (d) introductory search fees (or for requesters that are
subject matter, the agency determines text; educational or noncommercial scientific
that the records have become or are ■ b. In paragraph (d)(1) remove ‘‘Once’’ institutions or representatives of the
likely to become the subject of and replace it with ‘‘If ’’. news media requesting records not
subsequent requests for substantially the ■ c. Redesignate paragraph (d)(2)(iv) as sought for commercial use, duplication
same records; or (d)(2)(vi); and fees).
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![Federal Register / Vol. 82, No. 8 / Thursday, January 12, 2017 / Rules and Regulations 3623
(6) If unusual circumstances apply is otherwise prohibited from disclosure Washington, DC 20410; telephone
and more than 5000 pages are necessary by law, or otherwise exempted from number 202–708–1793 (this is not a toll-
to respond to the request, HUD may disclosure as provided in paragraph free number). Persons with hearing or
charge search fees or, for requesters that (b)(3) of this section. speech impairments may access this
are educational or noncommercial * * * * * number through TTY by calling the toll-
scientific institutions or representatives (b) * * * free Federal Relay Service at 800–877–
of the news media requesting records (5) Certain interagency or intra- 8339.
not sought for commercial use, agency communications. Exemption 5 SUPPLEMENTARY INFORMATION: In the
duplication fees, if timely written notice (5 U.S.C. 552(b)(5)) protects interagency final rule FR Doc. 2016–30708,
has been made to the requester pursuant or intra-agency communications that are published in the Federal Register on
to requirements provided in § 15.103(c) protected by legal privileges, such as the December 20, 2016 (81 FR 92626), the
and HUD has discussed with the attorney-client privilege, attorney work- following correction is made:
requester through written mail, product privilege, or communications
electronic mail, or telephone (or made reflecting the agency’s deliberative § 891.20 [Corrected]
not less than 3 good-faith attempts to do process. The deliberative process On page 92638, in the third column,
so) how the requester could effectively privilege shall not apply to records in § 891.20, paragraphs (f)(a) through (c)
limit the scope of the request as created 25 years or more before the date are redesignated as paragraphs (f)(1)
stipulated in § 15.103(c). on which the records were requested. through (3).
(7)(i) If a court has determined that
* * * * * Dated: January 4, 2017.
exceptional circumstances exist, a
Dated: December 27, 2016. Aaron Santa Anna,
failure to comply with any time limit as
described in § 15.103 shall be excused Nani A. Coloretti, Assistant General Counsel for Regulations.
for the length of time provided by the Deputy Secretary. [FR Doc. 2017–00167 Filed 1–11–17; 8:45 am]
court order. [FR Doc. 2017–00178 Filed 1–11–17; 8:45 am] BILLING CODE 4210–67–P
(ii) For purposes of this section, the BILLING CODE 4210–67–P
term ‘‘exceptional circumstances’’ does
not include a delay that results from a
predictable workload of requests, unless DEPARTMENT OF HOUSING AND DEPARTMENT OF DEFENSE
HUD demonstrates reasonable progress URBAN DEVELOPMENT
in reducing its backlog of pending Department of the Navy
requests. However, refusal by the 24 CFR Part 891
requester to reasonably modify the 32 CFR Part 706
[Docket No. FR 5890–C–03]
scope of a request or arrange an Certifications and Exemptions Under
alternative time frame for processing a RIN 2501–AD75
the International Regulations for
request (or a modified request) after Preventing Collisions at Sea, 1972
HUD gives them an opportunity to do so Narrowing the Digital Divide Through
shall be considered a factor in Installation of Broadband
AGENCY: Department of the Navy, DoD.
determining whether exceptional Infrastructure in HUD-Funded New
Construction and Substantial ACTION: Final rule.
circumstances exist.
Rehabilitation of Multifamily Rental SUMMARY: The Department of the Navy
* * * * * Housing; Correction
■ 7. Amend § 15.107 as follows: (DoN) is amending its certifications and
■ a. Remove paragraph (b); AGENCY: Office of General Counsel, exemptions under the International
■ b. Redesignate the introductory text as HUD. Regulations for Preventing Collisions at
new paragraph (b); ACTION: Final rule; correction. Sea, 1972 (72 COLREGS), to reflect that
■ c. Revise paragraph (a); the Deputy Assistant Judge Advocate
■ d. Redesignate paragraphs (c) through SUMMARY: On December 20, 2016, HUD General (DAJAG) (Admiralty and
(i) as (b)(1) through (b)(9), respectively, published a final rule requiring the Maritime Law) has determined that USS
and installation of broadband infrastructure OMAHA (LCS 12) is a vessel of the
■ e. Revise redesignated paragraph at the time of new construction or Navy which, due to its special
(b)(5); substantial rehabilitation of multifamily construction and purpose, cannot fully
Revisions and addition to read as rental housing that is funded or comply with certain provisions of the 72
follows: supported by HUD, the point at which COLREGS without interfering with its
§ 15.107 Documents generally protected such installation is generally easier and special function as a naval ship. The
from disclosure. less costly than when undertaken as a intended effect of this rule is to warn
(a) HUD shall withhold information stand-alone effort. This document mariners in waters where 72 COLREGS
only if HUD reasonably foresees that corrects incorrect paragraph apply.
disclosure would harm an interest designations in one section of the DATES: This rule is effective January 12,
protected by an exemption as provided regulatory text. The effective date for 2017 and is applicable beginning
in paragraph (b) of this section, or HUD’s final rule of January 19, 2017 is December 12, 2016.
disclosure is prohibited by law. HUD unchanged. FOR FURTHER INFORMATION CONTACT:
will consider whether partial disclosure DATES: Effective January 19, 2017. Commander Theron R. Korsak, JAGC,
mstockstill on DSK3G9T082PROD with RULES
of information is possible whenever FOR FURTHER INFORMATION CONTACT: U.S. Navy, Admiralty Attorney,
HUD determines that a full disclosure of With respect to this supplementary (Admiralty and Maritime Law), Office of
a requested record is not possible, and document, contact Ariel Periera, the Judge Advocate General, Department
will take reasonable steps necessary to Associate General Counsel for of the Navy, 1322 Patterson Ave. SE.,
segregate and release nonexempt Legislation and Regulations, Department Suite 3000, Washington Navy Yard, DC
information. Nothing in this section of Housing and Urban Development, 20374–5066, telephone number: 202–
requires disclosure of information that 451 7th Street SW., Room 10238, 685–5040.
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Document Created: 2017-03-21 14:40:24
Document Modified: 2017-03-21 14:40:24
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Rules and Regulations | |
| Action | Final rule. | |
| Dates | Effective Date: February 13, 2017. | |
| Contact | Helen Foster, Deputy Chief Administrative Officer, Office of Administration, Department of Housing and Urban Development, 451 7th Street SW., Room 10139, Washington, DC 20410-0500, telephone number 202-402-2671 (this is not a toll-free number). Hearing- or speech-impaired individuals may access this number via TTY by calling the toll-free Federal Relay Service at telephone number 1-800-877-8339. | |
| FR Citation | 82 FR 3619 | |
| RIN Number | 2501-AD81 | |
| CFR Associated | Classified Information; Courts; Freedom of Information; Government Employees and Reporting and Recordkeeping Requirements |
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