82 FR 44 - Regulations Implementing the FOIA Improvement Act of 2016

NATIONAL FOUNDATION ON THE ARTS AND THE HUMANITIES
National Endowment for the Humanities

Federal Register Volume 82, Issue 1 (January 3, 2017)

On June 30, 2016, President Obama signed the Freedom of Information Act (``FOIA'') Improvement Act of 2016 (the ``FOIA Improvement Act''). Section 3 of the FOIA Improvement Act requires, that not later than 180 days after the date of its enactment, the head of each agency review and revise the agency's regulations to implement the FOIA Improvement Act's amendments. The FOIA Improvement Act specifically requires that the regulations of each agency include procedures for engaging in dispute resolution through the FOIA Public Liaison and the Office of Government Information Services. After undertaking a review of its FOIA regulations in accordance with Section 3 of the FOIA Improvement Act, NEH is revising its FOIA regulations to incorporate the statutory mandates.

[Federal Register Volume 82, Number 1 (Tuesday, January 3, 2017)]
[Rules and Regulations]
[Pages 44-46]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-31521]


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NATIONAL FOUNDATION ON THE ARTS AND THE HUMANITIES

National Endowment for the Humanities

45 CFR Part 1171

RIN 3136-AA37


Regulations Implementing the FOIA Improvement Act of 2016

AGENCY: National Endowment for the Humanities, National Foundation On 
the Arts and the Humanities.

ACTION: Final rule.

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SUMMARY: On June 30, 2016, President Obama signed the Freedom of 
Information Act (``FOIA'') Improvement Act of 2016 (the ``FOIA 
Improvement Act''). Section 3 of the FOIA Improvement Act requires, 
that not later than 180 days after the date of its enactment, the head 
of each agency review and revise the agency's regulations to implement 
the FOIA Improvement Act's amendments. The FOIA Improvement Act 
specifically requires that the regulations of each agency include 
procedures for engaging in dispute resolution through the FOIA Public 
Liaison and the Office of Government Information Services. After 
undertaking a review of its FOIA regulations in accordance with Section 
3 of the FOIA Improvement Act, NEH is revising its FOIA regulations to 
incorporate the statutory mandates.

DATES: This rule is effective February 2, 2017.

FOR FURTHER INFORMATION CONTACT: Adam Kress, Attorney-Advisor, Office 
of the General Counsel, National Endowment for the Humanities, 400 7th 
Street SW., Room 4060, Washington, DC 20506, (202) 606-8322, 
[email protected].

SUPPLEMENTARY INFORMATION: NEH is amending its FOIA regulations 
published at 45 CFR part 1171 to incorporate changes required by the 
FOIA Improvement Act.

Background

    Section 10 of the National Foundation on the Arts and the 
Humanities Act of 1965 (20 U.S.C. 959) authorizes the Chairperson of 
NEH to prescribe such regulations as he or she deems necessary 
governing the manner in which the Chairperson's functions shall be 
carried out.
    This rulemaking amends NEH's existing regulations providing Public 
Access to NEH Records Under the Freedom of Information Act (45 CFR part 
1171) by incorporating changes to the FOIA by the FOIA Improvement Act. 
Among other things, the FOIA Improvement Act requires that agencies (i) 
make records that have been both released previously and requested 
three or more times available to the public in electronic format, (ii) 
establish a minimum of ninety days for requesters to appeal an adverse 
determination, and (iii) provide, or direct requesters to, dispute 
resolution services at various times throughout the FOIA process. The 
FOIA Improvement Act also updates how agencies may charge search, 
duplication and review fees.
    NEH amends 45 CFR part 1171 as follows:
     By amending 45 CFR 1171.4 to ``make available for public 
inspection in an electronic format'' records that have

[[Page 45]]

been previously released and either (i) are likely to be subject to 
subsequent requests for substantially the same records, or (ii) ``that 
have been requested three or more times.''
     By amending 45 CFR 1171.7 & 1171.8 to indicate that the 
requester may seek assistance from NEH's Public Liaison and/or the 
Office of Government Information Services at various times throughout 
the FOIA process.
     By amending 45 CFR 1171.10 to change the appeals deadline 
from thirty days to ninety days.
     By amending 45 CFR 1171.11 to provide additional 
limitations on the fees charged by NEH.

Good Cause for Final Adoption

    NEH ordinarily promulgates amendments to the Code of Federal 
Regulations in accordance with the notice-and-comment rulemaking 
procedure in Section 553 of the Administrative Procedure Act (APA) (5 
U.S.C. 553). That provision requires that agencies publish notice of a 
proposed rule or amended rule in the Federal Register, and that such 
agencies solicit and consider public comment on the proposed rule or 
amendment, and publish any final rule at least thirty days prior to its 
effective date.
    Section 553 of the APA, however, allows agencies to dispense with 
the above notice and comment procedures when the agency has ``good 
cause'' for concluding that such procedures are ``impracticable, 
unnecessary, or contrary to the public interest.'' Under the APA, an 
agency may issue a final rule without seeking comment prior to the 
rulemaking, for good cause.
    NEH's proposed amendments to its FOIA regulations are required by 
the FOIA Improvement Act, do not reflect or empower agency discretion, 
and provide additional protection to the public. For these reasons, NEH 
finds good cause to conclude that it is not necessary for the public to 
have notice and an opportunity to comment on the amendments described 
below.

Regulatory Analysis of the Proposed Amendments

    These amendments do not constitute a ``significant regulatory 
action'' under Executive Order 12866 (58 FR 51735, Oct. 4, 1993) and 
therefore are not subject to Office of Management and Budget (OMB) 
review.
    The Regulatory Flexibility Act (5 U.S.C. 601, et seq.) is 
inapplicable to this rulemaking because it is not one for which a 
notice of proposed rulemaking is required under 5 U.S.C. 553(b) or any 
other statute.
    For purposes of the Unfunded Mandates Reform Act of 1995, Public 
Law 104-4 (2 U.S.C. 1531-1538), these amendments will not result in the 
expenditure by State, local, and Tribal governments, in the aggregate, 
or by the private sector, of $100,000,000 or more in any one year, nor 
will they significantly or uniquely affect small governments.
    These amendments are not ``major rules'' as defined by section 251 
of the Small Business Regulatory Enforcement Fairness Act of 1996 (5 
U.S.C. 801, et seq.). Moreover, they are exempt from the reporting 
requirements of that Act because they are rules of agency procedure and 
practice that do not substantially affect the rights or obligations of 
non-agency parties.
    The Paperwork Reduction Act (44 U.S.C. 3501, et seq.), does not 
apply to these amendments because they do not contain any new 
information collection requirements that need OMB approval.

List of Subjects in 45 CFR Part 1171

    Administrative practice and procedure, Fees, Freedom of 
Information.

    For the reasons discussed in the preamble, NEH amends 45 CFR part 
1171 as follows:

PART 1171--PUBLIC ACCESS TO NEH RECORDS UNDER THE FREEDOM OF 
INFORMATION ACT

0
1. The authority citation for part 1171 is revised to read as follows:

    Authority: 5 U.S.C. 552; 20 U.S.C. 959; 31 U.S.C. 3717; E.O. 
12600.


0
2. Amend Sec.  1171.4 by revising paragraphs (a) and (b) to read as 
follows:


Sec.  1171.4   Public availability of records.

    (a) In accordance with 5 U.S.C. 552(a)(2), the NEH will make the 
following records available for public inspection in an electronic 
format (unless they are published and copies are offered for sale) 
without a FOIA request:
    (1) Final opinions, including concurring and dissenting opinions, 
as well as orders made in the adjudication of cases,
    (2) Statements of policy and interpretations which have been 
adopted by the agency and are not published in the Federal Register,
    (3) Administrative staff manuals and instructions to staff that 
affect a member of the public,
    (4) Copies of all records, regardless of format, which have been 
released to any person under 5 U.S.C. 552(a)(3) and which because of 
their subject matter, the NEH determines have become or are likely to 
become subject to subsequent requests for substantially the same 
records, or have been requested three (3) or more times; and
    (5) A general index of the records referred to in paragraph (b) of 
this section.
    (b) The NEH will also maintain and make available for public 
inspection in an electronic format current indexes as required by 5 
U.S.C. 552(a)(2) of the FOIA. However, since the NEH has determined 
that publication and distribution of these indexes is unnecessary and 
impracticable, the NEH will provide these indexes upon request at a 
cost not to exceed the direct cost of the duplication.
* * * * *

0
3. Amend Sec.  1171.7 by revising paragraph (d)(1)(ii) to read as 
follows:


Sec.  1171.7  Timing of responses to requests.

* * * * *
    (d) * * *
    (1) * * *
    (ii) If the extension will be for more than ten (10) working days, 
the NEH will provide the requester with an opportunity either to modify 
the request so that it may be processed within the time limit or to 
arrange an alternative time period to process the request or a modified 
request. To aid the requester, NEH shall make available its FOIA Public 
Liaison, who shall assist in the resolution of any disputes between the 
requester and the agency, and shall notify the requester of his or her 
right to seek dispute resolution services from the Office of Government 
Information Services.
* * * * *

0
4. Amend Sec.  1171.8 by revising paragraphs (b) and (c) to read as 
follows:


Sec.  1171.8   Responses to requests.

* * * * *
    (b) Grants of requests. If the NEH makes a determination to grant a 
request in whole or in part, it will notify the requester in writing of 
such determination and the reasons therefore, and the requester's right 
to seek assistance from NEH's FOIA Public Liaison. The NEH will inform 
the requester of any applicable fees and will disclose records to the 
requester promptly on payment of any applicable fees. The NEH will mark 
or annotate records disclosed in part to show the amount of information 
deleted pursuant to a FOIA exemption, unless doing so would harm an 
interest protected by an applicable FOIA exemption. If technically 
feasible, the NEH will also indicate, on the agency record(s) it

[[Page 46]]

provides, the location of the information deleted.
    (c) Denials of requests. If the NEH makes a determination to deny a 
request in any respect, the NEH will also notify the requester in 
writing of:
    (1) The name and title or position of the person responsible for 
the denial;
    (2) A brief statement of the reason(s) for the denial, including 
any FOIA exemption applied by the NEH in denying the request;
    (3) An estimate of the volume of records or information withheld, 
if applicable, although such an estimate is not required if the volume 
is otherwise indicated through deletion on the records disclosed in 
part, or if providing such an estimate would harm an interest protected 
by an applicable exemption;
    (4) The requester's right to seek dispute resolution services from 
NEH's FOIA Public Liaison or the Office of Government Information 
Services; and
    (5) A statement that the requester may appeal the denial under 
Sec.  1171.10 and a description of the requirements to appeal.

0
5. Amend Sec.  1171.10 by revising paragraph (a) to read as follows:


Sec.  1171.10   Administrative appeals.

    (a) You may appeal a denial of your request for NEH records (except 
NEH OIG records) and/or FCAH records to The Deputy Chairman, National 
Endowment for the Humanities, 400 7th Street SW., Room 4053, 
Washington, DC 20506. You may also send your appeal to the NEH General 
Counsel by facsimile at 202-606-8600, by email at [email protected], 
or through the NEH's electronic FOIA request system, which is available 
on the NEH Web site at www.neh.gov. For a denial of your request for 
OIG records, you may appeal by facsimile at 202-606-8329, by email at 
[email protected] or by mail to The Inspector General, National Endowment for 
the Humanities, 400 7th Street SW., Room 2200, Washington, DC 20506. 
Your appeal must be in writing and received by NEH within ninety (90) 
days of the date of the letter denying your request in whole or in 
part. Your appeal letter must clearly identify the NEH decision that 
you are appealing and contain the tracking number, if assigned. You 
should clearly mark your appeal letter and envelope ``Freedom of 
Information Act Appeal.''
* * * * *

0
6. Amend Sec.  1171.11 by revising paragraph (d)(3) to read as follows:


Sec.  1171.11   Fees.

* * * * *
    (d) * * *
    (3) If NEH fails to comply with the FOIA's time limits in which to 
respond to a request, it may not charge search fees, or, in the 
instances of requests from requesters described in paragraphs (b)(4) 
through (6) of this section, may not charge duplication fees, except as 
described in paragraphs (d)(3)(i) through (iii) of this section.
    (i) If NEH has determined that unusual circumstances, as defined by 
the FOIA, apply and NEH has provided timely written notice to the 
requester in accordance with the FOIA, a failure to comply with the 
time limit shall be excused for an additional ten (10) working days.
    (ii) If NEH has determined that unusual circumstances, as defined 
by the FOIA, apply and more than 5,000 pages are necessary to respond 
to the request, NEH may charge search fees, or, in the case of 
requesters described in paragraphs (b)(4) through (6) of this section, 
may charge duplication fees, provided NEH provided timely written 
notice of unusual circumstances to the requester in accordance with the 
FOIA and NEH discussed with the requester via written mail, email, or 
telephone (or made not less than three good-faith attempts to do so) 
how the requester could effectively limit the scope of the request in 
accordance with 5 U.S.C. 552(a)(6)(B)(ii).
    (iii) If a court has determined that exceptional circumstances 
exist, as defined by the FOIA, a failure to comply with the time limits 
shall be excused for the length of time provided by the court order.
* * * * *

    Dated: December 23, 2016.
Elizabeth Voyatzis,
Deputy General Counsel.
[FR Doc. 2016-31521 Filed 12-30-16; 8:45 am]
 BILLING CODE 7536-01-P