82 FR 725 - Revision of Department of Justice Freedom of Information Act Regulations
DEPARTMENT OF JUSTICE Federal Register Volume 82, Issue 2 (January 4, 2017)
Federal Register Volume 82, Issue 2 (January 4, 2017)
| Page Range | 725-729 | |
| FR Document | 2016-31508 |
[Federal Register Volume 82, Number 2 (Wednesday, January 4, 2017)] [Rules and Regulations] [Pages 725-729] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2016-31508] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF JUSTICE 28 CFR Part 16 [Docket No. OAG 155] RIN 1105-AB51; A.G. Order No. 3803-2016 Revision of Department of Justice Freedom of Information Act Regulations AGENCY: Department of Justice. ACTION: Interim final rule with request for comments. ----------------------------------------------------------------------- SUMMARY: This rule amends the Department of Justice's regulations under the Freedom of Information Act (FOIA) to incorporate certain changes made to the FOIA by the FOIA Improvement Act of 2016. In addition, this rule amends certain provisions in the fee section to reflect developments in the case law and to streamline the description of the factors to be considered when making fee waiver determinations. DATES: Effective Date: This rule is effective February 3, 2017. Comment Date: Public comments must be submitted by March 6, 2017. Comments submitted by mail will be accepted as timely if they are postmarked on or before that date. Electronic comments may be submitted via www.regulations.gov prior to midnight Eastern Time at the end of that day. ADDRESSES: You may submit written comments, identified by RIN 1105-AB51 or Docket No. OAG 155, by one of the following methods:Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments. Mail: Lindsay Roberts, Attorney-Advisor, Office of Information Policy, 1425 New York Avenue NW., Room 11050, Washington, DC 20530. Instructions: All submissions received must include the agency name and docket number for this rulemaking. For additional details on submitting comments, see the ``Public Participation'' heading of the SUPPLEMENTARY INFORMATION section of this document. FOR FURTHER INFORMATION CONTACT: Lindsay Roberts, Attorney-Advisor, Office of Information Policy, (202) 514-3642. SUPPLEMENTARY INFORMATION: This rule amends the Department's regulations under the Freedom of Information Act to incorporate certain changes made to the FOIA, 5 U.S.C. 552, by the FOIA Improvement Act of 2016, Public Law 114-185, 130 Stat. 538 (June 30, 2016). The FOIA Improvement Act of 2016 provides that agencies must allow a minimum of 90 days for requesters to file an administrative appeal. The Act also requires that agencies notify requesters of the availability of dispute resolution services at various times throughout the FOIA process. Finally, the Act codifies the Department of Justice's ``foreseeable harm'' standard. This rule updates the Department's regulations in 28 CFR part 16, subpart A, to reflect those statutory changes. In addition, as explained below, this rule amends provisions in Sec. 16.10 (Fees) to incorporate the new statutory restrictions on charging fees in certain circumstances, to reflect developments in the case law, and to streamline the description of the factors to be [[Page 726]] considered when making fee waiver determinations. Section 16.1 (General provisions) is revised to delete the reference to the Department's policy regarding discretionary release of information whenever disclosure would not foreseeably harm an interest protected by a FOIA exemption, because that foreseeable harm standard is now part of the FOIA statute itself as a result of the FOIA Improvement Act of 2016. Section 16.2 (Proactive disclosure of Department records) is revised to more clearly reflect the FOIA Improvement Act of 2016's requirement that records the FOIA requires agencies to make available for public inspection must be in an electronic format, rather than simply made available for public inspection and copying. Section 16.4 (Responsibility for responding to requests) is revised to remove the reference to discretionary release of information when another component or agency is better able to make the determination because the foreseeable harm standard is now part of the FOIA statute itself as a result of the FOIA Improvement Act of 2016. Section 16.5 (Timing of responses to requests) is revised to include a requirement that components notify requesters of the availability of assistance from the Office of Government Information Services (OGIS) at the National Archives and Records Administration when the component gives notice to requesters that the request involves unusual circumstances. This notification is required by the FOIA Improvement Act of 2016. Section 16.6 (Responses to requests) is revised to include requirements that components notify requesters of the availability of assistance from a FOIA Public Liaison and OGIS when providing requesters with responses to their requests. These notifications are required by the FOIA Improvement Act of 2016. Section 16.8 (Administrative appeals) is revised to extend the time to file an administrative appeal to 90 days, in conformity with the 90- day minimum time period established by the FOIA Improvement Act of 2016. This section is also revised to include a new paragraph regarding engaging in dispute resolution services provided by OGIS. Paragraph (b) of Sec. 16.10 (Fees) is revised to conform to recent decisions of the D.C. Circuit Court of Appeals addressing two FOIA fee categories: ``representative of the news media'' and ``educational institution.'' See Cause of Action v. FTC, 799 F.3d 1108 (D.C. Cir. 2015); Sack v. DOD, 823 F.3d 687 (D.C. Cir. 2016). The Department's existing FOIA regulations state that a representative of the news media is ``any person or entity that is organized and operated to publish or broadcast news to the public that actively gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience.'' In Cause of Action, 799 F.3d at 1125, the court held that a representative of the news media need not work for an entity that is ``organized and operated'' to publish or broadcast news. Therefore, the definition of ``representative of the news media'' is revised to remove the ``organized and operated'' requirement. The definition of ``educational institution'' is revised to reflect the holding in Sack, 823 F.3d at 688, that students who make FOIA requests in furtherance of their coursework or other school-sponsored activities may qualify under this requester category. Paragraph (d)(2) of Sec. 16.10, which addresses restrictions on charging fees when the FOIA's time limits are not met, is revised to reflect changes made to those restrictions by the FOIA Improvement Act of 2016. Specifically, these changes reflect that agencies may not charge search fees (or duplication fees for representatives of the news media and educational/non-commercial scientific institution requesters) when the agency fails to comply with the FOIA's time limits. The restriction on charging fees is excused and the agency may charge fees as usual when it satisfies one of three exceptions detailed at 5 U.S.C. 552(a)(4)(A)(viii)(II). Lastly, this rule revises paragraph (k) of Sec. 16.10, which addresses the requirements for a waiver or reduction of fees, to specify that requesters may seek a waiver of fees and to streamline and simplify the description of the factors to be considered by components when making fee waiver determinations. These updates do not substantively change the analysis, but instead present the factors in a way that is clearer to both components and requesters. Rather than six factors, the amended section provides for three overall factors. Specifically, a requester should be granted a fee waiver if the requested information (1) sheds light on the activities and operations of the government; (2) is likely to contribute significantly to public understanding of those operations and activities; and (3) is not primarily in the commercial interest of the requester. This streamlined description facilitates easier understanding and application of the statutory standard. Public Participation The Department is issuing an interim rule to make these revisions in the Department's FOIA regulations, because these changes merely bring the regulations into alignment with the provisions contained in the FOIA Improvement Act of 2016 and with current case law and clarify the procedure the Department uses for making fee waiver determinations. This approach allows these regulatory changes to take effect sooner than would otherwise be possible with the publication of a Notice of Proposed Rulemaking in advance. Nevertheless, the Department welcomes public comments from any interested person on any aspect of the changes made by this interim final rule. Please refer to the ADDRESSES section above. The Department will carefully consider all public comments in the drafting of the final rule. Please note that all comments received are considered part of the public record and are made available for public inspection online at http://www.regulations.gov. The information made available includes personal identifying information (such as name and address) voluntarily submitted by the commenter. If you want to submit personal identifying information (such as your name and address) as part of your comment, but do not want it to be posted online, you must include the phrase ``PERSONAL IDENTIFYING INFORMATION'' in the first paragraph of your comment. You also must locate all the personal identifying information you do not want posted online in the first paragraph of your comment and identify what information you want redacted. If you want to submit confidential business information as part of your comment, but do not want it to be posted online, you must include the phrase ``CONFIDENTIAL BUSINESS INFORMATION'' in the first paragraph of your comment. You also must prominently identify any confidential business information to be redacted within the comment. If a comment has so much confidential business information that it cannot be effectively redacted, all or part of that comment may not be posted on http://www.regulations.gov. Personal identifying information and confidential business information identified and located as set forth above will be placed in the agency's public docket file, but not posted online. If you wish to inspect the agency's public docket file in person, please see the FOR FURTHER INFORMATION CONTACT [[Page 727]] paragraph above to schedule an appointment. Regulatory Certifications Administrative Procedure Act The Department's implementation of this rule as an interim final rule, with provision for post-promulgation public comment, is based on section 553(b) of the Administrative Procedure Act. 5 U.S.C. 553(b). Under section 553(b), an agency may issue a rule without notice of proposed rulemaking and the pre-promulgation opportunity for public comment, with regard to ``interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice.'' The Department has determined that many of the revisions being made are interpretive rules issued by the Department, as they merely advise the public of the Department's construction of the new statute and clarify the application of the substantive law. Moreover, the Department has determined that the remaining revisions are rules of agency procedure or practice, as they do not change the substantive standards the agency applies in implementing the FOIA. The Department has also concluded that there is good cause to find that a pre-publication public comment period is unnecessary. These revisions to the existing regulations in 28 CFR part 16 merely implement the statutory changes, align the Department's regulations with controlling judicial decisions, and clarify agency procedures. Regulatory Flexibility Act This rule amends the Department of Justice's regulations under the FOIA to incorporate certain changes made by the FOIA Improvement Act of 2016, and to reflect developments in the case law and to streamline the description of the factors to be considered when making fee waiver determinations. Because the Department is not required to publish a notice of proposed rulemaking for this rule, a Regulatory Flexibility analysis is not required. 5 U.S.C. 603(a). Executive Orders 12866 and 13563--Regulatory Review This regulation has been drafted and reviewed in accordance with Executive Order 12866, ``Regulatory Planning and Review,'' section 1(b), Principles of Regulation, and in accordance with Executive Order 13563 ``Improving Regulation and Regulatory Review,'' section 1(b), General Principles of Regulation. The Department of Justice has determined that this rule is not a ``significant regulatory action'' under Executive Order 12866, section 3(f), Regulatory Planning and Review, and accordingly this rule has not been reviewed by the Office of Management and Budget. Further, both Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. The Department has assessed the costs and benefits of this regulation and believes that the regulatory approach selected maximizes net benefits. Executive Order 13132--Federalism This regulation will not have substantial direct effects on the States, on the relationship between the national government and the States, or on distribution of power and responsibilities among the various levels of government. Therefore, in accordance with Executive Order 13132, the Attorney General has determined that this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement. Executive Order 12988--Civil Justice Reform This regulation meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988. Unfunded Mandates Reform Act of 1995 This rule will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995. Small Business Regulatory Enforcement Fairness Act of 1996 This rule is not a major rule as defined by section 251 of the Small Business Regulatory Enforcement Fairness Act of 1996. See 5 U.S.C. 804. This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets. List of Subjects in 28 CFR Part 16 Administrative practice and procedure, Freedom of information, Privacy. Accordingly, for the reasons stated in the preamble, 28 CFR Chapter 1, part 16 is amended as follows: PART 16--DISCLOSURE OR PRODUCTION OF MATERIAL OR INFORMATION 0 1. Revise the authority citation for part 16 to read as follows: Authority: 5 U.S.C. 301, 552, 552a, 553; 28 U.S.C. 509, 510, 534; 31 U.S.C. 3717. Sec. 16.1 [Amended] 0 2. In Sec. 16.1, remove the last sentence of paragraph (a). 0 3. In Sec. 16.2, revise the first sentence, to read as follows: Sec. 16.2 Proactive disclosure of Department records. Records that are required by the FOIA to be made available for public inspection in an electronic format may be accessed through the Department's Web site at http://justice.gov/oip/04_2.html. * * * 0 4. In Sec. 16.4, revise the first sentence of paragraph (d) introductory text, to read as follows: Sec. 16.4 Responsibility for responding to requests. * * * * * (d) * * * When reviewing records located by a component in response to a request, the component shall determine whether another component or another agency of the Federal Government is better able to determine whether the record is exempt from disclosure under the FOIA. * * * * * * * * 0 5. In Sec. 16.5, add a sentence at the end of paragraph (c), to read as follows: Sec. 16.5 Timing of responses to requests. * * * * * (c) * * * The component must also alert requesters to the availability of the Office of Government Information Services to provide dispute resolution services. * * * * * 0 6. In Sec. 16.6, add a sentence at the end of paragraph (c), and add paragraph (e)(5), to read as follows: Sec. 16.6 Responses to requests. * * * * * (c) * * *. The component must inform the requester of the availability [[Page 728]] of the FOIA Public Liaison to offer assistance. * * * * * (e) * * * (5) A statement notifying the requester of the assistance available from the component's FOIA Public Liaison and the dispute resolution services offered by the Office of Government Information Services. * * * * * 0 7. In Sec. 16.8: 0 a. Remove the term ``60 calendar days'' in paragraph (a) and add in its place ``90 calendar days''; 0 b. Redesignate paragraph (d) as paragraph (e); and 0 c. Add a new paragraph (d), to read as follows: Sec. 16.8 Administrative appeals. * * * * * (d) Engaging in dispute resolution services provided by OGIS. Mediation is a voluntary process. If a component agrees to participate in the mediation services provided by the Office of Government Information Services, it will actively engage as a partner to the process in an attempt to resolve the dispute. * * * * * 0 6. In Sec. 16.10: 0 a. Revise paragraph (b)(4) and Example 3 to paragraph (b)(4); 0 b. Revise the first sentence of paragraph (b)(6); and 0 c. Revise paragraph (d)(2) and paragraph (k), to read as follows: Sec. 16.10 Fees. * * * * * (b) * * * * * * * * (4) Educational institution is any school that operates a program of scholarly research. A requester in this fee category must show that the request is made in connection with the requester's role at the educational institution. Components may seek assurance from the requester that the request is in furtherance of scholarly research and will advise requesters of their placement in this category. * * * * * Example 3. A student who makes a request in furtherance of the student's coursework or other school-sponsored activities and provides a copy of a course syllabus or other reasonable documentation to indicate the research purpose for the request, would qualify as part of this fee category. * * * * * (6) Representative of the news media is any person or entity that actively gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience. * * * * * * * * (d) * * * (2) If a component 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 paragraph (d)(1) of this section, may not charge duplication fees, except as described in paragraphs (d)(2)(i) through (iii) of this section. (i) If a component has determined that unusual circumstances as defined by the FOIA apply and the agency 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 10 days. (ii) If a component has determined that unusual circumstances as defined by the FOIA apply, and more than 5,000 pages are necessary to respond to the request, the component may charge search fees, or, in the case of requesters described in paragraph (d)(1) of this section, may charge duplication fees if the following steps are taken. The component must have provided timely written notice of unusual circumstances to the requester in accordance with the FOIA and the component must have 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). If this exception is satisfied, the component may charge all applicable fees incurred in the processing of the request. (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. * * * * * (k) Requirements for waiver or reduction of fees. (1) Requesters may seek a waiver of fees by submitting a written application demonstrating how disclosure of the requested information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester. (2) A component must furnish records responsive to a request without charge or at a reduced rate when it determines, based on all available information, that disclosure of the requested information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester. In deciding whether this standard is satisfied the component must consider the factors described in paragraphs (k)(2)(i) through (iii) of this section: (i) Disclosure of the requested information would shed light on the operations or activities of the government. The subject of the request must concern identifiable operations or activities of the Federal Government with a connection that is direct and clear, not remote or attenuated. (ii) Disclosure of the requested information would be likely to contribute significantly to public understanding of those operations or activities. This factor is satisfied when the following criteria are met: (A) Disclosure of the requested records must be meaningfully informative about government operations or activities. The disclosure of information that already is in the public domain, in either the same or a substantially identical form, would not be meaningfully informative if nothing new would be added to the public's understanding. (B) The disclosure must contribute to the understanding of a reasonably broad audience of persons interested in the subject, as opposed to the individual understanding of the requester. A requester's expertise in the subject area as well as the requester's ability and intention to effectively convey information to the public must be considered. Components will presume that a representative of the news media will satisfy this consideration. (iii) The disclosure must not be primarily in the commercial interest of the requester. To determine whether disclosure of the requested information is primarily in the commercial interest of the requester, components will consider the following criteria: (A) Components must identify whether the requester has any commercial interest that would be furthered by the requested disclosure. A commercial interest includes any commercial, trade, or profit interest. Requesters must be given an opportunity to provide explanatory information regarding this consideration. (B) If there is an identified commercial interest, the component must determine whether that is the primary interest furthered by the request. A waiver or reduction of fees is justified when the requirements of paragraphs (k)(2)(i) and (ii) of this [[Page 729]] section are satisfied and any commercial interest is not the primary interest furthered by the request. Components ordinarily will presume that when a news media requester has satisfied the requirements of paragraphs (k)(2)(i) and (ii) of this section, the request is not primarily in the commercial interest of the requester. Disclosure to data brokers or others who merely compile and market government information for direct economic return will not be presumed to primarily serve the public interest. (3) Where only some of the records to be released satisfy the requirements for a waiver of fees, a waiver shall be granted for those records. (4) Requests for a waiver or reduction of fees should be made when the request is first submitted to the component and should address the criteria referenced above. A requester may submit a fee waiver request at a later time so long as the underlying record request is pending or on administrative appeal. When a requester who has committed to pay fees subsequently asks for a waiver of those fees and that waiver is denied, the requester shall be required to pay any costs incurred up to the date the fee waiver request was received. Dated: December 21, 2016. Loretta E. Lynch, Attorney General. [FR Doc. 2016-31508 Filed 1-3-17; 8:45 am] BILLING CODE 4410-BE-P
![Federal Register / Vol. 82, No. 2 / Wednesday, January 4, 2017 / Rules and Regulations 725
Federal
License
Country Entity License requirement Register
review policy citation
* * * * * *
Main Intelligence Directorate, For all items subject to Presumption of denial 82 FR [INSERT FR
a.k.a., the following three the EAR. (See PAGE NUMBER
aliases: § 744.11 of the EAR) AND 1/4/2017]
—Glavnoe Razvedyvatel’noe
Upravlenie;
—GRU; and
—Main Intelligence Department
Khoroshevskoye Shosse 76,
Khodinka, Moscow, Russia; and
Ministry of Defence of the Rus-
sian Federation, Frunzenskaya
nab., 22/2, Moscow 119160,
Russia
* * * * * *
Special Technology Center, a.k.a., For all items subject to Presumption of denial 82 FR [INSERT FR
the following one alias: the EAR. (See PAGE NUMBER
—STC, Ltd § 744.11 of the EAR) AND 1/4/2017]
Gzhatskaya 21 k2, St. Petersburg,
Russia; and 21–2 Gzhatskaya
Street, St. Petersburg, Russia.
* * * * * *
Zorsecurity Center (f.k.a., Esage For all items subject to Presumption of denial 82 FR [INSERT FR
Lab), a.k.a., the following one the EAR. (See PAGE NUMBER
alias: § 744.11 of the EAR) AND 1/4/2017]
—TSOR Security
Luzhnetskaya Embankment 2⁄4,
Building 17, Office 444, Moscow
119270, Russia
* * * * * *
Dated: December 29, 2016. considered when making fee waiver FOR FURTHER INFORMATION CONTACT:
Eric L. Hirschhorn, determinations. Lindsay Roberts, Attorney-Advisor,
Under Secretary of Commerce for Industry DATES: Effective Date: This rule is Office of Information Policy, (202) 514–
and Security. effective February 3, 2017. 3642.
[FR Doc. 2016–31969 Filed 12–30–16; 4:15 pm] Comment Date: Public comments SUPPLEMENTARY INFORMATION:
BILLING CODE 3510–33–P must be submitted by March 6, 2017. This rule amends the Department’s
Comments submitted by mail will be regulations under the Freedom of
accepted as timely if they are Information Act to incorporate certain
DEPARTMENT OF JUSTICE postmarked on or before that date. changes made to the FOIA, 5 U.S.C. 552,
Electronic comments may be submitted by the FOIA Improvement Act of 2016,
28 CFR Part 16 via www.regulations.gov prior to Public Law 114–185, 130 Stat. 538 (June
[Docket No. OAG 155] midnight Eastern Time at the end of that 30, 2016). The FOIA Improvement Act
day. of 2016 provides that agencies must
RIN 1105–AB51; A.G. Order No. 3803–2016 ADDRESSES: You may submit written allow a minimum of 90 days for
comments, identified by RIN 1105– requesters to file an administrative
Revision of Department of Justice appeal. The Act also requires that
AB51 or Docket No. OAG 155, by one
Freedom of Information Act agencies notify requesters of the
of the following methods:
Regulations
• Federal eRulemaking Portal: http:// availability of dispute resolution
AGENCY: Department of Justice. www.regulations.gov. Follow the services at various times throughout the
ACTION:Interim final rule with request instructions for submitting comments. FOIA process. Finally, the Act codifies
for comments. • Mail: Lindsay Roberts, Attorney- the Department of Justice’s ‘‘foreseeable
Advisor, Office of Information Policy, harm’’ standard. This rule updates the
SUMMARY: This rule amends the 1425 New York Avenue NW., Room Department’s regulations in 28 CFR part
Department of Justice’s regulations 11050, Washington, DC 20530. 16, subpart A, to reflect those statutory
under the Freedom of Information Act Instructions: All submissions received changes.
jstallworth on DSK7TPTVN1PROD with RULES
(FOIA) to incorporate certain changes must include the agency name and In addition, as explained below, this
made to the FOIA by the FOIA docket number for this rulemaking. For rule amends provisions in § 16.10 (Fees)
Improvement Act of 2016. In addition, additional details on submitting to incorporate the new statutory
this rule amends certain provisions in comments, see the ‘‘Public restrictions on charging fees in certain
the fee section to reflect developments Participation’’ heading of the circumstances, to reflect developments
in the case law and to streamline the SUPPLEMENTARY INFORMATION section of in the case law, and to streamline the
description of the factors to be this document. description of the factors to be
VerDate Sep<11>2014 15:22 Jan 03, 2017 Jkt 241001 PO 00000 Frm 00015 Fmt 4700 Sfmt 4700 E:\FR\FM\04JAR1.SGM 04JAR1](https://thefederalregister.org/doc/82_FR_727/page/1.svg)
![Federal Register / Vol. 82, No. 2 / Wednesday, January 4, 2017 / Rules and Regulations 727
paragraph above to schedule an Regulatory Planning and Review, and based enterprises in domestic and
appointment. accordingly this rule has not been export markets.
reviewed by the Office of Management
Regulatory Certifications List of Subjects in 28 CFR Part 16
and Budget. Further, both Executive
Administrative Procedure Act Orders 12866 and 13563 direct agencies Administrative practice and
The Department’s implementation of to assess all costs and benefits of procedure, Freedom of information,
this rule as an interim final rule, with available regulatory alternatives and, if Privacy.
provision for post-promulgation public regulation is necessary, to select Accordingly, for the reasons stated in
comment, is based on section 553(b) of regulatory approaches that maximize the preamble, 28 CFR Chapter 1, part 16
the Administrative Procedure Act. 5 net benefits (including potential is amended as follows:
U.S.C. 553(b). Under section 553(b), an economic, environmental, public health
agency may issue a rule without notice and safety effects, distributive impacts, PART 16—DISCLOSURE OR
of proposed rulemaking and the pre- and equity). Executive Order 13563 PRODUCTION OF MATERIAL OR
promulgation opportunity for public emphasizes the importance of INFORMATION
comment, with regard to ‘‘interpretative quantifying both costs and benefits, of
■ 1. Revise the authority citation for part
rules, general statements of policy, or reducing costs, of harmonizing rules,
16 to read as follows:
rules of agency organization, procedure, and of promoting flexibility. The
or practice.’’ The Department has Department has assessed the costs and Authority: 5 U.S.C. 301, 552, 552a, 553; 28
determined that many of the revisions benefits of this regulation and believes U.S.C. 509, 510, 534; 31 U.S.C. 3717.
being made are interpretive rules issued that the regulatory approach selected § 16.1 [Amended]
by the Department, as they merely maximizes net benefits.
advise the public of the Department’s ■ 2. In § 16.1, remove the last sentence
Executive Order 13132—Federalism of paragraph (a).
construction of the new statute and
clarify the application of the substantive This regulation will not have ■ 3. In § 16.2, revise the first sentence,
law. Moreover, the Department has substantial direct effects on the States, to read as follows:
determined that the remaining revisions on the relationship between the national
§ 16.2 Proactive disclosure of Department
are rules of agency procedure or government and the States, or on records.
practice, as they do not change the distribution of power and
Records that are required by the FOIA
substantive standards the agency responsibilities among the various
to be made available for public
applies in implementing the FOIA. The levels of government. Therefore, in
inspection in an electronic format may
Department has also concluded that accordance with Executive Order 13132,
be accessed through the Department’s
there is good cause to find that a pre- the Attorney General has determined
Web site at http://justice.gov/oip/04_
publication public comment period is that this rule does not have sufficient
2.html. * * *
unnecessary. These revisions to the federalism implications to warrant the
preparation of a federalism summary ■ 4. In § 16.4, revise the first sentence of
existing regulations in 28 CFR part 16
merely implement the statutory impact statement. paragraph (d) introductory text, to read
changes, align the Department’s as follows:
Executive Order 12988—Civil Justice
regulations with controlling judicial Reform § 16.4 Responsibility for responding to
decisions, and clarify agency requests.
procedures. This regulation meets the applicable
standards set forth in sections 3(a) and * * * * *
Regulatory Flexibility Act (d) * * * When reviewing records
3(b)(2) of Executive Order 12988.
located by a component in response to
This rule amends the Department of Unfunded Mandates Reform Act of 1995 a request, the component shall
Justice’s regulations under the FOIA to
This rule will not result in the determine whether another component
incorporate certain changes made by the
expenditure by State, local, and tribal or another agency of the Federal
FOIA Improvement Act of 2016, and to
governments, in the aggregate, or by the Government is better able to determine
reflect developments in the case law
private sector, of $100 million or more whether the record is exempt from
and to streamline the description of the
in any one year, and it will not disclosure under the FOIA. * * *
factors to be considered when making
fee waiver determinations. Because the significantly or uniquely affect small * * * * *
Department is not required to publish a governments. Therefore, no actions were ■ 5. In § 16.5, add a sentence at the end
notice of proposed rulemaking for this deemed necessary under the provisions of paragraph (c), to read as follows:
rule, a Regulatory Flexibility analysis is of the Unfunded Mandates Reform Act
of 1995. § 16.5 Timing of responses to requests.
not required. 5 U.S.C. 603(a).
* * * * *
Executive Orders 12866 and 13563— Small Business Regulatory Enforcement (c) * * * The component must also
Regulatory Review Fairness Act of 1996 alert requesters to the availability of the
This regulation has been drafted and This rule is not a major rule as Office of Government Information
reviewed in accordance with Executive defined by section 251 of the Small Services to provide dispute resolution
Order 12866, ‘‘Regulatory Planning and Business Regulatory Enforcement services.
Review,’’ section 1(b), Principles of Fairness Act of 1996. See 5 U.S.C. 804. * * * * *
Regulation, and in accordance with This rule will not result in an annual ■ 6. In § 16.6, add a sentence at the end
jstallworth on DSK7TPTVN1PROD with RULES
Executive Order 13563 ‘‘Improving effect on the economy of $100 million of paragraph (c), and add paragraph
Regulation and Regulatory Review,’’ or more; a major increase in costs or (e)(5), to read as follows:
section 1(b), General Principles of prices; or significant adverse effects on
Regulation. The Department of Justice competition, employment, investment, § 16.6 Responses to requests.
has determined that this rule is not a productivity, innovation, or on the * * * * *
‘‘significant regulatory action’’ under ability of United States-based (c) * * *. The component must
Executive Order 12866, section 3(f), enterprises to compete with foreign- inform the requester of the availability
VerDate Sep<11>2014 15:22 Jan 03, 2017 Jkt 241001 PO 00000 Frm 00017 Fmt 4700 Sfmt 4700 E:\FR\FM\04JAR1.SGM 04JAR1](https://thefederalregister.org/doc/82_FR_727/page/3.svg)
![Federal Register / Vol. 82, No. 2 / Wednesday, January 4, 2017 / Rules and Regulations 729
section are satisfied and any commercial EPA on December 14, 2012 (2012 SIP purposes of the Moderate area plan for
interest is not the primary interest submission), and supplemented the the 2006 24-hour PM2.5 NAAQS. The
furthered by the request. Components attainment plan on December 24, 2014 EPA is also approving Idaho’s
ordinarily will presume that when a (2014 amendment). The EPA is evaluation of, and imposition of,
news media requester has satisfied the approving certain portions, reasonably available control measure
requirements of paragraphs (k)(2)(i) and disapproving other portions, and and reasonably available control
(ii) of this section, the request is not deferring action on the remaining technology (RACM/RACT) level
primarily in the commercial interest of portions of the attainment plan. controls on appropriate sources in the
the requester. Disclosure to data brokers DATES: This final rule is effective Idaho portion of the nonattainment area.
or others who merely compile and February 3, 2017. The EPA is disapproving the Idaho
market government information for attainment plan with respect to the
ADDRESSES: The EPA has established a
direct economic return will not be contingency measure requirement.
docket for this action under Docket ID
presumed to primarily serve the public Finally, the EPA is deferring action on
No. EPA–R10–OAR–2015–0067. All
interest. the submissions with respect to the
documents in the docket are listed on
(3) Where only some of the records to attainment demonstration, reasonable
the http://www.regulations.gov Web
be released satisfy the requirements for further progress, quantitative milestone,
site. Although listed in the index, some and motor vehicle emission budget
a waiver of fees, a waiver shall be information may not be publicly
granted for those records. requirements to a future date.
available, i.e., Confidential Business With respect to the deferred Moderate
(4) Requests for a waiver or reduction Information or other information the
of fees should be made when the request area plan elements the EPA notes that
disclosure of which is restricted by on December 16, 2016, the Agency
is first submitted to the component and statute. Certain other material, such as
should address the criteria referenced published a proposed determination,
copyrighted material, is not placed on based on complete, quality-assured air
above. A requester may submit a fee the Internet and is publicly available
waiver request at a later time so long as quality and certified monitoring data,
only in hard copy form. Publicly that the Logan UT–ID nonattainment
the underlying record request is available docket materials are available
pending or on administrative appeal. area failed to attain the 24-hour PM2.5
at http://www.regulations.gov or at EPA NAAQS by the applicable attainment
When a requester who has committed to Region 10, Office of Air and Waste, 1200
pay fees subsequently asks for a waiver date (81 FR 91088). If the EPA finalizes
Sixth Avenue, Seattle, Washington the determination that Logan UT–ID did
of those fees and that waiver is denied, 98101. The EPA requests that you
the requester shall be required to pay not attain, then the nonattainment area
contact the person listed in the FOR will be reclassified from ‘‘Moderate’’ to
any costs incurred up to the date the fee FURTHER INFORMATION CONTACT section to
waiver request was received. ‘‘Serious’’ and Idaho will be required to
schedule your inspection. The Regional submit a Serious area attainment plan to
Dated: December 21, 2016. Office’s official hours of business are meet additional statutory requirements.
Loretta E. Lynch, Monday through Friday, 8:30 to 4:30, The EPA anticipates that Idaho may
Attorney General. excluding Federal holidays. elect to reevaluate and address the
[FR Doc. 2016–31508 Filed 1–3–17; 8:45 am] FOR FURTHER INFORMATION CONTACT: Jeff deferred elements of the Moderate area
BILLING CODE 4410–BE–P Hunt, Air Planning Unit, Office of Air plan, as well as the contingency
and Waste (OAW–150), Environmental measure requirements, in the context of
Protection Agency, Region 10, 1200 developing the Serious area attainment
ENVIRONMENTAL PROTECTION Sixth Ave, Suite 900, Seattle, WA plan.
AGENCY 98101; telephone number: (206) 553– The EPA received three sets of
0256; email address: hunt.jeff@epa.gov. comments on the proposed action that
40 CFR Part 52 SUPPLEMENTARY INFORMATION: pertain to portions of the 2012 SIP
submission and 2014 amendment that
[EPA–R10–OAR–2015–0067; FRL–9957–71– Table of Contents are relevant to this final action. The EPA
Region 10]
I. Background Information is responding to those comments in this
Partial Approval and Partial II. Response to Comments notice. Comments that pertain to the
Disapproval of Attainment Plan for the III. Final Action attainment demonstration, reasonable
Idaho Portion of the Logan, Utah/Idaho IV. Consequences of a Disapproved SIP further progress, quantitative milestone,
PM2.5 Nonattainment Area V. Statutory and Executive Orders Review and motor vehicle emissions budget
I. Background Information requirements will be addressed when
AGENCY: Environmental Protection the EPA takes final action on these plan
Agency (EPA). On October 27, 2016, the EPA elements.
ACTION: Final rule. proposed to approve certain portions
and disapprove other portions of Idaho’s II. Response to Comments
SUMMARY: The Environmental Protection 2012 SIP submission and 2014 Commenter 1, comment 1: A citizen
Agency (EPA) is taking final action on amendment (81 FR 74741). An observed, ‘‘As I have traveled north out
portions of a state implementation plan explanation of the CAA requirements, a of Logan toward Idaho I have noticed
(SIP) submission from the State of detailed analysis of the submittals, and that the inversion gets lighter. The PM2.5
Idaho. The SIP submission addresses the EPA’s reasons for proposing partial that hangs thick and cloudy over Logan
attainment plan requirements for the approval and partial disapproval were turns to spidery, wispy clouds that just
jstallworth on DSK7TPTVN1PROD with RULES
Idaho portion of the Logan, Utah-Idaho provided in the notice of proposed reach across the mountains. They reach
nonattainment area (Logan UT–ID) for rulemaking, and will not be restated and then disappear completely. I don’t
the 2006 24-hour PM2.5 National here. In this action, the EPA is think the emissions and PM2.5 are
Ambient Air Quality Standards approving Idaho’s determination of coming from cars in Franklin County
(NAAQS). The Idaho Department of which pollutants must be evaluated for Idaho. I think that they are coming from
Environmental Quality (IDEQ) control in the Idaho portion of the Logan and traveling up the valley into
submitted the attainment plan to the Logan, UT–ID nonattainment area for Franklin County, Idaho.’’
VerDate Sep<11>2014 15:22 Jan 03, 2017 Jkt 241001 PO 00000 Frm 00019 Fmt 4700 Sfmt 4700 E:\FR\FM\04JAR1.SGM 04JAR1](https://thefederalregister.org/doc/82_FR_727/page/5.svg)
Document Created: 2017-01-04 00:29:31
Document Modified: 2017-01-04 00:29:31
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Rules and Regulations | |
| Action | Interim final rule with request for comments. | |
| Dates | Effective Date: This rule is effective February 3, 2017. | |
| Contact | Lindsay Roberts, Attorney-Advisor, Office of Information Policy, (202) 514-3642. | |
| FR Citation | 82 FR 725 | |
| RIN Number | 1105-AB51 and 3803-2016 | |
| CFR Associated | Administrative Practice and Procedure; Freedom of Information and Privacy |
2025 Federal Register | Disclaimer | Privacy Policy
USC | CFR | eCFR