[Federal Register Volume 81, Number 244 (Tuesday, December 20, 2016)]
[Rules and Regulations]
[Pages 92692-92694]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-30601]



Office of the Secretary

43 CFR Part 2

[No. DOI-2016-0006; 17XD4523WS DS10200000 DWSN00000.000000 WBS DP10202]
RIN 1093-AA21

Freedom of Information Act Regulations

AGENCY: Office of the Secretary, Interior.

ACTION: Final rule.


SUMMARY: This rule revises the regulations that the Department of the 
Interior (Department) follows in processing records under the Freedom 
of Information Act in part to comply with the FOIA Improvement Act of 
2016. The revisions clarify and update procedures for requesting 
information from the Department and procedures that the Department 
follows in responding to requests from the public.

DATES: This rule is effective on January 19, 2017.

FOR FURTHER INFORMATION CONTACT: Cindy Cafaro, Office of Executive 
Secretariat and Regulatory Affairs, 202-208-5342.


I. Why We're Publishing This Rule and What It Does

A. Introduction

    In late 2012, the Department published a final rule updating and 
replacing the Department's previous Freedom of Information Act (FOIA) 
regulations. In early 2016, the Department updated that final rule, 
primarily to authorize the Office of Inspector General to process their 
own FOIA appeals. On June 30, 2016, the FOIA Improvement Act of 2016, 
Public Law 114-185, 130 Stat. 538 (the Act) was enacted. The Act 
specifically requires all agencies to review and update their FOIA 
regulations in accordance with its provisions. In addition, the 
Department has received feedback from its FOIA practitioners and 
requesters and identified areas where it would be possible to further 
update, clarify, and streamline the language of some procedural 
    On September 20, 2016, the Department published a proposed rule in 
the Federal Register (81 FR 64401) to implement the Act and address the 
feedback received. We requested comments on the proposed rule over a 
60-day period ending on November 21, 2016, and we considered all 
comments received in drafting this final rule. Accordingly, the 
Department is making the following changes to 43 CFR part 2:
     Section 2.4(e) is amended to provide additional guidance 
on how bureaus handle misdirected requests.
     Section 2.15 is amended to bring attention to the 
Department's existing FOIA Request Tracking Tool (https://foia.doi.gov/requeststatus).
     Section 2.19 is amended to bring further attention to the 
services provided by the Office of Government Information Services 
(OGIS), in accordance with the provisions of the Act.
     Section 2.21 is amended to reflect that the OGIS would be 
defined earlier in the regulations than it previously had been and to 
reference bureaus' FOIA Public Liaisons, in addition to the OGIS.
     Section 2.24 is amended to require a foreseeable harm 
analysis, in accordance with the provisions of the Act, and to require 
bureaus to provide an explanation to the requester when an estimate of 
the volume of any records withheld in full or in part is not provided.
     Section 2.37(f) is amended to reflect the provisions of 
the Act.
     Section 2.39 is amended to remove what will be superfluous 
language, after the changes to section 2.37(f).
     Section 2.58 is amended to provide more time for 
requesters to appeal, in accordance with the provisions of the Act.
     Section 2.66(d) is amended to reflect an updated Web site 

B. Discussion of Comments

    Six commenters responded to the invitation for comments, including 
two commenters from subcomponents of Federal agencies and four 
commenters from non-Federal sources. Two of these commenters offered 
substantive suggestions on specific existing provisions of the rule 
that are not being amended; these suggestions are outside the scope of 
this rulemaking and are not

[[Page 92693]]

addressed below. The commenters generally supported the proposed 
changes, with the exception of one commenter who stated the Act makes 
it harder to collect fees in FOIA requests that require submitter 
notifications (a comment that, because it concerns the Act itself, is 
not within the scope of this rulemaking). However, one commenter 
suggested that Sec.  2.21 should require certain bureau responses to 
requesters inform the requesters of their right to seek assistance from 
FOIA Public Liaisons, in accordance with the Act. We agree and have 
modified our edits to this section accordingly.

C. Technical and Procedural Comments

    In the interests of clarity and consistency, the Department made 
very minor clarifications and added, moved, and deleted phrases in 
Sec.  2.37(f)(2)(i) and (ii). The Department also updated a Web site 
link in Sec.  2.66(d).

II. Compliance With Laws and Executive Orders

1. Regulatory Planning and Review (Executive Orders 12866 and 13563)
    Executive Order (E.O.) 12866 provides that the Office of 
Information and Regulatory Affairs will review all significant rules. 
The Office of Information and Regulatory Affairs has determined that 
this rulemaking is not significant.
    Executive Order 13563 reaffirms the principles of E.O. 12866 while 
calling for improvements in the nation's regulatory system to promote 
predictability, to reduce uncertainty, and to use the best, most 
innovative, and least burdensome tools for achieving regulatory ends. 
The Executive Order directs agencies to consider regulatory approaches 
that reduce burdens and maintain flexibility and freedom of choice for 
the public where these approaches are relevant, feasible, and 
consistent with regulatory objectives. E.O. 13563 emphasizes further 
that regulations must be based on the best available science and that 
the rulemaking process must allow for public participation and an open 
exchange of ideas. We have developed this rule in a manner consistent 
with these requirements.
2. Regulatory Flexibility Act
    The Department of the Interior certifies that this rule will not 
have a significant economic effect on a substantial number of small 
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
3. Small Business Regulatory Enforcement Fairness Act
    This is not a major rule under 5 U.S.C. 804(2), the Small Business 
Regulatory Enforcement Fairness Act. This rule:
    a. Does not have an annual effect on the economy of $100 million or 
    b. Will not cause a major increase in costs or prices for 
consumers, individual industries, Federal, State, or local government 
agencies, or geographic regions.
    c. Does not have significant adverse effects on competition, 
employment, investment, productivity, innovation, or the ability of 
U.S.-based enterprises to compete with foreign-based enterprises.
4. Unfunded Mandates Reform Act
    This rule does not impose an unfunded mandate on State, local, or 
tribal governments or the private sector of more than $100 million per 
year. This rule does not have a significant or unique effect on State, 
local, or tribal governments or the private sector. A statement 
containing the information required by the Unfunded Mandates Reform Act 
(2 U.S.C. 1531 et seq.) is not required.
5. Takings (E.O. 12630)
    In accordance with Executive Order 12630, this rule does not have 
significant takings implications. A takings implication assessment is 
not required.
6. Federalism (E.O. 13132)
    In accordance with Executive Order 13132, this rule does not have 
sufficient federalism implications to warrant the preparation of a 
federalism summary impact statement. It would not substantially and 
directly affect the relationship between the Federal and state 
governments. A federalism summary impact statement is not required.
7. Civil Justice Reform (E.O. 12988)
    In accordance with Executive Order 12988, the Office of the 
Solicitor has determined that this rule does not unduly burden the 
judicial system and meets the requirements of sections 3(a) and 3(b)(2) 
of the Executive Order.
8. Consultation With Indian Tribes (E.O. 13175)
    Under the criteria in Executive Order 13175, we have evaluated this 
rule and determined that it has no potential effects on federally 
recognized Indian tribes. This rule does not have tribal implications 
that impose substantial direct compliance costs on Indian Tribal 
9. Paperwork Reduction Act
    This rule does not contain information collection requirements, and 
a submission to the Office of Management and Budget under the Paperwork 
Reduction Act is not required.
10. National Environmental Policy Act
    This rule does not constitute a major Federal action significantly 
affecting the quality of the human environment. A detailed statement 
under the National Environmental Policy Act of 1969, 42 U.S.C. 4321 et 
seq. (NEPA), is not required. Pursuant to 43 CFR 46.205(b) and 43 CFR 
46.210(i), the Department of the Interior NEPA implementing procedures 
exclude from preparation of an environmental assessment or impact 
statement ``[p]olicies, directives, regulations, and guidelines: that 
are of an administrative, financial, legal, technical, or procedural 
nature. . . .'' None of the extraordinary circumstances listed in 43 
CFR 46.215 exists for this rule. Accordingly, this rule is 
categorically excluded from environmental analysis under 43 CFR 
11. Effects on the Energy Supply (E.O. 13211)
    This rule is not a significant energy action under the definition 
in Executive Order 13211. A Statement of Energy Effects is not 
required. This rule will not have a significant effect on the nation's 
energy supply, distribution, or use.
12. Clarity of This Regulation
    We are required by Executive Orders 12866 and 12988 and by the 
Presidential Memorandum of June 1, 1998, to write all rules in plain 
language. This means that each rule we publish must:
    (a) Be logically organized;
    (b) Use the active voice to address readers directly;
    (c) Use clear language rather than jargon;
    (d) Be divided into short sections and sentences; and
    (e) Use lists and tables wherever possible.

List of Subjects in 43 CFR Part 2

    Freedom of information.

Elizabeth Klein,
Principal Deputy Assistant Secretary for Policy, Management and Budget.

    For the reasons stated in the preamble, the Department of the 
Interior amends part 2 of title 43 of the Code of Federal Regulations 
as follows:

[[Page 92694]]


1. The authority citation for part 2 continues to read as follows:

    Authority: 5 U.S.C. 301, 552, 552a, 553; 31 U.S.C. 3717; 43 
U.S.C. 1460, 1461.

Subpart B--How to Make a Request

2. In Sec.  2.4, revise paragraph (e) to read as follows:

Sec.  2.4  Does where you send your request affect its processing?

* * * * *
    (e) If your request is received by a bureau that believes it is not 
the appropriate bureau to process your request, the bureau that 
received your request will attempt to contact you (if possible, via 
telephone or email) to confirm that you deliberately sent your request 
to that bureau for processing. If you do not confirm this, the bureau 
will deem your request misdirected and route the misdirected request to 
the appropriate bureau to respond under the basic time limit outlined 
in Sec.  2.17.
* * * * *

Subpart D--Timing of Responses to Requests

3. In Sec.  2.15, add paragraph (g) to read as follows:

Sec.  2.15  What is multitrack processing and how does it affect your 

* * * * *
    (g) You may track the status of your request, including its 
estimated processing completion date, at https://foia.doi.gov/requeststatus/.

Sec.  2.19  [Amended]

4. In Sec.  2.19(b)(2), add the words ``, and notify you of your right 
to seek dispute resolution from the Office of Government Information 
Services (OGIS)'' after the words ``you and the bureau''.

Subpart E--Responses to Requests

5. Amend Sec.  2.21(a) by removing the second sentence and adding two 
sentences in its place to read as follows:

Sec.  2.21  How will the bureau respond to requests?

    (a) * * * The bureau's written response will include a statement 
about the services offered by its FOIA Public Liaison. The bureau's 
written response will also include a statement about the services 
offered by OGIS, using standard language that can be found at: https://
* * * * *

Sec.  2.24  [Amended]

6. Amend Sec.  2.24 by:
a. In paragraph (b)(3), adding the words ``, along with a statement 
that the bureau reasonably foresees that disclosure would harm an 
interest protected by the applied exemption(s) or disclosure is 
prohibited by law'' after the words ``or in part''; and
b. In paragraph (b)(4), adding the word ``including'' after the word 
``unless'' and adding the words ``and the bureau explains this harm to 
you'' after the words ``withhold the records''.

Subpart G--Fees

7. In Sec.  2.37, revise paragraph (f) to read as follows:

Sec.  2.37  What general principles govern fees?

* * * * *
    (f) If the bureau does not comply with any time limit in the FOIA:
    (1) Except as provided in paragraph (f)(2) of this section, the 
bureau cannot assess any search fees (or, if you are in the fee 
category of a representative of the news media or an educational and 
noncommercial scientific institution, duplication fees).
    (2)(i) If the bureau has determined that unusual circumstances 
apply (as the term is defined in Sec.  2.70) and the bureau provided 
you a timely written notice to extend the basic time limit in 
accordance with Sec.  2.19, the noncompliance is excused for an 
additional 10 workdays.
    (ii) If the bureau has determined that unusual circumstances apply 
and more than 5,000 pages are necessary to respond to the request, the 
noncompliance is excused if the bureau has provided you a timely 
written notice in accordance with Sec.  2.19 and has discussed with you 
via written mail, email, or telephone (or made not less than 3 good-
faith attempts to do so) how you could effectively limit the scope of 
the request.
    (iii) If a court has determined that exceptional circumstances 
exist (as that term is defined in Sec.  2.70), the noncompliance is 
excused for the length of time provided by the court order.
* * * * *

Sec.  2.39  [Amended]

8. In Sec.  2.39, remove the paragraph (a) designation and remove 
paragraph (b).

Subpart H--Administrative Appeals

Sec.  2.58  [Amended]

9. In Sec.  2.58(a) and (b), remove the number ``30'' and add in its 
place the number ``90''.

Subpart I--General Information

Sec.  2.66  [Amended]

10. In Sec.  2.66(d), remove the Web site address ``http://www.doi.gov/
foia/servicecenters.cfm'' and add in its place the Web site address 
[FR Doc. 2016-30601 Filed 12-19-16; 8:45 am]