[Federal Register Volume 81, Number 248 (Tuesday, December 27, 2016)]
[Rules and Regulations]
[Pages 94932-94934]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-30670]


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FEDERAL RESERVE SYSTEM

12 CFR Part 261

[Docket No. R-1556]
 RIN 7100 AE 65


Rules Regarding Availability of Information

AGENCIES:  Board of Governors of the Federal Reserve System 
(``Board'').

ACTION: Interim final rule.

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SUMMARY: The Board is adopting, and inviting comment on, an interim 
final rule to amend its regulations for processing requests under the 
Freedom of Information Act (``FOIA'') pursuant to the FOIA Improvement 
Act of 2016 (the ``Act''). The amendments clarify and update procedures 
for requesting information from the Board, extend the deadline for 
administrative appeals, and add information on dispute resolution 
services.

DATES: This interim final rule is effective December 27, 2016. Comments 
should be received on or before February 27, 2017.

ADDRESSES: You may submit comments, identified by Docket No. R-1556 and 
RIN No. 7100 AE-65, by any of the following methods:
     Agency Web site: http://www.federalreserve.gov. Follow the 
instructions for submitting comments at http://www.federalreserve.gov/generalinfo/foia/ProposedRegs.cfm.
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Email: [email protected]. Include the 
docket number in the subject line of the message.
     Fax: (202) 452-3819 or (202) 452-3102.
     Mail: Robert deV. Frierson, Secretary, Board of Governors 
of the Federal Reserve System, 20th Street and Constitution Avenue NW., 
Washington, DC 20551.
    All public comments will be made available on the Board's Web site 
at http://www.federalreserve.gov/generalinfo/foia/ProposedRegs.cfm as 
submitted, unless modified for technical reasons. Accordingly, your 
comments will not be edited to remove any identifying or contact 
information. Public comments may also be viewed electronically or in 
paper form in Room 3515, 1801 K Street (between 18th and 19th Streets 
NW.), Washington, DC 20006, between 9:00 a.m. and 5:00 p.m. on 
weekdays.

FOR FURTHER INFORMATION CONTACT: 
    Board: Katherine Wheatley, Associate General Counsel, (202) 452-
3779; or Misty Mirpuri, Senior Attorney, (202) 452-2597; Board of 
Governors of the Federal Reserve System, 20th and C Streets NW., 
Washington, DC 20551.

SUPPLEMENTARY INFORMATION: 

I. Background

    This interim rule reflects changes to the Board's Rules Regarding 
Availability of Information (``Board's Rules'') required by the FOIA 
Improvement Act of 2016 (the ``Improvement Act'').\1\ The Improvement 
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 they provide dispute resolution services 
at various times throughout the FOIA process. Accordingly, the Board is 
adopting this interim final rule to comply with the statutory 
requirements of the Improvement Act.
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    \1\ Public Law 114-185, 130 Stat. 538 (2016).
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II. Description of the Final Rule

    This interim final rule makes conforming amendments throughout part 
261 of the Board's Rules to adopt the statutory exemptions and 
exceptions required by the Improvement Act. It also explains general 
policies and procedures for requesters seeking access to records and 
for processing requests by the Board's Freedom of Information Office.
    Section 261.10--Published information. The Improvement Act requires 
agencies to make certain records available in an electronic format. 
Thus, we are amending this section to include language that the Index 
to Board Actions will be maintained in an electronic format. In 
addition, we are removing the reference to the pedestrian entrance for 
Publications Services because it is no longer accurate.
    Section 261.11--Records available for public inspection. We are 
amending this section, including its heading, to clarify when and how 
the Board's records will be available for public inspection. 
Specifically, we are removing references to ``copying'' and adding in 
the text of the rule that records will be available ``in an electronic 
format'' to reflect the Improvement Act's change.\2\ We are also 
removing outdated information about records created after 1996 and 
incorrect information about procedures for obtaining certain reporting 
forms from the National Technical Information Service. As required by 
the Improvement Act, this section will now also provide that the Board 
will make available for public inspection records that have been 
released under section 261.12 and have been requested three or more 
times.
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    \2\ 5 U.S.C. 552(a)(2).
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    Section 261.12--Records available to public upon request. We are 
amending this section to remove one of the Board's FOI Office's 
incorrect facsimile number and adding the Board's Web site address for 
individuals to submit FOIA requests to the Board online.
    Section 261.13--Processing requests. We are amending this section 
to describe the process for the Board to extend its time for response 
in unusual circumstances. We are also adding language reflecting that 
all responses to FOIA requests will advise the requester of his or her 
right to seek assistance from the Board's FOIA Public Liaison. In 
keeping with the language of FOIA, the new language refers to ``adverse 
determinations'' rather than ``denials.'' The new language describes 
adverse determinations that may be appealed, and extends the time for 
appeal from 10 days to 90 days in accordance with the Improvement Act. 
The revised language also provides that when making an adverse 
determination, the Board will advise the requester of the right to seek 
dispute resolution services from the Board's FOIA Public Liaison or 
from the Office of Government Information Services. We are also adding 
an email address for requesters to submit an appeal to the Board.
    Section 261.14--Exemptions from disclosure. We are adding language 
to state that the Board will not withhold records based on the 
deliberative process privilege if the records were created 25 years or 
more before the date on which the records were requested, and that the 
Board will withhold records only when it reasonably foresees that 
disclosure would harm an interest

[[Page 94933]]

protected by an exemption described in the section, as required by the 
Improvement Act.
    Section 261.17--Fee schedules; waiver of fees. We are amending this 
section to provide restrictions on the Board's ability to charge fees 
as required by the Improvement Act.
    The Board notes that the Improvement Act provides federal agencies 
with no discretion in the implementation of the rule, and requires that 
conforming amendments to agency-specific rules become effective within 
180 days of the Act's enactment. Accordingly, this interim rule is 
final and effective on December 27, 2016. The Board is providing an 
opportunity for comment and will address any comments received in a 
subsequent rulemaking.

III. Administrative Law Matters

Administrative Procedure Act

    This rule is not subject to the provisions of the Administrative 
Procedure Act (``APA''), 5 U.S.C. 553, requiring notice, public 
participation, and deferred effective date. The FOIA Improvement Act of 
2016 provides federal agencies with no discretion in the implementation 
of the substantive amendments made in this rule, and it also requires 
that conforming amendments to agency-specific rules become effective as 
of December 27, 2016. For these reasons, the Board finds good cause to 
determine that public notice and comment for these amendments is 
unnecessary, impracticable, or contrary to the public interest, 
pursuant to the APA, 5 U.S.C. 553(b)(B), and that good cause exists to 
dispense with a deferred effective date pursuant to 5 U.S.C. 553(d)(3). 
The Board is providing, however, an opportunity for comment and will 
address any comments received in the final rule that adopts the interim 
rule as final.

Regulatory Flexibility Act

    The Regulatory Flexibility Act, 5 U.S.C. 601 et seq., applies only 
to rules for which an agency publishes a general notice of proposed 
rulemaking. Because the Board has determined for good cause that a 
notice of proposed rulemaking for this rule is unnecessary, the 
Regulatory Flexibility Act does not apply to this final rule.

Paperwork Reduction Act Analysis

    There is no collection of information required by this interim 
final rule that would be subject to the Paperwork Reduction Act of 
1995, 44 U.S.C. 3501 et seq.

Plain Language

    Section 722 of the Gramm-Leach-Bliley Act requires each federal 
banking agency to use plain language in all rules published after 
January 1, 2000. In light of this requirement, the Board believes this 
interim rule is presented in a simple and straightforward manner and is 
consistent with this ``plain language'' directive.

List of Subjects in 12 CFR Part 261

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

    For the reasons set forth in the SUPPLEMENTARY INFORMATION, the 
Board of Governors of the Federal Reserve System amends 12 CFR chapter 
II as follows:

PART 261--RULES REGARDING AVAILABILITY OF INFORMATION

0
1. The authority citation for part 261 continues to read as follows:

    Authority:  5 U.S.C. 552; 12 U.S.C. 248(i) and (k), 321 et seq., 
611 et seq., 1442, 1467a, 1817(a)(2)(A), 1817(a)(8), 1818(u) and 
(v), 1821(o), 1821(t), 1830, 1844, 1951 et seq., 2601, 2801 et seq., 
2901 et seq., 3101 et seq., 3401 et seq.; 15 U.S.C. 77uuu(b), 
78q(c)(3); 29 U.S.C. 1204; 31 U.S.C. 5301 et seq.; 42 U.S.C. 3601; 
44 U.S.C. 3510.


0
2. In Sec.  261.10 paragraphs (e) and (f) are revised to read as 
follows:


Sec.  261.10   Published information.

* * * * *
    (e) Index to Board actions. The Board's Freedom of Information 
Office maintains, in electronic format, an index to Board actions, 
which is updated weekly and provides identifying information about any 
matters issued, adopted, and promulgated by the Board since July 4, 
1967. Copies of the index may be obtained upon request to the Freedom 
of Information Office subject to the current schedule of fees in Sec.  
261.17.
    (f) Obtaining Board publications. The Publications Services Section 
maintains a list of Board publications that are available to the 
public. In addition, a partial list of publications is published in the 
Federal Reserve Bulletin. All publications issued by the Board, 
including available back issues, may be obtained from Publications 
Services, Board of Governors of the Federal Reserve System, 20th Street 
and Constitution Avenue NW., Washington, DC 20551. Subscription or 
other charges may apply to some publications.

0
3. In Sec.  261.11, the section heading and paragraphs (a) introductory 
text, (a)(4), (b)(1) and (c) are revised, to read as follows:


Sec.  261.11  Records available for public inspection.

    (a) Types of records made available. Unless they were published 
promptly and made available for sale or without charge, the following 
records shall be made available for inspection in an electronic format:
* * * * *
    (4) Copies of all records, regardless of form or format--
    (i) That have been released to any person under Sec.  261.12; and
    (ii)(A) That because of the nature of their subject matter, the 
Board determines have become or are likely to become the subject of 
subsequent requests for substantially the same records; or
    (B) That have been requested three or more times;
* * * * *
    (b)(1) Information available under this section is available for 
inspection and copying, from 9:00 a.m. to 5:00 p.m. weekdays, at the 
Freedom of Information Office of the Board of Governors of the Federal 
Reserve System, 20th Street and Constitution Avenue NW., Washington, DC 
20551.
* * * * *
    (c) Privacy protection. The Board may delete identifying details 
from any record to prevent a clearly unwarranted invasion of personal 
privacy.

0
4. In Sec.  261.12, paragraph (b)(2) is revised to read as follows:


Sec.  261.12  Records available to public upon request.

* * * * *
    (b) * * *
    (2) The request shall be submitted in writing to the Freedom of 
Information Office, Board of Governors of the Federal Reserve System, 
20th & C Street NW., Washington, DC 20551; or sent by facsimile to the 
Freedom of Information Office, (202) 872-7565; or submitted 
electronically to http://www.federalreserve.gov/forms/efoiaform.aspx. 
The request shall be clearly marked FREEDOM OF INFORMATION ACT REQUEST.
* * * * *

0
5. In Sec.  261.13, paragraphs (e)(3), (f)(4), (f)(5), (i) introductory 
text, (i)(1), and (i)(3) are revised to read as follows:


Sec.  261.13  Processing requests.

* * * * *
    (e) * * *
    (3) In unusual circumstances, as defined in 5 U.S.C. 552(a)(6)(B), 
the Board may:

[[Page 94934]]

    (i) Extend the 20-day time limit for a period of time not to exceed 
10 working days, where the Board has provided written notice to the 
requester setting forth the reasons for the extension and the date on 
which a determination is expected to be dispatched; and
    (ii) Extend the 20-day time limit for a period of more than 10 
working days where the Board has provided the requester with an 
opportunity to modify the scope of the FOIA request so that it can be 
processed within that time frame or with an opportunity to arrange an 
alternative time frame for processing the original request or a 
modified request, and has notified the requester that the Board's FOIA 
Public Liaison is available to assist the requester for this purpose 
and in the resolution of any disputes between the requester and the 
Board and of the requester's right to seek dispute resolution services 
from the Office of Government Information Services.
    (f) * * *
    (4) The right of the requester to seek assistance from the Board's 
FOIA Public Liaison; and
    (5) When an adverse determination is made (including determinations 
that the requested record is exempt, in whole or in part; the request 
does not reasonably describe the records sought; the information 
requested is not a record subject to the FOIA; the requested record 
does not exist, cannot be located, or has been destroyed; the requested 
record is not readily reproducible in the form or format sought by the 
requester; deny fee waiver requests or other fee categorization 
matters; and deny requests for expedited processing), the Secretary 
will advise the requester in writing of that determination and will 
further advise the requester of:
    (i) The right of the requester to appeal to the Board any adverse 
determination within 90 days after the date of the determination as 
specified in paragraph (i) of this section;
    (ii) The right of the requester to seek dispute resolution services 
from the Board's FOIA Public Liaison or the Office of Government 
Information Services; and
    (iii) The name and title or position of the person responsible for 
the adverse determination.
* * * * *
    (i) Appeal of an adverse determination. In the case of an adverse 
determination, the requester may file a written appeal with the Board, 
as follows:
    (1) The appeal shall prominently display the phrase FREEDOM OF 
INFORMATION ACT APPEAL on the first page, and shall be addressed to the 
Freedom of Information Office, Board of Governors of the Federal 
Reserve System, 20th & C Streets NW., Washington, DC 20551; or sent by 
facsimile to the Freedom of Information Office, (202) 872-7562 or 7565; 
or sent by email to [email protected].
* * * * *
    (3) The appeal shall be filed within 90 days of the date on which 
the adverse determination was issued, or the date on which documents in 
partial response to the request were transmitted to the requester, 
whichever is later. The Board may consider an untimely appeal if:
* * * * *

0
6. In Sec.  261.14, paragraph (a) introductory text is revised to read 
as follows:


Sec.  261.14   Exemptions from disclosure.

    (a) Types of records exempt from disclosure. Pursuant to 5 U.S.C. 
552(b), the following records of the Board are exempt from disclosure 
under this part. The Board shall withhold records or information only 
when it reasonably foresees that disclosure would harm an interest 
protected by an exemption described in this paragraph 261.14(a) or when 
disclosure is prohibited by law. In applying the exemption in 
subparagraph (a)(5) of this section, the Board will not withhold 
records based on the deliberative process privilege if the records were 
created 25 years or more before the date on which the records were 
requested.
* * * * *

0
7. In Sec.  261.17, paragraph (i) is added to read as follows:


Sec.  261.17  Fee schedules; waiver of fees.

* * * * *
    (i) Restrictions on charging fees. (1) If the Board fails to comply 
with the FOIA's time limits in which to respond to a request, the Board 
may not charge search fees, or, in the instances of requests from 
requesters described in paragraph (c)(2) of this section, may not 
charge duplication fees, except as permitted under paragraphs (i)(2) 
through (4) of this section.
    (2) If the Board determines that unusual circumstances exist, as 
described in 5 U.S.C. 552(a)(6)(B), and has provided timely written 
notice to the requester and subsequently responds within the additional 
10 working days as provided in Sec.  261.13(e)(3), the Board may charge 
search fees, or, in the case of requests from requesters described in 
paragraph (c)(2) of this section, may charge duplication fees.
    (3) If the Board determines that unusual circumstances exist, as 
described in 5 U.S.C. 552(a)(6)(B), and more than 5,000 pages are 
necessary to respond to the request, then the Board may charge search 
fees, or, in the case of requesters described in paragraph (c)(2) of 
this section, may charge duplication fees, if the Board has:
    (i) Provided timely written notice to the requester in accordance 
with the FOIA; and
    (ii) 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).
    (4) 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.

    By order of the Board of Governors of the Federal Reserve 
System, December 15, 2016.
Robert deV. Frierson,
Secretary of the Board.
[FR Doc. 2016-30670 Filed 12-23-16; 8:45 am]
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