[Federal Register Volume 82, Number 13 (Monday, January 23, 2017)]
[Rules and Regulations]
[Pages 7631-7635]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-00891]



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 Rules and Regulations
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  Federal Register / Vol. 82, No. 13 / Monday, January 23, 2017 / Rules 
and Regulations  

[[Page 7631]]



ADMINISTRATIVE CONFERENCE OF THE UNITED STATES

1 CFR Part 304


Revisions to Freedom of Information Act Regulations

AGENCY: Administrative Conference of the United States.

ACTION: Direct final rule.

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SUMMARY: The Administrative Conference of the United States (``ACUS'' 
or ``the Conference'') is revising its regulations for disclosure of 
records under the Freedom of Information Act (FOIA) to comply with the 
FOIA Improvement Act of 2016.

DATES: This rule is effective on March 14, 2017, without further 
action, unless significant adverse comment is received by February 22, 
2017. If significant adverse comment is received, the Conference will 
publish a timely withdrawal of the rule together with a modified final 
rule in the Federal Register.

ADDRESSES: Submit comments either by email addressed to 
[email protected] or by mail addressed to FOIA Comments, 
Administrative Conference of the United States, Suite 706 South, 1120 
20th Street NW., Washington, DC 20036.

FOR FURTHER INFORMATION CONTACT: Shawne C. McGibbon, General Counsel, 
at 202-480-2088 or [email protected].

SUPPLEMENTARY INFORMATION: The FOIA Improvement Act of 2016,\1\ was 
signed into law by the President on June 30, 2016. The Act consists of 
several amendments to the FOIA affecting FOIA administration. The Act 
requires each agency to review and update its FOIA regulations in 
accordance with the Act's provisions. The Conference is making changes 
to its regulations accordingly, including: Correcting citations; 
highlighting the electronic availability of records; implementing the 
``rule of three'' for frequently requested records; notifying 
requesters of their right to seek assistance from the agency's FOIA 
Public Liaison and the National Archives and Records Administration's 
Office of Government Information Services (OGIS); changing the time 
limit for appeals; implementing the foreseeable harm standard; and 
describing limitations on assessing search fees if the response time is 
delayed. The revisions also include some wording changes to the 
existing regulations for greater clarity.
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    \1\ Public Law. 114-185, 130 Stat. 538.
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Regulatory Procedures

a. Administrative Procedure Act (APA)

    Pursuant to 5 U.S.C. 553(b), we find that good cause exists for 
waiving publication of a general notice of proposed rulemaking and 
provision of a public comment period prior to issuance of the final 
rule. The amendments to the Conference's FOIA regulations contained 
herein are technical in nature. They concern matters of agency 
organization, procedure, and practice. They are being adopted in 
accordance with the mandated provisions of the FOIA Improvement Act of 
2016, do not reflect agency discretion, and provide additional 
protection to the public. We note further that when the Conference 
adopted the FOIA regulations now being amended, we received a single 
set of comments from one person, which suggested various technical 
amendments, most of which were accepted and incorporated into the final 
rule. We conclude that a pre-issuance public comment period is 
unnecessary and not in the public interest. By issuing the current set 
of amendments as a direct final rule, we are nevertheless offering the 
public an opportunity to submit comments; but in the absence of any 
significant adverse comment received within 30 days of publication, the 
direct final rule will automatically go into effect 50 days after its 
publication without further notice. If we receive timely significant 
adverse comment, we will consider modifying this rule, with appropriate 
public notice.

b. Paperwork Reduction Act

    The Paperwork Reduction Act, 44 U.S.C. 3501 et seq., does not apply 
because these regulations do not contain any new information collection 
requirements.

c. Regulatory Flexibility Act

    Because notice and comment procedures are not required for the 
current amendments to the Conference's FOIA regulations, as explained 
above, the regulatory flexibility analyses otherwise required by the 
Regulatory Flexibility Act (RFA), 5 U.S.C. 601 et seq., do not apply to 
this rulemaking action. Nevertheless, the head of this agency certifies 
that this rulemaking action will not have a significant economic impact 
on a substantial number of small entities because it primarily affects 
individuals requesting records under the FOIA.

d. Unfunded Mandates Reform Act

    For purposes of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 
chapter 25, subchapter II), these regulations will not significantly or 
uniquely affect small governments and will not result in increased 
expenditures by State, local, and tribal governments, in the aggregate, 
or by the private sector, of $100 million or more (as adjusted for 
inflation).

e. Executive Order 12866

    In issuing these regulations, ACUS has adhered to the regulatory 
philosophy and the applicable principles of regulation as set forth in 
Section 1 of Executive Order 12866, Regulatory Planning and Review, 58 
FR 51735. These regulations have not been reviewed by the Office of 
Management and Budget under the Executive Order since they are not a 
significant regulatory action within the meaning of the Executive 
Order.

List of Subjects in 1 CFR Part 304

    Administrative practice and procedure, Freedom of information.

    For the reasons stated in the preamble, under the authority at 5 
U.S.C. 552, 591-96 and Public Law 114-185, 130 Stat. 538, the 
Administrative Conference of the United States amends 1 CFR part 304 as 
follows:

[[Page 7632]]

PART 304--DISCLOSURE OF RECORDS OR INFORMATION

0
1. The authority citation for part 304 continues to read as follows:

    Authority: 5 U.S.C. 552, 591-96.

Subpart A--Procedures for Disclosure of Records Under the Freedom 
of Information Act

0
2. Revise Sec.  304.1 to read as follows:


Sec.  304.1  General provisions.

    (a) This subpart contains the rules that the Administrative 
Conference of the United States (``ACUS'' or ``the agency'') follows in 
processing requests for disclosure of records under the Freedom of 
Information Act (``FOIA'' or ``the Act''), 5 U.S.C. 552, as amended, 
and in meeting its responsibilities under the Act. Note that electronic 
records are treated as records for the purposes of the FOIA. These 
rules should be read together with the text of the FOIA itself and the 
Uniform Freedom of Information Fee Schedule and Guidelines published by 
the Office of Management and Budget (OMB Guidelines). They also may be 
read in conjunction with the agency's ``Freedom of Information Act 
Reference Guide,'' which provides basic information about use of the 
Act in relation to the agency's records. Requests made by individuals 
for records about themselves under the Privacy Act of 1974, 5 U.S.C. 
552a, are processed in accordance with the agency's Privacy Act 
regulations as well as under this subpart.
    (b) The agency will withhold records or information only when it 
reasonably foresees that disclosure would harm an interest protected by 
an exemption of the FOIA or when disclosure is prohibited by law. Where 
full disclosure is not possible, the agency will consider whether 
partial disclosure is possible and, if so, will take reasonable steps 
to segregate and release nonexempt information. These policies do not 
create any right enforceable in court.
    (c) The agency has designated its General Counsel as its Chief FOIA 
Officer, who has agency-wide responsibility for efficient and 
appropriate compliance with the FOIA and these implementing 
regulations. The Chief FOIA Officer has designated the agency's FOIA 
Public Liaison, who can assist individuals in locating and obtaining 
particular agency records. Contact information for the Chief FOIA 
Officer and the FOIA Public Liaison are clearly indicated on the 
agency's Web site at https://www.acus.gov/foia.

0
3. Revise Sec.  304.2 to read as follows:


Sec.  304.2  Proactive disclosures.

    (a) Records that the FOIA requires ACUS to make regularly available 
for public inspection in an electronic format, including any records 
that have been requested three or more times, or were previously 
released and are likely to become the subject of subsequent requests or 
appear to be of general interest, may be accessed through the agency's 
Web site at https://www.acus.gov. A subject matter index of such 
records (or comparable tool) may also be accessed through the agency's 
Web site and will be updated on an ongoing basis.
    (b) Information routinely provided to the public as part of a 
regular agency activity, including information posted on the agency's 
Web site (for example, press releases or recommendations adopted by the 
Conference pursuant to the Administrative Conference Act, 5 U.S.C. 591 
et seq.), may be provided to the public without following this subpart.
    (c) Any requester needing assistance in locating proactively 
disclosed or other agency records may contact the agency's FOIA Public 
Liaison at (202) 480-2080.

0
4. Revise Sec.  304.3 to read as follows:


Sec.  304.3  Requirements for making requests.

    (a) How made and addressed. You may make a request for records by 
using the FOIA Request form on the ACUS Web site at https://www.acus.gov/foia. You may also send a written request letter to the 
agency either by mail addressed to FOIA Public Liaison, Administrative 
Conference of the United States, 1120 20th Street NW., Suite 706 South, 
Washington, DC 20036, or by fax delivery to (202) 386-7190. For the 
quickest possible handling of a mail request, you should mark both your 
request letter and the envelope ``Freedom of Information Act Request.'' 
(You may find the agency's ``Freedom of Information Act Reference 
Guide''--which is available in electronic format on its Web site and in 
paper form--helpful in making your request.) If you are making a 
request for records about yourself, see Sec.  304.21(d) for additional 
requirements. If you are making a request for records about another 
individual, then either a written authorization signed by that 
individual permitting disclosure of those records to you or proof that 
that individual is deceased (for example, a copy of a death certificate 
or an obituary notice) will help the processing of your request. Your 
request will be considered received as of the date upon which it is 
logged in as received by the agency's FOIA Public Liaison.
    (b) Description of records sought. (1) You must describe the 
records that you seek in enough detail to enable agency personnel to 
locate them with a reasonable amount of effort. Whenever possible, your 
request should include specific information about each record sought, 
such as the date, title or name, author, recipient, and subject matter 
of the record. If known, you should include any file designations or 
similar descriptions for the records that you want. As a general rule, 
the more specific you are about the records or type of records that you 
want, the more likely that the agency will be able to locate those 
records in response to your request. Before submitting your request, 
you may contact the agency's FOIA Public Liaison at (202) 480-2080 for 
assistance in describing the records.
    (2) If the agency determines that your request does not reasonably 
describe records, then it will tell you either what additional 
information is needed or why your request is otherwise insufficient. It 
also will give you an opportunity to discuss your request by telephone 
so that you may modify it to meet the requirements of this section. 
Additionally, if your request does not reasonably describe the records 
you seek, the agency's response to it may be delayed as an initial 
matter.
    (c) Format of records sought. Requests may specify the preferred 
form or format (including electronic formats) for the records you seek. 
The agency will accommodate your request if the record is readily 
reproducible in that form or format.
    (d) Agreement to pay fees. When you make a FOIA request, it will be 
considered to be an agreement by you to pay all applicable fees charged 
under Sec.  304.9, up to $50.00, unless you specifically request a 
waiver of fees. The agency ordinarily will confirm this agreement in an 
acknowledgment letter. When making a request, you may specify a 
willingness to pay a greater or lesser amount. Your agreement will not 
prejudice your ability to seek a waiver or reduction of any applicable 
fee at a later time.

0
5. Amend Sec.  304.5 by revising paragraphs (b) and (c)(1) to read as 
follows:


Sec.  304.5  Timing of responses to requests.

* * * * *
    (b) Multi-track processing. The agency generally uses two 
processing tracks that distinguish between simple and complex requests. 
In determining the appropriate track for a request, the agency 
considers, among other factors, the number of records requested, the 
number of pages involved in processing

[[Page 7633]]

the request and the need for consultations or referrals. When a request 
is placed on the complex track, the agency will provide the requester 
with an opportunity to narrow or modify the request so that it can be 
placed on the simple track. The agency will contact the requester by 
telephone, email or letter, whichever is most efficient, in each case.
    (c) Unusual circumstances. (1) Where the statutory time limit of 20 
days for processing a request cannot be met because of ``unusual 
circumstances,'' as defined in the FOIA, and the agency extends the 
time limits on that basis, it will, before expiration of the 20-day 
period, notify the requester in writing of the unusual circumstances 
and of the date by which the agency estimates processing of the request 
can be expected to be completed. Where the extension is likely to 
exceed ten working days, the agency will provide the requester with an 
opportunity to modify the request or arrange an alternative time period 
for processing the original or modified request. In such instances, the 
agency's FOIA Public Liaison will contact the requester, and the 
requester will be informed of the mediation services offered by the 
Office of Government Information Services (``OGIS'')--see https://www.archives.gov/ogis.
* * * * *

0
6. Revise Sec.  304.6 to read as follows:


Sec.  304.6  Responses to requests.

    (a) Acknowledgments of requests. On receipt of a request, if the 
agency cannot provide the requested information within two working 
days, then an acknowledgment letter or email message will be sent to 
the requester that will confirm the requester's agreement to pay fees 
under Sec.  304.3(d) and will provide a request tracking number for 
further reference. Requesters may use this tracking number to determine 
the status of their request--including the date of its receipt and the 
estimated date on which action on it will be completed--by calling the 
agency's FOIA Public Liaison at (202) 480-2080. In some cases, the 
agency may seek further information or clarification from the 
requester.
    (b) Grants of requests. Ordinarily, the agency will have 20 working 
days from when a request is received to determine whether to grant or 
deny the request. Once the agency makes such a determination, it will 
immediately notify the requester in writing. The agency will inform the 
requester in the notice of any fee charged under Sec.  304.9 and will 
disclose records to the requester promptly upon payment of any 
applicable fee. The agency will also inform the requester of the 
availability of its FOIA Public Liaison to offer assistance.
    (c) Adverse determinations of requests. Whenever the agency makes 
an adverse determination denying a request in any respect, it will 
notify the requester of that determination in writing. Adverse 
determinations, or denials of requests, consist of: A determination to 
withhold any requested record in whole or in part; a determination that 
a requested record does not exist or cannot be located; a determination 
that a record is not readily reproducible in the form or format sought 
by the requester; a determination that what has been requested is not a 
record subject to the FOIA; a determination on any disputed fee matter, 
including a denial of a request for a fee waiver; and a denial of a 
request for expedited treatment. The denial letter will include:
    (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(s) applied by the agency in denying the request;
    (3) An estimate of the volume of records or information withheld, 
in number of pages or in some other reasonable form of estimation. This 
estimate does not need to be provided if the volume is otherwise 
indicated through deletions on records disclosed in part, or if 
providing an estimate would harm an interest protected by an applicable 
exemption; and
    (4) An indication on the released portion of a record of each 
exemption applied, at the place at which it was applied, if technically 
feasible.
    (5) A statement that the denial may be appealed under Sec.  
304.8(a) and a description of the requirements of Sec.  304.8(a).
    (6) A statement notifying the requester of the assistance available 
from the agency's FOIA Public Liaison and the dispute resolution 
services offered by OGIS.
    (d) Markings on released documents. Records disclosed in part will 
be marked or annotated to show the amount of information deleted, 
unless doing so would harm an interest protected by an applicable 
exemption. The location of the information deleted also will be 
indicated on the record, if technically feasible.

0
7. Revise Sec.  304.8 to read as follows:


Sec.  304.8  Appeals.

    (a) Appeals of adverse determinations. If you are dissatisfied with 
the response to your request, you may appeal an adverse determination 
denying your request, in any respect, to the Chairman of the agency. 
You must make your appeal in writing, by email or letter, and it must 
be received by the agency within 90 calendar days of the date of the 
agency's response denying your request. Your appeal should provide 
reasons and supporting information as to why the initial determination 
was incorrect. The appeal should clearly identify the particular 
determination (including the assigned request number, if known) that 
you are appealing. For the quickest possible handling of a mail 
request, you should mark your appeal ``Freedom of Information Act 
Appeal.'' The Chairman or his or her designee will act on the appeal, 
except that an appeal ordinarily will not be acted on if the request 
becomes a matter of FOIA litigation.
    (b) Responses to appeals. The decision on your appeal will be 
communicated to you by email or letter, ordinarily within 20 working 
days of receipt of your appeal. A decision affirming an adverse 
determination in whole or in part will contain a statement of the 
reason(s) for the affirmance, including any FOIA exemption(s) applied, 
and will inform you of the FOIA provisions for court review of the 
decision. The decision will also inform you of the mediation services 
offered by OGIS as a non-exclusive alternative to FOIA litigation. If 
the adverse determination is reversed or modified on appeal, in whole 
or in part, then you will be notified in a written decision and your 
request will be reprocessed in accordance with that appeal decision.
    (c) Engaging in dispute resolution services provided by OGIS. 
Mediation is a voluntary process. If the agency agrees to participate 
in the mediation services provided by OGIS, it will actively engage in 
the process in an attempt to resolve the dispute.
    (d) When appeal is required. As a general rule, if you wish to seek 
review by a court of any adverse determination, you must first appeal 
it in a timely fashion under this section.

0
8. Amend Sec.  304.9 by revising paragraphs (a), (d)(6), (e), (i)(3), 
and (k) to read as follows:


Sec.  304.9  Fees.

    (a) In general. The agency will charge for processing requests 
under the FOIA in accordance with paragraph (c) of this section and 
with the OMB Guidelines. The agency ordinarily will collect all 
applicable fees before sending copies of requested records to a 
requester. Requesters must pay fees by check or

[[Page 7634]]

money order made payable to the Treasury of the United States.
* * * * *
    (d) * * *
    (6) (i) If the agency 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 (d)(6)(ii)-(iv).
    (ii) If the agency 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 will be excused for an additional 10 working days.
    (iii) If the agency 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 agency 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 agency 
must have provided timely written notice of unusual circumstances to 
the requester in accordance with the FOIA and the agency 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 agency may charge all applicable fees incurred in the 
processing of this request.
    (iv) If a court has determined that exceptional circumstances 
exist, as defined by the FOIA, a failure to comply with the time limits 
will be excused for the length of time provided by the court order.
    (e) Notice of anticipated fees in excess of $50.00. (1) When the 
agency determines or estimates that the fees to be charged under this 
section will amount to more than $50.00, it will notify the requester 
of the actual or estimated amount of the fees, unless the requester has 
indicated a willingness to pay fees as high as those anticipated. If 
only a portion of the fee can be estimated readily, the agency will 
advise the requester that the estimated fee might be only a portion of 
the total fee. In cases in which a requester has been notified that 
actual or estimated fees amount to more than $50.00, the request will 
not be considered received and further work will not be done on it 
until the requester agrees to pay the total anticipated fee. Any such 
agreement should be memorialized in writing. A notice under this 
paragraph will offer the requester an opportunity to discuss the matter 
with agency personnel in order to reformulate the request to meet the 
requester's needs at a lower cost.
    (2) If the requester has indicated a willingness to pay some 
designated amount of fees, but the agency estimates that the total fee 
will exceed that amount, the agency will suspend the processing of the 
request when it notifies the requester of the estimated fees in excess 
of the amount the requester has indicated a willingness to pay. The 
agency will inquire whether the requester wishes to revise the amount 
of fees the requester is willing to pay or modify the request. Once the 
requester responds, the time to respond will resume from where it was 
at the date of the notification.
    (3) The agency will make its FOIA Public Liaison available to 
assist any requester in reformulating a request to meet the requester's 
needs at a lower cost.
* * * * *
    (i) * * *
    (3) Where a requester has previously failed to pay a properly 
charged FOIA fee to the agency within 30 calendar days of the date of 
billing, the agency may require the requester to pay the full amount 
due, plus any applicable interest, and to make an advance payment of 
the full amount of any anticipated fee, before it begins to process a 
new request or continues to process a pending request from that 
requester.
* * * * *
    (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) The agency will furnish records responsive to a request without 
charge or at a reduced rate when it determines, based on all available 
information, that the factors described in paragraphs (k)(2)(i) through 
(iii) of this section are satisfied:
    (i) Disclosure of the requested information would shed light on the 
operations or activities of the government. The subject of the 
requested records 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 is 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 convey information effectively to the public will be 
considered. The agency will presume that a representative of the news 
media satisfies 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, the agency will consider the following criteria:
    (A) 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 will be given an 
opportunity to provide explanatory information regarding this 
consideration.
    (B) Whether any identified commercial interest 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 section are satisfied and any commercial interest is not the 
primary interest furthered by the request. The agency ordinarily will 
presume that when a news media requester has satisfied factors in 
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 primarily 
to serve the public interest.
    (3) Where only some of the records to be released satisfy the 
requirements for a waiver of fees, a waiver will be granted for those 
records.

[[Page 7635]]

    (4) Requests for a waiver or reduction of fees should ordinarily be 
made when the request is first submitted to the agency 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 must pay any costs incurred up to 
the date the fee waiver request was received.

0
9. Amend Sec.  304.10 by revising paragraph (a) to read as follows:


Sec.  304.10  Preservation of records.

    (a) The agency will preserve all correspondence pertaining to the 
requests that it receives under this subpart, as well as copies of all 
requested records, until disposition or destruction is authorized by 
title 44 of the United States Code or the National Archives and Records 
Administration's General Records Schedule 4.2. Records will not be 
disposed of while they are the subject of a pending request, appeal, or 
lawsuit under the FOIA.
* * * * *

    Dated: January 11, 2017.
David M. Pritzker,
Deputy General Counsel.
[FR Doc. 2017-00891 Filed 1-19-17; 8:45 am]
BILLING CODE 6110-01-P