[Federal Register Volume 82, Number 103 (Wednesday, May 31, 2017)]
[Rules and Regulations]
[Pages 24826-24828]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-11084]


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FEDERAL RETIREMENT THRIFT INVESTMENT BOARD

5 CFR Part 1631


Freedom of Information Act Regulations

AGENCY: Federal Retirement Thrift Investment Board.

ACTION: Final rule.

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SUMMARY: The Federal Retirement Thrift Investment Board (Board) is 
amending its Freedom of Information Act (FOIA) regulations to implement 
recommendations made by the National Archives and Records 
Administration's (NARA) Office of Government Information Services 
(OGIS) and reflect the amendments required by the FOIA Improvement Act 
of 2016.

DATES: This rule is effective May 31, 2017.

FOR FURTHER INFORMATION CONTACT: Dharmesh Vashee, Deputy General 
Counsel, Federal Retirement Thrift Investment Board, Office of General 
Counsel, 77 K Street NE., Suite 1000, Washington, DC 20002, 202-639-
4424. You may also contact Amanda Haas, FOIA Officer, Office of General 
Counsel, at the above address and by phone at 202-942-1660.

SUPPLEMENTARY INFORMATION: The Board administers the Thrift Savings 
Plan (TSP), which was established by the Federal Employees' Retirement 
System Act of 1986 (FERSA), Public Law 99-335, 100 Stat. 514. The TSP 
provisions of FERSA are codified, as amended, largely at 5 U.S.C. 8351 
and 8401-79. The TSP is a tax-deferred retirement savings plan for 
Federal civilian employees and members of the uniformed services. The 
TSP is similar to cash or deferred arrangements established for 
private-sector employees under section 401(k) of the Internal Revenue 
Code (26 U.S.C. 401(k)).

Regulatory Flexibility Act

    I certify that this regulation will not have a significant economic 
impact on a substantial number of small entities. This regulation will 
affect Federal employees and members of the uniformed services who 
participate in the TSP.

Paperwork Reduction Act

    I certify that these regulations do not require additional 
reporting under the criteria of the Paperwork Reduction Act.

Unfunded Mandates Reform Act of 1995

    Pursuant to the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 602, 
632, 653, and 1501-1571, the effects of this regulation on state, 
local, and tribal governments and the private sector have been 
assessed. This regulation will not compel the expenditure in any one 
year of $100 million or more by state, local, and tribal governments, 
in the aggregate, or by the private sector. Therefore, a statement 
under 2 U.S.C. 1532 is not required.

List of Subjects in 5 CFR Part 1631

    Freedom of information, Records.

    For the reasons stated in the preamble, the Board amends 5 CFR part 
1631 as follows:

PART 1631--AVAILABILITY OF RECORDS

0
1. The authority for part 1631 continues to read as follows:

    Authority: 5 U.S.C. 552.


0
2. Amend Sec.  1631.1 by adding new paragraphs (j), (k), and (l) to 
read as follows:


Sec.  1631.1  Definitions.

* * * * *
    (j) FOIA Public Liaison means the Board official who is responsible 
for assisting in reducing delays, increasing transparency and 
understanding of the status of requests, and assisting in the 
resolution of disputes.
    (k) Requestor category means one of the three categories that 
agencies place requesters in for the purpose of determining whether a 
requester will be charged fees for search, review, and/or duplication, 
including:
    (1) Commercial use requestors,
    (2) Non-commercial scientific or educational institutions or news 
media requesters, and
    (3) All other requestors.
    (l) Fee waiver means the waiver or reduction of processing fees if 
a requester can demonstrate that certain statutory standards are 
satisfied including that the information is in the public interest and 
is not requested for a commercial interest.

0
3. Amend Sec.  1631.4 by revising the section heading and paragraph (a) 
to read as follows:


Sec.  1631.4  Proactive disclosure of Board records.

    (a) Records that are required by the FOIA to be made available for 
public inspection and copying may be accessed through the Board's Web 
site at https://www.frtib.gov. The Board is responsible for determining 
which of its records are required to be made publicly available, as 
well as identifying additional records of interest to the public that 
are appropriate for public disclosure, and for posting and indexing 
such records. The Board shall ensure that its Web site of posted 
records and indices is reviewed and updated on an ongoing basis. The 
Board has a FOIA Public Liaison who can assist individuals in locating 
records particular to a component. The FOIA Public Liaison can be 
contacted at [email protected].
* * * * *

0
4. Revise Sec.  1631.5 to read as follows:


Sec.  1631.5  Records of other agencies.

    Requests for records that originated in another agency and that are 
in the custody of the Board may, in appropriate circumstances, be 
referred to that agency for consultation or processing, and the 
requestor shall be notified of the part or parts of the request that 
have been referred and provided with a point of contact within the 
receiving agency.

0
5. In Sec.  1631.6, in paragraphs (a)(1), (a)(2) and (a)(3), remove the 
word ``must'' and add in its place the word ``should'' and revise the 
last sentence in paragraph (e) to read as follows:


Sec.  1631.6  How to request records--form and content.

    (e) * * * Any Board employee or official who receives an oral 
request for records shall inform the requestor that FOIA requires 
requests to be in writing according to the procedures set out herein.
* * * * *

0
6. Amend Sec.  1631.8 by revising paragraph (b) to read as follows:


Sec.  1631.8  Prompt response.

* * * * *
    (b) The FOIA Officer will either approve or deny a reasonably 
descriptive request for records within 20

[[Page 24827]]

workdays after receipt of the request. Whenever the Board cannot meet 
the statutory time limit for processing a request because of ``unusual 
circumstances,'' as defined in the FOIA, and the Board extends the time 
limit on that basis, the Board must, before expiration of the 20-day 
period to respond, notify the requester in writing of the unusual 
circumstances involved and of the date by which the Board estimates 
processing of the request will be completed. Where the extension 
exceeds 10 working days, the Board must, as described by the FOIA, 
provide the requester with an opportunity to modify the request or 
arrange an alternative time period for processing the original or 
modified request through the Board's FOIA Public Liaison or FOIA 
Officer.
* * * * *

0
7. Amend Sec.  1631.9 by revising the last sentence of paragraph (a), 
and paragraph (b)(5) to read as follows:


Sec.  1631.9  Responses--form and content.

    (a) * * * The notification shall also provide the requestor with an 
estimated amount of fees assessed under Sec.  1631.13 of this part, 
including a breakdown of the fees for search, review, and/or 
duplication.
    (b) * * *
    (5) A statement that the denial may be appealed to the Executive 
Director within 90 calendar days of receipt of the denial or partial 
denial, that the requestor has the option to contact the Agency's FOIA 
Liaison at [email protected], and that the requestor has the 
option to contact the Office of Government Information Service (OGIS) 
as a non-exclusive alternative to litigation.
* * * * *

0
8. Amend Sec.  1631.10 by revising paragraph (a), adding a sentence to 
the end of paragraph (e), and adding paragraphs (h) and (i) to read as 
follows:


Sec.  1631.10  Appeals to the Executive Director from initial denials.

    (a) A requestor may appeal any adverse determinations to the 
Executive Director. The appeal must be made in writing and for it to be 
considered timely it must be postmarked, or in the case of electronic 
submissions, transmitted, within 90 calendar days of receipt of the 
denial or partial denial. The appeal should be addressed to the 
Executive Director, Federal Retirement Thrift Investment Board, 77 K 
Street NE., Suite 1000, Washington, DC 20002, and should be clearly 
labeled as a ``Freedom of Information Act Appeal.''
* * * * *
    (e) * * * The denial will also inform the requester of the 
mediation services offered by the Office of Government Information 
Services (OGIS) of the National Archives and Records Administration as 
a non-exclusive alternative to litigation. If the FOIA Officer's 
decision is remanded or modified on appeal, the requestor will be 
notified of that determination in writing.
* * * * *
    (h) Seeking mediation and dispute resolution services through OGIS 
is a voluntary process. If the requestor chooses to use these services, 
the Board will work with OGIS to resolve disputes between requestors 
and the Board as a non-exclusive alternative to litigation.
    (i) Before seeking review by a court of the FOIA Officer's adverse 
determination, a requestor generally must first submit a timely 
administrative appeal to the Executive Director.

0
9. Amend Sec.  1631.11 by revising paragraph (a) introductory text, 
paragraphs (a)(1) through (a)(3), and the first sentence of paragraph 
(a)(4), and adding paragraph (d) to read as follows:


Sec.  1631.11  Fees to be charged--categories of requestors.

    (a) In general, the Board will charge for processing requests under 
the FOIA in accordance with the provisions of this section and with the 
OMB Guidelines. For purposes of assessing fees there are three 
categories of FOIA requestors--commercial use requestors, non-
commercial scientific or educational institutions or news media 
requesters, and all other requestors.
    (1) Fees shall be limited to reasonable standard charges for 
document search, duplication, and review, when records are requested 
for commercial use. Commercial users are not entitled to two hours of 
free search time or 100 free pages of reproduction of documents. The 
full allowable direct cost of searching for, and reviewing records will 
be charged even if there is ultimately no disclosure of records. A 
commercial use request is a request that asks for information for a use 
or a purpose that furthers a commercial, trade, or profit interest, 
which can include furthering those interests through litigation. The 
Board's decision to place a requester in the commercial use category 
will be made on a case-by-case basis based on the requester's intended 
use of the information. The Board will notify requesters of their 
placement in this category.
    (2) Fees shall be limited to reasonable standard charges for 
document duplication when records are not sought for commercial use and 
the request is made by a representative of the news media. A 
representative of the news media is any person or entity that 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. The term ``news'' means 
information that is about current events or that would be of current 
interest to the public. The Board will advise requesters of their 
placement in this category.
    (3) Fees shall be limited to reasonable standard charges for 
document duplication when records are not sought for commercial use and 
the request is made by an educational or noncommercial scientific 
institution, whose purpose is scholarly or scientific research. A 
noncommercial scientific institution is an institution that is not 
operated on a ``commercial'' basis, as defined in paragraph (a)(1) of 
this section and that is operated solely for the purpose of conducting 
scientific research the results of which are not intended to promote 
any particular product or industry. A requester in this category must 
show that the request is authorized by and is made under the auspices 
of a qualifying institution and that the records are sought to further 
scientific research and are not for a commercial use. The Board will 
advise requesters of their placement in this category.
    (4) For any request which does not meet the criteria contained in 
paragraphs (a)(1) through (3) of this section, fees shall be limited to 
reasonable standard charges for document search and duplication, except 
that the first 100 pages of reproduction and the first two hours of 
search time will be furnished without charge. * * *
* * * * *
    (d) Except as provided in paragraphs (d)(1) through (d)(3) of this 
section, the Board will not assess any search fees (or duplication fees 
for requesters under (a)(2) or (3) of this section) if the Board fails 
to comply with the time limits set forth in Sec.  1631.8.
    (1) If the Board determines that ``unusual circumstances,'' as 
defined in the FOIA, apply and the Board provided a timely written 
notice to the requester in accordance with Sec.  1631.8, the Board is 
excused for an additional 10 days from the restrictions of this 
section.
    (2) If the Board has determined that unusual circumstances apply 
and more than 5,000 pages are necessary to respond to the request, the 
Board may charge search fees (or duplication fees

[[Page 24828]]

for requesters under (a)(2) or (3) of this section) if the Board 
provided a timely written notice to the requester in accordance with 
Sec.  1631.8 and the Board has discussed with the requester, or made 
not less than 3 good-faith attempts to do so, how the requester could 
effectively limit the scope of the request.
    (3) If a court has determined that exceptional circumstances exist, 
as defined in the FOIA, the Agency's delay shall be excused in 
accordance with the court order.

0
10. Amend Sec.  1631.14 by revising the first sentence of paragraph 
(c)(3) to read as follows:


Sec.  1631.14  Fee schedule.

* * * * *
    (c) * * *
    (3) For copies prepared by computer, such as tapes, printouts, or 
CD's the Board shall charge the actual cost, including operator time, 
of producing the tapes, printouts, or CD's. * * *
* * * * *

0
11. Amend Sec.  1631.15 by adding a sentence at the end of paragraph 
(a), and revising paragraph (b)(1), removing the undesignated paragraph 
after (b)(1) and adding paragraph (b) (1) (ii) to read as follows:


Sec.  1631.15  Information to be disclosed.

    (a) * * * Nevertheless, the Board will consider whether partial 
disclosure of information is possible whenever full disclosure of the 
record is not and take reasonable steps to segregate and release 
nonexempt information.
    (b) * * *
    (1) (i) Board personnel will generally consider two of the nine 
exemptions in the FOIA in deciding whether to withhold from disclosure 
material from a non-U.S. Government source.
    (ii) Exemption 4 permits withholding of ``trade secrets and 
commercial or financial information obtained from a person as 
privileged or confidential.'' The term ``person'' refers to individuals 
as well as to a wide range of entities, including corporations, banks, 
state governments, agencies of foreign governments, and Native American 
tribes or nations, who provide information to the government. Exemption 
6 permits withholding certain information, the disclosure of which 
''would constitute a clearly unwarranted invasion of personal 
privacy.''
* * * * *

0
12. Revise Sec.  1631.17 to read as follows:


Sec.  1631.17  Deletion of exempted information.

    Where requested records contain matters which are exempted under 5 
U.S.C. 552(b) but which matters are reasonably segregable from the 
remainder of the records, they shall be disclosed by the Board with 
deletions. To each such record, the Board shall indicate, if 
technically feasible, the precise amount of information deleted and the 
exemption under which the deletion is made, at the place in the records 
where the deletion is made, unless including that indication would harm 
an interest protected by the exemption.

0
13. Add Sec.  1631.19 to read as follows:


Sec.  1631.19  Preservation of records.

    (a) The Board must preserve all correspondence pertaining to the 
requests that it receives as well as copies of all requested records, 
until disposition or destruction is authorized by the Board's General 
Records Schedule of the National Archives and Records Administration 
(NARA) or other NARA-approved records retention schedule.
    (b) Materials that are identified as responsive to a FOIA request 
will not be disposed of or destroyed while the request or a related 
appeal of lawsuit is pending. This is true even if they would otherwise 
be authorized for disposition under the Board's General Records 
Schedule of NARA or other NARA-approved records schedule.

    Dated: May 17, 2017.
Ravindra Deo,
Acting Executive Director.
[FR Doc. 2017-11084 Filed 5-30-17; 8:45 am]
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