[Federal Register Volume 82, Number 125 (Friday, June 30, 2017)]
[Rules and Regulations]
[Pages 29711-29713]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-13640]


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NATIONAL CREDIT UNION ADMINISTRATION

12 CFR Part 792

RIN 3133-AD44


Revisions to the Freedom of Information Act Regulation

AGENCY: National Credit Union Administration (NCUA).

ACTION: Final rule.

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SUMMARY: The NCUA Board (Board) is finalizing its interim final rule 
amending its Freedom of Information Act (FOIA) regulation. The FOIA 
Improvement Act of 2016 amended the FOIA and required agencies to 
review their FOIA regulations and issue certain amendments by December 
27, 2016. The amendments included revised procedures for disclosing 
records under the FOIA, assessing fees, and notifying requestors of 
options for resolving disputes through the NCUA FOIA Public Liaison and 
the Office of Government Information Services (OGIS) within the 
National Archives and Records Administration. The interim final rule 
became effective on December 22, 2016. This rulemaking finalizes the 
interim rule with minor edits for consistency and clarification.

DATES: Effective June 30, 2017.

FOR FURTHER INFORMATION CONTACT: Regina Metz, Senior Staff Attorney, or 
Linda Dent, Associate General Counsel, Administrative Law Section, 
Office of General Counsel, at 1775 Duke Street, Alexandria, Virginia 
22314-3428, or telephone: (703) 518-6540.

SUPPLEMENTARY INFORMATION:

I. Background

    On December 22, 2016, NCUA published an interim final rule \1\ to 
revise its FOIA regulation at part 792, subpart A of the agency's 
regulations \2\ in accordance with new requirements under the FOIA 
Improvement Act of 2016.\3\ The interim final rule became effective on 
December 22, 2016. The NCUA accepted public comments, however, until 
January 23, 2017.
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    \1\ 81 FR 93792 (Dec 22, 2016).
    \2\ 12 CFR part 792.
    \3\ Public Law 114-185, 130 Stat. 538.
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    The interim final rule revised procedures for the disclosure of 
records, including procedures for engaging in dispute resolution 
through the FOIA Public Liaison and the OGIS. The revisions were 
necessary to comply with amendments to the FOIA Improvement Act of 
2016. NCUA is issuing this rulemaking to finalize the interim rule with 
minor wording changes for consistency and clarification.

II. Summary of Public Comments and Final Rule

    NCUA received two comments on the interim final rule. One was from 
a trade organization and one was from an institute. One comment was 
fully supportive of the Act, noting that the interim rule met all the 
technical statutory requirements. The comment, however, also urged the 
NCUA to exceed the requirements and continue to adopt a presumption of 
openness. NCUA's longstanding FOIA practices include a presumption of 
openness which will continue under the final rule.
    In addition, the commenter believes the NCUA should post every FOIA 
response to its Web site. The FOIA and the interim final rule, in 
section 792.03(c), already provide that NCUA must post on its Web site 
records released in response to a FOIA request that are either: Likely 
to be the subject of subsequent requests because of the nature of their 
subject matter; or records that have been requested three or more 
times. NCUA generally exceeds these requirements, posting on its FOIA 
page records requested more than once and considering each record 
requested for possible routine Web site posting. As every record 
requested, however, is not of interest to the general public, NCUA is 
adopting this section in the final rule without change.
    The other commenter requested that NCUA revise its definition of 
``representative of the news media'' in Sec.  792.20 to be consistent 
with the FOIA at 5 U.S.C. 552(a)(4)(A)(ii) and also to consider 
additional technical matters. As a change to this definition and the 
other issue raised were not included in the interim final rule, NCUA 
will address this in an upcoming technical amendment rule. The final 
rule does contain minor changes to wording for consistency and 
clarification.

III. Regulatory Procedures

A. Paperwork Reduction Act

    In accordance with the requirements of the Paperwork Reduction Act 
(PRA) of 1995,\4\ the Board has reviewed the final rule and determined 
it does not contain or modify a collection of information subject to 
the PRA. The PRA applies to rulemakings in which an agency by rule 
creates a new paperwork burden on regulated entities or increases an 
existing burden. For purposes of the PRA, a paperwork burden may take 
the form of a reporting or recordkeeping requirement, both referred to 
as information collections. Information collected as part of an 
affidavit, oath, affirmation, certification, receipt, changes of 
address, consent, or acknowledgment, however, is not considered an 
information collection for purposes of the PRA.
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    \4\ 44 U.S.C. 3506; 5 CFR part 1320 Appendix A.1.
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    This category is limited to those disclosures that require persons 
to provide or display only facts necessary to identify themselves. For 
example, they entail no burden other than that necessary to identify 
the respondent, the date, the respondent's address, and the nature of 
the instrument. ``Nature of the instrument'' refers to a respondent's 
request for materials, such as publications or other information from 
an agency. To facilitate such requests for information from an agency, 
an agency may ask requesters to describe the material or information 
sought in detail sufficient to describe the individual desires.
    The final rule implements the FOIA Improvement Act of 2016 by 
amending the agency's FOIA regulations. Because the only paperwork 
burden in this final rule relates to activities that are not considered 
to be information collections, NCUA has determined that this rule is 
exempt from the requirements of the PRA.

B. Regulatory Flexibility Act

    The Regulatory Flexibility Act requires NCUA to prepare an analysis 
to describe any significant economic impact a rule may have on a 
substantial number of small credit unions (those under $100 million in 
assets). This final rule does not impose any requirements on federally 
insured credit unions. Therefore, it will not have a significant 
economic impact on a substantial number of small credit unions and a 
regulatory flexibility analysis is not required. Because this final 
rule would affect few, if any, small entities, the Board certifies that 
the final rule will

[[Page 29712]]

not have a significant economic impact on small entities.

C. Executive Order 13132

    Executive Order 13132 encourages independent regulatory agencies to 
consider the impact of their actions on state and local interests. In 
adherence to fundamental federalism principles, NCUA, an independent 
regulatory agency as defined in 44 U.S.C. 3502(5), voluntarily complies 
with the executive order. The final rule would not have substantial 
direct effects on the states, on the connection between the national 
government and the states, or on the distribution of power and 
responsibilities among the various levels of government. NCUA has 
determined that this final rule does not constitute a policy that has 
federalism implications for purposes of the executive order.

D. The Treasury and General Government Appropriations Act, 1999--
Assessment of Federal Regulations and Policies on Families

    NCUA has determined that this final rule would not affect family 
well-being within the meaning of section 654 of the Treasury and 
General Government Appropriations Act of 1999.\5\
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    \5\ Public Law 105-277, 112 Stat. 2681.
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E. Small Business Regulatory Enforcement Fairness Act

    The Small Business Regulatory Enforcement Fairness Act of 
1996[thinsp](SBREFA) provides generally for congressional review of 
agency rules. A reporting requirement is triggered in instances where 
the Board issues a final rule as defined by Section 551 of the APA. The 
Board submitted the rule to the Office of Management and Budget. It 
determined the rule is not a ``major rule'' within the meaning of the 
relevant sections of SBREFA.

List of Subjects in 12 CFR Part 792

    Administrative practice and procedure, Credit unions, Freedom of 
Information, Information, Privacy, Records, System of records.

    By the National Credit Union Administration Board on June 22, 
2017.
Gerard Poliquin,
Secretary of the Board.

    For the reasons stated above, the National Credit Union 
Administration adopts the interim rule published December 22, 2016, at 
81 FR 93792, as final with the following changes:

PART 792--REQUESTS FOR INFORMATION UNDER THE FREEDOM OF INFORMATION 
ACT AND PRIVACY ACT, AND BY SUBPOENA; SECURITY PROCEDURES FOR 
CLASSIFIED INFORMATION

0
1. The authority citation for part 792 continues to read as follows:

    Authority: 5 U.S.C. 301, 552, 552a, 552b; 12 U.S.C. 1752a(d), 
1766, 1789, 1795f; E.O. 12600, 52 FR 23781, 3 CFR, 1987 Comp., 
p.235; E.O. 13526, 75 FR 707, 2009 Comp. p.298.


0
2. In Sec.  792.02, revise the introductory text and paragraph (d) to 
read as follows:


Sec.  792.02   What records does NCUA make available to the public for 
inspection and copying?

    Except for records that are exempt from public disclosure under 
FOIA as amended (5 U.S.C. 552) or are promptly published and copies are 
available for purchase, NCUA routinely makes the following five types 
of records available for you to inspect and copy and in an electronic 
format:
* * * * *
    (d) Copies of all records, regardless of form or format, which have 
been released after March 31, 1997, in response to a FOIA request and 
which, because of the nature of their subject matter, NCUA determines 
have been or are likely to become the subject of subsequent requests; 
or records that have been requested three (3) or more times; and
* * * * *

0
3. In Sec.  792.03, revise the introductory text and paragraph (c) to 
read as follows:


Sec.  792.03   How will I know which records to request?

    NCUA maintains current indices providing identifying information 
for the public for any matter referred to in Sec.  792.02, issued, 
adopted, or promulgated after July 4, 1967. The listing of material in 
an index is for the convenience of possible users and does not 
constitute a determination that all of the items listed will be 
disclosed. NCUA has determined that publication of the indices is 
unnecessary and impractical. You may obtain copies of indices by making 
a request to the NCUA, Office of General Counsel, 1775 Duke Street, 
Alexandria, VA 22314-2387, Attn: FOIA Officer or as indicated on the 
NCUA Web site at www.ncua.gov. The indices are available for public 
inspection and copying, provided at their duplication cost, and in an 
electronic format. The indices are:
* * * * *
    (c) Popular FOIA Index: Records released in response to a FOIA 
request, that NCUA determines are likely to be the subject of 
subsequent requests because of the nature of their subject matter, or 
records that have been requested three (3) or more times. The Popular 
FOIA Index is available on the NCUA Web site.

0
4. In Sec.  792.10, revise paragraph (e) to read as follows:


Sec.  792.10   What will NCUA do with my request?

* * * * *
    (e) Upon a determination by the appropriate Information Center to 
comply with your initial request for records, the records will be made 
promptly available to you. NCUA will also advise you of the right to 
seek assistance from the FOIA Public Liaison. If we notify you of a 
denial of your request, we will include the reason for the denial. NCUA 
will also advise you of the right to utilize dispute resolution 
services offered by the FOIA Public Liaison and the Office of 
Government Information Services.
* * * * *

0
5. In Sec.  792.11, revise paragraph (a)(5) to read as follows:


Sec.  792.11   What kinds of records are exempt from public disclosure?

    (a) * * *
    (5) Inter-agency or intra-agency memoranda or letters which would 
not be available by law to a private party in litigation with NCUA. 
This exemption preserves the existing freedom of NCUA officials and 
employees to engage in full and frank written or taped communications 
with each other and with officials and employees of other agencies. It 
includes, but is not limited to, inter-agency and intra-agency reports, 
memoranda, letters, correspondence, work papers, and minutes of 
meetings, as well as staff papers prepared for use within NCUA or in 
concert with other governmental agencies. In applying this exemption, 
the NCUA 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
6. In Sec.  792.15, revise paragraph (b)(2) to read as follows:


Sec.  792.15  How long will it take to process my request?

* * * * *
    (b) * * *
    (2) Such alternative time period as mutually agreed by you and the 
Information Office, when NCUA notifies

[[Page 29713]]

you that the request cannot be processed in the specified time limit. 
In such cases, NCUA will make available its FOIA Public Liaison and 
notify you of the right to seek dispute resolution services from the 
Office of Government Information Services.

0
7. In Sec.  792.16, revise paragraph (c) to read as follows:


Sec.  792.16   What unusual circumstances can delay NCUA's response?

* * * * *
    (c) If NCUA sends you an extension notice, it will also advise you 
that you can either limit the scope of your request so that it can be 
processed within the statutory time limit or agree to an alternative 
time frame for processing your request. In such cases, NCUA will make 
available its FOIA Public Liaison and notify you of the right to seek 
dispute resolution services from the Office of Government Information 
Services.

0
8. Revise Sec.  792.17 to read as follows:


Sec.  792.17   What can I do if the time limit passes and I still have 
not received a response?

    (a) If NCUA does not comply with the time limits under Sec.  
792.15, or as extended under Sec.  792.16, you do not have to pay 
search fees; requesters qualifying for free search fees will not have 
to pay duplication fees. However, if NCUA has extended the time limits 
under Sec.  792.16 and must review more than 5,000 pages to respond to 
the request, NCUA may charge you search fees (or for requesters 
qualifying for free search fees, duplication fees), if NCUA has 
discussed with you via written mail, electronic mail, or telephone (or 
made not less than 3 good-faith attempts to do so) how you could 
effectively limit the scope of the request.
    (b) You can seek assistance from the FOIA Public Liaison or dispute 
resolution services from the Office of Government Information Services. 
You also can file suit against NCUA because you will be deemed to have 
exhausted your administrative remedies if NCUA fails to comply with the 
time limit provisions of this subpart. If NCUA can show that 
exceptional circumstances exist and that it is exercising due diligence 
in responding to your request, the court may retain jurisdiction and 
allow NCUA to complete its review of the records. You may have to pay 
search or duplication fees if a court has determined that exceptional 
circumstances exist and has extended the time limits for NCUA's 
response by a court order. In determining whether exceptional 
circumstances exist, the court may consider your refusal to modify the 
scope of your request or arrange an alternative time frame for 
processing after being given the opportunity to do so by NCUA, when it 
notifies you of the existence of unusual circumstances as set forth in 
Sec.  792.16.

0
9. In Sec.  792.28, revise the introductory text to read as follows:


Sec.  792.28   What if I am not satisfied with the response I receive?

    If you are not satisfied with NCUA's response to your request, you 
can seek dispute resolution services from the FOIA Public Liaison and 
the Office of Government Information Services, and you can file an 
administrative appeal. Your appeal must be in writing and must be filed 
within 90 days from receipt of the initial determination (in cases of 
denials of the entire request or denials of a fee waiver or reduction), 
or from receipt of any records being made available pursuant to the 
initial determination (in cases of partial denials). In the response to 
your initial request, the Freedom of Information Act Officer or the 
Inspector General (or designee), will notify you that you may appeal 
any adverse determination to the Office of General Counsel. The General 
Counsel, or designee, as set forth in this paragraph, will:
* * * * *
[FR Doc. 2017-13640 Filed 6-29-17; 8:45 am]
 BILLING CODE 7535-01-P