[Federal Register Volume 86, Number 125 (Friday, July 2, 2021)]
[Rules and Regulations]
[Pages 35221-35224]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-13963]


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RAILROAD RETIREMENT BOARD

20 CFR Part 200

RIN 3220-AB70


General Administration: Availability of Information to the Public

AGENCY: Railroad Retirement Board.

ACTION: Interim final rule with request for comments.

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SUMMARY: The Railroad Retirement Board (RRB) amends its regulations to 
comply with the requirements of the Freedom of Information Act (FOIA) 
Improvement Act of 2016 and to make certain corrections. In addition, 
this rule amends certain provisions in the fee section to reflect 
developments in the law and to streamline the description of the 
factors considered when making fee waiver determinations.

DATES: 
    Effective date: This rule is effective July 2, 2021.
    Comment due date: Comments are due by August 2, 2021.

ADDRESSES: You may send comments, identified by RIN 3220-AB70, by any 
of the following methods:
    Email: RRB.gov">SecretarytotheBoard@RRB.gov. Include RIN 3220-AB70 in the 
subject line of the message.
    Mail: Secretary to the Board, Railroad Retirement Board, 844 N Rush 
St., Chicago, IL 60611-1275.
    Instructions: All submissions received must include the agency name 
and docket number or Regulatory Information Number (RIN) for this 
rulemaking. For detailed instructions on sending comments and 
additional information on the rulemaking process, see the ``Public 
Participation'' heading of the SUPPLEMENTARY INFORMATION section of 
this document.

FOR FURTHER INFORMATION CONTACT: Marguerite P. Dadabo, (312) 751-4945,

[[Page 35222]]

TTD (312) 751-4701, [email protected].

SUPPLEMENTARY INFORMATION: The Railroad Retirement Board (RRB) amends 
20 CFR 200.4 to comply with the FOIA Improvement Act of 2016 (Pub. L. 
114-185). The amendments address procedures for notifying requesters of 
availability of assistance and/or for engaging in dispute resolution 
through the FOIA Public Liaison and the Office of Government 
Information Services (OGIS), and extend the time to file an 
administrative appeal to 90 days. In addition, the amendments to Sec.  
200.4 provide procedures for determining when fees for FOIA requests 
should be waived or reduced, how requesters may seek fee waivers, and 
when restrictions on charging fees should apply. The amendment also 
provides procedures for requesting expedited processing where 
compelling need is shown. The amendment also adds a category of 
documents that are available for public inspection. The amendment 
corrects various typographical errors or changes in nomenclature. 
Lastly, consistent with current policy of the RRB, this amendment 
replaces the word ``Board'' with ``RRB'' in those instances where the 
text refers to the agency rather than the three-member Board.

Public Participation

    The RRB is issuing an interim rule to make these revisions in the 
RRB's FOIA regulations, because these changes merely bring the 
regulations into alignment with the provisions contained in the FOIA 
Improvement Act of 2016 and with current case law and to clarify the 
procedure the RRB uses with respect to fee determinations. This 
approach allows these regulatory changes to take effect sooner than 
would otherwise be possible with the publication of a notice of 
proposed rulemaking in advance. Nevertheless, the RRB welcomes public 
comments from any interested person on any aspect of the changes made 
by this interim final rule. Please refer to the ADDRESSES section 
above. The RRB will carefully consider all public comments in the 
drafting of the final rule.
    Please note that all comments received are considered part of the 
public record. The information made available includes personal 
identifying information (such as name and address) voluntarily 
submitted by the commenter. If you want to submit personal identifying 
information (such as your name and address) as part of your comment, 
but do not want it to be posted online, you must include the phrase 
``PERSONAL IDENTIFYING INFORMATION'' in the first paragraph of your 
comment. You also must locate all the personal identifying information 
you do not want posted online in the first paragraph of your comment 
and identify what information you want redacted. If you want to submit 
confidential business information as part of your comment, but do not 
want it to be posted online, you must include the phrase ``CONFIDENTIAL 
BUSINESS INFORMATION'' in the first paragraph of your comment. You also 
must prominently identify any confidential business information to be 
redacted within the comment. If a comment has so much confidential 
business information that it cannot be effectively redacted, all or 
part of that comment may not be posted. Personal identifying 
information and confidential business information identified and 
located as set forth above will be placed in the agency's public docket 
file, but not posted online. If you wish to inspect the agency's public 
docket file in person, please see the FOR FURTHER INFORMATION CONTACT 
section above to schedule an appointment.

Statutory and Executive Order Reviews

Administrative Procedure Act

    The RRB's implementation of this rule as an interim final rule, 
with provision for post-promulgation public comment, is based on 
section 553(b) of the Administrative Procedure Act. 5 U.S.C. 553(b). 
Under section 553(b), an agency may issue a rule without notice of 
proposed rulemaking and the pre-promulgation opportunity for public 
comment, with regard to ``interpretative rules, general statements of 
policy, or rules of agency organization, procedure, or practice.'' The 
RRB has determined that many of the revisions being made are 
interpretive rules issued by the RRB, as they merely advise the public 
of the RRB's construction of the new statute and clarify the 
application of the substantive law. Moreover, the RRB has determined 
that the remaining revisions are rules of agency procedure or practice, 
as they do not change the substantive standards the agency applies in 
implementing the FOIA. The RRB has also concluded that there is good 
cause to find that a pre-publication public comment period is 
unnecessary. These revisions to the existing regulations in 20 CFR 
200.4 merely implement the statutory changes, align the RRB's 
regulations with controlling judicial decisions, and clarify agency 
procedures.

Paperwork Reduction Act

    The RRB has determined that the Paperwork Reduction Act, 44 U.S.C. 
3501 et seq., does not apply because these regulations do not contain 
any information collection requirements subject to OMBs approval.

Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by state, local, or 
tribal governments, in the aggregate, or by the private sector of $100 
million or more in any one year, and it will not significantly or 
uniquely affect small governments. Therefore, no actions are necessary 
under the statutory provisions of the Unfunded Mandates Reform Act of 
1995, 2 U.S.C. 1501, et seq.

Regulatory Flexibility Act

    In accordance with the Regulatory Flexibility Act, 5 U.S.C. 605(b), 
the RRB has determined that this rule will not have a significant 
economic impact on a substantial number of small entities because it 
pertains to administrative matters affecting the agency.

Executive Order 12866--Regulatory Review

    The Office of Management and Budget, has determined that this is 
not a significant regulatory action under Executive Order 12866, as 
amended. Therefore, no regulatory impact analysis is required. There 
are no changes to the information collections associated with Sec.  
200.4, because these materials are already available in electronic 
format.

Executive Order 12988--Civil Justice Reform

    This rule meets the applicable standards under sections 3(a) and 
3(b) of Executive Order 12988, Civil Justice Reform.

Executive Order 13132--Federalism

    This rule will not have substantial direct effect on the states, on 
the relationship between the National Government and the states, or on 
the distribution of power and responsibilities among the various levels 
of government. Therefore, the RRB has determined this rule does not 
have sufficient federalism implications to warrant the preparation of a 
federalism summary impact statement in accordance with Executive Order 
13132, Federalism.

List of Subjects in 20 CFR Part 200

    Administrative practice and procedure, Railroad employees, Railroad 
retirement, Reporting and recordkeeping requirements.


[[Page 35223]]


    For the reasons stated in the preamble, the Railroad Retirement 
Board amends 20 CFR part 200 as follows:

PART 200--GENERAL ADMINISTRATION

0
1. The authority citation for part 200 is revised to read as follows:

    Authority: 45 U.S.C. 231f(b)(5) and 45 U.S.C. 362;
    Section 200.4 also issued under 5 U.S.C. 552;
    Section 200.5 also issued under 5 U.S.C. 552a;
    Section 200.6 also issued under 5 U.S.C. 552b; and
    Section 200.7 also issued under 31 U.S.C. 3717.


0
2. Amend Sec.  200.4 as follows:
0
a. Remove the word ``and'' at the end of paragraph (a)(2);
0
b. Remove the period and in its place add ``; and'' at the end of 
paragraph (a)(3);
0
c. Add paragraph (a)(4);
0
d. In paragraph (c):
0
i. Remove the phrase at the beginning of the first sentence ``There 
shall be maintained in the Board's library'' and add in its place ``The 
RRB shall maintain'';
0
ii. Remove the phrase at the end of the second sentence ``and copying 
at the Board's headquarters offices located at 844 Rush Street, 
Chicago, Illinois, during the normal business hours of the Board'' and 
add in its place ``in an electronic format at RRB.gov''; and
0
iii. At the end of the third sentence add the phrase ``to the General 
Counsel, Railroad Retirement Board, Room 836, 844 N. Rush Street, 
Chicago, Illinois 60611-1275'';
0
e. In paragraph (d):
0
i. Remove the word ``Board'' and add in its place ``RRB'';
0
ii. In the first sentence, after the word ``request'' add the phrase 
``in an electronic format''; and
0
iii. In the second sentence, remove ``North'' and add in its place 
``N.'' and remove the zipcode ``60611-2092'' and add in its place 
``60611-1275'';
0
f. In paragraph (g)(2)(iii), remove the first four sentences of the 
paragraph and add six sentences in their place;
0
g. In paragraph (g)(2)(iv), remove ``Board's'' and add in its place 
``RRB's'';
0
h. Add a sentence at the end of paragraph (g)(2)(v);
0
i. In paragraph (g)(3), remove ``Board'' and add in its place ``RRB'';
0
j. In paragraph (g)(5)(i)(A), remove ``RRV'' and add in its place 
``RRB'';
0
k. In paragraph (g)(5)(ii), remove ``Board'' and add in its place 
``RRB'';
0
l. In paragraph (g)(6), remove ``fo'' and add in its place ``of'';
0
m. In paragraph (g)(7), remove ``Board'' and add in its place ``RRB'';
0
n. Add paragraphs (g)(8) and (9);
0
o. In paragraph (h), remove the word ``North'' and add in its place the 
abbreviation ``N.'' and remove ``, [email protected]'' and add in 
its place ``to EFOIA https://secure.rrb.gov/efoia/'';
0
p. Redesignate paragraphs (i) through (p) as paragraphs (j) through 
(q);
0
q. Add a new paragraph (i);
0
r. In newly redesignated paragraph (j):
0
i. Remove references to ``(j)(1)'' and ``(j)'' add in their places 
``(k)(1)'' and ``(k)'', respectively; and
0
ii. Add a sentence to the end of the paragraph;
0
s. In newly redesignated paragraph (k) introductory text:
0
i. Remove the phrase ``Secretary of the Board within 20'' and add in 
its place the phrase ``Secretary to the Board within 90''; and
0
ii. Remove the reference to ``(j)(1)'' and add in its place ``(k)(1)'';
0
t. In newly redesignated paragraph (k)(1), remove the reference to 
``(i) and (j)'' and in its place add ``(j) and (k)'';
0
u. In newly redesignated paragraph (k)(2), remove the reference to 
``(i) and (j)'' and in its place add ``(j) and (k)'' and remove 
``Board'' and ``Board's'' and add in their places ``RRB'' and 
``RRB's'', respectively;
0
v. In newly redesignated paragraph (l), remove ``Executive Director'' 
and add in its place ``General Counsel'';
0
w. In newly redesignated paragraph (n), remove ``Board'' and add in its 
place ``RRB'';
0
x. In newly redesignated paragraph (o)(2), remove ``Executive 
Director'' and add in its place ``General Counsel'' and remove 
``Board'' and add in its place ``RRB'';
0
y. In newly redesignated paragraph (o)(5), remove ``Board'' and add in 
its place ``RRB'';
0
z. In newly redesignated paragraph (p) introductory text:
0
i. Remove ``This paragraph and paragraph (p)'' and add in its place 
``This paragraph (p) and paragraph (q)''; and
0
ii. Remove the reference to ``(o)(4)(vii) and (p)'' and add in its 
place ``(p)(4)(vii) and (q)'';
0
aa. In newly redesignated paragraph (p)(1), remove ``Board'' and add in 
its place ``RRB'';
0
bb. In newly redesignated paragraph (p)(2), remove ``Board'' and 
``Board's'' and add in their places ``RRB'' and ``RRB's'', 
respectively, and remove the reference to ``(o)(4)'' and add in its 
place ``(p)(4)'';
0
cc. In newly redesignated paragraph (p)(3), remove ``Director of 
Administration'' and in its place add ``General Counsel'' and remove 
the address ``844 North Rush Street, Chicago, Illinois 60611-2092'' and 
in its place add ``Room 836, 844 N. Rush Street, Chicago, Illinois 
60611-1275'';
0
dd. In newly redesignated paragraph (p)(4)(vii), remove the reference 
to ``(o)'' and in its place add ``(p)''; and
0
ee. In newly redesignated paragraph (q), remove ``Director of 
Administration'' and in its place add ``General Counsel''.
    The addition and revisions read as follows:


Sec.  200.4   Availability of information to the public.

    (a) * * *
    (4) Copies of all records, regardless of form or format--
    (i) That have been released to any person under paragraph (f) of 
this section; and
    (ii) That because of the nature of their subject matter, the RRB 
determines have become or are likely to become the subject of 
subsequent requests for substantially the same records, or that have 
been requested 3 or more times.
* * * * *
    (g) * * *
    (2) * * *
    (iii) * * * The term ``representative of the news media'' refers to 
any person or entity that actively 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. Examples of 
news media entities include television or radio stations that broadcast 
``news'' to the public at large and publishers of periodicals that 
disseminate ``news'' and make their products available through a 
variety of means to the general public, including news organizations 
that disseminate solely on the internet. A request for records 
supporting the news-dissemination function of the requester shall not 
be considered to be for a commercial use. ``Freelance'' journalists who 
demonstrate a solid basis for expecting publication through a news 
media entity shall be considered as a representative of the news media. 
A publishing contract would provide the clearest evidence that 
publication is expected; however, the RRB will also consider a 
requester's past publication record in making this determination. * * *
* * * * *
    (v) * * * Requesters may seek a waiver of fees by submitting a 
written

[[Page 35224]]

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.
* * * * *
    (8) Restriction on charging fees. If the RRB 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 paragraphs (g)(2)(ii) and (iii) of this section, may not 
charge reproduction fees except as described in paragraphs (g)(8)(i) 
and (ii) of this section.
    (i) If the RRB 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 shall be excused for an additional 10 days.
    (ii) If the RRB 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 paragraphs (g)(2)(ii) and (iii) 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 the exception in this 
paragraph (g)(8)(ii) is satisfied, the component may charge all 
applicable fees incurred in the processing of the request.
    (9) Other statutes specifically providing for fees. The fee 
schedule of this section does not apply to fees charged under any 
statute that specifically requires an agency to set and collect fees 
for particular types of records. In instances where records responsive 
to a request are subject to a statutorily-based fee schedule program, 
the agency must inform the requester of the contact information of that 
program.
* * * * *
    (i) Timing of responses to requests. The RRB ordinarily will 
respond to requests according to their order of receipt. In instances 
involving misdirected requests that are required to be rerouted, the 
response time shall commence on the date that the request is received 
by the office that is designated to receive requests, but in any event 
not later than 10 working days after the request is first received by 
any office that is designated by these regulations to receive requests.
    (1) Unusual circumstances. Whenever the RRB cannot meet the 
statutory time limit for processing a request because of ``unusual 
circumstances,'' as defined in the FOIA, and the RRB extends the time 
limit on that basis, the RRB shall, 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 RRB estimates 
processing of the request will be completed. Where the extension 
exceeds 10 working days, the RRB shall, 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. The RRB shall make available its designated FOIA 
Public Liaison for this purpose. The RRB shall also alert requesters to 
the availability of the Office of Government Information Services 
(OGIS) to provide dispute resolution services.
    (2) Expedited processing. (i) The RRB shall process requests and 
appeals on an expedited basis whenever it is determined that they 
involve:
    (A) Circumstances in which the lack of expedited processing could 
reasonably be expected to pose an imminent threat to the life or 
physical safety of an individual; or
    (B) An urgency to inform the public about an actual or alleged 
Federal Government activity, if made by a person who is primarily 
engaged in disseminating information.
    (ii) A request for expedited processing may be made at any time. 
Requests based on paragraphs (i)(2)(i)(A) and (B) of this section must 
be submitted to the General Counsel, Railroad Retirement Board, Room 
836, 844 N Rush Street, Chicago, Illinois 60611-1275.
    (iii) A requester who seeks expedited processing must submit a 
statement, certified to be true and correct, explaining in detail the 
basis for making the request for expedited processing. For example, 
under paragraph (i)(2)(i)(B) of this section, a requester who is not a 
full-time member of the news media must establish that the requester is 
a person whose primary professional activity or occupation is 
information dissemination, though it need not be the requester's sole 
occupation. Such a requester also must establish a particular urgency 
to inform the public about the government activity involved in the 
request--one that extends beyond the public's right to know about 
government activity generally. The existence of numerous articles 
published on a given subject can be helpful in establishing the 
requirement that there be an ``urgency to inform'' the public on the 
topic. As a matter of administrative discretion, an agency may waive 
the formal certification requirement.
    (iv) The RRB shall notify the requester within 10 calendar days of 
the receipt of a request for expedited processing of its decision 
whether to grant or deny expedited processing. If expedited processing 
is granted, the request will be given priority and will be processed as 
soon as practicable. If a request for expedited processing is denied, 
the RRB will act on any appeal of that decision expeditiously.
    (j) * * * Additionally, any grant shall contain a statement 
notifying the requester of the assistance available from the RRB's FOIA 
Public Liaison, and any denial shall contain a statement notifying the 
requester of the assistance available from the RRB's FOIA Public 
Liaison and the dispute resolution services offered by the National 
Archives and Records Administration's (NARA's) Office of Government 
Information Services (OGIS).
* * * * *

    By Authority of the Board.
Stephanie Hillyard,
Secretary to the Board.
[FR Doc. 2021-13963 Filed 7-1-21; 8:45 am]
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