[Federal Register Volume 89, Number 86 (Thursday, May 2, 2024)]
[Rules and Regulations]
[Pages 35685-35688]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-08700]



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 Rules and Regulations
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains regulatory documents 
 having general applicability and legal effect, most of which are keyed 
 to and codified in the Code of Federal Regulations, which is published 
 under 50 titles pursuant to 44 U.S.C. 1510.
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 The Code of Federal Regulations is sold by the Superintendent of Documents. 
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  Federal Register / Vol. 89, No. 86 / Thursday, May 2, 2024 / Rules 
and Regulations  

[[Page 35685]]



FEDERAL ELECTION COMMISSION

11 CFR Part 4

[Notice 2024-13]


FOIA Improvement Act

AGENCY: Federal Election Commission.

ACTION: Interim final rule; request for comments.

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SUMMARY: Congress enacted the FOIA Improvement Act of 2016, which 
amends the Freedom of Information Act, as relevant here, to require 
Federal agencies to change how certain records and documents are made 
available for public inspection. The Commission is amending its 
regulations to implement this statutory mandate. The Commission is 
accepting comments on these revisions to its regulations, and any 
comments received may be addressed in a subsequent rulemaking document.

DATES: Effective July 1, 2024. Comments must be received on or before 
June 3, 2024.

ADDRESSES: All comments should be addressed to Ms. Amy L. Rothstein, 
Assistant General Counsel, and must be submitted in either written or 
electronic form. Commenters are encouraged to submit comments 
electronically via the Commission's website at https://sers.fec.gov/fosers, reference REG 2024-02. Alternatively, comments may be submitted 
in paper form addressed to the Federal Election Commission, Attn.: Ms. 
Amy L. Rothstein, Assistant General Counsel, 1050 First Street NE, 
Washington, DC.
    Each commenter must provide, at a minimum, the commenter's first 
name, last name, city, and state. All properly submitted comments, 
including attachments, will become part of the public record, and the 
Commission will make comments available for public viewing on the 
Commission's website and in the Commission's Public Records Office. 
Accordingly, commenters should not provide in their comments any 
information that they do not wish to make public, such as a home street 
address, personal email address, date of birth, phone number, social 
security number, or driver's license number, or any information that is 
restricted from disclosure, such as trade secrets or commercial or 
financial information that is privileged or confidential.

FOR FURTHER INFORMATION CONTACT: Ms. Amy Rothstein, Assistant General 
Counsel, Ms. Joanna Waldstreicher or Ms. Sarah Herman Peck, Attorneys, 
(202) 694-1650 or (800) 424-9530.

SUPPLEMENTARY INFORMATION: 

A. Background

    The FOIA Improvement Act of 2016 (the ``FOIA Improvement Act'') 
amends the Freedom of Information Act (``FOIA''), as relevant here, to 
require Federal agencies to change how certain records and documents 
are made available for public inspection.\1\ In particular, the FOIA 
Improvement Act directs Federal agencies to make certain records 
available in electronic format for public inspection; prohibits, 
subject to exception, an agency from charging fees to a FOIA requester 
if the agency misses a deadline after receiving a FOIA request; 
requires agencies to notify FOIA requesters who have received adverse 
determinations about their right to seek dispute resolution services; 
prohibits agencies from withholding information requested under FOIA 
unless the agencies reasonably foresee that disclosure would harm an 
interest protected by a FOIA exemption or the disclosure is prohibited 
by law; requires agencies withholding information requested under FOIA 
to consider whether partial disclosure is possible; and eliminates an 
exemption from disclosure under FOIA of certain agency records created 
at least 25 years before the date of the FOIA request.\2\ The FOIA 
Improvement Act also explicitly directs the head of each Federal agency 
to promulgate regulations to implement these changes to its FOIA 
practices.\3\
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    \1\ Public Law 114-185, 130 Stat. 538 (2016).
    \2\ Id. sec. 2.
    \3\ Id. sec. 3.
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    To implement the FOIA Improvement Act's mandates, the Commission is 
now amending 11 CFR 4.4 through 4.5 and 4.7 through 4.9, setting forth 
the Commission's obligations and procedures for disclosing documents 
under FOIA. Before final promulgation of any rules or regulations to 
carry out the provisions of the Federal Election Campaign Act, the 
Commission transmits the rules or regulations to the Speaker of the 
House of Representatives and the President of the Senate for a thirty-
legislative-day review period.\4\ The effective date of this final rule 
is July 1, 2024. The Commission welcomes public comment on this interim 
final rule and may address any comments received in a later rulemaking 
document.
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    \4\ 52 U.S.C. 30111(d)(2).
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    The Commission is promulgating these amendments without advance 
notice or an opportunity for comment because they fall under the ``good 
cause'' exemption of the Administrative Procedure Act.\5\ The 
Commission finds that notice and comment are unnecessary here because 
the changes are technical amendments to conform with explicit statutory 
requirements. Amending these regulatory provisions does not involve any 
exercise of discretion by the Commission. Moreover, because Congress 
has already enacted the changes to FOIA through the FOIA Improvement 
Act, the new ``administrative rule is a routine determination, 
insignificant in nature and impact, and inconsequential to the industry 
and to the public.'' \6\ For these reasons, the Commission is not 
required to publish a notice of proposed rulemaking to promulgate these 
regulatory provisions.
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    \5\ 5 U.S.C. 553(b)(B).
    \6\ See Mack Trucks, Inc. v. EPA, 682 F.3d 87, 94 (D.C. Cir. 
2012) (internal citation omitted).
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    For the same reasons, these amendments fall within the ``good 
cause'' exception to the delayed effective date provisions of the 
Administrative Procedure Act and the Congressional Review Act.\7\ 
Moreover, because this amendment is exempt from the notice and comment 
procedure of the Administrative Procedure Act under 5 U.S.C. 553(b), 
the Commission is not required to conduct a regulatory flexibility 
analysis under 5 U.S.C. 603 or 604.\8\
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    \7\ 5 U.S.C. 553(d)(3), 808(2).
    \8\ See 5 U.S.C. 601(2), 604(a).

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[[Page 35686]]

B. Revisions to 11 CFR Part 4--Public Records and the Freedom of 
Information Act

    Part 4 of the Commission regulations sets forth the Commission's 
public records obligations under FOIA. Section 4.4 requires the 
Commission to make specific categories of materials available for 
public inspection, subject to exceptions outlined in 11 CFR 4.5.\9\ 
Section 4.7 specifies the framework for requesting access to Commission 
records, and the appeal process for denied requests is delineated in 11 
CFR 4.8. Notice requirements for any associated fees is provided in 11 
CFR 4.9. The Commission is amending each of these five sections within 
11 CFR part 4 pursuant to the FOIA Improvement Act.
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    \9\ Exempt documents include records that are classified, 
records that relate to internal personnel rules, records that are 
exempted by statute, records that contain trade secrets or 
commercial or financial information that is privileged or 
confidential, certain inter-agency or intra-agency documents, 
personnel and medical files, and certain records compiled for law 
enforcement purposes.
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(i). Revisions to 11 CFR 4.4--Availability of Records

    The Commission is amending 11 CFR 4.4(a) and (c) and adding new 
paragraph (h) to reflect new standards for the availability of certain 
records.
    First, current 11 CFR 4.4(a) requires the Commission to make 
certain materials available for public inspection and copying. The 
Commission is amending paragraph (a) to provide that the Commission 
will make those materials available for public inspection in an 
electronic format.
    Second, current 11 CFR 4.4(a)(4) requires the Commission to make 
available for public inspection copies of all records that have been 
released to any person under paragraph (a) and which the agency has 
determined have become or are likely to become the subject of 
subsequent requests. The Commission is amending paragraph (a)(4) to 
provide that the Commission will make available for public inspection 
copies of all records that have been released to any person under 
paragraph (a) three or more times or which the agency determines have 
become or are likely to become subject to subsequent requests.
    Third, current 11 CFR 4.4(c) provides, in part, that the Commission 
must maintain and make available current indexes providing identifying 
information regarding any matter issued, adopted, or promulgated after 
April 15, 1975, as required by 5 U.S.C. 552(a)(2)(C) and (E). The 
Commission is amending paragraph (c) to provide that these indexes will 
be made available in an electronic format.
    Lastly, the Commission is adding new 11 CFR 4.4(h) to provide that 
the Commission will withhold releasing information under Sec.  4.4 only 
if the Commission reasonably foresees that disclosure would harm an 
interest protected by an exemption listed in 11 CFR 4.5(a) or 
disclosure is prohibited by law. New paragraph (h) also provides that, 
when the Commission determines full disclosure of a requested record is 
not possible, the Commission will consider whether partial disclosure 
is possible and will take reasonable steps necessary to segregate and 
release nonexempt information.

(ii). Revisions to 11 CFR 4.5--Categories of Exemptions

    Current 11 CFR 4.5(a)(5) provides that no FOIA request will be 
denied release unless the record contains, or its disclosure would 
reveal, inter-agency or intra-agency memoranda or letters that would 
not be available by law to a party in litigation with the Commission. 
The Commission is amending this provision to specify that the exemption 
applies only to documents not available to a party other than an agency 
in litigation with the Commission, and that the deliberative process 
privilege will not apply to records created 25 years or more before the 
request date, consistent with the FOIA Improvement Act.

(iii). Revisions to 11 CFR 4.7--Requests for Records

    The Commission is amending 11 CFR 4.7(c) and (h) and adding 
paragraph (j) to include new requirements for notifying requesters 
about the status of a request.
    First, current 11 CFR 4.7(c) requires the Commission to determine, 
within twenty working days after receiving a request or granting an 
appeal, whether to comply with the request, unless in unusual 
circumstances the time is extended or subject to Sec.  4.9(f)(3), which 
governs advance payments. The Commission is amending 11 CFR 4.7(c) to 
provide that the Commission will immediately notify the requester of 
the determination, the reasons therefore, and the requester's right to 
seek assistance from the Commission's FOIA Public Liaison and to seek 
dispute resolution services from the National Archives and Records 
Administration (``NARA''), Office of Government Information Services.
    Second, current 11 CFR 4.7(h) provides that any person denied 
access to records by the Commission must be notified immediately, 
stating the reasons for the denial. The notice must also state that the 
person denied access to records may appeal the adverse determination to 
the Commission. The Commission is amending this paragraph to provide 
that the person denied access will be notified of that person's right 
to appeal within 90 days from the date of the adverse determination. 
Such notice also must state that the person denied access to records 
may seek dispute resolution services from the Commission's FOIA Public 
Liaison or NARA's Office of Government Information Services.
    Finally, the Commission is adding 11 CFR 4.7(j) to explain the role 
of, and provide contact information for, the FOIA Public Liaison.

(iv). Revisions to 11 CFR 4.8--Mediation Services and Appeal of Denial

    The Commission is amending 11 CFR 4.8 by adding paragraph (h), 
which will notify requesters that they may seek non-compulsory, non-
binding mediation services to help resolve FOIA disputes. The 
Commission is also amending the heading of 11 CFR 4.8 to reflect the 
availability of such mediation services.

(v). Revisions to 11 CFR 4.9--Fees

    Finally, the Commission is amending 11 CFR 4.9(a), which lists 
exceptions to fee charges. The Commission is adding paragraph (a)(5) to 
address time limits for compliance.
    New 11 CFR 4.9(a)(5)(i) provides that the Commission will not 
charge a fee to any requester if the Commission does not comply with 
the time limits in 11 CFR 4.7(c) or 4.8(f).
    New 11 CFR 4.9(a)(5)(ii) provides that a failure to comply with the 
time limits is excused for another ten days if the Commission has 
determined that unusual circumstances (as defined in 5 U.S.C. 
552(a)(6)(B)(i) and 11 CFR 4.7(c)) apply and has provided timely 
written notice to the requester under 11 CFR 4.7(c). New 11 CFR 
4.9(a)(5)(ii) further provides that the Commission may not assess any 
search or duplication fees if it fails to comply with the extended time 
period.
    New 11 CFR 4.9(a)(5)(iii) describes the circumstances under which 
the Commission may charge search or duplication fees after determining 
that unusual circumstances apply and more than 5,000 pages are 
necessary to respond to the request.
    Finally, new 11 CFR 4.9(a)(5)(iv) provides that when a court has 
determined that exceptional circumstances exist, a failure to comply 
with the time limit shall be excused for the length of time provided by 
the court's order.

[[Page 35687]]

List of Subjects in 11 CFR Part 4

    Freedom of information.

    For the reasons set out in the preamble, the Federal Election 
Commission amends 11 CFR chapter I, as follows:

PART 4--PUBLIC RECORDS AND THE FREEDOM OF INFORMATION ACT

0
1. The authority citation for part 4 continues to read as follows:

    Authority: 5 U.S.C. 552, as amended.


0
2. Amend Sec.  4.4 by revising paragraphs (a) introductory text, (a)(4) 
and (c), and adding paragraph (h) to read as follows:


Sec.  4.4  Availability of records.

    (a) In accordance with 5 U.S.C. 552(a)(2), the Commission shall 
make the following materials available for public inspection in an 
electronic format:
* * * * *
    (4) Copies of all records, regardless of form or format, which have 
been released to any person under this paragraph (a) and;
    (i) Which, because of the nature of their subject matter, the 
agency determines have become or are likely to become the subject of 
subsequent requests for substantially the same records, or
    (ii) Which have been requested three or more times; and
* * * * *
    (c) The Commission shall maintain and make available for public 
inspection in an electronic format current indexes and supplements 
providing identifying information regarding any matter issued, adopted, 
or promulgated after April 15, 1975, as required by 5 U.S.C. 
552(a)(2)(C) and (E). These indexes and supplements shall be published 
and made available on at least a quarterly basis for public 
distribution unless the Commission determines by Notice in the Federal 
Register that publication would be unnecessary, impracticable, or not 
feasible due to budgetary considerations. Nevertheless, copies of any 
index or supplement shall be made available upon request at a cost not 
to exceed the direct cost of duplication.
* * * * *
    (h) The Commission will withhold information under this section 
only if the Commission reasonably foresees that disclosure would harm 
an interest protected by an exemption described in Sec.  4.5(a); or 
disclosure is prohibited by law. The Commission will consider whether 
partial disclosure of information is possible whenever it determines 
that full disclosure of a requested record is not possible, and the 
Commission will take reasonable steps necessary to segregate and 
release nonexempt information.

0
3. Amend Sec.  4.5 by revising paragraph (a)(5) to read as follows:


Sec.  4.5  Categories of exemptions.

    (a) * * *
    (5) Inter-agency or intra-agency memoranda or letters which would 
not be available by law to a party other than an agency in litigation 
with the Commission, provided that the deliberative process privilege 
shall not apply to records created 25 years or more before the date on 
which the records were requested.
* * * * *

0
4. Amend Sec.  4.7 by revising paragraphs (c) introductory text and (h) 
and adding paragraph (j) to read as follows:


Sec.  4.7  Requests for records.

* * * * *
    (c) The Commission shall determine within twenty working days after 
receipt of a request, or twenty working days after an appeal is 
granted, whether to comply with such request, unless in unusual 
circumstances the time is extended or subject to Sec.  4.9(f)(3), which 
governs advance payments. The Commission shall immediately notify the 
requester of such determination, the reasons therefor, and the right of 
the requester to seek assistance from the FOIA Public Liaison for the 
Commission and to seek dispute resolution services from the Office of 
Government Information Services. In the event the time is extended, the 
requester shall be notified of the reasons for the extension and the 
date on which a determination is expected to be made, but in no case 
shall the extended time exceed ten working days. An extension may be 
made if it is--
* * * * *
    (h) Any person denied access to records by the Commission shall be 
notified immediately giving reasons therefor, and notified of the right 
of such person to appeal such adverse determination to the Commission 
within 90 days from the date of the adverse determination and the right 
of such person to seek dispute resolution services from the FOIA Public 
Liaison for the Commission or the Office of Government Information 
Services.
* * * * *
    (j) The FOIA Public Liaison is responsible for reducing delays, 
increasing transparency and understanding of the status of requests, 
and assisting in the resolution of disputes. The FOIA Public Liaison 
may be contacted at the address identified in the definition of 
``Commission'' in Sec.  1.2 of this chapter.

0
5. Amend Sec.  4.8 by revising the section heading and adding paragraph 
(h) to read as follows:


Sec.  4.8  Mediation services and appeal of denial.

* * * * *
    (h) The National Archives and Records Administration (NARA), Office 
of Government Information Services (OGIS) offers non-compulsory, non-
binding mediation services to help resolve FOIA disputes as a non-
exclusive alternative to litigation. A requester may contact OGIS at: 
Office of Government Information Services, National Archives and 
Records Administration, 8601 Adelphi Road, College Park, MD 20740-6001; 
email: [email protected]; telephone 202-741-5770; fax: 202-741-5769; 
online: https://www.archives.gov/ogis.

0
6. Amend Sec.  4.9 by adding paragraph (a)(5) to read as follows:


Sec.  4.9  Fees.

    (a) * * *
    (5) Time limit for compliance. (i) The Commission will not charge a 
fee under this section to any requester if the Commission does not 
comply with the time limits in Sec.  4.7(c) or Sec.  4.8(f).
    (ii) If the Commission has determined that unusual circumstances 
(as defined in 5 U.S.C. 552(a)(6)(B)(iii) and Sec.  4.7(c)(1) through 
(3)) apply and the Commission provided timely written notification to 
the requester in accordance with Sec.  4.7(c), a failure to comply with 
the time limit is excused for an additional 10 days. If the Commission 
fails to comply with the extended time limit, the Commission may not 
assess any search fees or, where applicable, duplication fees.
    (iii) If the Commission has determined that unusual circumstances 
apply and more than 5,000 pages are necessary to respond to the 
request, the Commission may charge search fees or, where applicable, 
duplication fees, if the Commission has provided timely written 
notification to the requester in accordance with Sec.  4.7(c) and the 
Commission has discussed with the requester via written mail, 
electronic mail, 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 Sec.  4.7(d).
    (iv) If a court has determined that exceptional circumstances 
exist, a failure to comply with the time limit

[[Page 35688]]

shall be excused for the length of time provided by the court order.
* * * * *

     Dated: April 18, 2024.

    On behalf of the Commission.
Sean J. Cooksey,
Chairman, Federal Election Commission.
[FR Doc. 2024-08700 Filed 5-1-24; 8:45 am]
 BILLING CODE 6715-01-P