Freedom of Information Act; implementation,

[Federal Register: October 30, 2003 (Volume 68, Number 210)]

[Rules and Regulations]

[Page 61736-61737]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr30oc03-5]

NATIONAL CREDIT UNION ADMINISTRATION

12 CFR Part 792

Freedom of Information Act; Implementation

AGENCY: National Credit Union Administration (NCUA).

ACTION: Direct final rule with request for comments.

SUMMARY: NCUA is amending its regulation implementing the Freedom of Information Act (FOIA) to reflect changes in its internal procedures for responding to FOIA requests and to provide the public with notice of the cut-off date used by the agency when searching for records responsive to FOIA requests.

DATES: Effective Date: This rule is effective December 29, 2003, without further action, unless adverse comment is received by December 1, 2003. If NCUA receives adverse comments, it will publish a timely withdrawal of the rule in the Federal Register.

ADDRESSES: Direct comments to Becky Baker, Secretary of the Board. Mail or hand-deliver comments to: National Credit Union Administration, 1775 Duke Street, Alexandria, Virginia 22314-3428. Fax comments to (703) 518-6319. E-mail comments to regcomments@ncua.gov. Please send comments by one method only.

FOR FURTHER INFORMATION CONTACT: Dianne M. Salva, Staff Attorney, Division of Operations, Office of General Counsel, at the above address or telephone: (703) 518-6540.

SUPPLEMENTARY INFORMATION: NCUA is changing its FOIA regulation, which establishes agency procedures for requesting access to NCUA records, to provide for centralized processing of FOIA requests. Previously, the rule instructed the public to submit FOIA requests to one of nine offices where they believed the records were located. This de- centralized system required FOIA requesters, some of whom were not familiar with NCUA record keeping practices, to determine where NCUA stored records. Now, the rule provides for just two offices where the public can choose to direct their FOIA requests. If requesters seek records of the Office of Inspector General (OIG), they will submit a request to the OIG. If requesters seek any other type of NCUA record, they will submit a single request to the Central Office, which will search all relevant offices for the records.

The rule also instructs FOIA requesters who are interested in receiving their FOIA responses by electronic mail (e-mail) to include their e-mail address with their requests. This will enable NCUA to process FOIA requests more efficiently and provide more timely FOIA responses.

Finally, the rule provides the public with notice of NCUA's policy concerning the search cut-off date for records responsive to a FOIA request. The U.S. Department of Justice (DOJ), which provides guidance to agencies throughout the federal government on FOIA compliance, recommends that agencies use the date they begin to search for responsive records as the cut-off beyond which no later records are considered within the scope of the request. Freedom of Information Guide and Privacy Act Overview, U.S. Department of Justice, May 2002, p. 47. Although in some cases, for administrative reasons, agencies may use another search cut-off date, such as the date of the request, recent case law establishes a general rule that agencies should include all records in existence as of the date the search begins. Public Citizen v. U.S. Department of State, 276 F. 3d 634 (D.C. Cir. 2002).

In determining what records are responsive to a FOIA request, NCUA has generally used the date it begins its search as a search cut-off date. The NCUA Board (the Board) finds that standard to be most reasonable. The Board also recognizes that in some cases there may be a good reason, such as administrative efficiency, for using a different search cut-off date. This rule, then, provides that NCUA will generally use the date it begins its search as the search cut-off date. If it uses another date, it will advise the FOIA requester.

Under the Administrative Procedures Act (APA), an agency need not comply with the notice and comment procedures for rulemaking when the rule involved is one of agency organization, procedure, or practice. 5 U.S.C. 553(b)(3)(A). These revisions to NCUA's FOIA regulation deal with internal agency practices and policies for receiving and processing FOIA requests. Accordingly, the Board finds that, under the APA, it is unnecessary to solicit public comment before making the rule effective. 5 U.S.C. 553(b)(3)(A). In an effort to provide the public with full opportunity to participate in this change to NCUA's rules, however, the Board has determined to publish this rule as a direct final rule and accept public comments for a period of 30 days prior to the effective date. The Board encourages interested parties to submit comments. If NCUA does not receive adverse comments, the rule becomes effective on the date noted above.

Regulatory Procedures

Paperwork Reduction Act

This regulation will impose no additional information collection, reporting or recordkeeping requirements.

[[Page 61737]]

Regulatory Flexibility Act

Pursuant to section 605(b) of the Regulatory Flexibility Act (RFA) (5 U.S.C. 605(b)), NCUA certifies that this rule will not have a significant economic impact on a substantial number of small entities. NCUA expects that this rule will not: (1) have significant secondary or incidental effects on a substantial number of small entities; or (2) create any additional burden on small entities. These conclusions are based on the fact that the revised regulations are minor procedural changes intended to simplify agency record access and disclosure procedures. Accordingly, a regulatory flexibility analysis is not required.

Executive Order 12612

The NCUA Board has determined that this regulation will not have a substantial direct effect on the States, on the relationship between the national government and the States, or in the distribution of power and responsibilities between the various levels of government.

Small Business Regulatory Enforcement Fairness Act

The Office of Management and Budget is reviewing this rule to determine that it is not major for purposes of the Small Business Regulatory Enforcement Fairness Act of 1996.

Agency Regulatory Goal

NCUA's goal is to promulgate clear and understandable regulations that impose minimal regulatory burden. We request your comments on whether the revisions are understandable and minimally intrusive.

List of Subjects in 12 CFR Part 792

Confidential business information, Freedom of information, Government employees.

By the National Credit Union Administration Board on October 23, 2003. Becky Baker, Secretary of the Board.

0 For the reasons set forth in the preamble, NCUA amends subpart A of 12 CFR part 792 as follows:

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

Subpart A--The Freedom of Information Act

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. 12958, 60 FR 19825, 3 CFR, 1995 Comp., p.333.

0 2. Revise Sec. 792.07 to read as follows:

Sec. 792.07 Where do I send my request?

(a) You must send your request to one of NCUA's Information Centers. The Central Office and Office of Inspector General are designated as Information Centers for the NCUA. The Freedom of Information Officer of the Office of General Counsel is responsible for the operation of the Information Center maintained at the Central Office. The Inspector General is responsible for the operation of the Inspector General Information Center.

(b) If you are seeking any NCUA record, other than those maintained by the Office of Inspector General, you should send your request to the Freedom of Information Officer at NCUA, Office of the General Counsel, 1775 Duke Street, Alexandria, Virginia 22314-3428. You may also send your request by electronic mail to FOIA@NCUA.gov.

(c) If you are seeking a record you think may be maintained by the NCUA Office of Inspector General, then you should send your request to the Inspector General, NCUA, 1775 Duke Street, Alexandria, Virginia 22314-3428.

0 3. Amend Sec. 792.08 by revising paragraph (a) to read as follows:

Sec. 792.08 What must I include in my request?

* * * * *

(a) Your name, address and telephone number where you can be reached during normal business hours. If you would like us to respond to your FOIA request by electronic mail (e-mail), you should include your e-mail address. * * * * *

0 4. Amend Sec. 792.10 by adding paragraph (f) to read as follows:

Sec. 792.10 What will NCUA do with my request?

* * * * *

(f) The Information Center will search for records responsive to your request and will generally include all records in existence at the time the search begins. If we use a different search cut-off date, we will inform you of that date.

0 5. Amend Sec. 792.14 by revising the first sentence and adding a sentence after the first sentence to read as follows:

Sec. 792.14 Who is responsible for responding to my request?

The Freedom of Information Officer or designee is responsible for making the initial determination whether to grant or deny a request for information submitted to the Central Office Information Center. The Inspector General or designee is responsible for making the initial determination whether to grant or deny a request for information submitted to the Inspector General Information Center. * * *

0 6. Amend Sec. 792.28 by revising the third sentence of the introductory text to read as follows:

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

* * * * *

In its 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. * * *

[FR Doc. 03-27310 Filed 10-29-03; 8:45 am]

BILLING CODE 7535-01-P