[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]
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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.
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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.
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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
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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.
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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.
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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.
* * * * *
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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.
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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. * * *
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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