157 FERC ¶ 61,116

UNITED STATES OF AMERICA

FEDERAL ENERGY REGULATORY COMMISSION

18 CFR Parts 375 and 388

[Docket No. RM17-5-000; Order No.832]

Regulations Implementing the FOIA Improvement Act of 2016 and Clarifying the FOIA 

Regulations

(Issued November 17, 2016)

AGENCY: Federal Energy Regulatory Commission.

ACTION: Final rule.

SUMMARY: On June 30, 2016, President Obama signed the Freedom of Information 

Act Improvement Act of 2016. The Act requires agencies to revise their regulations 

within 180 days to account for the new statutory mandates. After undertaking a review of 

Commission regulations in accordance with Section 3 of the Act, the Commission is

revising its FOIA regulations to incorporate the statutory mandates. Additionally, this 

rule updates the delegation regulations with respect to determinations made by the 

General Counsel in response to FOIA administrative appeals.

DATE: This rule will become effective [Insert_Date 30 days after publication in the 

FEDERAL REGISTER].

FOR FURTHER INFORMATION CONTACT:

Mark Hershfield

Office of the General Counsel

888 First Street, NE

Washington, DC 20426

(202) 502-8597

mark.hershfield@ferc.gov
Docket No. RM17-5-000 - 2 -

Christopher MacFarlane

Office of the General Counsel

888 First Street, NE

Washington, DC 20426

(202) 502-6761

christopher.macfarlane@ferc.gov

SUPPLEMENTARY INFORMATION:
157 FERC ¶ 61,116

UNITED STATES OF AMERICA

FEDERAL ENERGY REGULATORY COMMISSION

Before Commissioners: Norman C. Bay, Chairman;

 Cheryl A. LaFleur, and Colette D. Honorable.

 

Regulations Implementing the FOIA Improvement 

Act of 2016 and Clarifying the FOIA Regulations. 

Docket No. RM17-5-000

ORDER NO. 832

FINAL RULE

(Issued November 17, 2016)

I. Introduction

1. On June 30, 2016, President Obama signed the Freedom of Information Act 

(FOIA) Improvement Act of 2016 (FOIA Improvement Act or the Act).

1

 The Act directs 

agencies to: (1) make information that has been requested and disclosed three times 

publically accessible in an electronic format;

2 (2) institute a sunset period of 25 years on 

records protected under the deliberative process privilege; (3) codify the Department of 

 1 FOIA Improvement Act of 2016, Pub. L. 114-185, 130 Stat. 538 (June 2016). 

The Act also requires several actions that do not necessitate a revising of the regulations 

such as FOIA officers offering additional FOIA training.

2 See Proactive Disclosure of Non-Exempt Agency Information: Making 

Information Available Without the Need to File a FOIA Request, OIP Guidance (Oct. 5, 

2015), https://www.justice.gov/oip/oip-guidance-5. 
Docket No. RM17-5-000 - 2 -

Justice’s foreseeability of harm standard when rendering FOIA determinations;

3 (4) take 

reasonable steps to segregate exempt information from nonexempt information; (5) limit

fees in unusual circumstances when the agency response is delayed; and (6) provide 

additional notice requirements to FOIA requesters in agency determination letters. 

2. Section 3 of the Act requires agencies to revise their regulations to account for the 

new statutory mandates. The Act provides that agencies must revise their rules within 

180 days to incorporate the statutory changes. Accordingly, the Commission is revising 

its regulations to implement the FOIA Improvement Act. Consistent with the FOIA 

administrative appeal provisions in section 388.110, the Commission also is clarifying 

under section 375.309 that the General Counsel or a designee may issue final 

determinations on administrative FOIA appeals. 

II. Discussion

3. After undertaking a review of Commission regulations in accordance with 

Section 3 of the Act, the Commission is revising its FOIA regulations in 18 CFR sections

388.106-10 (2016), as follows.

 3 See 5 U.S.C. 552(b)(5)(2012) (incorporating various privileges including the 

deliberative process privilege covering “inter-agency or intra-agency memorandums or 

letters which would not be available by law to a party other than an agency in litigation 

with the agency.”)
Docket No. RM17-5-000 - 3 -

A. Revisions to Section 375.309

4. The FOIA administrative appeal provisions in section 388.110 provide that a 

FOIA administrative appeal must be directed to the General Counsel for determination, 

and that the General Counsel or the General Counsel’s designee will make a 

determination on that appeal within the statutory timeframe.4

 Consistent with the 

Commission’s FOIA administrative appeal provisions in section 388.110, the 

Commission is clarifying, in section 375.309, that the General Counsel or a designee will 

provide determinations in response to FOIA administrative appeals. 

B. Revisions to Section 388.106

5. The FOIA Improvement Act requires agencies to “make available for public 

inspection in an electronic format” records that have been released and “that have been 

requested 3 or more times.” Section 388.106 concerns Commission records available in 

the public reference room at the Commission’s headquarters or on the Commission’s 

website. The Commission is revising that section to codify this requirement.

C. Revisions to Section 388.107

6. The FOIA Improvement Act provides that the deliberative process privilege no 

longer exempts a document that is 25 years or older. Section 388.107 describes material 

that is exempt from public disclosure under the Commission’s regulations, and a 

provision in that section describes material that would traditionally fall under the 

 4 See 5 U.S.C. 552(a)(6)(A)(ii) (2012).
Docket No. RM17-5-000 - 4 -

protection of deliberative process privilege. The Commission is revising section 

338.107(e) to reflect the 25 year limitation on material that would otherwise be exempt 

under the deliberative process privilege.

D. Revisions to Section 388.108

7. The FOIA Improvement Act requires agencies to codify the Department of 

Justice’s foreseeable harm standard. Under that standard, agencies “shall withhold 

information” under the FOIA “only if the agency reasonably foresees that disclosure 

would harm an interest protected by an exemption” or “disclosure is prohibited by law.” 

The standard does not require the release of material “that is otherwise prohibited from 

disclosure by law, or otherwise exempted from disclosure under [Exemption] 3.” The 

Act also directs agencies to make reasonable efforts to segregate and release nonexempt 

material. Consistent with Section 3 of the Act, the Commission revises section 388.108

to codify these practices. 

E. Revisions to Section 388.109

8. The Act directs agencies to waive processing fees, under certain unusual

circumstances, where the agency’s response was delayed.5

 The Commission is revising 

 5 See Prohibition on Assessing Certain Fees When the FOIA's Time Limits Are 

Not Met, OIP Guidance (Oct. 19, 2016), https://www.justice.gov/oip/oipguidance/prohibition_on_assessing_certain_fees_when_foia_time_limits_not_met.
Docket No. RM17-5-000 - 5 -

its regulations on FOIA processing fees, section 388.109, to provide for fee waivers in

the unusual circumstances described in the Act.

F. Revisions to Section 388.110

9. The FOIA Improvement Act also provides changes to administrative appeals and 

provides mandatory language that must go in initial response letters. The Act requires 

that all determination letters must notify the requester that they can seek assistance from 

the FOIA Public Liaison. Each adverse FOIA determination letter must notify the 

requester of the option to seek dispute resolution services from Office of Government 

Information Services (OGIS). 

10. The Act also directs Agencies to extend the timeframe to file an administrative 

appeal from 45 days to at least 90 days. Additionally, the Act mandates that agencies 

advise requesters that they may seek the assistance of OGIS when the agency extends the 

response time by ten or more days for unusual circumstances. The Commission will take 

these steps and revises section 388.110 of its regulations to codify this practice. 

III. Information Collection Statement

11. Office of Management and Budget (OMB) regulations require OMB to approve 

certain information collection requirements imposed by agency rule.6 However, this 

instant Final Rule does not contain any information collection requirements. Therefore, 

compliance with OMB regulations is not required.

 6 5 CFR 1320.12 (2016).
Docket No. RM17-5-000 - 6 -

IV. Environmental Analysis

12. The Commission is required to prepare an Environmental Assessment or an 

Environmental Impact Statement for any action that may have a significant adverse effect 

on the human environment.7 Issuance of this Final Rule does not represent a major 

federal action having a significant adverse effect on the human environment under the 

Commission’s regulations implementing the National Environmental Policy Act of 1969. 

Part 380 of the Commission’s regulations lists exemptions to the requirement to draft an 

Environmental Analysis or Environmental Impact Statement. Included is an exemption 

for procedural, ministerial, or internal administrative actions.8 This rulemaking is exempt 

under that provision. 

V. Regulatory Flexibility Act

13. The Regulatory Flexibility Act of 1980 (RFA)9 generally requires a description 

and analysis of final rules that will have significant economic impact on a substantial 

number of small entities. This Final Rule makes procedural modifications as directed by 

statute. The Commission certifies that it will not have a significant economic impact 

 7 Regulations Implementing the National Environmental Policy Act of 1969, Order 

No. 486, (Dec. 17, 1987), FERC Stats. & Regs. ¶ 30,783 (1987).

8 18 CFR 380.4(a)(1) (2016).

9 5 U.S.C. 601-12 (2012).
Docket No. RM17-5-000 - 7 -

upon participants in Commission proceedings. An analysis under the RFA is not 

required. 

VI. Document Availability

14. In addition to publishing the full text of this document in the Federal Register, the 

Commission provides all interested persons an opportunity to view and/or print the 

contents of this document via the Internet through the Commission’s Home Page 

(http://www.ferc.gov) and in the Commission’s Public Reference Room during normal 

business hours (8:30 a.m. to 5:00 p.m. Eastern time) at 888 First Street, NE, Room 2A, 

Washington, DC 20426.

15. From the Commission’s Home Page on the Internet, this information is available 

on eLibrary. The full text of this document is available on eLibrary in PDF and 

Microsoft Word format for viewing, printing, and/or downloading. To access this 

document in eLibrary, type the docket number excluding the last three digits of this 

document in the docket number field.

16. User assistance is available for eLibrary and the Commission’s website during 

normal business hours from FERC Online Support at (202) 502-6652 (toll free at 1-866-

208-3676) or email at ferconlinesupport@ferc.gov, or the Public Reference Room at 

(202) 502-8371, TTY (202) 502-8659. E-mail the Public Reference Room 

at public.referenceroom@ferc.gov.
Docket No. RM17-5-000 - 8 -

VII. Effective Date

17. The Commission is issuing this rule as a Final Rule without a period for public 

comment. Under 5 U.S.C. 553(b)(3)(A), notice and comment procedures are unnecessary

for “interpretative rules, general statements of policy, or rules of agency organization, 

procedure, or practice . . .” This rule merely makes modification to existing procedures 

as directed by statute. The rule will not significantly affect regulated entities or the 

general public.

18. These regulations are effective [insert date 30 days after publication in the 

Federal Register]. 

List of Subjects in 18 CFR Part 375

Authority delegations (Government agencies); Seals and insignia; Sunshine Act.

List of Subjects in 18 CFR Part 388

Confidential business information; Freedom of information.

By the Commission.

( S E A L )

Nathaniel J. Davis, Sr.,

Deputy Secretary.
Docket No. RM17-5-000 - 9 -

In consideration of the foregoing, the Commission amends Parts 375 and 388, 

Chapter 1, Title 18, Code of Federal Regulations, as follows:

PART 375— THE COMMISSION

1. The authority citation for part 375 continues to read as follows:

Authority: 5 U.S.C. 551-557; 15 U.S.C. 717-717w, 3301-3432; 16 U.S.C. 791-

825r, 2601-2645; 42 U.S.C. 7101-7352.

2. In section 375.309, Paragraph (h) is added as follows

Section 375.309 Delegations to the General Counsel.

* * * * *

(i) Deny or grant, in whole or in part, an appeal of a Freedom of Information Act 

determination by the Director of the Office of External Affairs. 

PART 388— INFORMATION AND REQUESTS

1. The authority citation for part 388 continues to read as follows:

Authority: 5 U.S.C. 301-305, 551, 552 (as amended), 553-557; 42 U.S.C. 7101-7352.

2. Amend section 388.106 by adding paragraph (a)(24), to read as follows

Section 388.106 Requests for Commission records available in the Public Reference 

Room and from the Commission’s web site, http://www.ferc.gov.

* * * * *

(a) * * * 
Docket No. RM17-5-000 - 10 -

(24) Records that have been requested three or more times and determined eligible for 

public disclosure will be made publicly available on the Commission’s website or through 

other electronic means. 

* * * * *

3. Amend section 388.107 by revising paragraph (e), to read as follows

Section 388.107 Commission records exempt from public disclosure.

* * * * *

(e) Interagency or intraagency memoranda or letters which would not be available by law 

to a party other than an agency in litigation with the agency, except that the deliberative 

process privilege shall not exempt any record 25 years or older.

* * * * *

4. Amend section 388.108 by revising paragraph (c) to read as follows:

Section 388.108 Requests for Commission records not available through the Public 

Reference Room (FOIA requests).

* * * * *

(c) * * * 

(4) The Director will consider whether partial disclosure of information is possible 

whenever it is determined that a document is exempt and will take reasonable steps to 

segregate and release nonexempt information.
Docket No. RM17-5-000 - 11 -

(5) The Director will only withhold information where it is reasonably foreseeable that 

disclosure would harm an interest protected by an exemption or disclosure is prohibited 

by law or otherwise exempted from disclosure under FOIA Exemption 3.

***

5. Amend section 388.109 by adding paragraph (f), to read as follows

Section 388.109 Fees for record requests.

* * * * *

(f) The Commission will not charge search fees (or duplication fees for requesters with 

preferred fee status) where, after extending the time limit for unusual circumstances, as 

described in section 388.110, the Director does not provide a timely determination.

(1) If there are unusual circumstances, as described in Section 388.110, and there 

are more than 5,000 responsive pages to the request, the Commission may charge search 

fees (or, for requesters in preferred fee status, may charge duplication fees) where the 

requester received timely written notice and the Commission has discussed with the 

requester via written mail, electronic mail, or telephone (or made not less than 3 good-faith 

attempts to do so) how the requester could effectively limit the scope of the request; or

(2) If a court determines that exceptional circumstances exist, the Commission’s 

failure to comply with a time limit will be excused for the length of time provided by the 

court order.

6. Amend section 388.110 by revising paragraphs (a) and (b) to read as follows:
Docket No. RM17-5-000 - 12 -

Section 388.110 Procedure for appeal of denial of requests for Commission records 

not publicly available or not available through the Public Reference Room, denial 

of...fee waiver or reduction, and denial of requests for expedited processing.

* * * * *

(a) (1) Determination letters shall indicate that a requester may seek assistance from 

the FOIA Public Liaison. A person whose request for records, request for fee waiver, or 

request for expedited processing is denied in whole or in part may seek dispute resolution 

services from the Office of Government Information Services, or may appeal the 

determination to the General Counsel or General Counsel’s designee within 90 days of the 

determination. 

(2) Appeals filed pursuant to this section must be in writing, addressed to the 

General Counsel of the Commission, and clearly marked “Freedom of Information Act 

Appeal.” Such an appeal received by the Commission not addressed and marked as 

indicated in this paragraph will be so addressed and marked by Commission personnel as 

soon as it is properly identified and then will be forwarded to the General Counsel. Appeals 

taken pursuant to this paragraph will be considered to be received upon actual receipt by 

the General Counsel.

(3) The General Counsel or the General Counsel's designee will make a 

determination with respect to any appeal within 20 working days after the receipt of such 

appeal. An appeal of the denial of expedited processing will be considered as expeditiously 

as possible within the 20 working day period. If, on appeal, the denial of the request for 
Docket No. RM17-5-000 - 13 -

records, fee reduction, or expedited processing is upheld in whole or in part, the General 

Counsel or the General Counsel's designee will notify the person making the appeal of the 

provisions for judicial review of that determination.

(b) * * * 

(5) Whenever the Commission extends the time limit, pursuant to (b)(1) of this 

paragraph, by more than ten additional working days, the written notice will notify the 

requester of the right to seek dispute resolution services from the Office of Government 

Information Services.