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.

The Code of Federal Regulations is sold by

the Superintendent of Documents. Prices of

new books are listed in the first FEDERAL

REGISTER issue of each week.

Rules and Regulations Federal Register

41707

Vol. 63, No. 150

Wednesday, August 5, 1998

FEDERAL RETIREMENT THRIFT

INVESTMENT BOARD

5 CFR Part 1631

Availability of Records

AGENCY: Federal Retirement Thrift

Investment Board.

ACTION: Final rule.

SUMMARY: The Executive Director of the

Federal Retirement Thrift Investment

Board (Board) is publishing a final rule

amending the Board’s Freedom of

Information Act regulations to

implement the Electronic Freedom of

Information Act Amendments of 1996.

The rule provides for expedited

processing of certain requests and

enlarges the time for responding to

initial requests. The rule also provides

the address for the Board’s electronic

reading room and adds a category of

documents to be made available in the

reading room. In addition, the rule

updates the fees charged to search for

records.

EFFECTIVE DATES: September 4, 1998.

FOR FURTHER INFORMATION CONTACT:

Thomas L. Gray, Federal Retirement

Thrift Investment Board, 1250 H Street,

NW, Washington, DC 20005; (202) 942–

1662; FAX (202) 942–1676.

SUPPLEMENTARY INFORMATION: Section 4

of the Electronic Freedom of

Information Act Amendments of 1996

(EFOIA), Pub. L. 104–231, section 4, 110

Stat. 3048, 3049, amended 5 U.S.C.

552(a)(2) to require Federal agencies to

make documents available in electronic

form. In accordance with this

requirement, the rule amends 5 CFR

1631.4 to provide the address of the

Board’s electronic reading room. The

Board maintains a reading area with

paper documents that is open to the

public. The Board also maintains a

business Web site at http://

www.frtib.gov which contains, in

addition to business information, its

electronic reading room. The Board

maintains a Web site at http://

www.tsp.gov to provide program

information about the Thrift Savings

Plan, and that site is linked to the

business site. Both Web sites contain

documents in readily accessible

electronic form which can be

downloaded by the requester. In

accordance with the EFOIA, the Board

will add to its reading area and Web site

those records that it determines are

repeatedly requested under the Freedom

of Information Act (FOIA). A list of such

records will be maintained on the

Board’s business Web site.

Section 3 of the EFOIA, 110 Stat. at

3051–52, amended 5 U.S.C. 552(a)(E)(6)

to require Federal agencies to

promulgate rules on expedited

processing of FOIA requests in cases of

compelling need or in other cases

determined by the agency. To

implement this requirement, the rule

adds new paragraphs (f) and (g) to 5 CFR

1631.6 to set forth the circumstances

under which the Board will honor a

request for expedited processing and

establishes procedures for expediting

requests. The rule amends 5 CFR

1631.8(a) to advise that a determination

whether to provide expedited

processing of a request will be made

within 10 work days. The Board

normally processes FOIA requests on a

first-in, first-out basis. If a request for

expedited processing is approved, that

request will be processed ahead of other

requests. In addition, the rule amends 5

CFR 1631.8(b) and (c) to implement the

new 20-day time limit for responding to

initial requests for records and to

provide procedures the Board will

follow if additional time is needed to

process a request for records.

The rule amends 5 CFR 1631.10 to

provide procedures for processing

appeals of requests for expedited

processing, to distinguish procedures

for handling a request for expedited

processing from procedures for

processing an appeal of a request for

records, and to state that an appeal from

the denial of a request for expedited

processing will be handled within five

work days of receipt in the Office of

General Counsel.

The rule also amends 5 CFR 1631.11

and 1631.14 to increase the benefits

factor which, along with the employee’s

salary, determines the amount the Board

will charge to search for records.

Sections 1631.11 and 1631.14 currently

provide for charging the salary rate of

the employee who conducts the search

plus 16 percent for benefits. The

benefits factor was set at 16 percent

based on an Office of Management and

Budget FOIA fee schedule and

guidelines published in the Federal

Register on March 27, 1987 (52 FR

10012, 10013), and it has not been

revised since that time. For Board

employees, the current benefits rate is

23.5 percent. Included in this rate are

retirement contributions, Social

Security taxes, health and life insurance

premiums, and lump sum awards and

bonuses.

Finally, 5 CFR 1631.18 is amended to

address the new annual reporting

requirement imposed by section 10 of

the EFOIA, 110 Stat. at 3053–54, which

will be codified at 5 U.S.C. 552(e).

In the June 1, 1998, Federal Register

(63 FR 29672), the Board published a

proposed rule with these amendments.

No comments were received; therefore,

the Board is publishing this rule as a

final rule without change.

Regulatory Flexibility Act

I certify that these regulations will not

have a significant economic impact on

a substantial number of small entities.

They require the Board to disclose

information in certain instances and to

address when and the form in which

information will be disclosed.

Paperwork Reduction Act

I certify that these regulations do not

require additional reporting under the

criteria of the Paperwork Reduction Act

of 1980.

Unfunded Mandates Reform Act of

1995

Under the Unfunded Mandates

Reform Act of 1995, section 201, Pub. L.

104–4, 109 Stat. 48, 64, the effect of

these regulations on State, local, and

tribal governments and on the private

sector has been assessed. These

regulations will not compel the

expenditure in any one year of $100

million or more by any State, local, and

tribal governments in the aggregate or by

the private sector. Therefore, a

statement under section 202, 109 Stat.

48, 64–65, is not required.
41708 Federal Register / Vol. 63, No. 150 /Wednesday, August 5, 1998 /Rules and Regulations

List of Subjects in 5 CFR Part 1631

Administrative practice and

procedure, Courts, Freedom of

information, Government employees.

Roger W. Mehle,

Executive Director, Federal Retirement Thrift

Investment Board.

For the reasons set out in the

preamble, 5 CFR Part 1631 is amended

to read as follows:

PART 1631—AVAILABILITY OF

RECORDS

1. The authority citation for part 1631

is revised to read as follows:

Authority: 5 U.S.C. 552.

2. Section 1631.4 is amended by

revising paragraph (a) to read as follows:

§ 1631.4 Public reference facilities and

current index.

(a) The Board maintains a public

reading area located in room 4308 at

1250 H Street, NW, Washington, DC.

Reading area hours are from 9:00 A.M.

to 5:00 P.M., Monday through Friday,

exclusive of Federal holidays. Electronic

reading room documents are available

through http://www.frtib.gov. In the

reading area and through the Web site,

the Board makes available for public

inspection, copying, and downloading

materials required by 5 U.S.C. 552(a)(2),

including documents published by the

Board in the Federal Register which are

currently in effect.

* * * * *

3. Section 1631.6 is amended by

adding new paragraphs (f) and (g) to

read as follows:

§ 1631.6 How to request records—form

and content.

* * * * *

(f) When a person requesting

expedited access to records has

demonstrated a compelling need, or

when the Board has determined that it

is appropriate to expedite its response,

the Board will process the request ahead

of other requests.

(g) To demonstrate compelling need

in accordance with paragraph (f) of this

section, the requester must submit a

written statement that contains a

certification that the information

provided therein is true and accurate to

the best of the requester’s knowledge

and belief. The statement must

demonstrate that:

(1) The failure to obtain the record on

an expedited basis could reasonably be

expected to pose an imminent threat to

the life or physical safety of an

individual; or

(2) The requester is a person primarily

engaged in the dissemination of

information, and there is an urgent need

to inform the public concerning an

actual or alleged Federal Government

activity that is the subject of the request.

4. Section 1631.8 is revised to read as

follows:

§ 1631.8 Prompt response.

(a)(1) When the FOIA Officer receives

a request for expedited processing, he or

she will determine within 10 work days

whether to process the request on an

expedited basis.

(2) When the FOIA Officer receives a

request for records which he or she, in

good faith, believes is not reasonably

descriptive, he or she will so advise the

requester within 5 work days. The time

limit for processing such a request will

not begin until receipt of a request that

reasonably describes the records being

sought.

(b) The FOIA Officer will either

approve or deny a reasonably

descriptive request for records within 20

work days after receipt of the request,

unless additional time is required for

one of the following reasons:

(1) It is necessary to search for and

collect the requested records from other

establishments that are separate from

the office processing the request (e.g.,

the record keeper);

(2) It is necessary to search for,

collect, and examine a voluminous

amount of records which are demanded

in a single request;

(3) It is necessary to consult with

another agency which has a substantial

interest in the determination of the

request or to consult with two or more

offices of the Board which have a

substantial subject matter interest in the

records; or

(4) It is necessary to devote resources

to the processing of an expedited

request under § 1631.6(f).

(c) When additional time is required

for one of the reasons stated in

paragraph (b) of this section, the FOIA

Officer will extend this time period for

an additional 10 work days by written

notice to the requester. If the Board will

be unable to process the request within

this additional time period, the

requester will be notified and given the

opportunity to—

(1) Limit the scope of the request; or

(2) Arrange with the FOIA Officer an

alternative time frame for processing the

request.

5. Section 1631.10 is revised to read

as follows:

§ 1631.10 Appeals to the General Counsel

from initial denials.

(a) When the FOIA Officer has denied

a request for expedited processing or a

request for records, in whole or in part,

the person making the request may,

within 30 calendar days of receipt of the

response of the FOIA Officer, appeal the

denial to the General Counsel. The

appeal must be in writing, addressed to

the General Counsel, Federal Retirement

Thrift Investment Board, 1250 H Street,

NW, Washington, DC 20005, and be

clearly labeled as a ‘‘Freedom of

Information Act Appeal.’’

(b)(1) The General Counsel will act

upon the appeal of a denial of a request

for expedited processing within 5 work

days of its receipt.

(2) The General Counsel will act upon

the appeal of a denial of a request for

records within 20 work days of its

receipt.

(c) The General Counsel will decide

the appeal in writing and mail the

decision to the requester.

(d) If the appeal concerns an

expedited processing request and the

decision is in favor of the person

making the request, the General Counsel

will order that the request be processed

on an expedited basis. If the decision

concerning a request for records is in

favor of the requester, the General

Counsel will order that the subject

records be promptly made available to

the person making the request.

(e) If the appeal of a request for

expedited processing of records is

denied, in whole or in part, the General

Counsel’s decision will set forth the

basis for the decision. If the appeal of a

request for records is denied, in whole

or in part, the General Counsel’s

decision will set forth the exemption

relied on and a brief explanation of how

the exemption applies to the records

withheld and the reasons for asserting

it, if different from the reasons

described by the FOIA Officer under

§ 1631.9. The denial of a request for

records will state that the person

making the request may, if dissatisfied

with the decision on appeal, file a civil

action in Federal court. (A Federal court

does not have jurisdiction to review a

denial of a request for expedited

processing after the Board has provided

a complete response to the request.)

(f) No personal appearance, oral

argument, or hearing will ordinarily be

permitted in connection with an appeal

of a request for expedited processing or

an appeal for records.

(g) On appeal of a request concerning

records, the General Counsel may

reduce any fees previously assessed.

§ 1631.11 [Amended]

6. In section 1631.11 amend

paragraph (a)(4) by removing the phrase

‘‘plus 16 percent’’ in the second

sentence and adding the phrase ‘‘plus

23.5 percent’’ in its place.
Federal Register / Vol. 63, No. 150 /Wednesday, August 5, 1998 /Rules and Regulations 41709

§ 1631.13 [Amended]

7. In section 1631.13 amend

paragraph (c) by removing the number

‘‘10’’ and adding in its place the number

‘‘20’’.

§ 1631.14 [Amended]

8. In section 1631.14 amend the first

sentence of paragraph (a) and the

second sentence of paragraph (b) by

removing the phrase ‘‘plus 16 percent’’

and adding the phrase ‘‘plus 23.5

percent’’ in its place.

9. Section 1631.18 is revised to read

as follows:

§ 1631.18 Annual report.

The Executive Director will submit

annually, on or before February 1, a

Freedom of Information report covering

the preceding fiscal year to the Attorney

General of the United States. The report

will include matters required by 5

U.S.C. 552(e).

[FR Doc. 98–20876 Filed 8–4–98; 8:45 am]

BILLING CODE 6760–01–P

DEPARTMENT OF AGRICULTURE

Agricultural Marketing Service

7 CFR Part 981

[Docket No. FV98–981–1 FR]

Almonds Grown in California; Revision

of Requirements Regarding Quality

Control Program

AGENCY: Agricultural Marketing Service,

USDA.

ACTION: Final rule.

SUMMARY: This rule revises the

administrative rules and regulations of

the California almond marketing order

(order) pertaining to the quality control

program. The order regulates the

handling of almonds grown in

California, and is administered locally

by the Almond Board of California

(Board). Under the terms of the order,

handlers are required to obtain

inspection on almonds received from

growers to determine the percent of

inedible almonds in each lot of any

variety. Handlers are then required to

dispose of a quantity of almonds in

excess of 1 percent of the weight of

almonds reported as inedible to

accepted users of such product.

Accepted users are approved annually

by the Board. This rule clarifies

conditions upon which accepted users’

status may be denied or revoked by the

Board. This rule will help to ensure that

inedible almonds are removed from

human consumption channels, thereby

maintaining the integrity of the quality

control provisions of the order.

EFFECTIVE DATE: This final rule becomes

effective August 6, 1998.

FOR FURTHER INFORMATION CONTACT:

Martin Engeler, Assistant Regional

Manager, California Marketing Field

Office, Marketing Order Administration

Branch, F&V, AMS, USDA, 2202

Monterey Street, suite 102B, Fresno,

California 93721; telephone: (209) 487–

5901, Fax: (209) 487–5906; or George

Kelhart, Technical Advisor, Marketing

Order Administration Branch, Fruit and

Vegetable Programs, AMS, USDA, room

2525-S, PO Box 96456, Washington, DC

20090–6456; telephone: (202) 720–2491,

Fax: (202) 205–6632. Small businesses

may request information on compliance

with this regulation by contacting Jay

Guerber, Marketing Order

Administration Branch, F&V, AMS,

USDA, room 2525–S, PO Box 96456,

Washington, DC 20090–6456; telephone:

(202) 720–2491, Fax: (202) 205–6632.

SUPPLEMENTARY INFORMATION: This final

rule is issued under Marketing Order

No. 981, as amended (7 CFR part 981),

regulating the handling of almonds

grown in California, hereinafter referred

to as the ‘‘order.’’ The marketing order

is effective under the Agricultural

Marketing Agreement Act of 1937, as

amended (7 U.S.C. 601–674), hereinafter

referred to as the ‘‘Act.’’

The Department of Agriculture

(Department) is issuing this rule in

conformance with Executive Order

12866.

This rule has been reviewed under

Executive Order 12988, Civil Justice

Reform. This rule is not intended to

have retroactive effect. This rule will

not preempt any State or local laws,

regulations, or policies, unless they

present an irreconcilable conflict with

this rule.

The Act provides that administrative

proceedings must be exhausted before

parties may file suit in court. Under

section 608c(15)(A) of the Act, any

handler subject to an order may file

with the Secretary a petition stating that

the order, any provision of the order, or

any obligation imposed in connection

with the order is not in accordance with

law and request a modification of the

order or to be exempted therefrom. A

handler is afforded the opportunity for

a hearing on the petition. After the

hearing the Secretary would rule on the

petition. The Act provides that the

district court of the United States in any

district in which the handler is an

inhabitant, or has his or her principal

place of business, has jurisdiction to

review the Secretary’s ruling on the

petition, provided an action is filed not

later than 20 days after date of the entry

of the ruling.

This final rule revises the

administrative rules and regulations

pertaining to a quality control program

under the California almond order. This

rule was unanimously recommended by

the Board, and clarifies conditions

under which the Board may deny or

revoke the status of accepted users of

inedible almonds.

Section 981.42 of the order provides

authority for a quality control program.

Section 981.42(a) requires handlers to

obtain incoming inspection on almonds

received from growers to determine the

percent of inedible kernels in each lot

of any variety. Handlers are required to

report such inedible determination for

each lot received to the Board. Section

981.42(a) also provides authority for the

Board, with the approval of the

Secretary, to establish rules and

regulations necessary and incidental to

the administration of the order’s quality

control provisions.

Section 981.442 of the order’s

administrative rules and regulations

specifies that the weight of inedible

kernels in each lot of any variety of

almonds in excess of 1 percent of the

kernel weight received by a handler

shall constitute such handler’s inedible

disposition obligation. Handlers are

required to deliver inedible kernels

accumulated in the course of processing

to Board-approved accepted users of

such product in order to satisfy the

disposition obligation. Accepted users

then dispose of inedible kernels to nonhuman consumption outlets. Because

inedible kernels are considered unfit for

human consumption, requiring handlers

to meet this obligation helps to ensure

that each handler’s outgoing shipments

of almonds are relatively free of

almonds with serious damage, and the

number of kernels with minor damage

should be minimal.

Accepted users of inedible almonds

file an application with the Board

specifying certain terms and conditions

with which they will voluntarily abide.

The application also indicates they will

dispose of the inedible almonds

received from handlers in one or more

of the following manners: crushing into

oil; manufacturing into animal feed; or

feeding directly to animals. The Board

staff reviews and approves accepted

user applications on an annual basis.

Section 981.442(a)(7) of the rules and

regulations lists eligibility criteria for

accepted users. These criteria are

applied by the Board when reviewing

and approving accepted users. However,

the regulations do not specifically

address when the Board may deny or

revoke accepted user status. Situations