[Federal Register Volume 62, Number 191 (Thursday, October 2, 1997)]
[Proposed Rules]
[Pages 51610-51614]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-26065]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 62, No. 191 / Thursday, October 2, 1997 /
Proposed Rules
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DEPARTMENT OF ENERGY
Federal Energy Regulatory Commission
18 CFR Part 388
[Docket No. RM97-8-000]
Information and Requests
September 25, 1997.
AGENCY: Federal Energy Regulatory Commission, DOE.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Federal Energy Regulatory Commission (Commission) proposes
to amend its regulations governing information and requests to reflect
the requirements and specifications of the Electronic Freedom of
Information Act Amendments of 1996. The Commission also proposes to
correct minor editorial inconsistencies in its regulations.
DATES: Written comments must be received by the Commission by November
3, 1997.
ADDRESSES: Office of the Secretary, Federal Energy Regulatory
Commission, 888 First Street, N.E., Washington, DC 20426.
FOR FURTHER INFORMATION CONTACT: Charles A. Beamon, Office of the
General Counsel, Federal Energy Regulatory Commission, 888 First
Street, N.E., Washington, DC 20426, (202) 208-0780.
SUPPLEMENTARY INFORMATION: In addition to publishing the full text of
this document in the Federal Register, the Commission also provides all
interested persons an opportunity to inspect or copy the contents of
this document during normal business hours in the Public Reference Room
at 888 First Street, N.E., Washington, D.C. 20426.
The Commission Issuance Posting System (CIPS), an electronic
bulletin board service, provides access to the texts of formal
documents issued by the Commission. CIPS is available at no charge to
the user and may be accessed using a personal computer with a modem by
dialing 202-208-1397 if dialing locally or 1-800-856-3920 if dialing
long distance. To access CIPS, set your communications software to
19200, 14400, 12000, 9600, 7200, 4800, 2400, or 1200 bps, full duplex,
no parity, 8 data bits and 1 stop bit. The full text of this order will
be available on CIPS in ASCII and WordPerfect 6.1 format. CIPS user
assistance is available at 202-208-2474.
CIPS is also available on the Internet. Telnet software is
required. To access CIPS via the Internet, point your browser to the
URL address: http://www.ferc.fed.us and select the Bulletin Board
System. Read instructions on the next page, select FedWorld Dialup/
Telnet. A screen will appear presenting you with several options,
select option 1. There will be a welcome message from FedWorld and a
log on prompt. Enter your user ID and password (if you already have an
account). To establish an account, type the word NEW and answer the
questions which follow. Upon establishing an account, the FedWorld Main
Menu will appear. From the Main Menu, type /go ferc.
Finally, the complete text on diskette in WordPerfect format may be
purchased from the Commission's copy contractor, La Dorn Systems
Corporation. La Dorn Systems Corporation is located in the Public
Reference Room at 888 First Street, N.E., Washington, D.C. 20426.
I. Introduction
This proposed rule amends 18 CFR part 388 to implement the
provisions of the Electronic Freedom of Information Act Amendments of
1996 (the Act).1 The Act amended the Freedom of Information
Act (FOIA) 2 by imposing a number of new requirements
governing the public availability of information, including electronic
information. The proposed rule also clarifies minor discrepancies in
part 388.
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\1\ Pub. L. No. 104-231, 110 Stat. 3048 (1996).
\2\ 5 U.S.C. 552.
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II. Background
The underlying goal of the Act is to encourage the electronic
distribution of information.3 The Act expands FOIA's
definition of a record to include information maintained in electronic
format; requires agencies to accommodate requesters' reasonable format
preferences; and to conduct reasonable agency searches for electronic
records. It also provides for the electronic availability of all
``public reading room'' materials created as of November 1,
1996.4
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\3\ H.R. Rep. No. 104-795, at 11 (1996).
\4\ Pub. L. No. 104-231, Secs. 3, 4 and 5, 110 Stat. 3048, 3049-
50, 5 U.S.C. 552 (a)(2), (a)(3)(B), (a)(3)(C) and (f)(2), as
amended.
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In addition, the Act requires an agency to place in its public
reading room certain documents that are subject to repeated requests.
Agencies must maintain a public index of such documents.5
The Act grants agencies 20 working days to process FOIA requests
instead of the current 10 days, allows extensions beyond the former 10-
day deadline in limited circumstances, and expressly gives requesters
the opportunity to avoid extensions by limiting the scope of their
requests.6
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\5\ Pub. L. No. 104-231, Sec. 4, 110 Stat. 3048, 3049, 5 U.S.C.
552(a)(2)(D) and (E), as amended.
\6\ Pub. L. No. 104-231, Secs. 7 and 8, 110 Stat. 3048, 3050-52,
5 U.S.C. 552(a)(6)(A)(1) and (6)(B), as amended, effective October
2, 1997.
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Moreover, the Act allows multitrack processing of FOIA requests.
Multitrack processing creates a fast track for requests capable of
resolution with a limited amount of time and effort, and slower tracks
for requests that demand a more intensive effort.7 In
addition to optional multitrack processing, the Act mandates expedited
treatment for requesters who (1) demonstrate an imminent threat to life
or safety, or (2) are engaged in disseminating information, and
demonstrate an urgency to inform the public concerning Federal
Government activity.8
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\7\ Pub. L. No. 104-231, Sec. 7, 110 Stat. 3048, 3050-51, 5
U.S.C. 552(a)(6)(D), as amended, effective October 2, 1997.
\8\ See Pub. L. No. 104-231, Sec. 8, 110 Stat. 3048, 3051-52, 5
U.S.C. 552(a)(6)(E), as amended, effective October 2, 1997; and H.R.
Rep., supra note 3, at 26.
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The Act requires agencies to promulgate regulations to implement
expedited processing. This proposed rule responds to the Act's mandate
regarding expedited processing, and other changes wrought by the Act.
It also makes several minor grammatical and technical changes for the
sake of clarity.
[[Page 51611]]
III. Discussion
Part 388--Information and Requests
Authority
The proposed rule revises the Authority for Part 388 to reflect
that the FOIA, 5 U.S.C. 552, should be cited ``as amended.''
Sections 388.101-388.105
No changes.
Section 388.106
This section is revised to expand the categories of information
that are available in the Commission's Public Reference Room, and to
inform the public of the electronic availability of information created
after November 1, 1996 (proposed para. (a)(2), and (b)). In addition to
making electronic records available, information will, of course,
continue to remain available through ``in person'' visits or written
requests.
The new categories of information to be available are copies of
records released under FOIA that are likely to be requested again, an
index of such records, and reference materials and guides to further
enhance the public's access to Commission information. The proposed
definition of the term ``Commission correspondence'' is amended to
include information in electronic format, consistent with Commission
practice (proposed para. (c)(1)).
The section is also revised to explicitly include statements of
policy and interpretations which have been adopted by the Commission
and are not published in the Federal Register; and administrative staff
manuals and instructions to staff that affect a member of the public
(proposed paras. (b)(19) and (b)(20)). These information categories
were required to be made available under FOIA even before the 1996
amendments.
Section 388.107
The proposed language corrects a typographical error. The term
``natural defense'' in paragraph (a)(1) is changed to ``national
defense.''
Section 388.108
The proposed revisions to this section implement multitrack
processing, as allowed by the Act, and expedited processing, as
required by the Act. Multitrack processing establishes a fast track for
requests requiring a limited amount of time and effort, and slower
tracks for requests requiring a more intensive effort. The Commission
proposes to adopt a three part multitracking system that should
increase efficiency (proposed para. (b)(1)). Under the proposed
approach, the Director, Office of External Affairs, will place a newly
received request into one of three tracks for processing: track one--
records that are readily identifiable and were previously cleared for
release (including those capable of multiple requests and placed in the
Public Reference Room); track two--records that are readily
identifiable, or are not voluminous, and require limited review; and
track three--complex and/or voluminous records requiring a significant
search and/or review.
Although the Commission has sometimes employed multitracking in the
past, its regular use should be advantageous to the public and the
Commission as simple requests are sometimes backlogged because of
earlier-filed complex requests. The proposed rule specifies that each
track will be processed on a first in, first out basis. Requesters are
permitted to modify their requests to obtain processing on a faster
track.
Pursuant to the Act, the proposed rule changes the time for
processing requests from 10 to 20 working days (proposed para. (c)(1));
9 and clarifies the Commission's obligation to specify the
information that is denied under a request, including the volume of
withheld materials and the extent and location of redactions in
partially released materials (proposed para. (c)(3)).
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\9\ This time limit does not apply to requests for expedited
processing, which are explained below.
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The proposed rule makes expedited processing available where the
requester demonstrates a compelling need: (1) Due to an imminent threat
to an individual's life or physical safety, or (2) in the case of
requesters who are primarily engaged in disseminating information,
where the requester demonstrates an urgency to inform the public
concerning Federal Government activity (proposed para. (d)(1)). The
proposed rule emphasizes that a request for expedited processing must
be supported with credible documentation and a statement certified to
be true and correct (proposed para. (d)(2)). The proposed rule states
that only the compelling circumstances indicated will qualify a
requester for expedited processing. A denial of expedited processing
will be subject to appeal. Accordingly, the appeal procedure for denial
of records is amended to include denial of expedited treatment
(proposed para. (e)).
For purposes of this proposed rule, a ``requester primarily engaged
in the dissemination of information'' does not include an individual or
organization engaged only incidentally in the dissemination of
information.10 The requester's main business must be the
dissemination of information.11 Thus, a bona fide member of
the news media would likely qualify. An organization that periodically
distributes information to its members would not likely qualify.
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\10\ H.R. Rep., supra note 3, at 26.
\11\ Id.
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In addition to meeting the dissemination requirement, the requester
must credibly demonstrate that expedited processing is needed to avoid
a likely, significant adverse consequence to a recognized
interest.12 The public's right to know, standing alone, is
not sufficient to satisfy this standard.13
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\12\ Id.
\13\ Id.
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Under the proposed rule, the Director, Office of External Affairs,
will rule on a request for expedited processing within 10 calendar days
from the date the request is received (proposed para. (d)(3)). A denial
of expedited processing will be explained, and the requester will be
provided notice of administrative appeal rights.
Other proposed revisions to the section include a formal
codification of the Commission's practice of not processing a request
until after fee issues have been resolved, unless the requester has
provided a written statement agreeing to pay some or all applicable
fees pending the resolution of fee issues (proposed para. (a)(5)). The
purpose of this rule is to avoid an expenditure of Commission resources
to process a request before the requester has agreed to pay all
applicable processing fees. The proposed rule also makes minor
revisions in terminology in the interest of clarity.
Section 388.109
Paragraph (b)(2)(iii), as currently drafted, charges some non-
commercial requesters for review time. The proposed revision to this
section deletes charges for review time from non-commercial requesters,
consistent with 5 U.S.C. Sec. 552(a)(4), the applicable Office of
Management and Budget's (OMB) Guidelines and Fee Schedule for FOIA, and
actual Commission practice. Similarly, proposed revisions to paragraph
(b)(2)(iv) remove ordinary postage fees, consistent with OMB guidelines
and Commission practice. Requesters remain responsible for special
delivery fees such as express mail provided in accordance with their
specifications.
Paragraph (b)(2)(vii), as currently drafted, authorizes the
Commission to
[[Page 51612]]
aggregate multiple requests on related topics that are subdivided to
avoid an assessment of fees. As allowed by the Act, proposed paragraph
(b)(2)(vii) expands the instances where the Commission may aggregate
one or more requests for joint processing. The proposed language allows
aggregation anytime the Commission reasonably believes that such
multiple requests constitute a single request, and notes that
aggregated requests may qualify for an extension of time under
Sec. 388.110(b). The proposed revisions further clarify that the
Commission has no obligation to process a request under Sec. 388.108
where there is no assurance or agreement of payment.
Section 388.110
Pursuant to the Act, the proposed rule makes the administrative
appeal rights in paragraph (a)(1) applicable to a denial of expedited
processing. Proposed paragraph (a)(2) provides that such appeals will
be considered as expeditiously as possible within the 20 working day
period specified for appeals, and that a requester denied expedited
processing in an appeal will be notified of judicial review provisions.
Proposed paragraph (b)(2) allows an extension of time not to exceed
10 working days beyond the standard deadlines for processing initial
requests and appeals, as permitted by the Act. As also provided by the
Act, the proposed rule specifies that an extension in excess of 10
working days may be available but only where the requester is given the
opportunity to limit the scope of the request to allow processing
within 20 working days, or to arrange an alternative time frame.
Proposed paragraph (b)(3) specifies that requests aggregated under
Sec. 388.109(b)(2)(vii) qualify for an extension of time when they
satisfy the unusual circumstances specified in this section.
Section 388.111
No changes.
Section 388.112
The proposed language merely reflects a correction of typographical
errors. Paragraph (c)(1)'s references to paragraphs (b)(2) and (b)(3)
are corrected to (b)(1)(ii) and (b)(1)(iii), respectively.
IV. Regulatory Flexibility Act Certification
The Regulatory Flexibility Act of 1980 (RFA) 14
generally requires a description and analysis of rules that will have
significant economic impact on a substantial number of small entities.
Pursuant to section 605(b) of the RFA, the Commission hereby certifies
that this rule will not have a significant impact on a substantial
number of small entities. The proposed changes improve the public's
access to information, and impose additional obligations on the
Commission to ensure the availability of such information. By
comparison, the public's obligations would not significantly increase.
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\14\ 5 U.S.C. 601-602.
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V. Environmental Statement
Issuance of this proposed rule would not represent a major federal
action having a significant adverse effect on the human environment
under the Commission regulations implementing the National
Environmental Policy Act.15 This proposed rule falls within
the regulatory exemption which specifies that information gathering,
analysis, and dissemination are not major federal actions that have a
significant effect on the human environment.16 Thus, neither
an environmental impact statement nor an environmental assessment is
required.
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\15\ Order No. 486, 52 FR 47897 (Dec. 17, 1987); FERC Stats. &
Regs. Regs. (Preambles 1986-90) para. 30,783 (Dec. 10, 1987)
(codified at 18 CFR part 380).
\16\ 18 CFR 380.4(a)(5).
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VI. Information Collection Statement
OMB regulations require that OMB approve certain information
collection requirements imposed by agency rule.17 This
proposed rule contains no information reporting requirements, and is
not subject to OMB approval.
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\17\ 5 CFR part 1320.
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VII. Written Comment Procedure
The Commission invites interested persons to submit written
comments or other information concerning this proposed rulemaking. All
comments in response to this notice should be submitted to the Office
of the Secretary, Federal Energy Regulatory Commission, 888 First
Street, N.E., Washington, D.C. 20426, and should refer to Docket No.
RM97-8-000. An original and fourteen (14) copies of such comments
should be filed with the Commission on or before November 3, 1997.
Lists of Subjects in 18 CFR Part 388
Freedom of Information; Public Reference Materials.
By direction of the Commission.
Lois D. Cashell,
Secretary.
In consideration of the foregoing, the Commission proposes to amend
Part 388, Chapter I, Title 18, Code of Federal Regulations, as set
forth below.
PART 388--INFORMATION AND REQUESTS
1. The authority citation for Part 388 is revised to read as
follows:
Authority: 5 U.S.C. 301-305, 551, 552 (as amended), 553-557; 42
U.S.C. 7101-7352.
2. In Sec. 388.106, paragraph (a) is redesignated as (a)(1);
paragraph (a)(2) is added; paragraph (b) introductory text is revised;
paragraph (b)(19) is redesignated as (b)(23); new paragraphs (b)(19)
through (b)(22) are added; and paragraph (c)(1) is revised to read as
follows:
Sec. 388.106 Requests for Commission records available in the Public
Reference Room.
(a)(1) * * *
(2) Documents created on or after November 1, 1996, or earlier in
some instances, also are electronically available on the Commission's
World Wide Web site, www.ferc.fed.us; the Commission Issuance Posting
System (CIPS) (an electronic bulletin board); or the Records
Information Management Systems (RIMS). These may be accessed in person
using a personal computer in the Public Reference Room, or by using a
personal computer with a modem at a remote location.
(b) The public records of the Commission that are available for
inspection and copying upon request in the Public Reference Room, or
are otherwise available under paragraph (a)(2) of this section,
include:
* * * * *
(19) Statements of policy and interpretations which have been
adopted by the Commission and are not published in the Federal
Register;
(20) Administrative staff manuals and instructions to staff that
affect a member of the public;
(21)(i) Copies of all records released under Sec. 388.108, which,
because of their nature and subject, the Director of the Office of
External Affairs has determined are likely to be requested again, and
(ii) An index of the records so designated;
(22) Reference materials and guides for requesting Commission
records as required by 5 U.S.C. 552(g), as amended; and
(23) Commission correspondence relating to the foregoing.
(c) * * *
(1) Commission correspondence includes written communications and
enclosures, in hard copy or electronic format, received from others
outside the
[[Page 51613]]
staff and intended for the Commission or sent to others outside the
staff and signed by the Chairman, a Commissioner, the Secretary, the
Executive Director, or other authorized official, except those which
are personal.
* * * * *
Sec. 388.107 [Amended]
3. In Sec. 388.107(a)(1), remove the word ``natural'' and add, in
its place, the word ``national.''
4. In Sec. 388.108, paragraphs (a)(1) introductory text,
(a)(1)(iii) and (a)(2) through (a)(4) are revised; new paragraph (a)(5)
is added; paragraphs (b) and (c) are redesignated as (c) and (e)
respectively and revised, and new paragraphs (b) and (d) are added, to
read as follows:
Sec. 388.108 Requests for Commission records not available through the
Public Reference Room (FOIA requests).
(a)(1) Except as provided in paragraph (a)(2), of this section, a
person may request access to Commission records, including records
maintained in electronic format, that are not available through the
Public Reference Room, by using the following procedures:
* * * * *
(iii) The request must identify the fee category of the request,
consistent with the provisions of Sec. 388.109(b)(1) and (2).
(2) A request that fails to provide the identification required in
paragraph (a)(1)(iii) of this section will not be processed until the
Director, Office of External Affairs, can ascertain the requester's fee
category.
(3) A request for records received by the Commission not addressed
and marked as indicated in paragraph (a)(1)(i) of this section will be
so addressed and marked by Commission personnel as soon as it is
properly identified, and forwarded immediately to the Director, Office
of External Affairs.
(4) Requests made pursuant to this section will be considered to be
received upon actual receipt by the Director, Office of External
Affairs, unless otherwise indicated in paragraph (a)(5) of this
section.
(5) Except for the purpose of making a determination regarding
expedited processing under paragraph (d)(3) of this section, no request
will be deemed received while there is an unresolved fee waiver issue
under Sec. 388.109(b)(6), unless the requester has provided a written
statement agreeing to pay some or all fees pending the outcome of the
waiver question.
(b)(1) Multitrack processing. Upon receipt of a request, the
Director, Office of External Affairs, will place the request in one of
three tracks for processing:
(i) Track One--records that are readily identifiable and were
previously cleared for release (including those subject to multiple
requests and placed in the Public Reference Room);
(ii) Track Two--records that are readily identifiable, and require
limited review; and
(iii) Track Three--complex and/or voluminous records requiring a
significant search and/or review.
(2) Each track specified in paragraph (b)(1) of this section will
be processed on a first in, first out basis, where practicable. A
requester may modify a request to obtain processing on a faster track.
(c) (1) Timing of response. Except as provided in paragraphs (c)(4)
and (d)(3) of this section, within 20 working days after receipt of the
request for agency records, the Director, Office of External Affairs,
will comply with the request or deny the request in whole or in part,
and will notify the requester of the determination, of the reasons for
a decision to withhold any part of a requested document, and of the
right of the requester to appeal any adverse determination in writing
to the General Counsel or General Counsel's designee.
(2) The Director, Office of External Affairs, will attempt to
provide records in the form or format requested, where feasible, but
will not provide more than one copy of any record to a requester.
(3) Any determination by the Director, Office of External Affairs,
to withhold information will, where feasible, indicate the approximate
volume of information withheld, and will indicate, for partially-
released materials, where redactions have been made, unless to do so
would harm an interest protected by a FOIA exemption.
(4) The time limit for the initial determination required by
paragraph (c)(1) of this section may be extended as set forth in
Sec. 388.110(b).
(d)(1) Expedited processing. A requester may seek expedited
processing on the basis of a compelling need. Expedited processing will
be granted if the requester demonstrates that:
(i) Failure to obtain the records on an expedited basis can
reasonably be expected to pose an imminent threat to the life or
physical safety of an individual, or
(ii) In the case of a requester primarily engaged in the
dissemination of information, there is an urgency to inform the public
concerning Federal Government activity.
(2) A request for expedited processing under this section must be
supported with detailed credible documentation, including a statement
certified to be true and correct to the requester's best knowledge and
belief.
(3) The Director, Office of External Affairs, will decide within 10
calendar days of receipt of the request whether it is eligible for
expedited processing. The Director will notify the requester of the
reasons for denial of expedited processing and of the right of the
requester to appeal to the General Counsel or General Counsel's
designee.
(e) The procedure for appeal of denial of a request for Commission
records, or denial of a request for expedited processing, is set forth
in Sec. 388.110.
5. In Sec. 388.109, the first sentence of paragraph (b)(2)(iii),
and paragraphs(b)(2)(iv), (b)(2)(vii), and (b)(5)(ii) are revised;
paragraph (b)(5)(iii) is removed; paragraph (b)(6) is redesignated as
paragraph (c) and revised, and paragraphs (b)(7) and (b)(8)(i) and (ii)
are redesignated as (d) and (e)(1) and (2) respectively, to read as
follows:
Sec. 388.109 Fees for records requests.
* * * * *
(b) * * *
(2) * * *
(iii) For a request not described in paragraphs (b)(2)(i) or (ii)
of this section the Commission will charge the employee's hourly pay
rate plus 16 percent for benefits for document search time and 15 cents
per page for duplication. * * *
(iv) The Director, Office of External Affairs, will normally
provide documents by regular mail, with postage prepaid by the
Commission. However, the requester may authorize special delivery, such
as express mail, at the requester's own expense.
* * * * *
(vii) Requesters may not file multiple requests at the same time,
each seeking portions of a document or documents, solely in order to
avoid payment of fees. When the Commission reasonably believes that a
requester, or a group of requesters acting in concert, is attempting to
break a request down into a series of requests for the purpose of
evading assessment of fees, or otherwise reasonably believes that two
or more requests constitute a single request, the Commission may
aggregate any such requests and charge the requester accordingly. The
Commission will not aggregate multiple requests on unrelated subjects
from a requester. Aggregated requests may qualify for an extension of
time under Sec. 388.110(b).
* * * * *
[[Page 51614]]
(5) * * *
(ii) A requester has previously failed to pay a fee charged in a
timely fashion. The Commission will require the requester to pay the
full amount owed plus any applicable interest, and to make an advance
payment of the full amount of the estimated fee before the Commission
will begin to process a new request or a pending request from that
requester. When the Commission requires advance payment or an agreement
to pay under this paragraph, or under Sec. 388.108(a)(5), the
administrative time limits prescribed in this part will begin only
after the Commission has received the required payments, or agreements.
(c) Fee reduction or waiver. (1) Any fee described in this section
may be reduced or waived if the requester demonstrates that disclosure
of the information sought is:
(i) In the public interest because it is likely to contribute
significantly to public understanding of the operations or activities
of the government, and
(ii) Not primarily in the commercial interest of the requester.
(2) The Commission will consider the following criteria to
determine the public interest standard:
(i) Whether the subject of the requested records concerns the
operations or activities of the government;
(ii) Whether the disclosure is likely to contribute to an
understanding of government operations or activities;
(iii) Whether disclosure of the requested information will
contribute to public understanding; and
(iv) Whether the disclosure is likely to contribute significantly
to public understanding of government operations or facilities.
(3) The Commission will consider the following criteria to
determine the commercial interest of the requester:
(i) Whether the requester has a commercial interest that would be
furthered by the requested disclosure; and, if so
(ii) Whether the magnitude of the identified commercial interest of
the requester is sufficiently large, in comparison with the public
interest in disclosure, that disclosure is primarily in the commercial
interest of the requester.
(4) This request for fee reduction or waiver must accompany the
initial request for records and will be decided under the same
procedures used for record requests.
* * * * *
6. In section 388.110 the section heading, the first sentence of
paragraph (a)(1), paragraph (a)(2), and paragraph (b) are revised to
read as follows:
Sec. 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 requests for fee waiver or reduction, and
denial of requests for expedited processing.
(a) (1) A person whose request for records, request for fee waiver
or reduction, or request for expedited processing is denied in whole or
part may appeal that determination to the General Counsel or General
Counsel's designee within 45 days of the determination. * * *
(2) 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
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)(1) Extension of time. In unusual circumstances, the time limits
prescribed for making the initial determination pursuant to
Sec. 388.108 and for deciding an appeal pursuant to this section may be
extended by up to 10 working days, by the Secretary, who will send
written notice to the requester setting forth the reasons for such
extension and the date on which a determination or appeal is expected
to be dispatched.
(2) The extension permitted by paragraph (b)(1) of this section may
be made longer than 10 working days when the Commission notifies the
requester within the initial response time that the request cannot be
processed in the specified time, and the requester is provided an
opportunity to limit the scope of the request to allow processing
within 20 working days; or to arrange with the Commission an
alternative time frame.
(3) Two or more requests aggregated into a single request under
Sec. 388.109(b)(2)(vii) may qualify for an extension of time if the
requests, as aggregated, otherwise satisfy the unusual circumstances
specified in this section.
(4) Unusual circumstances means:
(i) The need to search for and collect the requested records from
field facilities or other establishments that are separate from the
office processing the requests;
(ii) The need to search for, collect, and appropriately examine a
voluminous amount of separate and distinct records which are demanded
in a single request; or
(iii) The need for consultation, which will be conducted with all
practicable speed, with another agency having a substantial interest in
the determination of the request or among two or more components of the
agency having substantial subject-matter interest therein.
7. In Sec. 388.112, paragraph(c)(1)(i)'s reference to ``paragraph
(b)(2)'' is revised to read ``paragraph (b)(1)(ii),'' and paragraph
(c)(1)(ii)'s reference to ``paragraph (b)(3)'' is revised to read
``paragraph (b)(1)(iii).''
[FR Doc. 97-26065 Filed 10-1-97; 8:45 am]
BILLING CODE 6717-01-P
