[Federal Register Volume 62, Number 192 (Friday, October 3, 1997)]
[Rules and Regulations]
[Pages 51795-51798]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-26205]
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 0
[GC Docket No. 97-143; FCC 97-332]
Implementation of the Electronic Freedom of Information Act
Amendments of 1996
AGENCY: Federal Communications Commission.
ACTION: Final rule.
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[[Page 51796]]
SUMMARY: This order amends the Commission's rules regarding
implementation of the Electronic Freedom of Information Act Amendments
of 1996 to comply with the changes mandated by the Electronic Freedom
of Information Act Amendments of 1996. This action will make it easier
for the public to request access under the FOIA to the Commission's
records.
EFFECTIVE DATE: October 3, 1997.
FOR FURTHER INFORMATION CONTACT: Laurence H. Schecker, Office of
General Counsel, (202) 418-1720.
SUPPLEMENTARY INFORMATION:
Adopted: September 18, 1997.
Released: September 23, 1997.
1. In this Order, we amend part 0 of our rules to implement the
amendments to the Freedom of Information Act (``FOIA'') enacted in the
Electronic Freedom of Information Act Amendments of 1996
(``EFOIA'').1
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\1\ Pub. L. 104-231, 110 Stat. 3048 (1996), codified at
scattered subsections of 5 U.S.C. 552.
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Discussion
2. We instituted this proceeding to conform our rules to EFOIA's
requirements governing electronic records and to implement the EFOIA
directive that we provide for the expedited processing of FOIA
requests.2 Only two comments were received, neither of which
addressed the substance of our proposals.3 For the reasons
stated in the Notice of Proposed Rulemaking (NPRM), we adopt, as
proposed, the following amendments to our Rules: amendments to
Sec. 0.461(a), to reflect the EFOIA requirement that agencies honor
requests that records be provided in specific formats; amendments to
Sec. 0.461(g), to permit 20 working days to respond to initial FOIA
requests and to provide requesters with the opportunity to both limit
the scope of their requests or negotiate a time frame for processing
requests; and amendments to sections Secs. 0.441, 0.443, 0.453, 0.455,
and 0.460, to provide the public with better guidance concerning the
availability of Commission records. We also adopt, with a minor
modification described below, the proposed new paragraph (h) to
Sec. 0.461, which provides for the expedited processing of certain FOIA
requests. The specific language of the amendments to part 0 is set
forth below.
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\2\ Amendment of Part 0 of the Commission's Rules to Implement
the Electronic Freedom of Information Act Amendments of 1996, Notice
of Proposed Rulemaking, GC Docket No. 97-143, FCC 97-198 (released
June 19, 1997) (NPRM), published at 62 FR 34188 (June 25, 1997).
\3\ Reporters Committee for Freedom of the Press (Reporters
Committee) and the Regulatory Affairs Committee of the Student
Council of Edgewood Senior High School, Ashtabula, Ohio (Edgewood
Students).
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3. The Edgewood Students sought clarification of the method for
filing FOIA requests. As they noted, FOIA requests can currently be
filed by United States mail, hand delivery, or by electronic mail at
foia@fcc.gov>. FOIA requests may also be filed by facsimile. The NPRM
proposed no changes in filing procedures. However, based on the
Edgewood Students's comments, we believe Sec. 0.461 should be amended
to reflect the option of filing FOIA requests through electronic mail
or by facsimile. We will therefore amend Sec. 0.461 of our Rules to
indicate that FOIA requests can be filed electronically. Similarly, we
will modify our proposed rule for expedited processing of FOIA
requests, Sec. 0.461(h), to reflect the possibility of filing such
requests through electronic mail. However, we do not at this time
envision the filing of FOIA requests or applications for review through
the electronic comment filing system (ECFS) currently being
developed.4 Once that system is fully operational, we may
reassess its applicability to the FOIA process.
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\4\ Electronic Filing of Documents in Rulemaking Proceedings,
Notice of Proposed Rulemaking, GC Docket No. 97-113, FCC 97-113
(released April 7, 1997) (Electronic Filing of Documents).
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4. The Edgewood Students's comments also addressed the availability
of information on our Internet site. A wide variety of FCC information
is already available on the Internet site, and more is added regularly.
When the new electronic document filing system is in place, even more
records will be available through the Internet. The Edgewood Students
ask that the Commission's RIPS system 5 be made accessible
through our Internet site. However, the RIPS system will be replaced by
the ECFS system under development, which will be Internet-
accessible.6
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\5\ The Record Image Processing System (RIPS) provides access to
comments filed with the Commission in notice and comment rulemaking
proceedings, as well as a variety of filings in other kinds of
docketed proceedings (e.g., tariff investigations, formal hearings
before Administrative Law Judges, and applications by Bell Operating
Companies to provide out-of-region long distance service). See
Electronic Filing of Documents, at para. 6.
\6\ The Edgewood Students's other suggestions for placement of
information on the Internet have been forwarded to the Office of
Public Affairs for consideration.
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5. Finally, we note that we did not, as the Reporters Committee's
comments feared, adopt any procedures that burden requests for
expedited FOIA processing. Our rules simply track the language of the
EFOIA and are designed to process such requests speedily.
Procedural Matters
6. In the NPRM, we certified that the proposed rules ``[would] not,
if promulgated, have a significant economic impact on a substantial
number of small entities.'' 7 No comments were received
concerning this certification. The rules adopted in this Order
implement the amendments to the FOIA enacted through the EFOIA. There
is no reason to believe that the revised rules will impose any costs on
FOIA requesters beyond those costs incurred under our former rules.
Accordingly, we certify, pursuant to section 605(b) of the Regulatory
Flexibility Act, that the rules adopted herein will not have a
significant economic impact on a substantial number of small entities.
The Secretary shall send a copy of this certification to the Chief
Counsel for Advocacy of the Small Business Administration. A copy of
this certification will also be published in the Federal Register.
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\7\ NPRM para. 12, citing, 5 U.S.C. Sec. 605(b).
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Ordering Clauses
7. Accordingly, it is ordered that pursuant to sections 4(i),
303(r), and 4(j) of the Communications Act of 1934, as amended, 47
U.S.C. 154(i), 303(r), and 154(j), and the Electronic Freedom of
Information Act Amendments of 1996, Pub. L. 104-231, 110 Stat. 3048
(1996), part 0 of the Commission's Rules is amended as set forth below.
8. It is further ordered that the rules adopted herein will become
effective October 3, 1997. The rules merely codify provisions of the
EFOIA designed to benefit FOIA requesters or otherwise incorporate
procedural rules that benefit requesters. We therefore find, for good
cause, that the rules should be made effective upon
publication.8
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\8\ See 5 U.S.C. Sec. 553(d)(3).
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List of Subjects in 47 CFR Part 0
Organization and functions (Government agencies).
Federal Communications Commission.
William F. Caton,
Acting Secretary.
Rule Changes
Part 0 of title 47 of the Code of Federal Regulations is amended as
follows:
PART 0--COMMISSION ORGANIZATION
1. The authority citation for Part 0 continues to read as follows:
[[Page 51797]]
Authority: Sec. 5, 48 Stat. 1068, as amended; 47 U.S.C. 155,
225, unless otherwise noted.
2. Section 0.441 is revised to read as follows:
Sec. 0.441 General.
Any person desiring to obtain information may do so by writing or
coming in person to any of the Commission's offices. A broader range of
information and more comprehensive information facilities are available
at the Commission's main office in Washington, D.C., however, and
inquiries of a general nature should ordinarily be submitted to that
office. A wide range of information is also available from the
Commission's World Wide Web site located at http://www.fcc.gov>.
3. Section 0.443 is revised to read as follows:
Sec. 0.443 General information office.
The Public Service Division of the Office of Public Affairs is
located at 1919 M Street, N.W., Washington, D.C. Here, the public may
obtain copies of the ``Federal Communications Commission Information
Seekers Guide,'' which is a handbook for obtaining information from the
FCC. This office also maintains current and back issues of public
notices of Commission actions, formal documents adopted by the
Commission, and copies of fact sheets that answer general questions
about the Commission. Many such recent items may also be obtained from
the Commission's World Wide Web site located at http://www.fcc.gov>.
Commission documents listed in Sec. 0.416 are published in the FCC
Record, and many such documents or summaries thereof are also published
in the Federal Register.
4. Section 0.453 introductory text is revised to read as follows:
Sec. 0.453 Public reference rooms.
The Commission maintains the following public reference rooms at
its offices in Washington, DC, Gettysburg, Pennsylvania, and Columbia,
Maryland. Much of the information available from the public reference
rooms may also be retrieved from the Commission's World Wide Web site
at http://www.fcc.gov>:
* * * * *
5. Section 0.455 introductory text is revised to read as follows:
Sec. 0.455 Other locations at which records may be inspected.
Except as provided in Secs. 0.453, 0.457 and 0.459, records are
routinely available for inspection in the offices of the Bureau or
Office which exercises responsibility over the matters to which those
records pertain (see Sec. 0.5), or will be made available for
inspection at those offices upon request. Many of these records may be
retrieved from the Commission's site on the World Wide Web, located at
http://www.fcc.gov>. Upon inquiry to the appropriate Bureau or Office,
persons desiring to inspect such records will be directed to the
specific location at which the particular records may be inspected. A
list of Bureaus and Offices and examples of the records available at
each is set out below:
* * * * *
6. Section 0.460(a) is revised to read as follows:
Sec. 0.460 Requests for inspection of records which are routinely
available for public inspection.
(a) Sections 0.453 and 0.455 list those Commission records which
are routinely available for public inspection and the places at which
those records may be inspected. Subject to the limitations set out in
this section and to the provisions of Sec. 0.466 and paragraph (l) of
this section, a person who wants to inspect such records need only
appear at the specified location and ask to see the records. Many such
records also are available through the Commission's site on the World
Wide Web, located at http://www.fcc.gov>. Commission documents listed
in Sec. 0.416 are published in the FCC Record, and many such documents
or summaries thereof are also published in the Federal Register.
* * * * *
7. Section 0.461 is amended by redesignating paragraph (a) as
paragraph (a)(1) and adding paragraph (a)(2), revising paragraphs
(d)(1) and (d)(3), paragraph (g) introductory text, paragraph (g)(3)
and the concluding text of paragraph (g), redesignating paragraphs (h)
and (i) as paragraphs (i) and (j) and revising them, adding new
paragraph (h), and revising paragraph (k) introductory text and
paragraph (k)(3) to read as follows:
Sec. 0.461 Requests for inspection of materials not routinely
available for public inspection.
* * * * *
(a) (1) * * *
(2) The person requesting records under this section may specify
the form or format of the records to be produced.
* * * * *
(d) (1) Requests shall be delivered or mailed to the Managing
Director, sent by electronic mail to foia@fcc.gov>, or sent by
facsimile. (For purposes of this section, the custodian of the records
is the Chief of the appropriate Bureau or Office.)
* * * * *
(3) An original and two copies of the request shall be submitted.
If the request is submitted by electronic mail, only one copy need be
submitted. If the request is for materials not open to routine public
inspection under Sec. 0.457(d) or Sec. 0.459, one copy of the request
will be mailed by the custodian of the records to the person who
originally submitted the materials to the Commission.
* * * * *
(g) The custodian of the records will make every effort to act on
the request within 20 working days after it is received by the FOIA
Control Office. If it is not possible to locate the records and to
determine whether they should be made available for inspection within
20 working days, the custodian may, in any of the following
circumstances, extend the time for action by up to 10 working days:
* * * * *
(3) It is necessary to consult with another agency having a
substantial interest in the determination of the request, or among two
or more components of the Commission having substantial subject matter
interest therein.
The custodian of the records will notify the requester in writing of
any extension of time exercised pursuant to paragraph (g) of this
section. If it is not possible to locate the records and make the
determination within the extended period, the person or persons who
made the request will be provided an opportunity to limit the scope of
the request so that it may be processed within the extended time limit,
or an opportunity to arrange an alternative time frame for processing
the request or a modified request, and asked to consent to an extension
or further extension. If the requester agrees to an extension, the
custodian of the records will confirm the agreement in a letter
specifying the length of the agreed-upon extension. If he or she does
not agree to an extension, the request will be denied, on the grounds
that the custodian has not been able to locate the records and/or to
make the determination within the period for a ruling mandated by the
Freedom of Information Act, 5 U.S.C. 552. In that event, the custodian
will continue to search for and/or assess the records and will advise
the person who made the request of further developments; but that
person may file an application for review by the Commission. When
action is taken by
[[Page 51798]]
the custodian of the records, written notice of the action will be
given.
(h) (1) Requesters who seek expedited processing of FOIA requests
shall submit such requests, along with their FOIA requests, to the
Managing Director, as described in Sec. 0.461(d). If the request is
enclosed in an envelope, the envelope shall be marked ``Request for
Expedited Proceeding--FOIA Request.'' An original and two copies of the
request for expedition shall be submitted, but only one copy is
necessary if submitted by electronic mail. When the request is received
by the Managing Director, it, and the accompanying FOIA request, will
be assigned to the FOIA Control Office, where it will be date-stamped
and assigned to the custodian of records.
(2) Expedited processing shall be granted to a requester
demonstrating a compelling need that is certified by the requester to
be true and correct to the best of his or her knowledge and belief.
(3) For purposes of this section, compelling need means--
(i) That failure to obtain requested records on an expedited basis
could reasonably be expected to pose an imminent threat to the life or
physical safety of an individual; or
(ii) With respect to a request made by a person primarily engaged
in disseminating information, there is an urgency to inform the public
concerning actual or alleged Federal Government activity.
(4) (i) Notice of the determination as to whether to grant
expedited processing shall be provided to the requester by the
custodian of records within 10 calendar days after receipt of the
request by the FOIA Control Office. Once the determination has been
made to grant expedited processing, the custodian shall process the
FOIA request as soon as practicable.
(ii) If a request for expedited processing is denied, the person
seeking expedited processing may file an application for review within
five working days after the date of the written denial. The application
for review and the envelope containing it (if any) shall be captioned
``Review of FOIA Expedited Proceeding Request.'' The application for
review shall be delivered or mailed to the General Counsel. (For
general procedures relating to applications for review, see Sec. 1.115
of this chapter.) The Commission shall act expeditiously on the
application for review, and shall notify the custodian of records of
the disposition of such an application for review.
(i) If a request for inspection of records submitted to the
Commission in confidence under Sec. 0.457(d) or Sec. 0.459 is granted,
an application for review of the action may be filed only by the person
who submitted the records to the Commission. The application for review
and the envelope containing it (if any) shall be captioned ``Review of
Freedom of Information Action.'' The application for review shall be
filed within 10 working days after the date of the written ruling,
shall be delivered or mailed to the General Counsel, and shall be
served on the person who filed the request for inspection of records.
The first day to be counted in computing the time period for filing the
application for review is the day after the date of the written ruling.
If an application for review is not filed within this period, the
records will be produced for inspection. The person who filed the
request for inspection of records may respond to the application for
review within 10 working days after it is filed.
(j) Except as provided in paragraph (i) of this section, an
application for review of an initial action on a request for inspection
may be filed only by the person who made the request. The application
shall be filed within 30 days after the date of the written ruling by
the custodian of records, and shall be captioned, ``Review of Freedom
of Information Action.'' The envelope (if any) shall also be so
captioned. The application shall be delivered or mailed to the General
Counsel and shall be served on the person (if any) who originally
submitted the materials to the Commission. That person may file a
response within 10 working days after the application for review is
filed. If the records are made available on review, the person who
submitted them to the Commission (if any) will be afforded 10 working
days after the date of the written ruling to seek a judicial stay. See
paragraph (i) of this section. The first day to be counted in computing
the time period for filing the application for review or seeking a
judicial stay is the day after the date of the written ruling. (For
general procedures relating to applications for review, see Sec. 1.115
of this chapter.)
(k) The Commission will make every effort to act on an application
for review of an action on a request for inspection of records within
20 working days after it is filed. See, however, paragraph (i) of this
section. If it is not possible to locate the records and to determine
whether they should be made available for inspection within 20 working
days, the General Counsel may, in the following circumstances and to
the extent time has not been extended under paragraphs (g) (1)(i),
(ii), or (iii) of this section, extend the time for action up to 10
working days. (The total period of extensions taken under this
paragraph and under paragraph (g) of this section without the consent
of the person who submitted the request shall not exceed 10 working
days.):
* * * * *
(3) It is necessary to consult with another agency having a
substantial interest in the determination of the request or among two
or more components of the Commission having substantial subject matter
interest therein.
* * * * *
[FR Doc. 97-26205 Filed 10-2-97; 8:45 am]
BILLING CODE 6712-01-P
