98-26569. Availability of Records to the PublicElectronic Freedom of Information Act  

  • [Federal Register Volume 63, Number 192 (Monday, October 5, 1998)]
    [Rules and Regulations]
    [Pages 53308-53311]
    From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
    [FR Doc No: 98-26569]
    
    
    =======================================================================
    -----------------------------------------------------------------------
    
    FEDERAL MARITIME COMMISSION
    
    46 CFR Part 503
    
    [Docket No. 98-11]
    
    
    Availability of Records to the Public--Electronic Freedom of 
    Information Act
    
    AGENCY: Federal Maritime Commission.
    
    ACTION: Final rule.
    
    -----------------------------------------------------------------------
    
    SUMMARY: The Federal Maritime Commission revises its regulations on 
    public access to Commission records, materials, and information in 
    order to clarify existing rules, provide information concerning the 
    electronic availability of information and records, and to incorporate 
    the requirements of the Electronic Freedom of Information Act 
    Amendments of 1996.
    
    DATES: This rule is effective November 4, 1998.
    
    FOR FURTHER INFORMATION CONTACT: Joseph C. Polking, Secretary, Federal 
    Maritime Commission, 800 North Capitol St., NW, Room 1046, Washington, 
    DC 20573-0001, (202) 523-5725, E-mail: secretary@fmc.gov
    
    SUPPLEMENTARY INFORMATION: On July 22, 1998, the Federal Maritime 
    Commission published a proposed rule to revise its regulations on 
    public access to Commission records, materials, and information. 63 FR 
    39263-39267, July 22, 1998. The proposed rule clarified existing 
    regulations, provided information concerning the electronic 
    availability of information and records, and incorporated the 
    requirements of the Electronic Freedom of Information Act Amendments of 
    1996 (``EFOIA''), Pub. L. 104-231, 110 Stat. 3408. Interested parties 
    were given the opportunity to submit comments on the proposed rule. The 
    Commission received one comment jointly from two nonprofit groups 
    claiming to have experience as requesters of Freedom of Information Act 
    (FOIA) material and as counsel or assistant to requesters.
        The comment addressed proposed section 503.24(b)(5)(iv), which 
    reflects provisions in EFOIA requiring that previously requested 
    records created on or after November 1, 1996, that are subject to 
    subsequent, multiple FOIA requests be made available in agency 
    electronic reading rooms. 5 U.S.C. 552(a)(2)(D). The proposed rule 
    provided that ``[r]ecords created by the Commission since November 1, 
    1996,'' and subject to subsequent requests would be available through 
    the Electronic Reading Room. The comment takes exception to the 
    language ``by the Commission,'' and argues that EFOIA requires that 
    repeatedly requested, previously released records be made 
    electronically available whether or not they were created by an agency.
        The Department of Justice (DOJ) issued government-wide guidance 
    advising agencies that the requirement of electronic reading room 
    availability was applicable only to agency created records. FOIA 
    Update, Winter 1997, at 4-5. Moreover, DOJ dismissed an identical 
    comment when issuing its own implementing rules. 63 FR 29591, 29592, 
    June 1, 1998. DOJ explained that by limiting the electronic reading 
    room contents to ``records created on or after November 1, 1996,'' 
    EFOIA recognizes the practical limitations on electronic reading rooms. 
    Presumably, according to DOJ, agencies will have their own materials 
    dating from November 1, 1996 in an electronic form and can readily make 
    those available through electronic communications. However, those 
    records not created by the agency, but instead obtained by the agency, 
    are not as likely to be readily available in electronic form. Thus, DOJ 
    explained, only those records created by the agency are required to be 
    available via the electronic reading room. Id. See United States Dep't 
    of Justice v. Tax Analysts, 492 U.S. 136,144 (recognizing that agencies 
    ``either create or obtain'' records subject to FOIA), cited in FOIA 
    Update, Winter 1997, at 4-5. The Commission shares DOJ's view, and 
    disagrees with the commenter's interpretation of this provision of 
    EFOIA.
        Moreover, at this time the Commission does not have sufficient 
    computer equipment to transform paper documents submitted by the public 
    into an electronic form that could then be made available through the 
    electronic reading room on the Commission web page. However, the 
    Commission is cognizant of the need to enhance public access to 
    information through electronic means. The Commission has found that 
    making documents and information accessible via the electronic reading 
    room is of a benefit to both the public and the agency. Both economy 
    and efficiency are served by providing this type of access. 
    Accordingly, the Commission plans to eventually upgrade its computer 
    resources to allow for ``scanning'' of documents into a form 
    appropriate for the web page.
        Thus, while not mandated by law, the Commission hopes eventually to 
    make materials in this category available via the electronic reading 
    room, to the extent it is reasonable and practical to do so.
        This rule is not a significant regulatory action as defined by 
    Executive Order 12866, Regulatory Planning and Review, and therefore, 
    is not subject to review by the Office of Information and Regulatory 
    Affairs, in the Office of Management and Budget.
        This rule concerns internal administrative procedures for making 
    information available to the public, and, accordingly, the Chairman 
    certifies that this rule will not have a significant economic impact on 
    a substantial number of small entities.
        The rule contains no additional information collection or record 
    keeping requirements. Therefore, the requirements of the Paperwork 
    Reduction Act, 44 U.S.C. 3501 et seq. do not apply.
    
    List of Subjects in 46 CFR part 503
    
        Classified information, Freedom of Information, Privacy, Sunshine 
    Act. For the reasons set out in the preamble, the Commission amends 46 
    CFR part 503 as follows:
    
    PART 503--PUBLIC INFORMATION
    
        1. The authority citation for part 503 is revised to read as 
    follows:
    
        Authority: 5 U.S.C. 552, 552a, 552b, 553; 31 U.S.C. 9701; E.O. 
    12958 of April 20, 1995 (60 FR 19825), sections 5.2(a) and (b).
    
        2. Revise subpart C to read as follows:
    
    Subpart C--Records, Information and Materials Generally Available to 
    the Public Without Resort to Freedom of Information Act Procedures
    
    Sec.
    503.21  Mandatory public records.
    503.22  Records available at the Office of the Secretary.
    503.23  Records available upon written request.
    503.24  Information available via the internet.
    
    Subpart C--Records, Information and Materials Generally Available 
    to the Public Without Resort to Freedom of Information Act 
    Procedures
    
    
    Sec. 503.21  Mandatory public records.
    
        (a) The Commission, as required by the Freedom of Information Act, 
    5 U.S.C. 552, shall make the following materials available for public 
    inspection and copying:
        (1) Final opinions (including concurring and dissenting opinions) 
    and all orders made in the adjudication of cases.
    
    [[Page 53309]]
    
        (2) Those statements of policy and interpretations which have been 
    adopted by the Commission.
        (3) Administrative staff manuals and instructions to staff that 
    affect any member of the public.
        (4) Copies of all records, regardless of form or format, which have 
    been released to any person pursuant to a Freedom of Information Act 
    request, and which the Secretary determines have become or are likely 
    to become the subject of subsequent requests for substantially the same 
    records, and a general index of such records.
        (b) To prevent unwarranted invasion of personal privacy, the 
    Secretary may delete identifying details when it makes available or 
    publishes an opinion, statement of policy, interpretation, staff 
    manual, instruction, or copies of records referred to in paragraph 
    (a)(4) of this section. In each case, the justification for the 
    deletion shall be explained fully in writing, and the extent of such 
    deletion shall be indicated on that portion of the record which is made 
    available or published, unless including that indication would harm an 
    interest protected by an exemption in Sec. 503.33 under which the 
    deletion is made. If technically feasible, the extent of the deletion 
    shall be indicated at the place in the record where the deletion was 
    made.
        (c) The Commission maintains and makes available for public 
    inspection and copying a current index providing identifying 
    information for the public as to any matter which is issued, adopted, 
    or promulgated, and which is required by paragraph (a) of this section 
    to be made available or published.
        (1) The index shall be available at the Office of the Secretary, 
    Federal Maritime Commission, Washington, DC 20573. Publication of such 
    indices has been determined by the Commission to be unnecessary and 
    impracticable. The indices shall, nonetheless, be provided to any 
    member of the public at a cost not in excess of the direct cost of 
    duplication of any such index upon request therefor.
        (2) No final order, opinion, statement of policy, interpretation, 
    or staff manual or instruction that affects any member of the public 
    will be relied upon, used, or cited as precedent by the Commission 
    against any private party unless:
        (i) It has been indexed and either made available or published as 
    provided by this subpart; or
        (ii) That private party shall have actual and timely notice of the 
    terms thereof.
        (d) Duplication of records may be subject to fees as prescribed in 
    subpart E of this part.
    
    
    Sec. 503.22  Records available at the Office of the Secretary
    
        (a) The following records will be made available for inspection and 
    copying at the Office of the Secretary, Federal Maritime Commission, 
    800 North Capitol St., NW, Washington, DC 20573, without the 
    requirement of a written request. Access to requested records may be 
    delayed if they have been sent to archives.
        (1) Proposed and final rules and regulations of the Commission 
    including general substantive rules, statements of policy and 
    interpretations, and rules of practice and procedure.
        (2) Reports of decisions (including concurring and dissenting 
    opinions), orders and notices in all formal proceedings.
        (3) Official docket files in all formal proceedings including, but 
    not limited to, orders, notices, pertinent correspondence, transcripts, 
    exhibits, and briefs, except for materials which are the subject of a 
    protective order. Copies of transcripts may only be available from the 
    reporting company contracted by the Commission. Contact the Office of 
    the Secretary for the name and address of this company.
        (4) News releases.
        (5) Approved summary minutes of Commission actions showing final 
    votes, except for minutes of closed Commission meetings which are not 
    available until the Commission publicly announces the results of such 
    deliberations.
        (6) Annual reports of the Commission.
        (b) Certain fees may be assessed for duplication of records made 
    available by this section as prescribed in subpart E of this part and 
    in Part 514 of this chapter.
    
    
    Sec. 503.23  Records available upon written request.
    
        (a) The following Commission records are generally available for 
    inspection and copying, without resort to Freedom of Information Act 
    procedures, upon request in writing addressed to the Office of the 
    Secretary, Federal Maritime Commission, Washington, DC 20573:
        (1) Agreements filed and in effect pursuant to sections 5 and 6 of 
    the Shipping Act of 1984.
        (2) Agreements filed under section 5 of the Shipping Act of 1984 
    which have been noticed in the Federal Register.
        (3) Tariffs filed under the provisions of the Shipping Act of 1984, 
    and terminal tariffs filed pursuant to part 514 of this chapter, under 
    the procedures set forth in Secs. 514.21(d) or 514.8(k)(2).
        (4) List of certifications of financial responsibility pertaining 
    to Pub. L. 89-777.
        (5) List of licensed ocean freight forwarders.
        (b) Certain fees may be assessed for duplication of records made 
    available by this section as prescribed in subpart E of this part and 
    in part 514 of this chapter.
    
    
    Sec. 503.24  Information available via the internet.
    
        (a) The Commission maintains an internet web site. The Commission 
    home page may be found at http://www.fmc.gov .
        (b) The following general information, records, and resources are 
    accessible through the home page:
        (1) General descriptions of the functions, bureaus, and offices of 
    the Commission, phone numbers and e-mail addresses for Commission 
    officials, as well as locations of Area Representatives;
        (2) Information about filing complaints;
        (3) Commonly used forms;
        (4) A public information handbook describing the types of 
    information available from the Commission and how to access such 
    information;
        (5) A Freedom of Information Act Electronic Reading Room which 
    contains:
        (i) Copies of final decisions in adjudicatory proceedings issued 
    since November 1, 1996;
        (ii) Recently issued final rules and pending proposed rules;
        (iii) Access to statements of policy and interpretations as 
    published in 46 CFR 571; and
        (iv) Records created by the Commission since November 1, 1996, and 
    made available under Sec. 503.21, paragraph (a)(4).
        (6) Commission regulations as codified in Title 46 of the Code of 
    Federal Regulations;
        (7) News releases issued by the Commission;
        (8) Statements and remarks from the Chairman and Commissioners;
        (9) A connection to the Government Information Locator Service 
    maintained by the Government Printing Office, which identifies 
    Commission databases; and
        (10) Privacy Act information.
        (c) Comments or questions regarding the home page should be 
    addressed via e-mail to webmaster@fmc.gov.
        3. Revise subpart D to read as follows:
    
    [[Page 53310]]
    
    Subpart D--Requests for records under the Freedom of Information Act
    
    Sec.
    503.31  Records available upon written request under the Freedom of 
    Information Act.
    503.32  Procedures for responding to requests made under the Freedom 
    of Information Act.
    503.33  Exceptions to availability of records.
    503.34  Annual report of public information request activity.
    
    Subpart D--Requests for Records Under the Freedom of Information
    
    
    Sec. 503.31  Records available upon written request under the Freedom 
    of Information Act.
    
        (a) A member of the public may request permission to inspect, copy 
    or be provided with any Commission records not described in subpart C 
    of this part. Such a request must:
        (1) Reasonably describe the record or records sought;
        (2) Be submitted in writing to the Secretary, Federal Maritime 
    Commission, Washington, DC 20573; and
        (3) Be clearly marked on the exterior with the letters ``FOIA'.
        (b) The Secretary shall evaluate each request in conjunction with 
    the official having responsibility for the subject matter area and the 
    General Counsel, and the Secretary shall determine whether or not to 
    grant the request in accordance with the provisions of this subpart.
        (c) In making any record available to a person under this subpart, 
    the Secretary shall provide the record in any form or format requested 
    by the person if the record is readily reproducible by the Secretary in 
    that form or format.
        (d) Certain fees may be assessed for processing of requests under 
    this subpart as prescribed in subpart E of this part.
    
    
    Sec. 503.32  Procedures for responding to requests made under the 
    Freedom of Information Act.
    
        (a) Determination to grant or deny request. Upon request by any 
    member of the public for documents, made in accordance with the rules 
    of this part, the Commission's Secretary or his or her delegate in his 
    or her absence, shall determine whether or not such request shall be 
    granted.
        (1) Such determination shall be made by the Secretary within twenty 
    (20) days (excluding Saturdays, Sundays and legal public holidays) 
    after receipt of such request, except as provided in paragraph (c) of 
    this section.
        (2) Upon granting a request the Secretary shall promptly make 
    records available to the requestor. Upon denial of such a request the 
    Secretary shall promptly notify the requestor of the determination, 
    explain the reason for denial, give an estimate of the volume of matter 
    denied, set forth the names and titles or positions of each person 
    responsible for the denial of the request, and notify the party of its 
    right to appeal that determination to the Chairman.
        (3)(i) Any party whose request for documents or other information 
    pursuant to this part has been denied in whole or in part by the 
    Secretary may appeal such determination. Any such appeal must:
        (A) Be addressed to: Chairman, Federal Maritime Commission, 
    Washington, D.C. 20573-0001; and
        (B) Be filed not later than ten (10) working days following receipt 
    of notification of denial or receipt of a part of the records 
    requested.
        (ii) The Chairman or the Chairman's specific delegate in his or her 
    absence, shall make a determination with respect to that appeal within 
    twenty (20) days (excepting Saturdays, Sundays and legal public 
    holidays) after receipt of such appeal, except as provided in paragraph 
    (b) of this section.
        (iii) If, on appeal, the denial is upheld, either in whole or in 
    part, the Chairman shall so notify the party submitting the appeal and 
    shall notify such person of the provisions of 5 U.S.C. 552(a)(4) 
    regarding judicial review of such determination upholding the denial. 
    Notification shall also include the statement that the determination is 
    that of the Chairman of the Federal Maritime Commission and the name of 
    the Chairman.
        (b) Extension of time limits. (1) In unusual circumstances, as 
    defined in paragraph (b)(2) of this section, the time limits prescribed 
    with respect to initial actions in response to a FOIA request or 
    actions on appeal may be extended by written notice from the Secretary 
    of the Commission to the person making such request, setting forth the 
    reasons for such extension and the date on which a determination is 
    expected to be dispatched. No such notice shall specify a date that 
    would result in an extension for more than ten (10) working days, 
    except as provided in paragraph (b)(3) of this section.
        (2) As used in this paragraph, unusual circumstances means, but 
    only to the extent reasonably necessary to the proper processing of the 
    particular request:
        (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 request;
        (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 shall 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.
        (3) If the time limit is extended as prescribed under this section, 
    and the request cannot be processed within the extended time limit, the 
    Secretary shall notify the requestor, and either provide the requestor 
    with an opportunity to limit the scope of the request so that it may be 
    processed within the time limit, or provide the requestor an 
    opportunity to arrange with the Secretary an alternative time frame for 
    processing the request or a modified request.
        (c) Aggregation of requests. Certain requests by the same 
    requestor, or by a group of requestors acting in concert, may be 
    aggregated:
        (1) Upon the Secretary's reasonable belief that such requests 
    actually constitute a single request, which if not aggregated would 
    satisfy the unusual circumstances specified in paragraph (b)(2) of this 
    section; and
        (2) If the requests involve clearly related matters.
        (d) Multitrack processing of requests. The Secretary may provide 
    for multitrack processing of requests based on the amount of time or 
    work involved in processing requests.
        (e) Expedited processing of requests. (1)The Secretary will provide 
    for expedited processing of requests for records when:
        (i) The person requesting the records can demonstrate a compelling 
    need; or
        (ii) In other cases, in the Secretary's discretion.
        (2) The term compelling need means:
        (i) A failure to obtain requested records on an expedited basis 
    under this paragraph 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, urgency to inform the public concerning 
    actual or alleged Federal Government activity.
        (3) A demonstration of compelling need by a person making a request 
    for expedited processing must be made in the form of a statement 
    describing the circumstances and certified by such person to be true 
    and correct to the best of such person's knowledge and belief.
    
    [[Page 53311]]
    
        (4) The Secretary shall determine whether to provide expedited 
    processing, and provide notice of the determination to the person 
    making the request, within ten (10) working days after the date of the 
    request.
        (5) Appeal of the determination not to provide expedited processing 
    should be sought in accordance with the provisions of paragraph 
    (a)(3)(i) of section 503.32, and will be considered expeditiously.
        (6) Any request granted expedited processing shall be processed as 
    soon as practicable.
    
    
    Sec. 503.33  Exceptions to availability of records.
    
        (a) Except as provided in paragraph (b) of this section, the 
    following records may be withheld from disclosure:
        (1) Records specifically authorized under criteria established by 
    an Executive order to be kept secret in the interest of national 
    defense or foreign policy and which are in fact properly classified 
    pursuant to such Executive order. Records to which this provision 
    applies shall be deemed by the Commission to have been properly 
    classified. This exception may apply to records in the custody of the 
    Commission which have been transmitted to the Commission by another 
    agency which has designated the record as nonpublic under an Executive 
    order.
        (2) Records related solely to the internal personnel rules and 
    practices of the Commission.
        (3) Records specifically exempted from disclosure by statute, 
    provided that such statute:
        (i) Requires that the matter be withheld from the public in such a 
    manner as to leave no discretion on the issue, or
        (ii) Establishes particular criteria for withholding or refers to 
    particular types of matters to be withheld.
        (4) Trade secrets and commercial financial information obtained 
    from a person and privileged or confidential.
        (5) Inter-agency or intra-agency memoranda or letters which would 
    not be available by law to a party other than an agency in litigation 
    with the Commission.
        (6) Personnel and medical files and similar files, the disclosure 
    of which would constitute a clearly unwarranted invasion of personal 
    privacy.
        (7) Records or information compiled for law enforcement purposes, 
    but only to the extent that the production of such law enforcement 
    records or information:
        (i) Could reasonably be expected to interfere with enforcement 
    proceedings;
        (ii) Would deprive a person of a right to a fair trial or an 
    impartial adjudication;
        (iii) Could reasonably be expected to constitute an unwarranted 
    invasion of personal privacy;
        (iv) Could reasonably be expected to disclose the identity of a 
    confidential source, including a State, local, or foreign agency or 
    authority or any private institution which furnished information on a 
    confidential basis, and, in the case of a record or information 
    compiled by a criminal law enforcement authority in the course of a 
    criminal investigation, or by an agency conducting a lawful national 
    security intelligence investigation, information furnished by a 
    confidential source;
        (v) Would disclose techniques and procedures for law enforcement 
    investigations or prosecutions, or would disclose guidelines for law 
    enforcement investigations or prosecutions if such disclosure could 
    reasonably be expected to risk circumvention of the law; or
        (vi) Could reasonably be expected to endanger the life or physical 
    safety of any individual.
        (b) Nothing in this section authorizes withholding of information 
    or limiting the availability of records to the public except as 
    specifically stated in this part, nor shall this part be authority to 
    withhold information from Congress.
        (c) Any reasonably segregable portion of a record shall be provided 
    to any person requesting such record after deletion of the portions 
    which are exempt under this part. The amount of information deleted 
    shall be indicated on the released portion of the record, unless 
    including that indication would harm an interest protected by the 
    exemption in this section under which the deletion is made. If 
    technically feasible, the amount of the information deleted shall be 
    indicated at the place in the record where such deletion is made.
        (d) Whenever a request is made which involves access to records 
    described in paragraph (a)(7)(i) of this section and the investigation 
    or proceeding involves a possible violation of criminal law, and there 
    is reason to believe that the subject of the investigation or 
    proceeding is not aware of its pendency, and disclosure of the 
    existence of the records could reasonably be expected to interfere with 
    enforcement proceedings, the Commission may, during only such time as 
    that circumstance continues, treat the records as not subject to the 
    requirements of 5 U.S.C. 552 and this subpart.
    
    
    Sec. 503.34  Annual report of public information request activity.
    
        (a) On or before February 1 of each year, the Commission shall 
    submit to the Attorney General of the United States, as required by the 
    Attorney General, a report which shall cover the preceeding fiscal year 
    and which shall include:
        (1) The number of determinations made not to comply with requests 
    for records made to the Commission under this Subpart and the reasons 
    for each such determination;
        (2)(i) The number of appeals made by persons under Sec. 503.32, the 
    result of such appeals, and the reason for the action upon each appeal 
    that results in a denial of information; and
        (ii) A complete list of all statutes relied upon to authorize 
    withholding of information under Sec. 503.33(a)(3) , a description of 
    whether a court has upheld the Commission's decision to withhold 
    information under each such statute, and a concise description of the 
    scope of any information withheld;
        (3) The number of requests for records pending before the 
    Commission as of September 30 of the preceding year, and the median 
    number of days that such requests had been pending as of that date;
        (4) The number of requests for records received by the Commission 
    and the number of requests which the Commission processed;
        (5) The median number of days taken to process different types of 
    requests;
        (6) The total amount of fees collected for processing requests; and
        (7) The number of full-time staff devoted to processing requests 
    for records under this section, and total amount expended for 
    processing such requests.
        (b) Each such report shall be made available to the public at the 
    Office of the Secretary, Federal Maritime Commission, Washington, D.C. 
    20573 and on the Commission's web site (www.fmc.gov).
    
        By the Commission.
    Joseph C. Polking,
    Secretary.
    [FR Doc. 98-26569 Filed 10-2-98; 8:45 am]
    BILLING CODE 6730-01-P
    
    
    

Document Information

Effective Date:
11/4/1998
Published:
10/05/1998
Department:
Federal Maritime Commission
Entry Type:
Rule
Action:
Final rule.
Document Number:
98-26569
Dates:
This rule is effective November 4, 1998.
Pages:
53308-53311 (4 pages)
Docket Numbers:
Docket No. 98-11
PDF File:
98-26569.pdf
CFR: (8)
46 CFR 503.21
46 CFR 503.22
46 CFR 503.23
46 CFR 503.24
46 CFR 503.31
More ...