[Federal Register Volume 63, Number 22 (Tuesday, February 3, 1998)]
[Rules and Regulations]
[Pages 5452-5455]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-2594]
[[Page 5452]]
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DEPARTMENT OF ENERGY
Federal Energy Regulatory Commission
18 CFR Part 388
[Docket No. RM97-8-000; Order No. 597]
Information and Requests
Issued January 28, 1998.
AGENCY: Federal Energy Regulatory Commission.
ACTION: Final rule.
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SUMMARY: The Federal Energy Regulatory Commission (Commission) is
amending its regulations governing information and requests to reflect
the requirements and specifications of the Electronic Freedom of
Information Act Amendments of 1996. This final rule also corrects minor
editorial inconsistencies in the regulations.
EFFECTIVE DATE: March 5, 1998.
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 provides all
interested persons an opportunity to inspect or copy the contents of
this document during normal business hours in the Public Reference
Room, Room 2-A, 888 First Street, N.E., Washington, D.C. 20426. 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.
The Commission Issuance Posting System (CIPS), an electronic
bulletin board service, also provides access to the texts of formal
documents issued by the Commission. CIPS is available at no charge to
the user. CIPS can be accessed over the Internet by pointing your
browser to the URL address: http://www.ferc.fed.us. Select the link to
CIPS. The full text of this document can be viewed, and saved, in ASCII
format and an entire day's documents can be downloaded in WordPerfect
6.1 format by searching the miscellaneous file for the last seven days.
CIPS also 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.
Before Commissioners: James J. Hoecker, Chairman; Vicky A. Bailey,
William L. Massey, Linda Breathitt, and Curt Hebert, Jr.
I. Introduction
This final 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. This final 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
A. The Act
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.
The Act provides for the electronic availability of all ``public
reading room'' materials created as of November 1, 1996.
The Act expands the scope of public reading room documents to
include FOIA documents that are subject to repeated requests, a related
index of such documents, and certain references and guides for
accessing public information.
The Act increases the time for processing FOIA requests from 10 to
20 working days; allows extensions beyond the former 10-day deadline in
limited circumstances; and gives requesters the opportunity to avoid
extensions by limiting the scope of their requests.
The Act allows multitrack processing of FOIA requests (i.e., simple
requests are processed on a fast track, and complex requests are
processed on slower tracks). The Act mandates expedited treatment for
requesters who demonstrate an imminent threat to life or safety, and
for journalists (and others engaged in dissemination of information)
who demonstrate an urgency to inform the public concerning Federal
Government activity.
B. Commission's Notice of Proposed Rulemaking
On September 25, 1997, the Commission issued a notice of proposed
rulemaking (NOPR) 3 to implement the provisions of the Act.
The NOPR listed new categories of information for inclusion in the
Public Reference Room, including applicable FOIA information, and the
electronic availability of such information [Sec. 388.106]. The NOPR
described procedures for multitrack processing and expedited
processing, and specified the new time limit for processing FOIA
requests [Sec. 388.108]. The NOPR described procedures for effecting an
extension of time [Sec. 388.110], and made several minor grammatical
and technical changes for the sake of clarity.
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\3\ Information and Requests, 62 FR 51610 (Oct. 2, 1997).
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III. Discussion
Only one party, the Missouri Basin Systems Group (MBSG), has
submitted comments on the NOPR. MBSG seeks an expansion of the FOIA
information that is electronically available under section 388.106 of
the NOPR. In particular, MBSG seeks electronic access (and presumably
Public Reference Room availability) for all FOIA documents ``cleared
for release,'' dating back to the past two years. MBSG argues that
``immediate access'' would limit future FOIA requests for these
documents. MBSG also opposes the new 20 working day deadline for
processing FOIA requests under section 388.108.
MBSG's request for the availability of additional electronic FOIA
information is not justified. Section 388.106(b)(21), which tracks the
pertinent language of the Act,4 already makes FOIA documents
that ``are likely to be requested again'' available in the Public
Reference Room, and by electronic means, if they were compiled on or
after November 1, 1996. Making available those FOIA documents most
likely to be requested again (as compared to all FOIA documents cleared
for release) more efficiently balances the agency's resources with the
public need. There is no basis for routinely making available large
quantities of FOIA documents for which there is little or no continuing
public demand. Moreover, in view of the statutory November 1, 1996
cutoff date, there is no justification for adopting the ``two year''
cutoff which MBSG proposes.
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\4\ 5 U.S.C. 552(a)(D), as amended.
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[[Page 5453]]
Similarly, the Commission is not persuaded by MBSG's argument
opposing the 20 working day time limit for processing an FOIA request.
The new deadline was explicitly approved by Congress, which recognized
that the former 10 working day deadline was unrealistic. Accordingly,
the Commission adopts the 20-day deadline approved by Congress.
Although there were no other comments, the Commission is also
revising the proposed language of Sec. 388.106(a)(2) to make clear that
only documents created by FERC on or after November 1, 1996 will
immediately be electronically available, and those will only be
available on the Commission's World Wide Web site and through the
Bulletin Board Network. All public documents created or received by the
Commission since November 1995 will be electronically available upon
implementation of the Records and Information Management System (RIMS)
on the Web.
The Commission adopts its NOPR as revised.
IV. Regulatory Flexibility Act Certification
The Regulatory Flexibility Act of 1980 (RFA) 5 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 revisions 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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\5\ 5 U.S.C. 601-602.
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V. Environmental Statement
Issuance of this final 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.6 This final 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.7 Thus, neither
an environmental impact statement nor an environmental assessment is
required.
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\6\ Order No. 486, 52 FR 47897 (Dec. 17, 1987); FERC Stats. &
Regs. [Preambles 1986-90] para. 30,783 (Dec. 10, 1987) (codified at
18 CFR Part 380).
\7\ 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.8 This final
rule contains no information reporting requirements, and is not subject
to OMB approval.
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\8\ 5 CFR Part 1320.
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VII. Effective Date and Congressional Notification
This rule will be effective March 5, 1998. The Small Business
Regulatory Enforcement Fairness Act of 1996 requires agencies to report
to Congress on the promulgation of certain final rules prior to their
effective dates.9 That reporting requirement does not apply
to this final rule because this rule addresses agency organization,
procedure and practice, and does not substantially affect the rights or
obligations of non-agency parties.10 Congressional
notification of this final rule therefore is not required.
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\9\ Pub. L. No. 104-121, 110 Stat. 847 (1996), codified at 5
U.S.C. 801-808.
\10\ 5 U.S.C. 804(3)(C).
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List of Subjects in 18 CFR Part 388
Freedom of information, Public reference materials.
By the Commission.
Linwood A. Watson, Jr.,
Acting Secretary.
In consideration of the foregoing, the Commission amends 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 by FERC 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), and the Bulletin
Board Network. All public documents created or received by the
Commission since November 1995 will be electronically available upon
implementation of the Records and Information Management System (RIMS)
on the Web. 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. Sec. 552(g), as amended; and
* * * * *
(c) * * *
(1) Commission correspondence includes written communications and
enclosures, in hard copy or electronic format, received from others
outside the 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:
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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).
* * * * *
(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
[[Page 5455]]
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 Sec. 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.
Sec. 388.112 [Amended]
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. 98-2594 Filed 2-2-98; 8:45 am]
BILLING CODE 6717-01-P
