[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]


=======================================================================
-----------------------------------------------------------------------

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.

-----------------------------------------------------------------------

[[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
---------------------------------------------------------------------------

    \1\ Pub. L. 104-231, 110 Stat. 3048 (1996), codified at 
scattered subsections of 5 U.S.C. 552.
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    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 
<[email protected]>. 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.
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    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
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \7\ NPRM para. 12, citing, 5 U.S.C. Sec. 605(b).
---------------------------------------------------------------------------

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
---------------------------------------------------------------------------

    \8\ See 5 U.S.C. Sec. 553(d)(3).
---------------------------------------------------------------------------

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 <[email protected]>, 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