[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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    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