[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]


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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.

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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: [email protected]

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 [email protected].
    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