[Federal Register Volume 82, Number 24 (Tuesday, February 7, 2017)]
[Rules and Regulations]
[Pages 9505-9512]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-01770]


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LIBRARY OF CONGRESS

 Copyright Office

37 CFR Part 203

[Docket No. 2017-1]


Freedom of Information Act Regulations

AGENCY: U.S. Copyright Office, Library of Congress.

ACTION: Interim rule with request for comments.

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SUMMARY: The U.S. Copyright Office is issuing an interim rule that 
amends its regulations governing its practices and procedures under the 
Freedom of Information Act (FOIA), to implement the FOIA Improvement 
Act of 2016. The regulations are issued on an interim basis without 
opportunity to comment to ensure that updated regulations are in place 
as soon as practicable to implement the Act. These amendments are 
intended to incorporate changes in the law, and provide clear guidance 
to members of the public in filing a FOIA request with the Office.

DATES: This interim rule is effective on March 9, 2017. Written 
comments must be received no later than 11:59 p.m. Eastern Time on 
April 24, 2017.

ADDRESSES: For reasons of government efficiency, the Copyright Office 
is using the regulations.gov system for the submission and posting of 
public comments in this proceeding. All comments are therefore to be 
submitted electronically through regulations.gov. Specific instructions 
for submitting comments are available on the Copyright Office Web site 
at http://copyright.gov/rulemaking/foia2016. If electronic submission 
of comments is not feasible due to lack of access to a computer and/or 
the internet, please contact the Office using the contact information 
below for special instructions.

FOR FURTHER INFORMATION CONTACT: Sarang V. Damle, General Counsel and 
Associate Register of Copyrights, by email at [email protected], or by 
telephone at 202-707-8350; or William J. Roberts, Jr., Associate 
Register of Copyrights and Director of Public Information and 
Education, by email at [email protected], or by telephone at 202-707-
8391.

SUPPLEMENTARY INFORMATION: The Freedom of Information Act (FOIA), 
section 552 of title 5 of the United States Code, provides a statutory 
right of access to federal agency records. In part, FOIA establishes 
procedures by which a member of the public may request

[[Page 9506]]

records from a federal agency and the parameters by which an agency 
must operate when responding to a request from the public. On June 30, 
2016, the President signed into law the FOIA Improvement Act of 2016, 
Public Law 114-185 (2016). Section 2 of the Act amended FOIA to address 
a range of procedural issues. The Act amended FOIA to, inter alia, 
require agencies to make its records that have been requested three or 
more times available for public inspection in electronic format, to 
establish a 90 day period to file an administrative appeal, to notify 
requesters of the availability of dispute resolution services from the 
Office of Government Information Services (OGIS), and to prohibit the 
charging of fees when an agency fails to adhere to the requirements of 
FOIA.
    Section 3 of the Act requires ``the head of each agency . . . as 
defined in section 551 of title 5, United States Code'' to review and 
issue new regulations in light of the amendments not later than 180 
days after the date of enactment. Because the Library of Congress (and 
by extension, the Copyright Office) is not an ``agency'' under 5 U.S.C. 
551,\1\ this deadline does not, strictly speaking apply to the Office. 
Nonetheless, in the interest of ensuring the Office's FOIA practices 
reflect the requirements of the Act, the Office is promulgating these 
regulations immediately, on an interim basis to allow for notice and 
comment.
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    \1\ See Ethnic Employees of the Library of Congress v. Boorstin, 
751 F.2d 1405, 1416 n.15 (D.C. Cir. 1985). The Administrative 
Procedure Act, and the Freedom of Information Act, apply to the U.S. 
Copyright Office by operation of the Copyright Act, see 17 U.S.C. 
701(e), rather than via the definition of ``agency'' in 5 U.S.C. 
551.
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    FOIA requires agencies to promulgate regulations addressing the 
requirements for making initial requests and appeals, the fees an 
agency may charge, and the standards and procedures for regular and 
expedited processing of requests, 5 U.S.C. 552(a)(4)(A)(i) and 
(a)(6)(E)(i), while providing areas of discretionary authority. In 
general, agency fee structures for FOIA services must be in compliance 
with the Office of Management and Budget's Uniform Freedom of 
Information Act Fee Schedule and Guidelines. 59 FR 10012. Accordingly, 
the Office releases this interim rule to address the amendments made to 
FOIA and improvements to the Office's administration of FOIA. The 
Office finds, for good cause, that allowing for notice and public 
procedure prior to the issuance of these interim regulations would be 
impracticable. To ensure that the Office's FOIA regulations implement 
the FOIA Improvements Act as soon as practicable, these interim 
regulations will be effective March 9, 2017. However, the Office will 
accept public comment for 45 days, and will then develop a final rule 
in light of comments received.

Guidelines for Adoption of Interim Rule

    In its amended regulations, the Office has adopted, where 
appropriate, the template for agency FOIA regulations released by the 
Office of Information Policy (OIP) at the Department of Justice. In 
2013, as part of the Second United States Open Government National 
Action Plan, the Administration initiated an interagency process to 
determine the feasibility and content of a FOIA regulation that could 
be adopted by all federal agencies. The OIP convened an inter-agency 
working group to study this issue. Over two years, the group engaged 
with federal agencies and reviewed regulatory language to determine 
that the most feasible approach was to provide a template with 
suggested language for agencies' use. OIP released this template on 
March 23, 2016, and subsequently updated the template to incorporate 
the changes of the Act.
    First, the new regulation provides a clear structure for the 
required regulatory provisions of FOIA. It provides individual sections 
stating the time, place, fees, and procedures for making requests, as 
well as clear authority for the disposition of FOIA requests. See 5 
U.S.C. 552(a)(3)(A)(ii). Providing discrete sections based on 
procedural subject matter improves readability and accessibility for 
the public. The regulation also establishes the availability of dispute 
resolution following the denial of an initial request or an 
administrative appeal.
    Second, the regulation formalizes Office practices of multi-track 
processing and aggregation for administrative convenience. FOIA allows 
agencies to engage in multitrack processing ``based on the amount of 
work or time (or both) involved in processing requests.'' Id. 
552(a)(6)(D)(i). The interim regulation establishes that the Office 
will establish processing tracks for expedited, simple, and complex 
requests based on the estimated amount of work or time needed to 
process the request. The Office will notify a requester of the track 
into which their request falls, and will provide an opportunity to 
narrow or modify a request so that it may be processed in a different 
track. The interim regulation also expands the Office's ability to 
aggregate multiple requests that reasonably appear to be a single 
request, which would otherwise satisfy unusual circumstances. See id. 
552(a)(6)(B)(iv).
    Finally, the regulation provides areas where additional regulatory 
language can enhance customer service. In general, this language 
emphasizes the availability of the FOIA Public Liaison to assist 
requesters and members of the public, provides for communication by 
email, and establishes guidelines for agency communication through the 
initial request and appeals processes. With regards to fees, the 
regulation describes the overall construct for assessing fees in the 
most efficient and least expensive manner, notifying requesters if a 
new computer program will be required to fulfill a request, and 
breaking down fees when an estimated fee is over twenty-five dollars 
($25.00). The Office has adopted these recommendations in an effort to 
advance the open government purposes of FOIA. See NLRB v. Robbins Tire 
& Rubber Co., 437 U.S. 214, 242 (1978) (stating that the ``basic 
purpose of FOIA is to ensure an informed citizenry, vital to the 
functioning of a democratic society, needed to check against corruption 
and to hold the governors accountable to the governed.'').

List of Subjects in 37 CFR Part 203

    Freedom of information.

Proposed Regulations

    For the reasons set forth in the preamble, the U.S. Copyright 
Office amends 37 CFR part 203 as follows:

PART 203--FREEDOM OF INFORMATION ACT: POLICIES AND PROCEDURES

0
1. The authority citation for part 203 is revised to read as follows:

    Authority:  5 U.S.C. 552.


0
2. Revise Sec.  203.1 to read as follows:


Sec.  203.1   General.

    This information is furnished for the guidance of the public and in 
compliance with the requirements of the Freedom of Information Act 
(``FOIA''), 5 U.S.C. 552. The rules contained in this part should be 
read in conjunction with the text of FOIA and the Uniform Freedom of 
Information Fee Schedule and Guidelines published by the Office of 
Management and Budget (``OMB Guidelines''). Requests made by 
individuals for records pertaining to themselves under the Privacy Act 
of 1974, 5 U.S.C. 552a, are processed under part 204 of this chapter. 
Requests for services for which the Copyright Act of 1976, title 17 of 
the United States

[[Page 9507]]

Code, requires a fee are not processed under this part, but will be 
processed under the applicable regulations governing that service 
(including Sec.  201.2 of this chapter). If the Copyright Office 
receives a request for services for which the Copyright Act requires a 
fee to be charged, the Office will notify the requester of the 
procedure established to obtain such services, and the applicable fees 
under Sec.  201.3 of this chapter. Section 706(b) of the Copyright Act 
and the regulations issued under section 706(b) are not subject to 
FOIA.


Sec.  203.3   [Amended]

0
3. Amend Sec.  203.3 by removing paragraph (m).

0
4. Revise Sec.  203.4 to read as follows:


Sec.  203.4   Proactive disclosure of Office records.

    Records that are required by FOIA to be made available for public 
inspection in electronic format may be accessed through the Office's 
Web site at www.copyright.gov. The Office is responsible for 
determining which of its records must be made publicly available, for 
identifying additional records of interest to the public that are 
appropriate for public disclosure, and for posting and indexing such 
records. The Office must ensure that its Web site of posted records and 
indices is reviewed and updated on an ongoing basis. The Office has a 
FOIA Public Liaison who can assist individuals in locating records 
particular to the Office. The Office's FOIA Public Liaison contact 
information may be found at www.copyright.gov/foia.

0
5. Remove the undesignated center heading ``Availability of 
Information''.

0
6. Revise Sec.  203.5 to read as follows:


Sec.  203.5   Requirements for making requests.

    (a) General information. To be proper, a request must be made in 
accordance with the rules established under this part.
    (1) To make a request for records, a requester should write 
directly by email to [email protected], by postal mail to the FOIA 
Requester Service Center, Copyright Office, PIE, P.O. Box 70400, 
Washington, DC 20024, or submit the request in person between the hours 
of 8:30 a.m. and 5 p.m. on any working day except legal holidays at 
Room LM-401, The James Madison Memorial Building, 101 Independence 
Avenue SE., Washington, DC. If a request is made by mail, both the 
request and the envelope containing it should include ``Freedom of 
Information Act Request''. A request will receive the quickest possible 
response if it is clearly marked and addressed to the FOIA Requester 
Service Center. Guidelines for submitting a request can be found at 
www.copyright.gov/foia.
    (2) A requester who is making a request for records about himself 
or herself must comply with part 204 of this chapter.
    (3) Where a request for records pertains to a third party, a 
requester may receive greater access by submitting either a notarized 
authorization signed by that individual or a declaration made in 
compliance with the requirements set forth in 28 U.S.C. 1746 by that 
individual authorizing disclosure of the records to the requestor, or 
by submitting proof that the individual is deceased (e.g., a copy of a 
death certificate or obituary). As an exercise of administrative 
discretion, the Office can require a requester to supply additional 
information if necessary in order to verify that a particular 
individual has consented to disclosure.
    (b) Description of records sought. The request must reasonably 
describe the records sought. A request reasonably describes records if 
it enables the Office to identify the records requested in such a way 
that is not unreasonably burdensome or disruptive to Office operations. 
To the extent possible, requesters should include specific information 
that may help the agency identify the requested records, such as the 
date, title or name, author, recipient, subject matter of the record, 
registration, recordation, or reference number. Before submitting their 
requests, requesters may contact the FOIA Public Liaison to discuss the 
records they seek and to receive assistance in describing the records. 
If after receiving a request the Office determines that it does not 
reasonably describe the records sought, the Office will inform the 
requester what additional information is needed or why the request is 
insufficient. The requester may discuss with the FOIA Public Liaison 
how to reformulate or modify a request. If a request does not 
reasonably describe the records sought, the agency's response to the 
request may be delayed.
    (c) Formats. Requests may specify the preferred form or format 
(including electronic formats) for the records identified. The Office 
will accommodate the request if the record is readily reproducible in 
that form or format.
    (d) Contact information. Requesters must provide contact 
information, such as a phone number, email address, and/or mailing 
address, to assist the Office in communicating with a requester and 
providing released records.

0
7. Remove the undesignated center heading ``Charges for Search for 
Reproduction''.

0
8. Revise Sec.  203.6 to read as follows:


Sec.  203.6   Responsibility for responding to requests.

    (a) In general. The Office is responsible for responding to a 
request. In determining which records are responsive to a request, the 
Office ordinarily will include only records in its possession as of the 
date that it begins its search. If any other date is used, the Office 
will inform the requester of that date.
    (b) Authority to grant or deny requests. The Register of 
Copyrights, and the Associate Register of Copyrights and Director of 
Public Information and Education are authorized to grant or to deny any 
requests for records.
    (c) Consultation, referral, and coordination. When reviewing 
records located by the Office in response to a request, the Office will 
determine whether another agency of the Federal Government is better 
able to determine whether the record is exempt from disclosure under 
FOIA. As to any such record, the Office will proceed in one of the 
following ways:
    (1) Consultation. When records originated with the Office, but 
contain within them information of interest to another agency or 
Federal Government office, the Office may consult with the other entity 
prior to making a release determination.
    (2) Referral. (i) When the Office believes that a different agency 
is best able to determine whether to disclose the record, the Office 
will refer the responsibility for responding to the request regarding 
that record to that agency. Ordinarily, the Office that originated the 
record is presumed to be the best agency to make the disclosure 
determination. If, however, the Office and the originating agency 
jointly agree that the Office is in the best position to respond, then 
the record may be handled as a consultation.
    (ii) Whenever the Office refers any responsibility for responding 
to a request to another agency, it will document the referral, maintain 
a copy of the record that it refers, and notify the requester of the 
referral. The notification will include the name(s) of the agency to 
which the record was referred and that agency's FOIA contact 
information.
    (3) Coordination. When the Office believes that a different agency 
is best able to determine whether to disclose the record, but 
disclosure of the identity of the different agency could harm an 
interest protected by an applicable exemption, the Office will 
coordinate with the originating agency to seek its views of 
disclosability of the record. The release determination for the record

[[Page 9508]]

that is the subject of the coordination will then be conveyed to the 
requester by the Office.
    (d) Timing of responses to consultations and referrals. All 
consultations and referrals received by the Office will be handled 
according to the date that the first agency received the perfected FOIA 
request.
    (e) Agreements regarding consultations and referrals. The Office 
may establish agreements with other agencies to eliminate the need for 
consultations or referrals with respect to particular types of records.

0
9. Add Sec. Sec.  203.7 through 203.10, an undesignated center heading, 
and Sec.  203.11 to read as follows:

Sec.
203.7 Timing of responses to requests.
203.8 Responses to requests.
203.9 Administrative appeals.
203.10 Preservation of records.
Charges for Responding to FOIA Requests
203.11 Fees.


Sec.  203.7   Timing of responses to requests.

    (a) In general. The Office will respond to all properly addressed 
emailed and mailed requests and all personally delivered written 
requests for records within 20 working days of receipt. The Office 
ordinarily will respond to requests according to their order of 
receipt. In instances involving a misdirected request rerouted to the 
Office, the response time will commence on the date that the request is 
received by the Office, but in any event not later than 10 working days 
after the request is first received by the Library of Congress.
    (b) Multitrack processing. The Office will designate a specific 
track for requests that are granted expedited processing, in accordance 
with the standards set forth in paragraph (e) of this section. The 
Office may also designate additional processing tracks that distinguish 
between simple and more complex requests based on the estimated amount 
of work or time needed to process the request. Among the factors the 
Office may consider are the number of records requested, the number of 
pages involved in processing the request, and the need for 
consultations or referrals. The Office will advise a requester of the 
track into which their request falls and, when appropriate, will offer 
the requester an opportunity to narrow or modify their request so that 
it can be placed in a different processing track.
    (c) Unusual circumstances. (1)(i) Whenever the Office cannot meet 
the statutory time limit for processing a request because of ``unusual 
circumstances,'' as defined in paragraph (c)(2) of this section, the 
Office will notify the requester in writing of the unusual 
circumstances and the estimated date of determination. Where an 
extension of time greater than 10 days is required, the Office will 
give the requester the opportunity to:
    (A) Limit the scope of the request so that it may be processed 
within 20 working days; or
    (B) Arrange with the Office an alternative time frame for 
processing the request or a modified request.
    (ii) The Office will make available the FOIA Public Liaison to 
assist the requester in modifying the request.
    (2) As used in this paragraph (c), ``unusual circumstances'' means, 
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 
establishments that are physically separate from the Office;
    (ii) The need to search for, collect, and 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 
Copyright Office which have a substantial subject matter interest 
therein.
    (d) Aggregating requests. To satisfy unusual circumstances under 
the FOIA, the Office may aggregate requests in cases where it 
reasonably appears that multiple requests, submitted either by a 
requester or by a group of requesters acting in concert, constitute a 
single request that would otherwise involve unusual circumstances. The 
Office will not aggregate multiple requests that involve unrelated 
matters.
    (e) Expedited processing. (1) The Office will process requests and 
appeals on an expedited basis whenever it is determined that the 
request or appeal involves:
    (i) Circumstances in which the lack of expedited processing could 
reasonably be expected to pose an imminent threat to the life or 
physical safety of an individual; or,
    (ii) An urgency to inform the public about an actual or alleged 
Federal Government activity, if the request or appeal is made by a 
person who is primarily engaged in disseminating information.
    (2) A request for expedited processing may be made at any time. 
Requests for expedited processing of initial requests should be made to 
the FOIA Requester Service Center. Requests for expedited processing of 
an administrative appeal should be submitted to the Office of the 
Register of Copyrights.
    (3) A requester who seeks expedited processing must submit a 
statement, certified to be true and correct, setting forth the basis 
for the claim that a ``compelling need'' exists for the requested 
information.
    (4) The Office will notify the requester within 10 calendar days of 
the receipt of a request for expedited processing of its decision 
whether to grant or deny expedited processing. If expedited processing 
is granted, the request will be given priority and processed as soon as 
is practicable. If a request for expedited processing is denied, the 
requester may submit an appeal to the Office of the Register of 
Copyrights. The Office will act expeditiously on any appeal of a denial 
of expedited processing.


Sec.  203.8   Responses to requests.

    (a) In general. The Office, to the extent practicable, will 
communicate with requesters having access to the Internet 
electronically, such as email or web portal.
    (b) Acknowledgement of requests. The Office will acknowledge a 
request in writing and assign it an individualized tracking number if 
it will take longer than 10 working days to process. The Office will 
include in the acknowledgement a brief description of the records 
sought.
    (c) Estimated dates of completion and interim responses. Upon 
request, the Office will provide an estimated date by which the Office 
expects to provide a response to the requester. If a request involves a 
voluminous amount of material, or searches in multiple locations, the 
agency may provide interim responses, releasing the records on a 
rolling basis.
    (d) Grants of requests. Once the Office determines it will grant a 
request in full or in part, it will notify the requester in writing. 
The Office will also inform the requester of any fees charged under 
Sec.  203.11 and will disclose the requested records to the requester 
promptly upon payment of any applicable fees. The Office will inform 
the requester of the availability of the FOIA Public Liaison to offer 
assistance.
    (e) Adverse determinations. If the Office makes an adverse 
determination denying a request in any respect, it will notify the 
requester of that determination in writing. Adverse determinations, or 
denials of requests, include decisions that: The requested record is 
exempt, in whole or in part; the requested record does not exist, 
cannot be located, or has been

[[Page 9509]]

destroyed; or the requested record is not readily reproducible in the 
form or format sought by the requester. Adverse determinations also 
include denials involving fees or fee waiver matters or denials of 
requests for expedited processing.
    (f) Content of denial. The denial shall be signed by the Associate 
Register of Copyrights and Director of Public Information and Education 
or a designee and shall include:
    (1) The name and title or position of the person responsible for 
the denial;
    (2) A brief statement of the reasons for the denial, including any 
FOIA exemption applied by the agency in denying the request;
    (3) When applicable, an estimate of the volume of any records or 
information withheld, such as the number of pages or some other 
reasonable form of estimation, although such an estimate is not 
required if the volume is otherwise indicated by deletions marked on 
records that are disclosed in part or if providing an estimate would 
harm an interest protected by an applicable exemption;
    (4) A statement that the denial may be appealed under Sec.  203.9, 
and a description of the appeal requirements; and,
    (5) A statement notifying the requester of the assistance available 
from the Office's FOIA Public Liaison and the dispute resolution 
services offered by the Office of Government Information Services.
    (g) Markings on released documents. Records disclosed in part shall 
be marked clearly to show the amount of information deleted and the 
exemption under which the deletion was made unless doing so would harm 
an interest protected by an applicable exemption. The location of the 
information deleted must also be indicated on the record, if 
technically feasible.


Sec.  203.9   Administrative appeals.

    (a) Requirements for making an appeal. A requester may appeal any 
adverse determination to the Register of Copyrights. Examples of 
adverse determinations are provided in Sec.  203.8(e). Requesters can 
submit appeals by mail to the Register of Copyrights, Copyright Office, 
P.O. Box 70400, Washington, DC 20024. The requester must make the 
appeal in writing and to be considered timely it must be postmarked 
within 90 calendar days after the date of the Office's response. The 
appeal should clearly identify the agency determination that is being 
appealed, include the assigned docket number, and include a statement 
explaining the basis for the appeal. To facilitate handling, the 
requester should include on both the appeal letter and envelope 
``Freedom of Information Act Appeal.''
    (b) Adjudication of appeals. (1) The Register of Copyrights or a 
designee will adjudicate all appeals under this section.
    (2) An appeal ordinarily will not be adjudicated if the request 
becomes a matter of FOIA litigation.
    (c) Decisions on appeals. The Office shall provide its decision on 
an appeal in writing. A decision that upholds the Office's 
determination in whole or in part will contain a statement that 
identifies the reasons for the affirmance, including any FOIA 
exemptions applied. The decision will provide the requester with 
notification of the statutory right to file a lawsuit and will inform 
the requester of the mediation services offered by the Office of 
Government Information Services (OGIS) of the National Archives and 
Records Administration as a non-exclusive alternative to litigation. If 
the Office's decision is remanded or modified on appeal, the Agency 
will notify the requester of that determination in writing. The Office 
will then further process the request in accordance with the appeal 
determination and will respond directly to the requester.
    (d) Engaging in dispute resolution. Mediation is a voluntary 
process. If the Office agrees to participate in the mediation services 
provided by OGIS, it will actively engage as a partner to the process 
in an attempt to resolve the dispute.
    (e) When an appeal is required. Before seeking review by a court of 
an agency's adverse determination, a requester must first submit a 
timely administrative appeal.


Sec.  203.10   Preservation of records.

    The Office must preserve all correspondence pertaining to the 
requests that it receives under this part, as well as copies of all 
requested records, until disposition or destruction is authorized 
pursuant to title 44 of the United States Code or the General Records 
Schedule 14 of the National Archives and Records Administration. The 
Office shall not dispose of or destroy records while they are the 
subject of a pending request, appeal, or lawsuit under FOIA.

Charges for Responding to FOIA Requests


Sec.  203.11   Fees.

    (a) In general. (1) The fee schedule of this section does not apply 
with respect to the charging of fees for those records for which the 
Copyright Act requires a fee to be charged. The fees required to be 
charged are contained in Sec.  201.3 of this chapter, or have been 
established by the Register of Copyrights or Library of Congress 
pursuant to the requirements of that section. The Copyright Office will 
charge for processing requests under FOIA in accordance with the 
provisions of this section and with the OMB Guidelines. For purposes of 
assessing fees for processing requests, FOIA establishes three 
categories of requesters:
    (i) Commercial use requesters;
    (ii) Non-commercial scientific or educational institutions or news 
media requesters; and
    (iii) All other requesters.
    (2) Different fees are assessed depending on the category. 
Requesters may seek a fee waiver, which the Office will consider in 
accordance with paragraph (k) of this section. To resolve any fee 
issues that arise under this section, an agency may contact a requester 
for additional information. The Office shall ensure that searches, 
review, and duplication are conducted in the most efficient and the 
least expensive manner. The Office will ordinarily collect all 
applicable fees before sending copies of records to a requester. 
Requesters must pay fees by check or money order made payable to the 
United States Copyright Office.
    (b) Definitions. For the purpose of this section:
    (1) Commercial use request is a request that asks for information 
for a use or purpose that furthers a commercial, trade, or profit 
interest, which can include furthering those interests through 
litigation. The Office's decision to place a requester in the 
commercial use category will be made on a case-by-case basis based on 
the requester's intended use of the information. The Office will notify 
requesters of their placement in this category.
    (2) Direct costs are those expenses that the Office incurs in 
searching for, duplicating, and/or reviewing records in order to 
respond to a FOIA request. Direct costs do not include overhead 
expenses such as the costs of space, and of heating or lighting a 
facility.
    (3) Duplication is reproducing a copy of a record, or of the 
information contained in it, necessary to respond to a FOIA request. 
Copies can take the form of paper, audiovisual materials, or electronic 
records, among others.
    (4) Educational institution is any school that operates a program 
of scholarly research. A requester in this fee category must show that 
the request is made in connection with his or her

[[Page 9510]]

role at the educational institution. The Office may seek verification 
from the requester that the request is in furtherance of scholarly 
research and the Office will advise requesters of their placement in 
this category.
    (5) Noncommercial scientific institution is an institution that is 
not operated on a commercial basis and is operated solely for the 
purpose of conducting scientific research the results of which are not 
intended to promote any particular product or industry. A requester in 
this category must show that the request is authorized by and is made 
under the auspices of a qualifying institution that the records are 
sought to further scientific research and are not for a commercial use. 
The Office will advise requesters of their placement in this category.
    (6) Representative of the news media is any person or entity that 
gathers information of potential interest to a segment of the public, 
uses its editorial skills to turn the raw materials into a distinct 
work, and distributes that work to an audience. The term ``news'' means 
information that is about current events or that would be of current 
interest to the public. A request for records supporting the news-
dissemination function of the requester will not be considered to be 
for a commercial use. ``Freelance'' journalists who demonstrate a solid 
basis for expecting publication through a news media entity will be 
considered as a representative of the news media. A publishing contract 
would provide the clearest evidence that publication is expected; 
however, the Office can also consider a requester's past publication 
record in making this determination. The Office will advise requesters 
of their placement in this category.
    (7) Review is the examination of a record located in response to a 
request in order to determine whether any portion of it is exempt from 
disclosure. Review includes taking all necessary steps to prepare a 
record for disclosure, including the process of redacting the record 
and marking the appropriate exemptions and time spent obtaining and 
considering any formal objection to disclosure made by a confidential 
commercial information submitter under Sec.  203.9. Review does not 
include time spent resolving general legal or policy issues regarding 
the application of exemptions. Review costs are properly charged even 
if a record ultimately is not disclosed.
    (8) Search is the process of looking for and retrieving records or 
information responsive to a request. Search includes page-by-page or 
line-by-line identification of information within records and the 
reasonable efforts expended to locate and retrieve information from 
electronic records.
    (c) Charging fees. In responding to FOIA requests, the Office will 
charge the following fees unless a waiver or reduction of fees has been 
granted under paragraph (k) of this section.
    (1) Search. (i) Requests made by educational institutions, 
noncommercial scientific institutions, or representatives of the news 
media are not subject to search fees. The Office will charge search 
fees for all other requesters, subject to the restrictions of paragraph 
(d) of this section. Fees may be assessed for time spent searching even 
if the search fails to locate any responsive records or where the 
records located are subsequently determined to be entirely exempt from 
disclosure.
    (ii) For each quarter hour spent by administrative staff in 
searching for a requested record, $7.50; for each quarter hour spent by 
professional staff in searching for a requested record, $17.50, with a 
half hour minimum in both cases.
    (iii) For computer searches of records, which may be undertaken 
through the use of existing programming, the actual direct costs of 
conducting the search including the cost of operating a central 
processing unit for that portion of operating time that is directly 
attributable to searching for records responsive to a request, as well 
as the direct costs of operator/programmer salary apportionable to 
search (at no less than $65 per hour or fraction thereof).
    (iv) For requests that require the retrieval of records stored by 
an agency at a Federal records center operated by the National Archives 
and Records Administration (NARA), agencies will charge additional 
costs in accordance with the Transactional Billing Rate Schedule 
established by NARA.
    (2) Duplication. The Office will charge duplication fees to all 
requesters, subject to the restrictions of paragraph (d) of this 
section. The Office will honor a requester's preference for receiving a 
record in a particular form or format when the Office can readily 
reproduce it in the form or format requested. For copies of the public 
records, deposits, or indexes of the Office, the Office will charge 
fees according to Sec.  201.3 of this chapter. For copies of all other 
Copyright Office records not otherwise provided for in this section, a 
minimum fee of $15.00 for up to 15 pages and $.50 per page over 15.
    (3) Review. The Office will charge review fees to requesters who 
make commercial use requests. Review fees will be assessed in 
connection with the initial review of the record to determine whether 
an exemption applies to a particular record or portion of a record. No 
charge will be made for review at the administrative appeal stage of 
exemptions applied at the initial review stage. If a particular 
exemption is deemed to no longer apply on appeal, any costs associated 
with the Office's re-review of the records may be assessed as review 
fees. Review fees will be charged at the same rates as described in 
paragraph (c)(1)(ii) of this section.
    (4) Other direct costs. Other costs incurred by the Copyright 
Office in fulfilling a request will be chargeable at the actual cost to 
the Office.
    (d) Restrictions on charging fees. (1)(i) If the Copyright Office 
fails to comply with FOIA's time limits in which to respond to a 
request, it may not charge search fees or, in the instances of requests 
from educational institutions, non-commercial scientific institutions, 
or representatives of the news media, may not charge duplication fees, 
except as described in this paragraph (d).
    (ii) If the Office has determined that unusual circumstances, as 
defined by FOIA, apply and the agency provides timely written notice to 
the requester, a failure to comply with the time limit shall be excused 
for an additional 10 days.
    (iii) If the Office has determined that unusual circumstances, as 
defined by FOIA, apply and more than 5,000 pages are necessary to 
respond to the request, the Office may charge fees if the Office has 
provided timely written notice of the unusual circumstances to the 
requester in accordance with FOIA and the Office has discussed with the 
requester (or made not less than three good-faith attempts to do so) 
how the requester could effectively limit the scope of the request in 
accordance with 5 U.S.C. 552(a)(6)(B)(ii).
    (iv) If a court has determined that exceptional circumstances 
exist, as defined by the FOIA, a failure to comply with the time limits 
shall be excused for the length of time provided by the court order.
    (2) No search or review fees will be charged for a quarter-hour 
period unless more than half of that period is required for search or 
review.
    (3) Except for requesters seeking records for a commercial use, the 
Office will provide without charge:
    (i) The first 100 pages of duplication (or the cost equivalent for 
other media); and
    (ii) The first two hours of search.
    (4) No fee will be charged when the total fee, after deducting the 
first 100 pages (or its cost equivalent) and the first two hours of 
search, is equal to or less than $25.00.

[[Page 9511]]

    (5) No fees will be charged for ordinary packaging and mailing 
costs.
    (e) Notice of anticipated fees in excess of $25.00. (1) When the 
Office determines or estimates that the fees to be assessed will exceed 
$25.00, the Office shall notify the requester of the actual or 
estimated amount of the fees, including a breakdown of the fees for 
search, review or duplication, unless the requester has indicated a 
willingness to pay fees as high as those anticipated. If only a portion 
of the fee can be estimated readily, the Office will advise the 
requester accordingly. If the request is a noncommercial use requester, 
the notice shall include the services provided without charge indicated 
in paragraph (d)(3) of this section, and shall advise the requester 
whether those entitlements have been provided.
    (2) When a requester has been provided notice of anticipated fees 
in excess of $25.00, the request shall not be considered received and 
further work will not be completed until the requester commits in 
writing to pay the actual or estimated total fee, to designate which 
fees the requester is willing to pay, or, for noncommercial requests, 
to indicate that the requester seeks only the services that can be 
provided in paragraph (d)(3) of this section without charge. The Office 
is not required to accept payment in installments.
    (3) When the requester has committed to pay some designated amount 
of fees, but the Office estimates that the total fee will exceed that 
amount, the Office shall toll processing of the request when it 
notifies the requester of the estimated fees in excess of the 
requester's commitment. The Office shall inquire whether the requester 
wishes to revise the amount of fees the requester is willing to pay or 
modify the request. Once the requester responds, the time to respond 
will resume from where it was at the date of the notification.
    (4) The Office shall make available the FOIA Public Liaison to 
assist the requester in reformulating a request to meet the requester's 
needs at a lower cost.
    (f) Charges for other services. Although not required to provide 
special services, if the Office chooses to do so as a matter of 
administrative discretion, the direct costs of providing the service 
shall be charged.
    (g) Charging interest. The Office may charge interest on any unpaid 
bill starting on the 31st day following the date of billing the 
requester. Interest charges will be assessed at the rate provided in 31 
U.S.C. 3717 and will accrue from the billing date until payment is 
received by the Office.
    (h) Aggregating requests. When the Office reasonably believes that 
a requester or group of requesters acting in concert is attempting to 
divide a single request into a series of requests for the purpose of 
avoiding fees, the Office may aggregate those requests and charge 
accordingly. The Office may presume that multiple requests of this type 
made within a 30-day period have been made in order to avoid fees. For 
requests separated by a longer period, agencies will aggregate them 
only where there is a reasonable basis for determining that aggregation 
is warranted in view of all the circumstances involved. Multiple 
requests involving unrelated matters cannot be aggregated.
    (i) Advance payments. (1) For requests other than those described 
in paragraph (i)(2) or (3) of this section, the Copyright Office cannot 
require the requester to make an advance payment before work is 
commenced or continued on a request. Payment owed for work already 
completed is not an advance payment.
    (2) When the Office determines or estimates that a total fee to be 
charged under this section will exceed $250.00, it may require that the 
requester make an advance payment up to the amount of the entire 
anticipated fee before beginning to process the request. The Office may 
elect to process the request prior to collecting fees when it receives 
a satisfactory assurance of full payment from a requester with a 
history of prompt payment.
    (3) Where a requester has previously failed to pay a properly 
charged FOIA fee to any agency within 30 calendar days of the billing 
date, the Office may require that the requester pay the full amount 
due, plus any applicable interest on that prior request, and the Office 
may require that the requester make an advance payment of the full 
amount of any anticipated fee before the Office begins to process a new 
request or continues to process a pending request or any pending 
appeal. Where the Office has a reasonable basis to believe that a 
requester has misrepresented the requester's identity in order to avoid 
paying outstanding fees, it may require that the requester provide 
proof of identity.
    (4) In cases in which the Office requires advance payment, the 
request will not be considered received and further work will not be 
completed until the required payment is received. If the requester does 
not pay the advance payment within 30 calendar days after the date of 
the Office's fee determination, the request will be closed.
    (j) Other statutes specifically providing for fees. The provisions 
of this section do not apply with respect to the charging of fees for 
which the copyright law requires a fee to be charged. Requesters asking 
for copies of records about themselves shall be processed under the 
Privacy Act fee schedule found in Sec.  204.6 of this chapter. Fees for 
services by the Office in the administration of the copyright law are 
contained in Sec.  201.3 of this chapter. In instances where records 
responsive to a request are subject to the statutorily-based fee 
schedule, the Office will inform the requester of the service and 
appropriate fee.
    (k) Requirements for waiver or reduction of fees. (1) Records 
responsive to a request shall be furnished without charged or at a 
reduced rate where the Office determines, based on all available 
information, that the requester has demonstrated that:
    (i) Disclosure of the requested information is in the public 
interested because it is likely to contribute significantly to the 
public understanding of the operations or activities of the government; 
and
    (ii) Disclosure of the information is not primarily in the 
commercial interest of the requester.
    (2) In deciding whether the requester has demonstrated the 
requirement of paragraph (k)(1)(i) of this section, the Office shall 
consider all four of the following factors:
    (i) The subject of the request must concern identifiable operations 
or activities of the Federal Government, with a connection that is 
direct and clear, not remote or attenuated.
    (ii) Disclosure of the requested records must be meaningfully 
informative about government operations or activities in order to be 
``likely to contribute'' to an increased public understanding of those 
operations or activities. The disclosure of information that already is 
in the public domain, in either the same or a substantially identical 
form, would not contribute to such understanding where nothing new 
would be added to the public's understanding.
    (iii) The disclosure must contribute to the understanding of a 
reasonably broad audience of persons interested in the subject, as 
opposed to the individual understanding of the requester. A requester's 
expertise in the subject area as well as the requester's ability and 
intention to effectively convey information to the public shall be 
considered. It shall be presumed that a representative of the news 
media will satisfy this consideration.

[[Page 9512]]

    (iv) The public's understanding of the subject in question must be 
enhanced by the disclosure to a significant extent. However, the Office 
shall not make value judgments about whether the information at issue 
is ``important'' enough to be made public.
    (3) In deciding whether the requester has demonstrated the 
requirement of paragraph (k)(1)(ii) of this section, the Office shall 
consider the following two factors:
    (i) The Office shall identify any commercial interest of the 
requester that would be furthered by the requested disclosure. 
Requesters shall be given an opportunity to provide explanatory 
information regarding this consideration.
    (ii) A waiver or reduction of fees is justified where the public 
interest is greater than any identified commercial interest in 
disclosure. The Office ordinarily shall presume that where a news media 
requester has satisfied the public interest standard, the public 
interest will be the interest primarily served by disclosure to that 
requester. Disclosure to data brokers or others who merely compile and 
market government information for direct economic return shall not be 
presumed to primarily serve the public interest.
    (4) Where only some of the records to be released satisfy the 
requirements for a waiver of fees, a waiver shall be granted for those 
records.
    (5) Requests for a waiver or reduction of fees should be made when 
the request is first submitted to the Office and should address the 
criteria referenced above. A requester may submit a fee waiver request 
at a later time so long as the underlying record request is pending or 
on administrative appeal. When a requester who has committed to pay 
fees subsequently asks for a waiver of those fees and that waiver is 
denied, the requester shall be required to pay any costs incurred up to 
the date the fee waiver request was received.

    Dated: December 28, 2016.
Karyn Temple Claggett,
Acting Register of Copyrights and Director of the U.S. Copyright 
Office.
    Approved by:
Carla D. Hayden,
Librarian of Congress.
[FR Doc. 2017-01770 Filed 2-6-17; 8:45 am]
 BILLING CODE 1410-30-P