[Federal Register Volume 84, Number 30 (Wednesday, February 13, 2019)]
[Rules and Regulations]
[Pages 3699-3701]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-02181]


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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: Final rule.

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SUMMARY: The U.S. Copyright Office is issuing a final rule that amends 
its regulations governing its practices and procedures under the 
Freedom of Information Act (FOIA). The final rule closely follows the 
February 7, 2017 interim rule, implementing the FOIA Improvement Act of 
2016. The final rule makes limited modifications to align with public 
comments and to promote further regulatory clarity and customer 
service.

DATES: Effective date: March 15, 2019.

FOR FURTHER INFORMATION CONTACT: Regan A. Smith, General Counsel and 
Associate Register of Copyrights, by email at [email protected], or 
by telephone at 202-707-8350; or Catherine Zaller Rowland, Associate 
Register of Copyrights and Director of Public Information and 
Education, by email at [email protected], or by telephone at 202-
707-0956.

SUPPLEMENTARY INFORMATION: 

I. Background

    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

[[Page 3700]]

which a member of the public may request records from a federal agency 
and the parameters by which an agency must operate when responding to a 
request from the public. FOIA requires agencies to promulgate 
regulations addressing the logistical requirements of making requests, 
fees, and expedited processing \1\ while providing areas of 
discretionary authority.
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    \1\ 5 U.S.C. 552 (a)(1), (a)(4)(A)(i), and (a)(6)(E)(i).
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    In 2017, the Copyright Office (the ``Office'') published an Interim 
Rule \2\ in response to the FOIA Improvement Act of 2016 (the 
``Act''),\3\ which amended FOIA to address a range of procedural issues 
and required federal agencies subject to FOIA to review and update 
their regulations. In its interim rule, the Office updated its 
regulations to conform with the Act, including the Act's prohibition on 
charging fees after certain agency failures, specifying a ninety-day 
period for filing an administrative appeal, and requiring that records 
be made available in electronic format. The Office also adopted, where 
appropriate, the template for agency FOIA regulations released by the 
Office of Information Policy at the Department of Justice (DOJ OIP). 
The template provided a clear structure for the required regulatory 
provisions, allowed the Office to formalize its multi-track processing 
practices, and established clear regulatory language to improve 
customer service.\4\ In December 2018, the Office also made minor 
technical changes to its FOIA regulations to reflect the Office's 
current organizational structure while updating its licensing 
regulations relating to section 115 of title 17.\5\
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    \2\ 82 FR 9505 (Feb. 7, 2017).
    \3\ Public Law 114-185, 130 Stat. 538 (2016).
    \4\ 82 FR at 9506 (Feb. 7, 2017).
    \5\ 83 FR 63061 at 63064-65 (Dec. 7, 2018).
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    The Office received comments from two individuals as well as the 
National Archives and Records Administration (NARA).\6\ Having reviewed 
and carefully considered these comments, the Office now issues a final 
rule that closely follows the proposed rule, with minor amendments as 
discussed below.
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    \6\ The comments can be found on the Copyright Office's website 
at https://www.copyright.gov/rulemaking/foia2016/.
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II. Discussion of Comments and Other Considerations

A. NARA Record Schedule Technical Correction

    NARA submitted a technical comment related to Sec.  203.10, 
Preservation of Records, which referenced General Records Schedule 
(GRS) 14. NARA notes that GRS 14 was replaced with a new records 
schedule, GRS 4.2.\7\ The final rule incorporates this change.
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    \7\ NARA Comment at 1.
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B. Comments From Individuals

    Both individual commenters wrote in support of the Office's interim 
rule as an effort to provide citizens with access to records and 
improve agency responsiveness to the public. One commenter also voiced 
a general concern that access to records should not be dependent upon 
access to technology.\8\ The Office recognizes that individuals without 
access to technology can encounter unique obstacles to accessing the 
Office's information and records but believes that these concerns are 
adequately addressed by the Office's regulations and practices and that 
no amendments are required to the rule.
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    \8\ Jenna Rainey Comment at 1.
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    The Office receives a large number of its FOIA requests from 
individuals without access to technology, often for records that are 
already made publicly available by the Office in electronic form. When 
the Office receives such a request, it responds in writing by mail and 
includes copies of the requested documents, even if they are otherwise 
publicly available on the Office's website at www.copyright.gov. 
Further, the Office maintains the Public Information Office (PIO), 
which assists callers and correspondents in accessing information, 
including by providing printed copies of proactively disclosed records 
upon request.

C. Other Considerations and Technical Changes

    The Office has made three additional technical changes to the final 
rule based on its ongoing review of the law and additional guidance 
made publicly available by DOJ OIP. First, the Office has added 
language to the rule in Sec.  203.7(c), explaining that the Office will 
alert requesters as to the availability of mediation services offered 
by NARA's Office of Government Information Services when the Office 
provides notice of unusual circumstances. The interim rule included 
language explaining that the Office would alert a requester of the 
dispute resolution services when issuing a denial notification but 
inadvertently omitted similar language in the rule with regard to 
notices of delays due to unusual circumstances. The Office's practices 
have been to notify requesters of their right to dispute resolution 
services in both denials and notices of unusual circumstances, and the 
final rule now reflects the Office's practices.
    Second, the final rule clarifies in Sec.  203.11(j) that only 
Privacy Act \9\ requests are processed under the Office's Privacy Act 
fee schedule. The Office makes this technical amendment to clear up any 
possible confusion about the Privacy Act fee schedule by changing the 
language to focus on the type of request rather than the requester.
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    \9\ 5 U.S.C. 552a.
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    Third, the Office has amended Sec.  203.11(k) to adopt the 
streamlined fee waiver factors published by the DOJ OIP subsequent to 
the publication of the Office's interim rule.\10\ This updated template 
language improves regulatory clarity but does not materially change the 
proposed Sec.  203.11(k).
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    \10\ See Template for Agency FOIA Regulations, https://www.justice.gov/oip/template-agency-foia-regulations (last updated 
Feb. 22, 2017).
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    Accordingly, for the reasons explained above, the Office has 
determined that these additional amendments comprise non-substantive, 
procedural changes not ``alter[ing] the rights or interests of the 
parties,'' and thus are not subject to further notice and comment 
requirements of the Administrative Procedure Act.\11\
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    \11\ See Nat'l Mining Ass'n v. McCarthy, 758 F.3d 243, 250 (D.C. 
Cir. 2014) (``The critical feature of a procedural rule is that it 
covers agency actions that do not themselves alter the rights or 
interests of parties, although it may alter the manner in which the 
parties present themselves or their viewpoints to the agency.'') 
(internal quotation marks omitted); 5 U.S.C. 553(b)(A) (notice and 
comment not required for ``interpretative rules, general statements 
of policy, or rules of agency organization, procedure, or 
practice'').
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List of Subjects in 37 CFR Part 203

    Freedom of information.

Final Regulations

    For the reasons set forth above, the Copyright Office adopts the 
interim rule amending 37 CFR part 203 which was published at 82 FR 9505 
on February 7, 2017, as amended by 83 FR 63064 on December 7, 2018, as 
final with the following changes:

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

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

    Authority: 5 U.S.C. 552.


0
2. Amend Sec.  203.7 by revising paragraph (c)(1)(i) introductory text 
to read as follows:


Sec.  203.7  Timing of responses to requests.

* * * * *
    (c) * * *

[[Page 3701]]

    (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, and alert requesters to the availability of the 
Office of Government Information Services (OGIS) to provide dispute 
resolution services. Where an extension of time greater than 10 days is 
required, the Office will give the requester the opportunity to:
* * * * *


Sec.  203.10  [Amended]

0
3. Amend Sec.  203.10 by removing ``General Records Schedule 14'' and 
adding in its place ``General Records Schedule 4.2''.

0
4. Amend Sec.  203.11 by revising paragraphs (j) and (k) to read as 
follows:


Sec.  203.11  Fees.

* * * * *
    (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. Requests 
processed under the Privacy Act of 1974, 5 U.S.C. 552a, shall be 
subject to the 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) Requesters 
may seek a waiver of fees by submitting a written application 
demonstrating how disclosure of the requested information is in the 
public interest because it is likely to contribute significantly to 
public understanding of the operations or activities of the government 
and is not primarily in the commercial interest of the requester.
    (2) The Office shall furnish records responsive to a request 
without charge or at a reduced rate when it determines, based on all 
available information, that the factors described in paragraphs 
(k)(2)(i) through (iii) of this section are satisfied:
    (i) Disclosure of the requested information would shed light on the 
operations or activities of the government. 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 information is likely to 
contribute significantly to public understanding of those operations or 
activities. This factor is satisfied when the following criteria are 
met:
    (A) Disclosure of the requested records must be meaningfully 
informative about government 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 be meaningfully 
informative if nothing new would be added to the public's 
understanding.
    (B) 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 will be 
considered. The Office will presume that a representative of the news 
media will satisfy this consideration.
    (iii) The disclosure must not be primarily in the commercial 
interest of the requester. To determine whether disclosure of the 
requested information is primarily in the commercial interest of the 
requester, the Office will consider the following criteria:
    (A) The Office shall identify whether the requester has any 
commercial interest that would be furthered by the requested 
disclosure. A commercial interest includes any commercial, trade, or 
profit interest. Requesters shall be given an opportunity to provide 
explanatory information regarding this consideration.
    (B) If there is an identified commercial interest, the Office shall 
determine whether that is the primary interest furthered by the 
request. A waiver or reduction of fees is justified when the 
requirements of paragraphs (k)(2)(i) and (ii) of this section are 
satisfied and any commercial interest is not the primary interest 
furthered by the request. The Office ordinarily will presume that when 
a news media requester has satisfied factors in paragraphs (k)(2)(i) 
and (ii) of this section, the request is not primarily in the 
commercial interest of the requester. Disclosure to data brokers or 
others who merely compile and market government information for direct 
economic return will not be presumed to primarily serve the public 
interest.
    (3) 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.
    (4) 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: January 28, 2019.
Karyn A. Temple,
Acting Register of Copyrights and Director of the U.S. Copyright 
Office.

Approved by:
Carla D. Hayden,
Librarian of Congress.
[FR Doc. 2019-02181 Filed 2-12-19; 8:45 am]
 BILLING CODE 1410-30-P