Public Information, the Inspection of Records, and Implementation of Freedom of Information Act Amendments, 14073-14091 [E9-7033]
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Federal Register / Vol. 74, No. 59 / Monday, March 30, 2009 / Rules and Regulations
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crabs with a shell width of 61/2inches
or greater may be taken or possessed;
(B) All crab pots used for subsistence
fishing and left in saltwater unattended
longer than a 2–week period must have
all bait and bait containers removed and
all doors secured fully open;
(C) You may take crabs only from June
1 through January 31.
(iv) The daily harvest and possession
limit is 12 male Tanner crabs per
person; only crabs with a shell width of
51/2inches or greater may be taken or
possessed.
(6) Bering Sea Area.
(i) In that portion of the area north of
the latitude of Cape Newenham,
shellfish may only be taken by shovel,
jigging gear, pots, and ring net.
(ii) The operator of a commercially
licensed and registered shrimp fishing
vessel must obtain a subsistence fishing
permit from the ADF&G prior to
subsistence shrimp fishing during a
closed commercial shrimp fishing
season or within a closed commercial
shrimp fishing district, section, or
subsection; the permit must specify the
area and the date the vessel operator
intends to fish; no more than 500
pounds (227 kg) of shrimp may be in
possession aboard the vessel.
(iii) In waters south of 60° North
latitude, the daily harvest and
possession limit is 12 male Dungeness
crabs per person.
(iv) In the subsistence taking of king
crab:
(A) In waters south of 60° North
latitude, the daily harvest and
possession limit is six male crabs per
person;
(B) All crab pots used for subsistence
fishing and left in saltwater unattended
longer than a 2–week period must have
all bait and bait containers removed and
all doors secured fully open;
(C) In waters south of 60° North
latitude, you may take crab only from
June 1 through January 31;
(D) In the Norton Sound Section of
the Northern District, you must have a
subsistence permit.
(v) In waters south of 60° North
latitude, the daily harvest and
possession limit is 12 male Tanner
crabs.
Dated: March 3, 2009.
Peter J. Probasco,
Acting Chair, Federal Subsistence Board.
Dated: March 5, 2009.
Calvin Casipit,
Subsistence Program Leader, USDA-Forest
Service.
[FR Doc. E9–6937 Filed 3–27–09; 8:45 am]
BILLING CODE 4310–55–S
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FEDERAL COMMUNICATIONS
COMMISSION
47 CFR Part 0
[FCC 08–282]
Public Information, the Inspection of
Records, and Implementation of
Freedom of Information Act
Amendments
AGENCY: Federal Communications
Commission.
ACTION: Final rule.
SUMMARY: The Commission amends its
rules implementing the Freedom of
Information Act (FOIA) to reflect
changes in that law made by the OPEN
Government Act of 2007. In addition,
the rules are updated to reflect the
current structure of the agency; to reflect
the increased availability of records on
the agency’s Web site and the
Commission’s decisions over the years
with respect to whether certain records
are routinely available for public
inspection; to ensure that the rules
reflect the agency’s experience with
processing FOIA requests; and to clarify
the fees applicable to FOIA requests.
DATES: Effective April 29, 2009.
FOR FURTHER INFORMATION CONTACT:
Laurence H. Schecker, Special Counsel,
Administrative Law Division, Office of
General Counsel, 202–418–1720 or
Laurence.Schecker@fcc.gov.
In this
Order, we amend part 0 of the
Commission’s rules to update sections
implementing the Freedom of
Information Act (FOIA), 5 U.S.C. 552.
On December 14, 2005, the President
issued an Executive Order concerning
implementation of the FOIA. Executive
Order No. 13392, Improving Agency
Disclosure of Information, 70 FR 75373
(December 14, 2005) (FOIA Executive
Order). Among other things, the
Executive Order required each agency to
review its FOIA operations, see id. sec.
3(a), 70 FR at 75375 (December 14,
2005), to develop a plan to improve its
FOIA operations, id. sec. 3(b)(iii), 70 FR
at 75375 (December 14, 2005), and to
report to the Attorney General about its
review and plan for improving FOIA
operations. Id. sec. 3(c), 70 FR at 75375
(December 14, 2005). Consistent with
the Executive Order, the Commission
reviewed its FOIA operations,
developed a plan for improvement, and
issued its report. Improving Agency
Disclosure of Information: Executive
Order 13392 (June 14, 2006) (FCC FOIA
Report), available at https://www.fcc.gov/
foia/2006improv_disclosure_ report.pdf.
See also Letter from Samuel Feder,
SUPPLEMENTARY INFORMATION:
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General Counsel and Chief FOIA
Officer, to Clay Johnson, III, Chairman,
President’s Management Council (July
30, 2007) (Updated Status Report—
FOIA Implementation Plan), available at
https://www.fcc.gov/foia/2006improvupdate.pdf; Letter from Matthew Berry,
General Counsel and Chief FOIA
Officer, to Chairman Johnson (February
27, 2008) (Updated Status Report).
The Commission committed, inter
alia, to review its FOIA implementing
rules ‘‘[t]o ensure that the FCC’s
information access regulations reflect
the current structure of the agency, the
availability of records to the public and
whether more records should be posted
pursuant to [FOIA] subsection (a)(2), [5
U.S.C. 552(a)(2)], the proper procedures
for processing FOIA requests and
appeals, and current fee information.’’
FCC FOIA Report at 9.
In late 2007, Congress passed and the
President signed the Openness Promotes
Effectiveness in our National
Government Act, known as the OPEN
Government Act. Public Law No. 110–
175, 121 Stat. 2524 (2007), codified at
scattered sections of 5 U.S.C. 552. The
FOIA amendments adopted in this
statute require additional changes to our
FOIA implementing regulations.
In our FY 2007 FOIA Annual Report,
we modified the target date for
reviewing and amending our FOIA
regulations so that a single revision of
the rules could address the OPEN
Government Act as well as the
commitment made in the FCC’s FOIA
Report. See FCC FY 2007 FOIA Annual
Report, at 8–9 (Section XII.C) (https://
www.fcc.gov/foia/2007foiareport.pdf);
see also letter from Matthew Berry to
Chairman Johnson (Feb. 27, 2008)
(noting the change in the target date for
revising our FOIA regulations). We have
now completed an extensive review of
our FOIA regulations and in this Order
adopt various amendments to the rules.
By this Order, we fulfill the
commitment made in the FCC FOIA
Report, as modified in our FY2007 FOIA
Annual Report.
Our FOIA implementing rules are
presently found at 47 CFR 0.441 through
0.470. The rules amended in this Order
may generally be grouped into three
sections: (1) rules describing records
that are routinely available for public
inspection (47 CFR 0.441, 0.445, 0.451,
0.453, 0.455, 0.460 and 0.465); (2) rules
describing records that are not routinely
available for public inspection and
governing requests for confidential
treatment (47 CFR 0.442, 0.457, 0.458,
0.459, 0.461, and 0.463); and (3) the
FOIA fee rules (47 CFR 0.451(d), 0.465
through 0.470). We have reviewed these
rules and, as set forth in Appendix,
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Federal Register / Vol. 74, No. 59 / Monday, March 30, 2009 / Rules and Regulations
adopt a variety of changes to (i) reflect
the current structure of the agency; (ii)
reflect the increased availability of
records on the FCC’s Web site and the
Commission’s decisions over the years
with respect to whether certain records
are routinely available for public
inspection; (iii) implement the changes
to the FOIA enacted in the OPEN
Government Act; (iv) ensure that the
rules reflect our experience with
processing FOIA requests; and (v)
clarify the fees applicable to FOIA
requests. The following paragraphs
describe the changes we adopt in the
rules.
Records Routinely Available for
Public Inspection. The FOIA requires
that a variety of records be made
‘‘available for public inspection and
copying.’’ 5 U.S.C. 552(a)(2)(A)–(D)
(requiring each agency to make available
for public inspection and copying ‘‘final
opinions * * * [and] orders made in the
adjudication of cases;’’ policy
statements that ‘‘are not published in
the Federal Register;’’ ‘‘administrative
staff manuals and instructions to staff
that affect a member of the public;’’ and
records released pursuant to a FOIA
request that ‘‘the agency determines
have become or are likely to become the
subject of subsequent requests for
substantially the same records’’); FOIA
Executive Order, sec. 1(b). The
Electronic Freedom of Information Act
Amendments of 1996 (EFOIA), Public
Law No. 104–231, 110 Stat. 3048 (1996),
codified at scattered sections of 5 U.S.C.
552. See Amendment of Part 0 of the
Commission’s Rules to Implement the
Electronic Freedom of Information Act
Amendments of 1996, 13 FCC Rcd 3419
(1997), requires, and the FOIA
Executive Order provides for, the use of
electronic information technology to
make records available to the public.
See 5 U.S.C. 552(a)(2); FOIA Executive
Order, sec. 3(a)(iv), 70 FR at 75375
(December 14, 2005). We have
developed an extensive Web site,
https://www.fcc.gov, providing the public
with broad access to our records. Our
Web site also affirmatively discloses
much information about the
Commission, consistent with the FOIA
Executive Order’s direction that
agencies make ‘‘proactive’’ and
‘‘spontaneous disclosure of information
to the public’’ to reduce the need for the
public to make FOIA requests to obtain
information from agencies. Id., sec.
3(a)(iv). For example, our Web site
makes available Commission and
Bureau/Office level decisions,
Commission rules, comments filed in
rulemaking proceedings, public notices,
applications for licenses or other
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authorizations, and policy statements
and staff guidance concerning our rules
and operations, just to mention a few
categories of records. We also maintain
paper reading rooms for public access to
our records. Our rules governing access
to routinely available records require
updating in light of changes in the
structure of the Commission, changes in
the types of proceedings we conduct,
Internet availability of many of our
records, and electronic filing and
referencing capabilities for many of our
proceedings. We therefore update
sections 0.441, 0.445, 0.451, 0.453,
0.455, 0.460 and 0.465 of our rules as
discussed below and as set forth in the
rule changes.
Section 0.441 is amended to indicate
that in addition to the sources for
obtaining Commission information
previously listed in the rule,
information may be obtained from the
Commission’s copy contractor. It also
contains updated Internet citations and
FCC headquarters locations for
obtaining information. We have also
amended section 0.441 to note the
availability of our FOIA Public Liaison
to assist persons requesting information
from the Commission in resolving any
concerns relating to a FOIA request.
OPEN Government Act, sec. 6(b)(1)(B);
see https://www.fcc.gov/foia/#contact
(FOIA Public Liaison contact).
Section 0.445 contains our regulation
concerning the availability of our
opinions, orders, policy statements,
interpretations, administrative manuals
and staff instructions. 47 CFR 0.445.
This rule implements various statutory
requirements concerning the public
availability of these documents. See 5
U.S.C. 552(a)(2)(A)–(C). We are making
minor modifications to this rule. We are
changing the reference to Pike and
Fisher Radio Regulation in section
0.445(b) to Pike and Fisher
Communications Regulation, the current
title of that publication. See
commreg.pf.com. We are also removing
paragraph (g), which currently refers to
the FCC Administrative Manual, a
document that no longer exists. We are
modifying current paragraph (h), which
will become paragraph (g), to reflect that
general instructions to staff may be
contained in orders published in the
Federal Register. Finally, current
paragraph (i), which will become
paragraph (h), indicates we may redact
information from published documents
to protect personal privacy. See 5 U.S.C.
552(a) (allowing deletion of information
to protect personal privacy). We are
amending this section to indicate we
may also redact information required or
authorized to be withheld pursuant to
other Federal statutes. This amendment
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reflects our practice of issuing decisions
redacting confidential commercial
information, consistent with the Trade
Secrets Act, 18 U.S.C. 1905. See
Examination of Current Policy
Concerning Treatment of Confidential
Information Submitted to the
Commission, 13 FCC Rcd 24816, 24854
(1998) (Confidentiality R&O) (orders
containing confidential commercial
information may be released in part
under seal), recon. den., 14 FCC Rcd
20128 (1999).
We are making a minor clarifying
amendment to section 0.451(d), which
currently refers only to search fees, to
cross-reference copying and review fees
that are provided for elsewhere in our
FOIA regulations. We also amend
section 0.451(b)(5) to cross-reference
part 19 of our rules.
Two of our FOIA rules, sections 0.453
and 0.455, set out the public availability
of records in our public reference
rooms. 47 CFR 0.453 and 0.455. These
rules are being updated to reflect the
current nature of our proceedings and
the structure of the agency. Section
0.453(a) is being amended to reflect the
availability of the Commission’s
Electronic Comment Filing System
(ECFS), which makes case histories
available on the Internet to the public.
Electronic Filing of Documents in
Rulemaking Proceedings, 13 FCC Rcd
11322 (1998) (ECFS Decision). Section
0.453(a)(2)(i) provides a current list of
Broadcast Services proceedings which
have records that are routinely
available, and section 0.453(a)(2)(ii)
updates common carrier proceedings
presently in the Wireline Competition
Bureau. Section 0.453(a)(2)(iii)(E) is
amended to delete the last sentence to
reflect that the Uniform Licensing
System (ULS) is now fully functional.
Section 0.453(a)(2)(iv) is amended to
reflect the availability of certain
contracts and to eliminate references to
INTELSAT and INMARSAT in light of
the privatization of those entities.
Finally, section 0.453(a)(2)(v) updates
the list of publicly available cable
service proceedings. Minor changes are
made to section 0.455. We update
paragraph (a) to reflect the Media
Bureau materials currently available in
its reference room. We also amend
former paragraph (c), now (b), to
indicate that Commission minutes and
records for votes are available in the
Office of the Secretary, not the Agenda
Group. References to separate Bureau
reference rooms, now consolidated in
the Reference Information Center, are
also removed from section 0.455.
Section 0.460 governs requests for
inspection of records that are routinely
available for public inspection under
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sections 0.453 and 0.455. Our rules have
provided that records routinely
available to the public can be requested
either through the Commission directly
or through our copy contractor. 47 CFR
0.460(f). See also 47 CFR 0.465(f). While
a large portion of the records routinely
available for public inspection are
available on our Web site, there are still
some routinely available records that are
only available in paper copy at the
Commission. Processing written
requests for these records has placed a
great burden on our staff. We are
therefore amending paragraph (f) to
require that written requests to obtain
copies of records routinely available for
public inspection must be processed
through the Commission’s copy
contractor under section 0.465. We are
also amending section 0.465(f) to
indicate that the Commission’s copy
contractor will fulfill requests for
records that are routinely available
under section 0.453 or 0.455. These
changes do not affect those personally
inspecting records at the Commission.
See 47 CFR 0.460(b).
Records Not Routinely Available for
Public Inspection. Section 0.442 of our
rules addresses situations in which we
receive requests from other Federal
agencies for records that were submitted
to us with a request for confidential
treatment or that we consider
presumptively confidential. 47 CFR
0.442. This rule, based on sections of
the Paperwork Reduction Act (PRA), 44
U.S.C. 3512 and 3510(b), indicates that
such records will receive confidential
treatment when we share them with
other agencies, and sets forth the
procedures we employ when we receive
such requests. We are amending
paragraphs (a) and (d)(3) to provide that
the rule covers records that have been
deemed confidential under other
statutes, FCC orders, or regulations in
addition to those deemed confidential
under section 0.457 or 0.459. We are
amending section 0.442(b) to indicate
that the Commission may initiate the
sharing of records with another Federal
agency under this section. Paragraph
(d)(1) provides for notice to the
submitter of confidential information
that we have received a request from
another Federal agency for the records.
We are amending this paragraph to
make clear that we may provide this
notice either individually or by public
notice in instances where there are
many submitters of confidential
information. We are amending
paragraph (d)(2) to provide that Federal
agencies may request that we not
provide notice to the submitter of
confidential information if such notice
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would interfere with national security
or homeland defense activities as well
as law enforcement activities. 47 CFR
0.442(d)(2)–(3). We are amending
paragraph (d)(2) to indicate that Federal
agencies should submit such requests in
writing to us. We note that such a
request may be made by e-mail.
In setting forth nine FOIA disclosure
exemptions, the FOIA recognizes that
not all agency records may be available
to the public. 5 U.S.C. 552(b)(1)–(9).
Section 0.457 of our rules sets forth
these exemptions and lists
circumstances in which we have already
determined that certain types of records
are not routinely available for public
inspection. Section 0.457(a) is amended
to clarify that documents for which the
Commission has requested national
security classification from another
agency will not be disclosed pending a
classification determination. We have
also amended section 0.457(c)(3) to
reflect our previous repeal of section
43.53. See Amendment of Sections
43.51, 43.52, 43.53, 43.54 and 43.74 of
the Commission’s Rules To Eliminate
Certain Reporting Requirements, 1 FCC
Rcd 933 (1986). In addition, the
Commission determined in a 2004
rulemaking to accord confidential
treatment to outage reports filed under
part 4 of our rules, but did not update
section 0.457(d) at that time. See New
Part 4 of the Commission’s Rules
Concerning Disruptions to
Communications, 19 FCC Rcd 16830
(2004), adopting 47 CFR 4.2. We are
therefore adding a new section
0.457(d)(1)(vii) to reflect that action. A
new section 0.457(d)(1)(viii) has also
been added to reflect the commercially
sensitive nature of coordination of
satellite systems pursuant to procedures
codified in the International
Telecommunication Union (ITU) Radio
Regulations. See Robert J. Butler, 6 FCC
Rcd 5414 (1991) (documents that were
generated during the course of certain
international negotiations withheld
pursuant to FOIA Exemption 4). We
have deleted the reference to radio
operator examinations that are no longer
administered, see Amendment of Part
13 of the Commission’s Rules To
Privatize the Administration of
Examinations for Commercial Operator
Licenses and To Clarify Certain Rules, 8
FCC Rcd 1046 (1992), as well as a dated
reference to equipment authorization
procedures prior to 1974. 47 CFR
0.457(b)(3). In section 0.457(f) regarding
personal privacy under FOIA
Exemption 6, 5 U.S.C. 552(b)(6), we are
expanding the reference to ‘‘employees’’
so as to include Commission
contractors. See U.S. Dep’t of Justice v.
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14075
Reporters’ Committee for Freedom of the
Press, 489 U.S. 749, 774 (1989) (an
individual doing business with the
federal government may have some
protectible privacy interest). We are
amending section 0.457(g), regarding
law enforcement information, to more
closely track the language of the FOIA.
Section 0.459 of our rules addresses
requests for confidential treatment. See
generally Confidentiality R&O, 13 FCC
Rcd at 34826–27 (prescribing showing
to be made for requests for confidential
treatment). Where confidential
treatment is sought for only a part of a
document, we will require the filing of
a redacted public version. We are
adding a new paragraph indicating that
this section does not apply to comments
or materials filed by means of our
Electronic Filing System (ECFS),
consistent with the rulemaking decision
adopting the ECFS system. ECFS
Decision, 13 FCC Rcd at 11330–31
(confidential materials cannot be filed
electronically through ECFS). We have
added a new paragraph (a)(3) reflecting
the practice of using a ‘‘checkbox’’
mechanism for indicating
confidentiality on some forms. We are
amending paragraph (c) concerning
casual requests for confidential
treatment to indicate that the existing
required showing before confidential
treatment will be granted means that
simply stamping a record ‘‘confidential’’
will not be considered a request for
confidential treatment. We are also
amending paragraph (g) to provide that
when a request for confidential
treatment is denied, the person who
submitted the records will have 10 days
to seek review, instead of the 5 days
currently provided for in the rule. This
change harmonizes the time period in
this rule with the time period in section
0.461(i)(1). Compare 47 CFR 0.459(g)
(currently providing 5 days for filing an
application for review or seeking a
judicial stay when a request for
confidentiality is denied in whole or in
part) with 47 CFR 0.461(i)(1) (currently
providing 10 days for filing an
application for review or a judicial stay
when in the context of a FOIA request
a request for confidentiality is denied in
whole or in part).
Finally, section 0.458 of our rules
addresses situations when persons
regulated by or practicing before the
Commission come into possession of
written non-public information. We
amend this section to provide that such
information should be returned to the
Commission’s Office of Inspector
General promptly and without further
distribution or use. This amendment
tracks the current language of 47 CFR
19.735–203.
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Obtaining Records Not Routinely
Available for Public Inspection. Section
0.461 of our rules describes how the
public may seek records not routinely
available for public inspection. We
herein make several amendments to
section 0.461 to reflect our experience
in processing FOIA requests and to
implement the OPEN Government Act.
We have amended section 0.461(a) to
include the definition of ‘‘records’’
adopted in the OPEN Government Act.
OPEN Government Act, sec. 9, codified
at 5 U.S.C. 552(f)(2). This definition
specifies that records include electronic
records and records maintained for the
Commission by another entity for
purposes of records management.
Section 0.461(a) is also amended to
provide more detail for FOIA requesters
concerning what information should be
submitted with a request for inspection
of records. We make this change to
assist staff in processing FOIA requests.
By providing a more detailed FOIA
request, we hope staff processing the
request will be able to locate the records
quickly, thus reducing search time
charges to FOIA requesters. We hope
that this will minimize the need to
contact FOIA requesters for
clarification. See OPEN Government
Act, sec. 6(a), codified at 5 U.S.C.
552a)(6)(A)(ii) (limiting the tolling of
time for processing FOIA requests when
requesters must be contacted for
clarification). See also OIP Guidance:
New Limitations on Tolling the FOIA’s
Response Time (DOJ/OIP November 11,
2008), available at https://
www.usdoj.gov/oip/foiapost/
2008foiapost29.htm. Section 0.461(a)(2)
is amended to clarify that, pursuant to
FOIA section 552(a)(3)(B), while
requesters may specify the form or
format of records to be produced, the
records must be readily reproducible in
the requested form or format for the
Commission to comply with the request.
See 5 U.S.C. 552(a)(3)(B). This is
consistent with our practice. See Rick
Linsk, 18 FCC Rcd 25601, 25602 (2003),
citing TPS, Inc. v. U.S. Dep’t of Defense,
330 F.3d 1191, 1193 (9th Cir. 2003).
Section 0.461(b) concerns information
provided with FOIA requests, and is
amended to provide that mailing
addresses be included with a FOIA
request so that we can mail paper copies
of records produced to FOIA requesters.
It is also amended to remind requesters
that if they are seeking a FOIA fee
waiver, such a request must be included
with their original FOIA request. See 47
CFR 0.470(c).
Section 0.461(d)(3) provides for
notification of persons who have
submitted records to the Commission
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that are confidential under sections
0.457 or 0.459 if a request for inspection
of those records is filed under section
0.461. We have amended this section to
clarify procedures for this notice and
how all parties should serve each other
with any pleadings. We are also adding
a note to this section reminding parties
that FOIA proceedings are permit-butdisclose proceedings under our ex parte
rules. See 47 CFR 1.1206(a)(7).
Section 0.461(e) is amended to
indicate that a FOIA request is deemed
properly received when it is received
and date stamped by our FOIA Control
Office and assigned to the Bureau or
Office that is the custodian of the
records sought.See OPEN Government
Act, sec. 6(a), codified at 5 U.S.C.
552(a)(6)(A). See also OIP Guidance:
Assigning Tracking Numbers and
Providing Status Information for
Requests (DOJ/OIP November 18, 2008),
available at https://www.usdoj.gov/oip/
foiapost/2008foiapost30.htm; OIP
Guidance: New Requirement to Route
Misdirected FOIA Requests (DOJ/OIP
November 18, 2008), available at
https://www.usdoj.gov/oip/foiapost/
2008foiapost31.htm. A new paragraph is
being added to paragraph (e), and
language is added to sections
0.461(g)(1), 0.467(e)(2), and 0.469(c)
concerning the tolling of the FOIA time
limits for processing requests, to
implement the OPEN Government Act’s
provisions. This paragraph provides that
the time for responding to a FOIA
request is tolled while the custodian of
records seeks reasonable clarification
from the requester. Such a request must
be made within 10 days after a request
is properly received by the custodian of
records, and only one such request may
be made. The paragraph also provides
for a tolling of the time limits when fee
issues (including fee waivers) are
unresolved. The OPEN Government Act
allows us to make only one request for
clarification of the scope of a FOIA
request, but does not contain a similar
restriction for fee matters. Compare 5
U.S.C. 552(a)(6)(A)(ii)(I) with 5 U.S.C.
552(a)(6)(A)(ii)(II). We will, however,
endeavor to resolve fee matters with
only one inquiry to requesters.
Paragraph (e)(4) is also amended to
reflect our practice of assigning control
numbers to FOIA requests, and to
indicate that we provide notice to a
FOIA requester of the control number
and of a telephone number that may be
called to obtain the status of the FOIA
request. These amendments reflect
modifications to the FOIA made in the
OPEN Government Act. OPEN
Government Act, sec. 7(a), codified at 5
U.S.C. 552(a)(7). See also OIP Guidance:
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Assigning Tracking Numbers and
Providing Status Information for
Requests (DOJ/OIP November 18, 2008),
available at https://www.usdoj.gov/oip/
foiapost/2008foiapost30.htm.
We sometimes receive FOIA requests
that seek records that are the property
of another federal agency or department.
We have clarified in section 0.461(f) that
such requesters will be directed to the
correct department or agency. We have
also amended section 0.461(f)(5), which
addresses withholding part of a record
pursuant to a FOIA exemption. The
OPEN Government Act amended the
FOIA to require that when a redaction
is made to a record being released, we
must indicate the FOIA exemption
relied upon at the site of the redaction.
See sec. 12, codified at 5 U.S.C. 552(b)
(after paragraph 9). See also OIP
Guidance: Segregating and Marking
Documents for Release in Accordance
with the Open Government Act (DOJ/
OIP October 23, 2008), available at
https://www.usdoj.gov/oip/foiapost/
2008foiapost26.htm. Conforming or
clarifying edits are also made to section
0.461(g).
We have amended section 0.461(i) to
add persons with a personal privacy
interest in a record to the categories of
persons who may seek review of a
decision to grant access to the records.
We have also added a note to
paragraphs 0.461(i) and (j) indicating
that the General Counsel will review
applications for review of initial FOIA
decisions and may attempt informally to
resolve issues with the applicant. This
has been our practice and we have
found it to be a consumer-friendly
practice, consistent with the FOIA
Executive Order. FOIA Executive Order,
sec. 1(b)–(d), 70 FR at 75373 (December
14, 2005). We have also amended
section 0.461(j) to make clear that
applications for review of fee
determinations and fee waiver decisions
may be sought under this paragraph. See
amended section 0.451(d) and new
section 0.470(g). We have provided in
section 0.461(k)(2) that the Commission
may consolidate applications for review.
Finally, we have clarified in section
0.461(l)(2) that, as appropriate, we may
continue to process initial FOIA
requests or applications for review if an
action for judicial review has been filed.
The Touhy Rule. Section 0.463 is the
Commission’s Touhy rule. See United
States ex rel. Touhy v. Ragen, 340 U.S.
462 (1951); 5 U.S.C. 301 (authorizing
agencies to issue regulations regarding
whether government employees or
documents may be subpoenaed). We
amend this rule to elaborate on the
procedures used when determining
whether Commission employees will be
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permitted to testify or provide records
relating to their official duties when
they are directly subpoenaed or
otherwise served with a request. This
amendment also specifies and clarifies
the criteria that the General Counsel
will use when deciding whether to
allow an employee to testify or provide
records. We make these amendments
based on the following: (1) Our
experience in reviewing Touhy requests
and the information that we typically
need to obtain from the requester in
order to properly evaluate the request;
(2) our review of other agencies’ Touhy
rules; and (3) the factors that courts
have considered when evaluating
Administrative Procedure Act (APA)
challenges to other agencies’ Touhy
decisions. See, e.g., Houston Business
Journal, Inc. v. Office of the Comptroller
of the Currency, United States Dep’t of
the Treasury, 86 F.3d 1208 (D.C. Cir.
1996) (agency decisions under Touhy
regulation are reviewed under arbitrary
or capricious standard under the APA;
Brobreski v. U.S. EPA, 284 F.Supp.2d
67, 79–80 (D.D.C. 2003) (reviewing and
upholding EPA’s reasons for denying
request for testimony by an agency
inspector).
FOIA Fee Related Rules. We also
make a variety of changes to our FOIA
fee-related rules. 47 CFR 0.451(d), 0.465
through 0.470. In section 0.465, we
amend paragraph (b) to reflect the
availability of audio and video
recordings or transcripts of Commission
proceedings and note that in certain
cases, not all formats may exist. In
paragraph (c)(2), we reduce the per page
copying fees we are required to charge
under the FOIA, 5 U.S.C. 552(a)(4)(A),
from $0.17 to $0.10. This reduction is a
result of our re-evaluation of
reproduction costs. We are also adding
to paragraph (c)(2) a charge of $5.00 per
computer disk for instance when we
provide copies in an electronic format,
and add a reference to computer disks
in this paragraph. Finally, we are
amending paragraph (e) to reflect the
availability of many of our documents
on the Internet. Paragraphs (e) and (f)
are also amended, consistent with our
amendment of section 0.460 discussed
supra, to indicate that the public must
seek copies of records routinely
available for public inspection in person
or from our copy contractor.
Section 0.466 of our rules contains the
definitions related to FOIA fees. In
paragraph (a)(1) we are changing the
definition of ‘‘direct costs’’ to reflect
that we add 20 percent to our labor costs
to cover benefits, to make it consistent
with our current practice as reflected in
paragraph 0.467(a)(2). When sections
0.466 and 0.467 were first amended to
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reflect the changes in the FOIA
regarding fees, the Commission
indicated that it would add 16 percent
to the basic rate of pay to cover
employee benefits. The Freedom of
Information Reform Act of 1986; Fee
Schedule and Administrative
Procedures, 3 FCC Rcd 5107 (1988).
This was the percentage adopted in the
OMB FOIA Fee Guidelines for Federal
personnel benefits to be added to the
Federal pay levels for search purposes.
The Freedom of Information Reform Act
of 1986; Uniform Freedom of
Information Act Fee Schedule and
Guidelines, 52 FR 10012 (March 27,
1987) (OMB FOIA Fee Guidelines). The
FOIA charged OMB with promulgating
‘‘guidelines * * * which shall provide
for a uniform schedule of fees.’’ 5 U.S.C.
552(a)(4)(A)(i). Over the years, we have
updated the benefits section in
paragraph 0.467(a)(1) to reflect actual
costs of personnel benefits. In 1994 it
was changed to 19 percent (see
Amendment To The Fee Schedule For
The Processing Of Requests For Agency
Records Pursuant To The Freedom Of
Information Act, 9 FCC Rcd 1810
(1994)) and in 1996 to 20 percent (see
Amendment To The Fee Schedule For
The Processing Of Requests For Agency
Records Pursuant To The Freedom Of
Information Act, 11 FCC Rcd 3606
(1996)). Because the search and review
fees are to charge for our ‘‘direct costs,’’
5 U.S.C. 552(a)(4)(A)(iv), which
includes benefits, it was reasonable to
increase the percentage we added for
benefits as those costs rose over the
years, even though OMB never changed
the OMB FOIA Fee Guidelines in this
regard.
We amend paragraph (a)(7) to reflect
the new definition of ‘‘representative of
the news media’’ adopted in the OPEN
Government Act, OPEN Government
Act, sec. 3, codified at 5 U.S.C.
552(a)(4)(A)(ii). We also amend
paragraph (a)(3) to indicate that
dissemination of records by a
representative of the news media shall
not be considered to be for a commercial
use. See OMB FOIA Fee Guidelines, 52
FR 10012, 10019 (March 27, 1987) (a
request for records from a representative
of the news media ‘‘shall not be
considered to be a request that is for a
commercial use.’’); National Security
Archive v. Dep’t of Defense, 880 F.2d
1381, 1387–88 (DC Cir. 1989).
In section 0.467, which addresses
search and review fees, we delete the
chart listing the hourly fee for FCC
employees responding to FOIA requests
because the rates change when federal
salaries change. Instead, we provide that
changes in the hourly fee will be
announced by Public Notice and will be
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posted on our FOIA Web site, https://
www.fcc.gov/foia. We also specify in
paragraph 0.461(a)(1) that labor rates for
non-FCC employees will be assessed at
their actual hourly cost to the agency.
This includes Universal Service
Administrative Company (USAC)
personnel, who search for USAC records
in response to FOIA requests. See InterTel Technologies, Inc., 19 FCC Rcd 5204
n.3 (2004).
In section 0.470, we implement the
OPEN Government Act section that
waives search fees for commercial and
‘‘all others’’ requesters and waives
duplication fees for educational
requesters or representatives of the news
media when we fail to comply with
FOIA’s time limits in processing a FOIA
request. OPEN Government Act, sec.
6(b), codified at 5 U.S.C.
552(a)(4)(A)(viii). See also OIP
Guidance: New Limitations on
Assessing Fees (DOJ.OIP November 11,
2008), available at https://
www.usdoj.gov/oip/foiapost/
2008foiapost28.htm. We are also
codifying the considerations we take
into account when addressing requests
for FOIA fee waivers. These standards
are well-established in judicial and
Commission case law, see, e.g.,
McClellan Ecological Seepage Situation
v. Carlucci, 835 F.2d 1282, 1286 (9th
Cir. 1987); Robert J. Robbins, Call
Communications Group., Inc., 21 FCC
Rcd 6685 (2006), and are being set forth
in this rule to provide guidance to any
FOIA requesters who seek a fee waiver.
We note that simply repeating the
language of the FOIA fee waiver statute
is an insufficient basis for requesting or
our granting a fee waiver. We are also
adding a new paragraph 0.470(e)(5)
indicating that we generally will not
rule on a request for fee waiver if no fees
or de minimis fees (fifteen dollars or
less) are involved. We give a requester
ten working days, rather than the
previous five, to provide additional
information in certain circumstances.
Finally, we have amended sections
0.451(d) and 0.461(j), and adopted a
new section 0.470(g), to make clear that
review may be sought for fee
determinations and initial fee waiver
decisions.
No Notice and Comment Required.
We have determined that the changes
we adopt here are general statements of
policy, interpretive rules, or rules of
agency organization, procedure or
practice, and are therefore exempt from
the notice and comment requirements of
the APA, 5 U.S.C. 553(b)(A) (notice
requirements inapplicable to
‘‘interpretive rules, general statements
of policy, or rules of agency
organization, procedure or practice’’).
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See Confidentiality R&O, 14 FCC Rcd at
20131 (amending 47 CFR 0.459 and
0.461 without notice and comment),
citing Aluminum Co. of America v. FTC,
589 F. Supp. 169, 178 (S.D.N.Y. 1984)
(holding FOIA rules are procedural
rules); United States ex rel. O’Keefe v.
McDonnell Douglas Corp., 132 F.3d
1252, 1255 (8th Cir. 1998) (Touhy
regulations deal exclusively with
internal administrative procedure). The
substantive standards for obtaining
agency records are set forth in the FOIA.
See generally 5 U.S.C. 552.
Regulatory Flexibility Act, Paperwork
Reduction Act, and Congressional
Review Act. Section 603 of the
Regulatory Flexibility Act, as amended
(RFA), requires an initial regulatory
flexibility analysis in notice and
comment rulemaking proceedings. 5
U.S.C. 603(a). As we are adopting these
rules without notice and comment, no
regulatory flexibility analysis is
required. This document does not
contain proposed information
collection(s) subject to the Paperwork
Reduction Act of 1995 (PRA). 44 U.S.C.
3501–3520. In addition, therefore, it
does not contain any new or modified
‘‘information collection burden for
small business concerns with fewer than
25 employees,’’ pursuant to the Small
Business Paperwork Relief Act of 2002.
44 U.S.C. 3506(c)(4). Our FOIA rule
amendments are being adopted without
notice and comment, and therefore are
not required to be submitted to Congress
under the Congressional Review Act. 5
U.S.C. 804(3)(C) (rules subject to the
Congressional Review Act do not
include ‘‘any rule of agency
organization, procedure, or practice that
does not substantially affect the rights or
obligations of non-agency parties’’).
Segregability. It is our intention in
adopting these rule changes that, if any
provision of the rules is held invalid by
any court of competent jurisdiction, the
remaining provisions shall remain in
effect to the fullest extent permitted by
law.
List of Subjects in 47 CFR Part 0
Freedom of information, Government
publications, Organization and
functions (Government agencies),
Privacy.
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Federal Communications Commission.
William F. Caton,
Deputy Secretary.
Final Rules
For the reasons discussed in the
preamble, the Federal Communications
Commission amends 47 CFR part 0 as
follows:
■
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PART 0—COMMISSION
ORGANIZATION
Subpart C—General Information
Public Information and Inspection of
Records
1. The authority citation continues to
read as follows:
■
Authority: Sec. 5, 48 Stat. 1068, as
amended: 47 U.S.C. 155, 225, unless
otherwise noted.
2. Sections 0.441 through 0.470 are
revised to read as follows:
■
Sec.
0.441 General.
0.442 Disclosure to other Federal
government agencies of information
submitted to the Commission in
confidence.
0.445 Publication availability and use of
opinions, orders, policy statements,
interpretations, administrative manuals
and staff instructions.
0.451 Inspection of records: Generally.
0.453 Public reference rooms.
0.455 Other locations at which records may
be inspected.
0.457 Records not routinely available for
public inspection.
0.458 Nonpublic information.
0.459 Requests that materials or
information submitted to the
Commission be withheld from public
inspection.
0.460 Requests for inspection of records
which are routinely available for public
inspection.
0.461 Requests for inspection of materials
not routinely available for public
inspection.
0.463 Demand by competent authority for
the production of documents or
testimony concerning information
contained therein.
0.465 Request for copies of materials which
are available, or made available, for
public inspection.
0.466 Definitions.
0.467 Search and review fees.
0.468 Interest.
0.469 Advance payments.
0.470 Assessment of fees.
§ 0.441
General.
(a) Any person desiring to obtain
information from the Commission may
do so by contacting the Consumer and
Governmental Affairs Bureau (CGB).
Requests for information and general
inquiries may be submitted by:
(1) Internet at https://www.fcc.gov/cgb/
fccinfo or https://www.fcc.gov/foia.
(2) Telephone at 1–888–CALL–FCC
(1–888–225–5322).
(3) TDD/TDY at 1–888–TELL–FCC
(1–888–835–5322).
(4) Correspondence to: Consumer and
Governmental Affairs Bureau, 445 12th
Street, SW., Washington, DC 20554.
(5) Visiting the Reference Information
Center of the Consumer and
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Governmental Affairs Bureau at Room
CY–A257 of the Commission’s main
office at 445 12th Street, SW.,
Washington, DC 20554.
(6) Facsimile at 1–866–418–0232.
(7) Contacting the Commission’s Copy
Contractor, see § 0.465(a).
(b) The Commission’s FOIA Public
Liaison is available to assist any person
requesting information from the
Commission in resolving any concerns
related to a Freedom of Information Act
request. See https://www.fcc.gov/foia/.
§ 0.442 Disclosure to other Federal
government agencies of information
submitted to the Commission in
confidence.
(a) The disclosure of records to other
Federal government agencies is
generally governed by the Paperwork
Reduction Act, 44 U.S.C. 3510, rather
than the Freedom of Information Act.
The acceptance of materials in
confidence under § 0.457 or § 0.459, or
any other statute, rule or Commission
order, does not preclude their disclosure
to other federal agencies.
(b) Information submitted to the
Commission in confidence pursuant to
§ 0.457(c)(2) and (3), (d) and (g) or
§ 0.459, or any other statute, rule or
order, may be disclosed to other
agencies of the Federal government
upon request or upon the Commission’s
own motion, provided:
(1) Specific Commission assurances
against such disclosure have not been
given;
(2) The other agency has established
a legitimate need for the information;
(3) Disclosure is made subject to the
provisions of 44 U.S.C. 3510(b); and
(4) Disclosure is not prohibited by the
Privacy Act or other provisions of law.
(c) The Commission’s staff may give
assurances against disclosure of
information to other Federal agencies
only with the prior written approval of
the General Counsel. In no event will
assurance against disclosure to other
agencies be given in advance of
submission of the information to the
Commission if submission is required
by statute or by the provisions of this
chapter; but the notice provisions of
paragraph (d) of this section will apply
to such required submissions.
(d)(1) Except as provided in
paragraphs (d)(2) and (d)(3) of this
section, a party who furnished records
to the Commission with a request for
confidential treatment, see § 0.459, will
be notified at the time that the request
for disclosure is submitted and will be
afforded ten calendar days in which to
submit an opposition to disclosure. This
notification may be made either
individually or by public notice.
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(2) If the agency requesting the
records provides in writing to the
satisfaction of the Commission that
notice to the party who furnished the
records to the Commission will interfere
unduly with its law enforcement,
national security or homeland defense
activities and further states that it will
notify that party of the Commission’s
disclosure once the potential for such
interference is eliminated, the
Commission will not give notice of
disclosure.
(3) A party who furnished records to
the Commission in confidence will not
be afforded prior notice when the
disclosure is made to the Comptroller
General of the United States, in the
Government Accountability Office.
Such a party will instead be notified of
disclosure of the records to the
Comptroller General either individually
or by public notice.
(4) If disclosure is opposed and the
Commission decides to make the
records available to the other agency,
the party who furnished the records to
the Commission will be afforded ten
calendar days from the date of the ruling
to move for a judicial stay of the
Commission’s action. If the party does
not move for stay within this period, the
records will be disclosed.
(e) Except as provided in paragraph
(d)(3) of this section, nothing in this
section is intended to govern disclosure
of information to Congress or the
Comptroller General.
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§ 0.445 Publication, availability and use of
opinions, orders, policy statements,
interpretations, administrative manuals, and
staff instructions.
(a) Adjudicatory opinions and orders
of the Commission, or its staff acting on
delegated authority, are sent to the
parties by mail, delivery service, or email, unless the Commission determines
that individual delivery would be
unduly burdensome and instead issues
a public notice of its decision. As part
of the record, these documents are
generally available for inspection in
accordance with § 0.453 and § 0.455. In
addition, many adjudicatory orders and
opinions are available on the
Commission’s Web site, https://
www.fcc.gov. In appropriate
circumstances, the Commission may
redact the copy made available to the
public in order to protect information
not routinely available to the public
under § 0.457, which is treated
confidentially pursuant to a request
under § 0.459, or which is confidential
pursuant to other statutes, regulations or
orders.
(b) Texts adopted by the Commission
or a member of its staff on delegated
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authority and released through the
Office of Media Relations are published
in the FCC Record. Older materials of
this nature are available in the FCC
Reports. In the event that such older
materials are not published in the FCC
Reports, reference should be made to
the Federal Register or Pike and Fischer
Communications Regulation.
(c) All rulemaking documents or
summaries thereof are published in the
Federal Register and are available on
the Commission’s Web site. The
complete text of the Commission
decision also is released by the
Commission and is available for
inspection and copying during normal
business hours in the Office of Media
Relations, the Reference Information
Center, via the Electronic Comment
Filing System (ECFS), or as otherwise
specified in the rulemaking document
published in the Federal Register. The
complete texts of rulemaking decisions
may also be purchased from the
Commission’s copy contractor.
(d) Formal policy statements and
interpretations designed to have general
applicability are published in the
Federal Register, the FCC Record, FCC
Reports, or Pike and Fischer
Communications Regulation.
Commission decisions and other
Commission documents not entitled
formal policy statements or
interpretations may contain substantive
interpretations and statements regarding
policy, and these are published as part
of the document in the FCC Record, FCC
Reports or Pike and Fischer
Communications Regulation. General
statements regarding policy and
interpretations furnished to individuals,
in correspondence or otherwise, are not
ordinarily published.
(e) If the documents described in
paragraphs (a) through (d) of this section
are published in the Federal Register,
the FCC Record, FCC Reports, or Pike
and Fischer Communications
Regulation, they are indexed, and they
may be relied upon, used or cited as
precedent by the Commission or private
parties in any manner. If they are not so
published, they may not be relied upon,
used or cited as precedent, except
against persons who have actual notice
of the document in question or by such
persons against the Commission. No
person is expected to comply with any
requirement or policy of the
Commission unless he or she has actual
notice of that requirement or policy or
a document stating it has been
published as provided in this paragraph.
Nothing in this paragraph, however,
shall be construed as precluding a
reference to a recent document that is
pending publication.
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(f) Subparts A and B of this part
describe the functions of the staff and
list the matters on which authority has
been delegated to the staff. All general
instructions to the staff and limitations
upon its authority are set forth in those
subparts or in decisions of the
Commission published in the Federal
Register. Instructions to the staff in
particular matters or cases are privileged
and/or protected and are not published
or made available for public inspection.
(g) To the extent required to prevent
a clearly unwarranted invasion of
personal privacy, or to prevent
disclosure of information required or
authorized to be withheld by another
statute, the Commission may delete
identifying details or confidential
information when it makes available or
publishes any document described in
this section. The justification for any
such deletion will be fully explained in
a preamble to the document.
§ 0.451
Inspection of records: Generally.
(a) Records which are routinely
available for public inspection. Sections
0.453 and 0.455 list those Commission
records which are routinely available for
public inspection and the places at
which those records may be inspected.
Procedures governing requests for
inspection of such records are set out in
§ 0.460.
(b) Records which are not routinely
available for public inspection. Records
which are not listed in § 0.453 or § 0.455
are not routinely available for public
inspection. Such records fall into two
categories.
(1) The first category consists of those
records or kinds of records listed in
§ 0.457 and of particular records
withheld from public inspection under
§ 0.459. The Commission has
determined that there is a statutory basis
for withholding these records from
public inspection. In some cases, the
Commission is prohibited from
permitting the inspection of records. In
other cases, the records are the property
of another agency, and the Commission
has no authority to permit their
inspection. In still other cases, the
Commission is authorized, for reason of
policy, to withhold records from
inspection, but is not required to do so.
(2) The second category consists of
records that are not listed in § 0.453,
§ 0.455, or § 0.457 and have not been
withheld from inspection under § 0.459.
In some cases, these records have not
been identified for listing. In other cases
(e.g., the general correspondence files),
the Commission is unable to determine
either that all records in a class should
be routinely available for inspection or
that all records in that class should not
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be routinely available for inspection,
and individualized determination is
required.
(3) Procedures governing requests for
inspection of these records are set forth
in § 0.461.
(4) Procedures governing demands by
competent authority for inspection of
these records are set forth in § 0.463.
(5) Except as provided in § 0.461 and
§ 0.463, or pursuant to § 19.735–203 of
this chapter, no officer or employee of
the Commission shall permit the
inspection of records which are not
routinely available for public inspection
under § 0.453 or § 0.455, or disclose
information contained therein.
(c) Copies. Section 0.465 applies to
requests for copies of Commission
records which are routinely available for
public inspection under § 0.453 and
§ 0.455 and those which are made
available for inspection under § 0.461.
Sections 0.467 and 0.465(c)(3) apply to
requests for certified copies of
Commission records.
(d) Search and copying fees. Section
0.465(c)(2) prescribes the per page fee
for copying records made available for
inspection under § 0.460 or § 0.461.
Section 0.466 prescribes fees to cover
the expense of searching for and
reviewing records made available for
inspection under § 0.460 or § 0.461.
Review of initial fee determinations
under § 0.467 through § 0.470 and initial
fee reduction or waiver determinations
under § 0.470(e) may be sought under
§ 0.461(j).
Note to paragraph (d): The Commission
may require advance payment pursuant to
§ 0.469 before releasing documents.
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§ 0.453
Public reference rooms.
The Commission maintains the FCC
Reference Information Center as its
public reference room at its offices in
Washington, DC. Much of the
information available from the public
reference room may also be retrieved
from the Commission’s main Web site at
https://www.fcc.gov and its electronic
reading room at https://www.fcc.gov/
foia/e-room.html:
(a) The Reference Information Center.
Maintains files containing the record of
all docketed cases, petitions for rule
making and related papers. A file is
maintained for each docketed hearing
case and for each docketed rule making
proceeding. Cards summarizing the
history of such cases for the years before
1984 are available for inspection.
Information summarizing the history of
such cases for the years from 1984
through present is available online on
the Electronic Comment Filing System
(ECFS).
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(b) Broadcast Services. The following
files and documents are available,
including:
(1) Applications for radio and
television broadcast station construction
permits, licenses, modifications of
facilities, license renewal, assignments
and transfer of control, including any
Commission correspondence or rulings
pertaining to those applications;
(2) Petitions to deny, informal
objections, and complaints directed
against the stations and/or station
applications;
(3) Ownership reports filed by
licensees pursuant to § 73.3615 of this
chapter;
(4) Television network application
contracts, radio and television time
brokerage agreements, and other
documents required to be filed under
§ 73.3613 of this chapter;
(5) Children’s television programming
reports filed by commercial television
licensees pursuant to § 73.3526 of this
chapter;
(6) Annual DTV ancillary/
supplementary services reports filed by
commercial and non-commercial
educational digital television licensees
pursuant to § 73.624 of this chapter;
(7) Station requests for declaratory
rulings, special temporary
authorizations, and other waivers;
(8) Annual employment reports filed
by licensees and permittees of broadcast
stations pursuant to § 73.3612 of this
chapter; and.
(9) Responses from licensees to
random audits of their Equal
Employment Opportunity programs
conducted pursuant to § 73.2080 of this
chapter.
(c) Common Carrier Services,
including:
(1) Annual reports filed by carriers
under § 43.21 of this chapter;
(2) Reports of proposed changes in
depreciation rates filed by carriers
under § 43.43 of this chapter;
(3) Rate-of-return reports filed by
price-cap and rate-of-return incumbent
local exchange carriers under § 65.600
of this chapter;
(4) All applications for common
carrier authorizations acted upon by the
Enforcement Bureau, and related files;
(5) All formal and informal
complaints against common carriers
filed under § 1.711 through § 1.735 of
this chapter, all documents filed in
connection therewith, and all
communications related thereto;
(6) Annual employment reports filed
by common carrier licensees or
permittees pursuant to § 1.815 of this
chapter;
(7) Enforcement proceedings and
public inquiries and related materials;
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(8) Cost Allocation Manuals and
related materials;
(9) Currently effective tariffs filed by
Communications Common Carriers
pursuant to various FCC Rules and
Regulations; and
(10) Recent revisions to tariff filings
and the Reference Information Center
Log, which is prepared daily and lists
the tariff filings received the previous
day.
(d) Wireless Telecommunications
Services and Auction related data
including:
(1) Pending files containing
applications for additional facilities or
modifications of existing facilities;
(2) Cellular and Paging Granted
Station files and related materials;
(3) Pending cellular and paging
applications and related files;
(4) Electronically stored application
and licensing data for commercial radio
operators and for all authorizations in
the Wireless Radio services are available
for public inspection via the
Commission’s Web site, https://
wireless.fcc.gov/uls. Wireless Radio
services include Commercial and
Private Mobile Radio, Common Carrier
and Private Operational Field point-topoint Microwave, Local Television
Transmission Service (LTTS), Digital
Electronic Message Service (DEMS),
Aviation Ground and Marine Coast
applications; and
(5) Petitions and related materials.
(e) International Services as follows,
except to the extent they are excluded
from routine public inspection under
another section of this chapter:
(1) Satellite and earth station
applications files and related materials
under part 25 of this chapter;
(2) Section 214 applications and
related files under part 63 of this
chapter, to the extent that they concern
international communications facilities
and services;
(3) International Fixed Public Radio
applications and related files under part
23 of this chapter;
(4) Files relating to submarine cable
landing licenses and applications for
such licenses since June 30, 1934,
except for maps showing the exact
location of submarine cables, which are
withheld from inspection under sec. 4(j)
of the Communications Act, 47 U.S.C.
154(j) (see § 0.457(c)(1)(i));
(5) International broadcast
applications, applications for
permission to deliver programming to
foreign stations, and related files under
part 73 of this chapter; and
(6) Contracts and other arrangements
filed under § 43.51 of this chapter,
except for those that are filed with a
request for confidential treatment (see
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§ 0.459) or are deemed confidential
pursuant to sec. 412 of the
Communications Act (see also
§ 0.457(c)(3)).
(f) Cable and other Multichannel
Video Program Distribution Services.
The following files and records are
available, including:
(1) Complaints regarding
multichannel video programming, all
documents filed in connection
therewith, and all communications
related thereto, unless the cable operator
has submitted a request pursuant to
§ 0.459 that such information not be
made routinely available for public
inspection;
(2) Special relief petitions and files
pertaining to cable television
operations;
(3) Special relief petitions and files
pertaining to DBS television operations;
(4) Petitions and related documents
concerning the enforcement of
regulations governing the installation of
over-the-air reception devices (OTARD)
pursuant to § 1.4000 of this chapter;
(5) Filings by cable television
operators, including Cable Signal
Leakage Reports (Form 320 and
§ 76.1804 of this chapter), Cable System
Registration Statements (§ 76.1801 of
this chapter), Cable System Operator
Changes (§ 76.1610 of this chapter),
Cable Aeronautical Frequency
Notifications (§ 76.1804 of this chapter),
Cable Annual Report (Form 325 and
§ 76.403 of this chapter), and filings
related to CARS licenses (Part 78 of this
chapter).
Note to paragraph (f)(5): This data also is
available at https://www.fcc.gov/coals.
Electronic submissions for cable filings
(excluding CARS) are mandatory. Original
forms are not available for information filed
electronically, but the Reference Information
Center or the Commission’s Copy Contractor
may assist in producing paper copies of
information found in the COALS database;
(6) Annual employment reports filed
by multichannel video programming
distributors pursuant to § 76.1802 of this
chapter; and
(7) Responses from multichannel
video programming distributors to
random audits of their Equal
Employment Opportunity programs
conducted pursuant to § 76.77 of this
chapter.
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§ 0.455 Other locations at which records
may be inspected.
Except as provided in § 0.453, § 0.457,
and § 0.459, records are routinely
available for inspection in the Reference
Information Center or the offices of the
Bureau or Office which exercises
responsibility over the matters to which
those records pertain (see § 0.5), or will
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be made available for inspection at
those offices upon request. Upon
inquiry to the appropriate Bureau or
Office, persons desiring to inspect such
records will be directed to the specific
location at which the particular records
may be inspected. Examples of the
records available from Bureaus and
Offices are set forth in paragraphs (a)
through (c).
(a) Media Bureau. (1) Rulings under
secs. 312(a)(7), 315, and 317 of the
Communications Act of 1934, as
amended;
(2) All materials associated with a rate
proceeding for basic cable service and
associated equipment over which the
Commission has assumed jurisdiction
pursuant to § 76.913 of this chapter;
(3) All materials associated with
Commission review of franchise
authority decisions concerning the rate
charged for the basic cable service tier
and associated equipment pursuant to
§ 76.944 of this chapter;
(4) All materials associated with local
government requests for authorization to
regulate basic cable rates pursuant to
§ 76.910 of this chapter (Form 328);
(5) All materials associated with the
certification of Open Video System
(OVS) operators pursuant to § 76.1502 of
this chapter;
(6) A list of all registered cable
communities is maintained
electronically at https://www.fcc.gov/mb;
and
(7) Public notices issued related to
CARS licenses, Cable Special Relief
Petitions, and other filings are available
electronically at https://www.fcc.gov/
Document_Indexes/Media/.
(b) Office of Managing Director. (1)
All minutes of Commission actions,
containing a record of all final votes,
minutes of actions and internal
management matters as provided in
§ 0.457(b)(1) and (c)(1)(i). These records
and files are available for inspection in
the Office of the Secretary.
(2) Files containing information
concerning the history of the
Commission’s rules. These files are
available for inspection in the Office of
the Secretary.
(3) Reports filed by employees
pursuant to 5 CFR Parts 2634 and 3902
and applications for inspection of such
reports. See § 0.460(k).
(c) International Bureau. (1) The
treaties and other international and
bilateral agreements listed in § 73.1650
of this chapter are available for
inspection in the office of the Chief,
Strategic Analysis and Negotiations
Division, International Bureau.
(2) Contracts and other arrangement
filed under § 43.51 of this chapter and
reports of negotiations regarding foreign
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14081
communication matters filed under
§ 43.52 of this chapter, except those kept
confidential pursuant to sec. 412 of the
Communications Act. See § 0.457(c)(3).
(3) Files relating to international
settlements under part 64 of this
chapter.
§ 0.457 Records not routinely available for
public inspection.
The records listed in this section are
not routinely available for public
inspection pursuant to 5 U.S.C. 552(b).
The records are listed in this section by
category, according to the statutory basis
for withholding those records from
inspection; under each category, if
appropriate, the underlying policy
considerations affecting the withholding
and disclosure of records in that
category are briefly outlined. Except
where the records are not the property
of the Commission or where the
disclosure of those records is prohibited
by law, the Commission will entertain
requests from members of the public
under § 0.461 for permission to inspect
particular records withheld from
inspection under the provisions of this
section, and will weigh the policy
considerations favoring non-disclosure
against the reasons cited for permitting
inspection in the light of the facts of the
particular case. In making such requests,
there may be more than one basis for
withholding particular records from
inspection. The listing of records by
category is not intended to imply the
contrary but is solely for the information
and assistance of persons making such
requests. Requests to inspect or copy the
transcripts, recordings or minutes of
closed agency meetings will be
considered under § 0.607 rather than
under the provisions of this section.
(a) Materials that are specifically
authorized under criteria established by
Executive Order (E.O.) to be kept secret
in the interest of national defense or
foreign policy and are in fact properly
classified pursuant to such Executive
Order, 5 U.S.C. 552(b)(1).
(1) Classified materials and
information will not be made available
for public inspection, including
materials classified under E.O. 10450,
‘‘Security Requirements for Government
Employees’’; E.O. 10501, as amended,
‘‘Safeguarding Official Information in
the Interests of the Defense of the
United States’’; and E.O. 12958,
‘‘Classified National Security
Information,’’ or any other executive
order concerning the classification of
records. See also 47 U.S.C. 154(j).
(2) Materials referred to another
Federal agency for classification will not
be disclosed while such a determination
is pending.
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(b) Materials that are related solely to
the internal personnel rules and
practices of the Commission, 5 U.S.C.
552(b)(2).
(1) Materials related solely to internal
management matters, including minutes
of Commission actions on such matters
(see paragraph (f) of this section).
(2) Materials relating to the
negotiation of contracts.
(c) Materials that are specifically
exempted from disclosure by statute
(other than the Government in the
Sunshine Act, 5 U.S.C. 552b, provided
that such statute either requires that the
materials be withheld from the public in
such a manner as to leave no discretion
on the issue, or establishes particular
criteria for withholding or refers to
particular types of materials to be
withheld). The Commission is
authorized under the following statutory
provisions to withhold materials from
public inspection.
(1) Section 4(j) of the
Communications Act, 47 U.S.C. 154(j),
provides, in part, that, ‘‘The
Commission is authorized to withhold
publication of records or proceedings
containing secret information affecting
the national defense.’’ Pursuant to that
provision, it has been determined that
the following materials should be
withheld from public inspection (see
also paragraph (a) of this section):
(i) Maps showing the exact location of
submarine cables.
(ii) Minutes of Commission actions on
classified matters.
(iii) Maps of nation-wide point-topoint microwave networks.
(2) Under section 213 of the
Communications Act, 47 U.S.C. 213(f),
the Commission is authorized to order,
with the reasons therefor, that records
and data pertaining to the valuation of
the property of common carriers and
furnished to the Commission by the
carriers pursuant to the provisions of
that section, shall not be available for
public inspection. If such an order has
been issued, the data and records will
be withheld from public inspection,
except under the provisions of § 0.461.
Normally, however, such data and
information is available for inspection.
(3) Under sec. 412 of the
Communications Act, 47 U.S.C. 412, the
Commission may withhold from public
inspection certain contracts, agreements
and arrangements between common
carriers relating to foreign wire or radio
communication. Any person may file a
petition requesting that such materials
be withheld from public inspection. To
support such action, the petition must
show that the contract, agreement or
arrangement relates to foreign wire or
radio communications; that its
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publication would place American
communication companies at a
disadvantage in meeting the
competition of foreign communication
companies; and that the public interest
would be served by keeping its terms
confidential. If the Commission orders
that such materials be kept confidential,
they will be made available for
inspection only under the provisions of
§ 0.461.
(4) Section 605 of the
Communications Act, 47 U.S.C. 605(a),
provides, in part, that, ‘‘no person not
being authorized by the sender shall
intercept any communication [by wire
or radio] and divulge or publish the
existence, contents, substance, purport,
effect, or meaning of such intercepted
communications to any person.’’ In
executing its responsibilities, the
Commission regularly monitors radio
transmissions. Except as required for the
enforcement of the communications
laws, treaties and the provisions of this
chapter, or as authorized in sec. 605, the
Commission is prohibited from
divulging information obtained in the
course of these monitoring activities;
and such information, and materials
relating thereto, will not be made
available for public inspection.
(5) Section 1905 of the federal
criminal code, the Trade Secrets Act, 18
U.S.C. 1905, prohibits the unauthorized
disclosure of certain confidential
information. See paragraph (d) of this
section and § 19.735–203 of this
chapter.
(d) Trade secrets and commercial or
financial information obtained from any
person and privileged or confidential—
categories of materials not routinely
available for public inspection, 5 U.S.C.
552(b)(4) and 18 U.S.C. 1905.
(1) The materials listed in this
paragraph have been accepted, or are
being accepted, by the Commission on
a confidential basis pursuant to 5 U.S.C.
552(b)(4). To the extent indicated in
each case, the materials are not
routinely available for public
inspection. If the protection afforded is
sufficient, it is unnecessary for persons
submitting such materials to submit
therewith a request for non-disclosure
pursuant to § 0.459. A persuasive
showing as to the reasons for inspection
will be required in requests submitted
under § 0.461 for inspection of such
materials.
(i) Financial reports submitted by
radio or television licensees.
(ii) Applications for equipment
authorizations (type acceptance, type
approval, certification, or advance
approval of subscription television
systems), and materials relating to such
applications, are not routinely available
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for public inspection prior to the
effective date of the authorization. The
effective date of the authorization will,
upon request, be deferred to a date no
earlier than that specified by the
applicant. Following the effective date
of the authorization, the application and
related materials (including technical
specifications and test measurements)
will be made available for inspection
upon request (see § 0.460). Portions of
applications for equipment certification
of scanning receivers and related
materials will not be made available for
inspection.
(iii) Information submitted in
connection with audits, investigations
and examination of records pursuant to
47 U.S.C. 220.
(iv) Programming contracts between
programmers and multichannel video
programming distributors.
(v) The rates, terms and conditions in
any agreement between a U.S. carrier
and a foreign carrier that govern the
settlement of U.S. international traffic,
including the method for allocating
return traffic, if the U.S. international
route is exempt from the international
settlements policy under § 43.51(e)(3) of
this chapter.
(vi) Outage reports filed under Part 4
of this chapter.
(vii) The following records, relating to
coordination of satellite systems
pursuant to procedures codified in the
International Telecommunication Union
(ITU) Radio Regulations:
(A) Records of communications
between the Commission and the ITU
related to the international coordination
process, and
(B) Documents prepared in
connection with coordination,
notification, and recording of frequency
assignments and Plan modifications,
including but not limited to minutes of
meetings, supporting exhibits,
supporting correspondence, and
documents and correspondence
prepared in connection with operatorto-operator arrangements.
Note to paragraph (d): The content of the
communications described in paragraph
(d)(1)(vii)(A) of this section is in some
circumstances separately available through
the ITU’s publication process, or through
records available in connection with the
Commission’s licensing procedures.
(2) Unless the materials to be
submitted are listed in paragraph (d)(1)
of this section and the protection
thereby afforded is adequate, any person
who submits materials which he or she
wishes withheld from public inspection
under 5 U.S.C. 552(b)(4) must submit a
request for non-disclosure pursuant to
§ 0.459. If it is shown in the request that
the materials contain trade secrets or
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privileged or confidential commercial,
financial or technical data, the materials
will not be made routinely available for
inspection; and a persuasive showing as
to the reasons for inspection will be
required in requests for inspection
submitted under § 0.461. In the absence
of a request for non-disclosure, the
Commission may, in the unusual
instance, determine on its own motion
that the materials should not be
routinely available for public
inspection.
(e) Interagency and intra-agency
memoranda or letters, 5 U.S.C.
552(b)(5). Interagency and intra-agency
memoranda or letters and the work
papers of members of the Commission
or its staff will not be made available for
public inspection, except in accordance
with the procedures set forth in § 0.461.
Normally such papers are privileged
and not available to private parties
through the discovery process, since
their disclosure would tend to restrain
the commitment of ideas to writing,
would tend to inhibit communication
among Government personnel, and
would, in some cases, involve
premature disclosure of their contents.
(f) Personnel, medical and other files
whose disclosure would constitute a
clearly unwarranted invasion of
personal privacy, 5 U.S.C. 552(b)(6).
Under E.O. 10561, the Commission
maintains an Official Personnel Folder
for each of its employees. Such folders
are under the jurisdiction and control,
and are a part of the records, of the U.S.
Office of Personnel Management. Except
as provided in the rules of the Office of
Personnel Management (5 CFR 293.311),
such folders will not be made available
for public inspection by the
Commission. In addition, other records
of the Commission containing private,
personal or financial information
concerning particular employees and
Commission contractors will be
withheld from public inspection.
(g) Under 5 U.S.C. 552(b)(7), records
compiled for law enforcement purposes,
to the extent that production of such
records:
(1) Could reasonably be expected to
interfere with enforcement proceedings;
(2) Would deprive a person of a right
to fair trial or an impartial adjudication;
(3) Could reasonably be expected to
constitute an unwarranted invasion of
personal privacy;
(4) Could reasonably be expected to
disclose the identity of a confidential
source;
(5) Would disclose investigative
techniques or procedures or would
disclose investigative guidelines if such
disclosure could reasonably be expected
to risk circumvention of the law; or
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(6) Could reasonably be expected to
endanger the life or physical safety of
any individual.
§ 0.458
Nonpublic information.
Any person regulated by or practicing
before the Commission coming into
possession of written nonpublic
information (including written material
transmitted in electronic form) as
described in § 19.735–203(a) of this
chapter under circumstances where it
appears that its release was inadvertent
or otherwise unauthorized shall be
obligated to and shall promptly return
the information to the Commission’s
Office of Inspector General without
further distribution or use. See 47 CFR
19.735–203.
§ 0.459 Requests that materials or
information submitted to the Commission
be withheld from public inspection.
(a)(1) Any person submitting
information or materials to the
Commission may submit therewith a
request that such information not be
made routinely available for public
inspection. (If the materials are
specifically listed in § 0.457, such a
request is unnecessary.) A copy of the
request shall be attached to and shall
cover all of the materials to which it
applies and all copies of those materials.
If feasible, the materials to which the
request applies shall be physically
separated from any materials to which
the request does not apply; if this is not
feasible, the portion of the materials to
which the request applies shall be
identified. In the latter circumstance,
where confidential treatment is sought
only for a portion of a document, the
person submitting the document shall
submit a redacted version for the public
file.
(2) Comments and other materials
may not be submitted by means of the
Commission’s Electronic Comment
Filing System (ECFS) with a request for
confidential treatment under this
section.
(3) The Commission may use
abbreviated means for indicating that
the submitter of a record seeks
confidential treatment, such as a
checkbox enabling the submitter to
indicate that the record is confidential.
However, upon receipt of a request for
inspection of such records pursuant to
§ 0.461, the submitter will be notified of
such request pursuant to § 0.461(d)(3)
and will be requested to justify the
confidential treatment of the record, as
set forth in paragraph (b) of this section.
(b) Except as provided in § 0.459(a)(3),
each such request shall contain a
statement of the reasons for withholding
the materials from inspection (see
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14083
§ 0.457) and of the facts upon which
those records are based, including:
(1) Identification of the specific
information for which confidential
treatment is sought;
(2) Identification of the Commission
proceeding in which the information
was submitted or a description of the
circumstances giving rise to the
submission;
(3) Explanation of the degree to which
the information is commercial or
financial, or contains a trade secret or is
privileged;
(4) Explanation of the degree to which
the information concerns a service that
is subject to competition;
(5) Explanation of how disclosure of
the information could result in
substantial competitive harm;
(6) Identification of any measures
taken by the submitting party to prevent
unauthorized disclosure;
(7) Identification of whether the
information is available to the public
and the extent of any previous
disclosure of the information to third
parties;
(8) Justification of the period during
which the submitting party asserts that
material should not be available for
public disclosure; and
(9) Any other information that the
party seeking confidential treatment
believes may be useful in assessing
whether its request for confidentiality
should be granted.
(c) Casual requests (including simply
stamping pages ‘‘confidential’’) which
do not comply with the requirements of
paragraphs (a) and (b) of this section
will not be considered.
(d)(1) If a response in opposition to a
confidentiality request is filed, the party
requesting confidentiality may file a
reply within ten business days. All
responses or replies filed under this
paragraph must be served on all parties.
(2) Requests which comply with the
requirements of paragraphs (a) and (b) of
this section will be acted upon by the
appropriate custodian of records (see
§ 0.461(d)(1)), who is directed to grant
the request if it demonstrates by a
preponderance of the evidence that nondisclosure is consistent with the
provisions of the Freedom of
Information Act, 5 U.S.C. 552. If the
request for confidentiality is granted,
the ruling will be placed in the public
file in lieu of the materials withheld
from public inspection.
(3) The Commission may defer acting
on requests that materials or
information submitted to the
Commission be withheld from public
inspection until a request for inspection
has been made pursuant to § 0.460 or
§ 0.461. The information will be
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accorded confidential treatment, as
provided for in § 0.459(g) and § 0.461,
until the Commission acts on the
confidentiality request and all
subsequent appeal and stay proceedings
have been exhausted.
(e) If the materials are submitted
voluntarily (i.e., absent any requirement
by statute, regulation, or the
Commission), the person submitting
them may request the Commission to
return the materials without
consideration if the request for
confidentiality should be denied. In that
event, the materials will ordinarily be
returned (e.g., an application will be
returned if it cannot be considered on a
confidential basis). Only in the unusual
instance where the public interest so
requires will the materials be made
available for public inspection.
However, no materials submitted with a
request for confidentiality will be
returned if a request for inspection has
been filed under § 0.461. If submission
of the materials is required by the
Commission and the request for
confidentiality is denied, the materials
will be made available for public
inspection once the period for review of
the denial has passed.
(f) If no request for confidentiality is
submitted, the Commission assumes no
obligation to consider the need for nondisclosure but, in the unusual instance,
may determine on its own motion that
the materials should be withheld from
public inspection. See § 0.457(g).
(g) If a request for confidentiality is
denied, the person who submitted the
request may, within ten business days,
file an application for review by the
Commission. If the application for
review is denied, the person who
submitted the request will be afforded
ten business days in which to seek a
judicial stay of the ruling. If these
periods expire without action by the
person who submitted the request, the
materials will be returned to the person
who submitted them or will be placed
in a public file. Notice of denial and of
the time for seeking review or a judicial
stay will be given by telephone, with
follow-up notice in writing. The first
day to be counted in computing the time
periods established in this paragraph is
the day after the date of oral notice.
Materials will be accorded confidential
treatment, as provided in § 0.459(g) and
§ 0.461, until the Commission acts on
any timely applications for review of an
order denying a request for
confidentiality, and until a court acts on
any timely motion for stay of such an
order denying confidential treatment.
(h) If the request for confidentiality is
granted, the status of the materials is the
same as that of materials listed in
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§ 0.457. Any person wishing to inspect
them may submit a request for
inspection under § 0.461.
(i) Third party owners of materials
submitted to the Commission by another
party may participate in the proceeding
resolving the confidentiality of the
materials.
§ 0.460 Requests for inspection of records
which are routinely available for public
inspection.
(a) Sections 0.453 and 0.455 list those
Commission records which are
routinely available for public inspection
and the places at which those records
may be inspected. Subject to the
limitations set out in this section, a
person who wants to inspect such
records need only appear at the
specified location and ask to see the
records. Many such records also are
available through the Commission’s
Web site, located at https://www.fcc.gov
and the Commission’s electronic
reading room, located on its Web site at
https://www.fcc.gov/foia/e-room.html.
Commission documents listed in § 0.416
and § 0.445 are published in the FCC
Record, and many such documents or
summaries thereof are also published in
the Federal Register.
(b) A person who wishes to inspect
the records must appear at the specified
location during the office hours of the
Commission and must inspect the
records at that location. (Procedures
governing requests for copies are set out
in § 0.465.) However, arrangements may
be made in advance, by telephone or by
correspondence, to make the records
available for inspection on a particular
date, and there are many circumstances
in which such advance arrangements
will save inconvenience. If the request
is for a large number of documents, for
example, a delay in collecting them is
predictable. Current records may be in
use by the staff when the request is
made. Older records may have been
forwarded to another location for
storage.
(c) The records in question must be
reasonably described by the person
requesting them so as to permit their
location by staff personnel. The
information needed to locate the records
will vary, depending on the records
requested. Advice concerning the kind
of information needed to locate
particular records will be furnished in
advance upon request. Members of the
public will not be given access to the
area in which records are kept and will
not be permitted to search the files.
(d) If it appears that there will be an
appreciable delay in locating or
producing the records (as where a large
number of documents is the subject of
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a single request or where an extended
search for a document appears to be
necessary), the requester may be
directed to submit or confirm the
request in writing in appropriate
circumstances.
(e)(1) Written requests shall be
directed to the Commission’s copy
contractor pursuant to the procedures
set forth in § 0.465. Requests shall be
captioned ‘‘Request For Inspection Of
Records,’’ shall be dated, shall list the
mailing address, telephone number (if
any) of the person making the request,
and the e-mail address (if any) and for
each document requested, shall set out
all information known to the person
making the request which would be
helpful in identifying and locating the
document. Written requests shall, in
addition, specify the maximum search
fee the person making the request is
prepared to pay (see § 0.467).
(2) Written requests shall be delivered
or mailed directly to the Commission’s
copy contractor (see § 0.465(a)).
(f) When a written request is received
by the copy contractor, it will be datestamped.
(g) All requests limited to records
listed in § 0.453 and § 0.455 will be
granted, subject to paragraph (k) of this
section. Requests for records listed in
those sections shall not be combined
with requests for other records.
(h) The records will be produced for
inspection at the earliest possible time.
(i) Records shall be inspected within
7 days after notice is given that they
have been located and are available for
inspection. After that period, they will
be returned to storage and additional
charges may be imposed for again
producing them.
(j) In addition to the other
requirements of this section, the
following provisions apply to the
reports filed with the Commission
pursuant to 5 CFR Parts 2634 and 3902.
(1) Such reports shall not be obtained
or used:
(i) For any unlawful purpose;
(ii) For any commercial purpose,
other than by news and
communications media for
dissemination to the general public;
(iii) For determining or establishing
the credit rating of any individual; or
(iv) For use, directly or indirectly, in
the solicitation of money for any
political, charitable, or other purpose.
(2) Such reports may not be made
available to any person nor may any
copy thereof be provided to any person
except upon a written application by
such person stating:
(i) That person’s name, occupation
and address;
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(ii) The name and address of any
other person or organization on whose
behalf the inspection or copying is
requested; and
(iii) That such person is aware of the
prohibitions on the obtaining or use of
the report. Further, any such application
for inspection shall be made available to
the public throughout the period during
which the report itself is made available
to the public. (Secs. 4, 303, 307, 48 Stat.,
as amended, 1066, 1082, 1083; 47 U.S.C.
154, 303, 397; 18 U.S.C. 207(j))
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§ 0.461 Requests for inspection of
materials not routinely available for public
inspection.
Any person desiring to inspect
Commission records that are not listed
in § 0.453 or § 0.455 shall file a request
for inspection meeting the requirements
of this section. The FOIA Public Liaison
is available to assist persons seeking
records under this section. See
§ 0.441(a).
(a)(1) Records include:
(i) Any information that would be an
agency record subject to the
requirements of the Freedom of
Information Act when maintained by
the Commission in any format,
including an electronic format; and
(ii) Any information maintained for
the Commission by an entity under
Government contract, for purposes of
records management.
(2) The records in question must be
reasonably described by the person
requesting them, so as to permit their
location by staff personnel with a
reasonable amount of effort. Whenever
possible, a request should include
specific information about each record
sought, such as the title or name, author,
recipient, and subject matter of the
record. Requests should also specify the
date or time period for the records
sought. The custodian of records sought
may contact the requester to obtain
further information about the records
sought to assist in locating them.
(3) The person requesting records
under this section may specify the form
or format of the records to be produced
provided that the records may be made
readily reproducible in the requested
form or format.
(b)(1) Requests shall be captioned
‘‘Freedom of Information Act Request,’’
shall be dated, shall list the telephone
number (if any), street address, and email address (if any) of the person
making the request, and should
reasonably describe, for each document
requested (see § 0.461(a)(1)), all
information known to the person
making the request that would be
helpful in identifying and locating the
document.
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(2) The request shall, in addition,
specify the maximum search fee the
person making the request is prepared
to pay or a request for waiver or
reduction of fees if the requester is
eligible (see § 0.470(e)). By filing a FOIA
request, the requester agrees to pay all
applicable fees charged under § 0.467,
unless the person making the request
seeks a waiver of fees (see § 0.470(e)), in
which case the Commission will rule on
the waiver request before proceeding
with the search.
(c) If the records are of the kinds
listed in § 0.457 or if they have been
withheld from inspection under § 0.459,
the request shall, in addition, contain a
statement of the reasons for inspection
and the facts in support thereof. In the
case of other materials, no such
statement need accompany the request,
but the custodian of the records may
require the submission of such a
statement if he or she determines that
the materials in question may lawfully
be withheld from inspection.
(d)(1) Requests shall be
(i) Delivered or mailed to the
Managing Director, FCC, 445—12th
Street, SW., Room 1–A836, Washington,
DC 20554;
(ii) Sent by e-mail to foia@fcc.gov;
(iii) Filed electronically though the
Internet at https://www.fcc.gov/foia/
#reqform; or
(iv) Sent by facsimile to (202) 418–
2826 or (202) 418–0521.
If the request is filed by mail or
facsimile, an original and two copies of
the request shall be submitted. If the
request is enclosed in an envelope, the
envelope shall be marked, ‘‘Freedom of
Information Act Request.’’
(2) For purposes of this section, the
custodian of the records is the Chief of
the Bureau or Office where the records
are located. The Chief of the Bureau or
Office may designate an appropriate
person to act on a FOIA request.
(3) If the request is for materials
submitted to the Commission by third
parties and not open to routine public
inspection under § 0.457(d), § 0.459, or
another Commission rule or order, or if
a request for confidentiality is pending
pursuant to § 0.459, or if the custodian
of records has reason to believe that the
information may contain confidential
commercial information, one copy of
the request will be provided by the
custodian of the records (see § 0.461(e))
to the person who originally submitted
the materials to the Commission. If there
are many persons who originally
submitted the records and are entitled to
notice under this paragraph, the
custodian of records may use a public
notice to notify the submitters of the
request for inspection. The submitter or
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submitters will be given ten calendar
days to respond to the FOIA request.
See § 0.459(d)(1). If a submitter has any
objection to disclosure, he or she is
required to submit a detailed written
statement specifying all grounds for
withholding any portion of the
information (see § 0.459). This response
shall be served on the party seeking to
inspect the records. The requester may
submit a reply within ten business days
unless a different period is specified by
the custodian of records. The reply shall
be served on all parties that filed a
response. In the event that a submitter
fails to respond within the time
specified, the submitter will be
considered to have no objection to
disclosure of the information.
Note to paragraph (d)(3): Under the ex
parte rules, § 1.1206(a)(7) of this chapter, a
proceeding involving a FOIA request is a
permit-but-disclose proceeding, but is subject
to the special service rules in this paragraph.
We also note that while the FOIA request
itself is a permit-but-disclose proceeding, a
pleading in a FOIA proceeding may also
constitute a presentation in another
proceeding if it addresses the merits of that
proceeding.
(e)(1) When the request is received by
the Managing Director, it will be
assigned to the Freedom of Information
Act (FOIA) Control Office, where it will
be date-stamped and assigned to the
appropriate custodian of the records. A
FOIA request is then considered
properly received. This will occur no
later than ten calendar days after the
request is first received by the agency.
(2)(i) Except for the purpose of
making a determination regarding
expedited processing under paragraph
(h) of this section, the time for
processing a request for inspection of
records will be tolled
(A) While the custodian of records
seeks reasonable clarification of the
request;
(B) Until clarification with the
requester of issues regarding fee
assessment occurs, including:
(1) While there is an unresolved fee
waiver issue pending under § 0.470(e),
unless the requester has provided a
written statement agreeing to pay some
or all of the fees pending the outcome
of the waiver question;
(2) Following the denial of a fee
waiver, unless the requester had
provided a written statement agreeing to
pay the fees if the fee waiver was
denied;
(3) Where advance payment is
required pursuant to § 0.469 and has not
been made.
(ii) Only one Commission request for
information shall be deemed to toll the
time for processing a request for
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inspection of records under
§ 0.461(e)(2)(i)(A). Such request must be
made no later than ten calendar days
after a request is properly received by
the custodian of records under
§ 0.461(e)(1).
(3) The FOIA Control Office will send
an acknowledgement to the requester
notifying the requester of the control
number assigned to the request, the due
date of the response, and the telephone
contact number (202–418–0440) to be
used by the requester to obtain the
status of the request. Requesters may
also obtain the status of an FOIA request
via e-mail at foia@fcc.gov.
(4) Multiple FOIA requests by the
same or different FOIA requesters may
be consolidated for disposition. See also
§ 0.470(b)(2).
(f) Requests for inspection of records
will be acted on as follows by the
custodian of the records.
(1) If the Commission is prohibited
from disclosing the records in question,
the request for inspection will be denied
with a statement setting forth the
specific grounds for denial.
(2)(i) If records in the possession of
the Commission are the property of
another agency, the request will be
referred to that agency and the person
who submitted the request will be so
advised, with the reasons for referral.
(ii) If it is determined that the FOIA
request seeks only records of another
agency or department, the FOIA
requester will be so informed by the
FOIA Control Officer and will be
directed to the correct agency or
department.
(3) If it is determined that the
Commission does not have authority to
withhold the records from public
inspection, the request will be granted.
(4) If it is determined that the
Commission does have authority to
withhold the records from public
inspection, the considerations favoring
disclosure and non-disclosure will be
weighed in light of the facts presented,
and the request will be granted, either
conditionally or unconditionally, or
denied.
(5) If there is a statutory basis for
withholding part of a document from
inspection, that part will be deleted and
the remainder will be made available for
inspection. Records disclosed in part
shall be marked or annotated to show
the amount of information deleted
unless doing so would harm an interest
protected by an applicable exemption.
The location of the information deleted
and the exemption under which the
deletion is made also shall be indicated
on the record, if technically feasible.
(6) In locating and recovering records
responsive to an FOIA request, only
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those records within the Commission’s
possession and control as of the date of
its receipt of the request shall be
considered.
(g)(1) The custodian of the records
will make every effort to act on the
request within twenty business days
after it is received and date-stamped by
the FOIA Control Office.
However, if a request for clarification
has been made under § 0.461(e)(2)(i)(A)
or an issue is outstanding regarding the
payment of fees for processing the FOIA
request is pending under
§ 0.461(e)(2)(i)(B), the counting of time
will start upon resolution of these
requests. If it is not possible to locate
the records and to determine whether
they should be made available for
inspection within twenty business days,
the custodian may, in any of the
following circumstances, extend the
time for action by up to ten business
days:
(i) It is necessary to search for and
collect the requested records from field
facilities or other establishments that are
separate from the office processing the
request.
(ii) It is necessary to search for, collect
and appropriately examine a
voluminous amount of separate and
distinct records which are demanded in
a single request; or
(iii) It is necessary to consult with
another agency having a substantial
interest in the determination of the
request, or among two or more
components of the Commission having
substantial subject matter interest
therein.
(2) The custodian of the records will
notify the requester in writing of any
extension of time exercised pursuant to
paragraph (g) of this section. The
custodian of the records may also call
the requester to extend the time
provided a subsequent written
confirmation is provided. If it is not
possible to locate the records and make
the determination within the extended
period, the person or persons who made
the request will be provided an
opportunity to limit the scope of the
request so that it may be processed
within the extended time limit, or an
opportunity to arrange an alternative
time frame for processing the request or
a modified request, and asked to
consent to an extension or further
extension. If the requester agrees to an
extension, the custodian of the records
will confirm the agreement in a letter or
e-mail specifying the length of the
agreed-upon extension. If he or she does
not agree to an extension, the request
will be denied, on the grounds that the
custodian has not been able to locate the
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records and/or to make the
determination within the period for a
ruling mandated by the Freedom of
Information Act, 5 U.S.C. 552. In that
event, the custodian will continue to
search for and/or assess the records and
will advise the person who made the
request of further developments; but
that person may file an application for
review by the Commission. When action
is taken by the custodian of the records,
written notice of the action will be
given. Records will be made available
with the written notice of action or as
soon thereafter as is feasible.
(3) If the custodian of the records
grants a request for inspection of records
submitted to the Commission in
confidence under § 0.457(d), § 0.459, or
some other Commission rule or order,
the custodian of the records will give
the submitter written notice of the
decision and of the submitter’s right to
seek review pursuant to § 0.461(i).
(h)(1) Requesters who seek expedited
processing of FOIA requests shall
submit such requests, along with their
FOIA requests, to the Managing
Director, as described in § 0.461(d). If
the request is enclosed in an envelope,
the envelope shall be marked ‘‘Request
for Expedited Proceeding—FOIA
Request.’’ An original and two copies of
the request for expedition shall be
submitted, but only one copy is
necessary if submitted by e-mail or by
the Internet. When the request is
received by the Managing Director, it,
and the accompanying FOIA request,
will be assigned to the FOIA Control
Office, where it will be date-stamped
and assigned to the custodian of
records.
(2) Expedited processing shall be
granted to a requester demonstrating a
compelling need that is certified by the
requester to be true and correct to the
best of his or her knowledge and belief.
(3) For purposes of this section,
compelling need means—
(i) That failure to obtain requested
records on an expedited basis could
reasonably be expected to pose an
imminent threat to the life or physical
safety of an individual; or
(ii) With respect to a request made by
a person primarily engaged in
disseminating information, there is an
urgency to inform the public concerning
actual or alleged Federal Government
activity.
(4)(i) Notice of the determination
whether to grant expedited processing
shall be provided to the requester by the
custodian of records within ten calendar
days after receipt of the request by the
FOIA Control Office. Once the
determination has been made to grant
expedited processing, the custodian
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shall process the FOIA request as soon
as practicable.
(ii) If a request for expedited
processing is denied, the person seeking
expedited processing may file an
application for review within five
business days after the date of the
written denial. The application for
review and the envelope containing it (if
any) shall be captioned ‘‘Review of
FOIA Expedited Proceeding Request.’’
The application for review shall be
delivered or mailed to the General
Counsel. (For general procedures
relating to applications for review, see
§ 1.115 of this chapter.) The
Commission shall act expeditiously on
the application for review, and shall
notify the custodian of records and the
requester of the disposition of such an
application for review.
(i)(1) If a request for inspection of
records submitted to the Commission in
confidence under § 0.457(d), § 0.459, or
another Commission rule or order is
granted in whole or in part, an
application for review may be filed by
the person who submitted the records to
the Commission, by a third party owner
of the records or by a person with a
personal privacy interest in the records,
or by the person who filed the request
for inspection of records within the ten
business days after the date of the
written ruling. The application for
review and the envelope containing it (if
any) shall be captioned ‘‘Review of
Freedom of Information Action.’’ The
application for review shall be filed
within ten business days after the date
of the written ruling, shall be delivered
or mailed to the General Counsel, and
shall be served on the person who filed
the request for inspection of records and
any other parties to the proceeding. The
person who filed the request for
inspection of records may respond to
the application for review within ten
business days after it is filed.
(2) The first day to be counted in
computing the time period for filing the
application for review is the day after
the date of the written ruling. If an
application for review is not filed
within this period, the records will be
produced for inspection.
(3) If an application for review is
denied, the person filing the application
for review will be notified in writing
and advised of his or her rights.
(4) If an application for review filed
by the person who submitted, owns, or
has a personal privacy interest in the
records to the Commission is denied, or
if the records are made available on
review which were not initially made
available, the person will be afforded
ten business days from the date of the
written ruling in which to move for a
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judicial stay of the Commission’s action.
The first day to be counted in
computing the time period for seeking a
judicial stay is the day after the date of
the written ruling. If a motion for stay
is not made within this period, the
records will be produced for inspection.
(j) Except as provided in paragraph (i)
of this section, an application for review
of an initial action on a request for
inspection of records, a fee
determination (see § 0.467 through
§ 0.470), or a fee reduction or waiver
decision (see § 0.470(e)) may be filed
only by the person who made the
request. The application shall be filed
within 30 calendar days after the date of
the written ruling by the custodian of
records. The application for review and
the envelope (if any) shall be captioned,
‘‘Review of Freedom of Information
Action.’’ The application shall be
delivered or mailed to the General
Counsel. If the proceeding involves
records subject to confidential treatment
under § 0.457 or § 0.459, or involves a
person with an interest as described in
§ 0.461(i), the application for review
shall be served on such persons. That
person may file a response within ten
business days after the application for
review is filed. If the records are made
available for review, the person who
submitted them to the Commission will
be afforded ten business days after the
date of the written ruling to seek a
judicial stay. See paragraph (i) of this
section. The first day to be counted in
computing the time period for filing the
application for review or seeking a
judicial stay is the day after the date of
the written ruling.
Note to paragraphs (i) and (j): The General
Counsel may review applications for review
with the custodian of records and attempt to
informally resolve outstanding issues with
the consent of the requester. For general
procedures relating to applications for
review, see § 1.115 of this chapter.
(k)(1)(i) The Commission will make
every effort to act on an application for
review of an action on a request for
inspection of records within twenty
business days after it is filed. In the
following circumstances and to the
extent time has not been extended
under paragraphs (g)(1)(i), (ii), or (iii) of
§ 0.461(g) of this section, the
Commission may extend the time for
acting on the application for review up
to ten business days. (The total period
of extensions taken under this
paragraph and under paragraph (g) of
this section without the consent of the
person who submitted the request shall
not exceed ten business days.):
(A) It is necessary to search for and
collect the requested records from field
facilities or other establishments that are
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separate from the office processing the
request;
(B) It is necessary to search for, collect
and appropriately examine a
voluminous amount of separate and
distinct records which are demanded in
a single request; or
(C) It is necessary to consult with
another agency having a substantial
interest in the determination of the
request or among two or more
components of the Commission having
substantial subject matter interest
therein.
(ii) If these circumstances are not
present, the person who made the
request may be asked to consent to an
extension or further extension. If the
requester or person who made the
request agrees to an extension, the
General Counsel will confirm the
agreement in a letter specifying the
length of the agreed-upon extension. If
the requestor or person who made the
request does not agree to an extension,
the Commission will continue to search
for and/or assess the records and will
advise the person who made the request
of further developments; but that person
may file a complaint in an appropriate
United States district court.
(2) The Commission may at its
discretion or upon request consolidate
for consideration related applications
for review filed under § 0.461(i) or
§ 0.461(j).
(l)(1) Subject to the application for
review and judicial stay provisions of
paragraphs (i) and (j) of this section, if
the request is granted, the records will
be produced for inspection at the
earliest possible time.
(2) If a request for inspection of
records becomes the subject of an action
for judicial review before the custodian
of records has acted on the request, or
before the Commission has acted on an
application for review, the Commission
may continue to consider the request for
production of records.
(m) Staff orders and letters ruling on
requests for inspection are signed by the
official (or officials) who give final
approval of their contents. Decisions of
the Commission ruling on applications
for review will set forth the names of the
Commissioners participating in the
decision.
(n) Records shall be inspected within
seven days after notice is given that they
have been located and are available for
inspection. After that period, they will
be returned to storage, and additional
charges may be imposed for again
producing them.
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§ 0.463 Disclosure of Commission records
and information in legal proceedings in
which the Commission is a non-party.
(a) This section sets forth procedures
to be followed with respect to the
production or disclosure of any material
within the custody and control of the
Commission, any information relating to
such material, or any information
acquired by any person while employed
by the Commission as part of the
person’s official duties or because of the
person’s official status.
(b) In the event that a demand is made
by a court or other competent authority
outside the Commission for the
production of records or testimony (e.g.,
a subpoena, order, or other demand), the
General Counsel shall promptly be
advised of such demand, the nature of
the records or testimony sought, and all
other relevant facts and circumstances.
The General Counsel, in consultation
with the Managing Director, will
thereupon issue such instructions as he
or she may deem advisable consistent
with this subpart.
(c) A party in a court or
administrative legal proceeding in
which the Commission is a non-party
who wishes to obtain records or
testimony from the Commission shall
submit a written request to the General
Counsel. Such request must be
accompanied by a statement setting
forth the nature of the proceeding
(including any relevant supporting
documentation, e.g., a copy of the
Complaint), the relevance of the records
or testimony to the proceeding
(including a proffer concerning the
anticipated scope and duration of the
testimony), a showing that other
evidence reasonably suited to the
requester’s needs is not available from
any other source (including a request
submitted pursuant to § 0.460 or § 0.461
of the Commission’s rules), and any
other information that may be relevant
to the Commission’s consideration of
the request for records or testimony. The
purpose of the foregoing requirements is
to assist the General Counsel in making
an informed decision regarding whether
the production of records or the
testimony should be authorized.
(d) In deciding whether to authorize
the release of records or to permit the
testimony of present or former
Commission personnel, the General
Counsel, in consultation with the
Managing Director, shall consider the
following factors:
(1) Whether the request or demand
would involve the Commission in issues
or controversies unrelated to the
Commission’s mission;
(2) Whether the request or demand is
unduly burdensome;
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(3) Whether the time and money of
the Commission and/or the United
States would be used for private
purposes;
(4) The extent to which the time of
employees for conducting official
business would be compromised;
(5) Whether the public might
misconstrue variances between personal
opinions of employees and Commission
policy;
(6) Whether the request or demand
demonstrates that the records or
testimony sought are relevant and
material to the underlying proceeding,
unavailable from other sources, and
whether the request is reasonable in its
scope;
(7) Whether, if the request or demand
were granted, the number of similar
requests would have a cumulative effect
on the expenditure of Commission
resources;
(8) Whether the requestor has agreed
to pay search and review fees as set
forth in § 0.467 of this subpart;
(9) Whether disclosure of the records
or the testimony sought would
otherwise be inappropriate under the
circumstances; and
(10) Any other factor that is
appropriate.
(e) Among those demands and
requests in response to which
compliance will not ordinarily be
authorized are those with respect to
which any of the following factors exist:
(1) Disclosure of the records or the
testimony would violate a statute,
Executive Order, rule, or regulation;
(2) The integrity of the administrative
and deliberative processes of the
Commission would be compromised;
(3) Disclosure of the records or the
testimony would not be appropriate
under the rules of procedure governing
the case or matter in which the demand
arose;
(4) Disclosure of the records,
including release in camera, or the
testimony, is not appropriate or required
under the relevant substantive law
concerning privilege;
(5) Disclosure of the records, except
when in camera and necessary to assert
a claim of privilege, or of the testimony,
would reveal information properly
classified or other matters exempt from
unrestricted disclosure; or
(6) Disclosure of the records or the
testimony could interfere with ongoing
Commission enforcement proceedings
or other legal or administrative
proceedings, compromise constitutional
rights, reveal the identity of an
intelligence source or confidential
informant, or disclose trade secrets or
similarly confidential commercial or
financial information.
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(f) The General Counsel, following
consultation with the Managing Director
and any relevant Commission Bureau or
Office, is authorized to approve nonprivileged testimony by a present or
former employee of the Commission or
the production of non-privileged
records in response to a valid demand
issued by competent legal authority, or
a request for records or testimony
received under this section, and to
assert governmental privileges on behalf
of the Commission in litigation that may
be associated with any such demand or
request.
(g) Any employee or former employee
of the Commission who receives a
demand for records of the Commission
or testimony regarding the records or
activities of the Commission shall
promptly notify the General Counsel so
that the General Counsel may take
appropriate steps to protect the
Commission’s rights.
(Secs. 4(i), 303(r), Communications
Act of 1934, as amended, 47 U.S.C.
154(i) and 303(r); 5 U.S.C. 301; 47 CFR
0.231(d))
§ 0.465 Request for copies of materials
which are available, or made available, for
public inspection.
(a) The Commission awards a contract
to a commercial duplication firm to
make copies of Commission records and
offer them for sale to the public. In
addition to the charge for copying, the
contractor may charge a search fee for
locating and retrieving the requested
documents from the Commission’s files.
Note to paragraph (a): The name, address,
telephone number, and schedule of fees for
the current copy contractor are published at
the time of contract award of renewal in a
public notice and periodically thereafter.
Current information is available at https://
www.fcc.gov/foia and https://www.fcc.gov/
cgb. Questions regarding this information
should be directed to the Reference
Information Center of the Consumer and
Governmental Affairs Bureau at 202–418–
0270.
(b) Audio or video recordings or
transcripts of Commission proceedings
are available to the public through the
Commission’s current copy contractor.
In some cases, only some of these
formats may be available.
(c)(1) Contractual arrangements which
have been entered into with commercial
firms, as described in this section, do
not in any way limit the right of the
public to inspect Commission records or
to retrieve whatever information may be
desired. Coin-operated and debit card
copy machines are available for use by
the public.
(2) The Commission has reserved the
right to make copies of its records for its
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own use or for the use of other agencies
of the U.S. Government. When it serves
the regulatory or financial interests of
the U.S. Government, the Commission
will make and furnish copies of its
records free of charge. In other
circumstances, however, if it should be
necessary for the Commission to make
and furnish copies of its records for the
use of others, the fee for this service
shall be ten cents ($0.10) per page or $5
per computer disk in addition to charges
for staff time as provided in § 0.467. For
copies prepared with other media, such
as computer tapes, microfiche,
videotape, the charge will be the actual
direct cost including operator time.
Requests for copying should be
accompanied by a statement specifying
the maximum copying fee the person
making the request is prepared to pay.
If the Commission estimates that
copying charges are likely to exceed the
greater of $25 or the amount which the
requester has indicated that he/she is
prepared to pay, then it shall notify the
requester of the estimated amount of
fees. Such a notice shall offer the
requester the opportunity to confer with
Commission personnel with the object
of revising or clarifying the request.
sroberts on PROD1PC70 with RULES
Note to paragraph (c)(2): The criterion
considered in acting on a waiver request is
whether ‘‘waiver or reduction of the fee is in
the public interest because furnishing the
information can be considered as primarily
benefiting the general public.’’ 5 U.S.C.
552(a)(4)(A). A request for a waiver or
reduction of fees will be decided by the
General Counsel as set forth in § 0.470(e).
(3) Certified Documents. Copies of
documents which are available or made
available, for inspection under § 0.451
through § 0.465, will be prepared and
certified, under seal, by the Secretary or
his or her designee. Requests shall be in
writing, specifying the exact documents,
the number of copies desired, and the
date on which they will be required.
The request shall allow a reasonable
time for the preparation and
certification of copies. The fee for
preparing copies shall be the same as
that charged by the Commission as
described in § 0.465(c)(2). The fee for
certification shall be $10 for each
document.
(d)(1) Computer maintained databases
produced by the Commission and
available to the public may be obtained
from the FCC’s Web site at https://
www.fcc.gov or if unavailable on the
Commission’s Web site, from the copy
contractor.
Note to paragraph (d)(1): The Commission
awards a contract to provide the public with
access to FCC databases from the copy
contractor. See note to paragraph (a) of this
section.
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(2) Copies of computer generated data
stored as paper printouts or electronic
media and available to the public may
also be obtained from the Commission’s
copy contractor (see paragraph (a) of
this section).
(3) Copies of computer source
programs and associated documentation
produced by the Commission and
available to the public may be obtained
from the Office of the Managing
Director.
(e) This section does not apply to
records available on the Commission’s
Web site, https://www.fcc.gov, or printed
publications which may be purchased
from the Superintendent of Documents
or private firms (see § 0.411 through
§ 0.420), nor does it apply to application
forms or information bulletins, which
are prepared for the use and information
of the public and are available upon
request (see § 0.421 and § 0.423) or on
the Commission’s Web site, https://
www.fcc.gov/formpage.html.
(f) Anyone requesting copies of
documents pursuant to this section may
either come in person to the
Commission (see § 0.461) or request that
the copy contractor fulfill the request. If
a request goes directly to the contractor,
the requester will be charged by the
contractor pursuant to the price list set
forth in the latest contract.
§ 0.466
Definitions.
(a) For the purpose of § 0.467 and
§ 0.468, the following definitions shall
apply:
(1) The term direct costs means those
expenditures which the Commission
actually incurs in searching for and
duplicating (and in case of commercial
requesters, reviewing) documents to
respond to a FOIA request. Direct costs
include the salary of the employee
performing the work (the basic rate of
pay for the employee plus twenty
percent of that rate to cover benefits),
and the cost of operating duplicating
machinery. Not included in direct costs
are overhead expenses, such as costs of
space, and heating or lighting the
facility in which the records are stored.
(2) The term search includes all time
spent looking for material that is
responsive to a request, including pageby-page or line-by-line identification of
material contained within documents.
Such activity should be distinguished,
however, from ‘‘review’’ of material in
order to determine whether the material
is exempt from disclosure (see
paragraph (a)(3) of this section).
(3) The term review refers to the
process of examining documents located
in response to a commercial use request
(see paragraph (a)(4) of this section) to
determine whether any portion of a
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14089
document located is exempt from
disclosure. It also includes processing
any documents for disclosure, e.g.,
performing such functions that are
necessary to excise them or otherwise
prepare them for release. Review does
not include time spent resolving general
legal or policy issues regarding the
application of FOIA exemptions.
(4) The term commercial use request
refers to a request from or on behalf of
one who seeks information for a use or
purpose that furthers the commercial
interests of the requester. In determining
whether a requester properly falls
within this category, the Commission
shall determine the use to which a
requester will put the documents
requested. Where the Commission has
reasonable cause to question the use to
which a requester will put the
documents sought, or where that use is
not clear from the request itself, the
Commission shall seek additional
clarification before assigning the request
to a specific category. The
dissemination of records by a
representation of the news media (see
§ 0.466(a)(7)) shall not be considered to
be for a commercial use.
(5) The term educational institution
refers to a preschool, a public or private
elementary or secondary school, an
institution of graduate higher education,
an institution of professional education
and an institution of vocational
education, which operates a program or
programs of scholarly research.
(6) The term non-commercial
scientific institution refers to an
institution that is not operated on a
commercial basis as that term is
referenced in paragraph (a)(4) of this
section, and which is operated solely for
the purpose of conducting scientific
research the results of which are not
intended to promote any particular
product or industry.
(7) The term representative of the
news media refers to 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. In this clause, the term news
means information that is about current
events or that would be of current
interest to the public. Examples of
news-media entities are television or
radio stations broadcasting to the public
at large and publishers of periodicals
(but only if such entities qualify as
disseminators of news) who make their
products available for purchase or
subscription by, or free distribution to,
the general public. These examples are
not all-inclusive. Moreover, as methods
of news delivery evolve (for example,
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the adoption of electronic dissemination
of newspapers through
telecommunications services), such
alternative media shall be considered to
be news-media entities. A freelance
journalist shall be regarded as working
for a news-media entity if the journalist
can demonstrate a solid basis for
expecting publication through that
entity, whether or not the journalist is
actually employed by the entity. A
publication contract would present a
solid basis for such an expectation; the
Commission may also consider the past
publication record of the requester in
making such a determination. See 5
U.S.C. 552(a)(4)(A)(ii).
(8) The term all other requester refers
to any person not within the definitions
in paragraphs (a)(4) through (a)(7) of this
paragraph.
(b) [Reserved]
§ 0.467
Search and review fees.
(a)(1) Subject to the provisions of this
section, an hourly fee shall be charged
for recovery of the full, allowable direct
costs of searching for and reviewing
records requested under § 0.460 or
§ 0.461, unless such fees are reduced or
waived pursuant to § 0.470. The fee is
based on the pay grade level of the
FCC’s employee(s) who conduct(s) the
search or review, or the actual hourly
rate of FCC contractors or other nonFCC personnel who conduct a search.
sroberts on PROD1PC70 with RULES
Note to paragraph (a)(1): The fees for FCC
employees will be modified periodically to
correspond with modifications in the rate of
pay approved by Congress and any such
modifications will be announced by public
notice and will be posted on the
Commission’s Web site, https://www.fcc.gov/
foia/#feeschedule.
(2) The fees specified in paragraph
(a)(1) of this section are computed at
Step 5 of each grade level based on the
General Schedule and include twenty
percent for personnel benefits. Search
and review fees will be assessed in 1⁄4
hour increments.
(b) Search fees may be assessed for
time spent searching, even if the
Commission fails to locate responsive
records or if any records located are
determined to be exempt from
disclosure.
(c) The Commission shall charge only
for the initial review, i.e., the review
undertaken initially when the
Commission analyzes the applicability
of a specific exemption to a particular
record. The Commission shall not
charge for review at the appeal level of
an exemption already applied. However,
records or portions of records withheld
in full under an exemption that is
subsequently determined not to apply
may be reviewed again to determine the
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applicability of other exemptions not
previously considered. The costs of
such a subsequent review, under these
circumstances, are properly assessable.
(d) The fee charged will not exceed an
amount based on the time typically
required to locate records of the kind
requested.
(e)(1) If the Commission estimates that
search charges are likely to exceed the
greater of $25 or the amount which the
requester indicated he/she is prepared
to pay, then it shall notify the requester
of the estimated amount of fees. Such a
notice shall offer the requester the
opportunity to confer with Commission
personnel with the object of revising or
clarifying the request. See § 0.465(c)(2)
and § 470(d).
(2) The time for processing a request
for inspection shall be tolled while
conferring with the requester about his
or her willingness to pay the fees
required to process the request. See
§ 0.461(e).
(f) When the search has been
completed, the custodian of the records
will give notice of the charges incurred
to the person who made the request.
(g) The fee shall be paid to the
Financial Management Division, Office
of Managing Director, or as otherwise
directed by the Commission.
(h) Records shall be inspected within
seven days after notice is given that they
have been located and are available for
inspection. See § 0.461(n). After that
period, they will be returned to storage,
and additional charges may be imposed
for again producing them.
§ 0.468
Interest.
Interest shall be charged those
requesters who fail to pay the fees
charged. The agency will begin
assessing interest charges on the amount
billed starting on the 31st day following
the day on which the billing was sent.
The date on which the payment is
received by the agency will determine
whether and how much interest is due.
The interest shall be set at the rate
prescribed in 31 U.S.C. 3717.
§ 0.469
Advance payments.
(a) The Commission may not require
advance payment of estimated FOIA
fees except as provided in paragraph (b)
or where the Commission estimates or
determines that allowable charges that a
requester may be required to pay are
likely to exceed $250.00 and the
requester has no history of payment.
Where allowable charges are likely to
exceed $250.00 and the requester has a
history of prompt payment of FOIA fees
the Commission may notify the
requester of the estimated cost and
obtain satisfactory assurance of full
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payment. Notification that fees may
exceed $250.00 is not, however, a
prerequisite for collecting fees above
that amount.
(b) Where a requester has previously
failed to pay a fee charged in a timely
fashion (i.e., within 30 days of the date
of the billing), the Commission may
require the requester to pay the full
amount owed plus any applicable
interest as provided in § 0.468, and to
make an advance payment of the full
amount of the estimated fee before the
Commission begins to process a new
request or a pending request from that
requester.
(c) When the Commission acts under
paragraph (a) of this section, the
administrative time limits prescribed in
§§ 0.461(g) and (k) (i.e., twenty business
days from receipt of initial requests and
twenty business days from receipt of
appeals from initial denials, plus
permissible extensions of these time
limits (see § 0.461(g)(1)(i) through (iii)
and § 0.461(k)(1)(i) through (iii)) will
begin only after the agency has received
the fee payments described in this
section. See § 0.461(e)(2)(ii) and
§ 0.467(e)(2).
§ 0.470
Assessment of fees.
(a)(1) Commercial use requesters. (i)
When the Commission receives a
request for documents for commercial
use, it will assess charges that recover
the full direct cost of searching for,
reviewing and duplicating the records
sought pursuant to § 0.466 and § 0.467,
above.
(ii) Commercial use requesters shall
not be assessed search fees if the
Commission fails to comply with the
time limits under § 0.461(g)(1), if no
unusual or exceptional circumstances
(§ 0.461(g)(1)(i) through (iii)) apply to
the processing of the request.
(2) Educational and non-commercial
scientific institution requesters and
requesters who are representatives of
the news media. (i) The Commission
shall provide documents to requesters
in these categories for the cost of
reproduction only, pursuant to § 0.465
above, excluding reproduction charges
for the first 100 pages, provided
however, that requesters who are
representatives of the news media shall
be entitled to a reduced assessment of
charges only when the request is for the
purpose of distributing information.
(ii) Educational requesters or
requesters who are representatives of
the news media shall not be assessed
fees for the cost of reproduction if the
Commission fails to comply with the
time limits under § 0.461(g)(1), if no
unusual or exceptional circumstances
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(§ 0.461(g)(1)(i) through (iii)) apply to
the processing of the request.
(3) All other requesters. (i) The
Commission shall charge requesters
who do not fit into any of the categories
above fees which cover the full,
reasonable direct cost of searching for
and reproducing records that are
responsive to the request, pursuant to
§ 0.465 and § 0.467, except that the first
100 pages of reproduction and the first
two hours of search time shall be
furnished without charge.
(ii) All other requesters shall not be
assessed search fees if the Commission
fails to comply with the time limits
under § 0.461(g)(1), if no unusual or
exceptional circumstances
(§ 0.461(g)(1)(i) through (iii)) apply to
the processing of the request.
(b)(1) The 100 page restriction on
assessment of reproduction fees in
paragraphs (a)(2) and (a)(3) of this
section refers to 100 paper copies of a
standard size, which will normally be
‘‘81⁄2 x 11’’ or ‘‘11 x 14,’’ or microfiche
containing the equivalent of 100 pages
or 100 pages of computer printout.
(2) When the agency reasonably
believes that a requester or group of
requesters is attempting to segregate a
request into a series of separate
individual requests for the purpose of
evading the assessment of fees, the
agency will aggregate any such requests
and assess charges accordingly.
(c) When a requester believes he or
she is entitled to a reduced fee
assessment pursuant to paragraphs (a)(2)
and (a)(3) of this section, or a waiver
pursuant to paragraph (e) of this section,
the requester must include, in his or her
original FOIA request, a statement
explaining with specificity, the reasons
demonstrating that he or she qualifies
for a reduced fee or a fee waiver.
Included in this statement should be a
certification that the information will
not be used to further the commercial
interests of the requester.
sroberts on PROD1PC70 with RULES
Note to paragraph (c): Anyone requesting
a reduced fee or a fee waiver must submit the
request directly to the Commission and not
to the contractor who will provide
documents only at the contract price.
(d) If the Commission reasonably
believes that a commercial interest
exists, based on the information
provided pursuant to paragraph (c) of
this section, the requester shall be so
notified and given an additional ten
business days to provide further
information to justify receiving a
reduced fee. See § 0.467(e)(2). During
this time period, the materials will be
available for inspection to the extent
that the time period exceeds the time
period for responding to FOIA requests,
as appropriate.
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(e)(1) Copying, search and review
charges shall be waived or reduced by
the General Counsel when ‘‘disclosure
of the 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.’’ 5
U.S.C. 552(a)(4)(A)(iii). Simply
repeating the fee waiver language of
section 552(a)(4)(A)(iii) is not a
sufficient basis to obtain a fee waiver.
(2) The criteria used to determine
whether disclosure is in the public
interest because it is likely to contribute
significantly to public understanding of
the operations or activities of the
government include:
(i) Whether the subject of the
requested records concerns the
operations or activities of the
government;
(ii) Whether the disclosure is likely to
contribute to an understanding of
government operations or activities; and
(iii) Whether disclosure of the
requested information will contribute to
public understanding as opposed to the
individual understanding of the
requester or a narrow segment of
interested persons.
(3) The criteria used to determine
whether disclosure is primarily in the
commercial interest of the requester
include:
(i) Whether the requester has a
commercial interest that would be
furthered by the requested disclosure;
and, if so
(ii) Whether the magnitude of the
identified commercial interest of the
requester is sufficiently large, in
comparison with the public interest in
disclosure, that disclosure is primarily
in the commercial interest of the
requester.
(4) This request for fee reduction or
waiver must accompany the initial
request for records and will be decided
under the same procedures used for
record requests.
(5) If no fees or de minimis fees would
result from processing a FOIA request
and a fee waiver or reduction has been
sought, the General Counsel will not
reach a determination on the waiver or
reduction request.
(f) Whenever the total fee calculated
under this section is $15 or less, no fee
will be charged.
(g) Review of initial fee
determinations under § 0.467 through
§ 0.470 and initial fee reduction or
waiver determinations under § 0.470(e)
may be sought under § 0.461(j).
[FR Doc. E9–7033 Filed 3–27–09; 8:45 am]
BILLING CODE 6712–01–P
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14091
DEPARTMENT OF TRANSPORTATION
Federal Railroad Administration
49 CFR Part 225
Railroad Accidents/Incidents: Reports
Classification, and Investigations
AGENCY: Federal Railroad
Administration (FRA), Department of
Transportation.
ACTION: Notice of interpretation.
SUMMARY: FRA is issuing this notice of
interpretation to inform interested
parties of its application and
enforcement of the harassment or
intimidation provisions contained in 49
CFR part 225, specifically relating to
situations in which a supervisor or other
railroad official accompanies an injured
employee into an examination room.
This notice of interpretation informs the
regulated community as to when such
behavior constitutes harassment or
intimidation calculated to discourage or
prevent the reporting of an accident,
incident, injury or illness. This
document is not intended to address or
impact statutory provisions related to
providing ‘‘prompt medical attention,’’
as enforcement of those provisions fall
within the jurisdiction of the U.S.
Department of Labor.
FOR FURTHER INFORMATION CONTACT:
Douglas H. Taylor, Staff Director,
Operating Practices Division, Office of
Safety Assurance and Compliance, FRA,
1200 New Jersey Avenue, SE., RRS–11,
Mail Stop 25, Washington, DC 20590
(telephone 202–493–6255); or Zeb
Schorr, Trial Attorney, Office of Chief
Counsel, FRA, 1200 New Jersey Avenue
SE., RCC–11, Mail Stop 10, Washington,
DC 20590 (telephone 202–493–6072).
SUPPLEMENTARY INFORMATION:
I. Background
Section 225.33(a) of Title 49 of the
Code of Federal Regulations requires
each railroad to ‘‘adopt and comply
with a written Internal Control Plan’’
addressing the railroad’s policies and
procedures regarding accident/incident
reporting. This section further requires
that such Internal Control Plans include,
at a minimum, a ‘‘policy statement
declaring the railroad’s commitment
* * * to the principle, in absolute
terms, that harassment or intimidation
of any person that is calculated to
discourage or prevent such person from
receiving proper medical treatment or
from reporting such accident, incident,
injury or illness will not be permitted or
tolerated * * *.’’ The FRA Guide for
Preparing Accident/Incident Reports
also notes that ‘‘many railroad
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Agencies
[Federal Register Volume 74, Number 59 (Monday, March 30, 2009)]
[Rules and Regulations]
[Pages 14073-14091]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-7033]
=======================================================================
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FEDERAL COMMUNICATIONS COMMISSION
47 CFR Part 0
[FCC 08-282]
Public Information, the Inspection of Records, and Implementation
of Freedom of Information Act Amendments
AGENCY: Federal Communications Commission.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Commission amends its rules implementing the Freedom of
Information Act (FOIA) to reflect changes in that law made by the OPEN
Government Act of 2007. In addition, the rules are updated to reflect
the current structure of the agency; to reflect the increased
availability of records on the agency's Web site and the Commission's
decisions over the years with respect to whether certain records are
routinely available for public inspection; to ensure that the rules
reflect the agency's experience with processing FOIA requests; and to
clarify the fees applicable to FOIA requests.
DATES: Effective April 29, 2009.
FOR FURTHER INFORMATION CONTACT: Laurence H. Schecker, Special Counsel,
Administrative Law Division, Office of General Counsel, 202-418-1720 or
Laurence.Schecker@fcc.gov.
SUPPLEMENTARY INFORMATION: In this Order, we amend part 0 of the
Commission's rules to update sections implementing the Freedom of
Information Act (FOIA), 5 U.S.C. 552.
On December 14, 2005, the President issued an Executive Order
concerning implementation of the FOIA. Executive Order No. 13392,
Improving Agency Disclosure of Information, 70 FR 75373 (December 14,
2005) (FOIA Executive Order). Among other things, the Executive Order
required each agency to review its FOIA operations, see id. sec. 3(a),
70 FR at 75375 (December 14, 2005), to develop a plan to improve its
FOIA operations, id. sec. 3(b)(iii), 70 FR at 75375 (December 14,
2005), and to report to the Attorney General about its review and plan
for improving FOIA operations. Id. sec. 3(c), 70 FR at 75375 (December
14, 2005). Consistent with the Executive Order, the Commission reviewed
its FOIA operations, developed a plan for improvement, and issued its
report. Improving Agency Disclosure of Information: Executive Order
13392 (June 14, 2006) (FCC FOIA Report), available at https://www.fcc.gov/foia/2006improv_disclosure_ report.pdf. See also Letter
from Samuel Feder, General Counsel and Chief FOIA Officer, to Clay
Johnson, III, Chairman, President's Management Council (July 30, 2007)
(Updated Status Report--FOIA Implementation Plan), available at https://www.fcc.gov/foia/2006improv-update.pdf; Letter from Matthew Berry,
General Counsel and Chief FOIA Officer, to Chairman Johnson (February
27, 2008) (Updated Status Report).
The Commission committed, inter alia, to review its FOIA
implementing rules ``[t]o ensure that the FCC's information access
regulations reflect the current structure of the agency, the
availability of records to the public and whether more records should
be posted pursuant to [FOIA] subsection (a)(2), [5 U.S.C. 552(a)(2)],
the proper procedures for processing FOIA requests and appeals, and
current fee information.'' FCC FOIA Report at 9.
In late 2007, Congress passed and the President signed the Openness
Promotes Effectiveness in our National Government Act, known as the
OPEN Government Act. Public Law No. 110-175, 121 Stat. 2524 (2007),
codified at scattered sections of 5 U.S.C. 552. The FOIA amendments
adopted in this statute require additional changes to our FOIA
implementing regulations.
In our FY 2007 FOIA Annual Report, we modified the target date for
reviewing and amending our FOIA regulations so that a single revision
of the rules could address the OPEN Government Act as well as the
commitment made in the FCC's FOIA Report. See FCC FY 2007 FOIA Annual
Report, at 8-9 (Section XII.C) (https://www.fcc.gov/foia/2007foiareport.pdf); see also letter from Matthew Berry to Chairman
Johnson (Feb. 27, 2008) (noting the change in the target date for
revising our FOIA regulations). We have now completed an extensive
review of our FOIA regulations and in this Order adopt various
amendments to the rules. By this Order, we fulfill the commitment made
in the FCC FOIA Report, as modified in our FY2007 FOIA Annual Report.
Our FOIA implementing rules are presently found at 47 CFR 0.441
through 0.470. The rules amended in this Order may generally be grouped
into three sections: (1) rules describing records that are routinely
available for public inspection (47 CFR 0.441, 0.445, 0.451, 0.453,
0.455, 0.460 and 0.465); (2) rules describing records that are not
routinely available for public inspection and governing requests for
confidential treatment (47 CFR 0.442, 0.457, 0.458, 0.459, 0.461, and
0.463); and (3) the FOIA fee rules (47 CFR 0.451(d), 0.465 through
0.470). We have reviewed these rules and, as set forth in Appendix,
[[Page 14074]]
adopt a variety of changes to (i) reflect the current structure of the
agency; (ii) reflect the increased availability of records on the FCC's
Web site and the Commission's decisions over the years with respect to
whether certain records are routinely available for public inspection;
(iii) implement the changes to the FOIA enacted in the OPEN Government
Act; (iv) ensure that the rules reflect our experience with processing
FOIA requests; and (v) clarify the fees applicable to FOIA requests.
The following paragraphs describe the changes we adopt in the rules.
Records Routinely Available for Public Inspection. The FOIA
requires that a variety of records be made ``available for public
inspection and copying.'' 5 U.S.C. 552(a)(2)(A)-(D) (requiring each
agency to make available for public inspection and copying ``final
opinions * * * [and] orders made in the adjudication of cases;'' policy
statements that ``are not published in the Federal Register;''
``administrative staff manuals and instructions to staff that affect a
member of the public;'' and records released pursuant to a FOIA request
that ``the agency determines have become or are likely to become the
subject of subsequent requests for substantially the same records'');
FOIA Executive Order, sec. 1(b). The Electronic Freedom of Information
Act Amendments of 1996 (EFOIA), Public Law No. 104-231, 110 Stat. 3048
(1996), codified at scattered sections of 5 U.S.C. 552. See Amendment
of Part 0 of the Commission's Rules to Implement the Electronic Freedom
of Information Act Amendments of 1996, 13 FCC Rcd 3419 (1997),
requires, and the FOIA Executive Order provides for, the use of
electronic information technology to make records available to the
public. See 5 U.S.C. 552(a)(2); FOIA Executive Order, sec. 3(a)(iv), 70
FR at 75375 (December 14, 2005). We have developed an extensive Web
site, https://www.fcc.gov, providing the public with broad access to our
records. Our Web site also affirmatively discloses much information
about the Commission, consistent with the FOIA Executive Order's
direction that agencies make ``proactive'' and ``spontaneous disclosure
of information to the public'' to reduce the need for the public to
make FOIA requests to obtain information from agencies. Id., sec.
3(a)(iv). For example, our Web site makes available Commission and
Bureau/Office level decisions, Commission rules, comments filed in
rulemaking proceedings, public notices, applications for licenses or
other authorizations, and policy statements and staff guidance
concerning our rules and operations, just to mention a few categories
of records. We also maintain paper reading rooms for public access to
our records. Our rules governing access to routinely available records
require updating in light of changes in the structure of the
Commission, changes in the types of proceedings we conduct, Internet
availability of many of our records, and electronic filing and
referencing capabilities for many of our proceedings. We therefore
update sections 0.441, 0.445, 0.451, 0.453, 0.455, 0.460 and 0.465 of
our rules as discussed below and as set forth in the rule changes.
Section 0.441 is amended to indicate that in addition to the
sources for obtaining Commission information previously listed in the
rule, information may be obtained from the Commission's copy
contractor. It also contains updated Internet citations and FCC
headquarters locations for obtaining information. We have also amended
section 0.441 to note the availability of our FOIA Public Liaison to
assist persons requesting information from the Commission in resolving
any concerns relating to a FOIA request. OPEN Government Act, sec.
6(b)(1)(B); see https://www.fcc.gov/foia/#contact (FOIA Public Liaison
contact).
Section 0.445 contains our regulation concerning the availability
of our opinions, orders, policy statements, interpretations,
administrative manuals and staff instructions. 47 CFR 0.445. This rule
implements various statutory requirements concerning the public
availability of these documents. See 5 U.S.C. 552(a)(2)(A)-(C). We are
making minor modifications to this rule. We are changing the reference
to Pike and Fisher Radio Regulation in section 0.445(b) to Pike and
Fisher Communications Regulation, the current title of that
publication. See commreg.pf.com. We are also removing paragraph (g),
which currently refers to the FCC Administrative Manual, a document
that no longer exists. We are modifying current paragraph (h), which
will become paragraph (g), to reflect that general instructions to
staff may be contained in orders published in the Federal Register.
Finally, current paragraph (i), which will become paragraph (h),
indicates we may redact information from published documents to protect
personal privacy. See 5 U.S.C. 552(a) (allowing deletion of information
to protect personal privacy). We are amending this section to indicate
we may also redact information required or authorized to be withheld
pursuant to other Federal statutes. This amendment reflects our
practice of issuing decisions redacting confidential commercial
information, consistent with the Trade Secrets Act, 18 U.S.C. 1905. See
Examination of Current Policy Concerning Treatment of Confidential
Information Submitted to the Commission, 13 FCC Rcd 24816, 24854 (1998)
(Confidentiality R&O) (orders containing confidential commercial
information may be released in part under seal), recon. den., 14 FCC
Rcd 20128 (1999).
We are making a minor clarifying amendment to section 0.451(d),
which currently refers only to search fees, to cross-reference copying
and review fees that are provided for elsewhere in our FOIA
regulations. We also amend section 0.451(b)(5) to cross-reference part
19 of our rules.
Two of our FOIA rules, sections 0.453 and 0.455, set out the public
availability of records in our public reference rooms. 47 CFR 0.453 and
0.455. These rules are being updated to reflect the current nature of
our proceedings and the structure of the agency. Section 0.453(a) is
being amended to reflect the availability of the Commission's
Electronic Comment Filing System (ECFS), which makes case histories
available on the Internet to the public. Electronic Filing of Documents
in Rulemaking Proceedings, 13 FCC Rcd 11322 (1998) (ECFS Decision).
Section 0.453(a)(2)(i) provides a current list of Broadcast Services
proceedings which have records that are routinely available, and
section 0.453(a)(2)(ii) updates common carrier proceedings presently in
the Wireline Competition Bureau. Section 0.453(a)(2)(iii)(E) is amended
to delete the last sentence to reflect that the Uniform Licensing
System (ULS) is now fully functional. Section 0.453(a)(2)(iv) is
amended to reflect the availability of certain contracts and to
eliminate references to INTELSAT and INMARSAT in light of the
privatization of those entities. Finally, section 0.453(a)(2)(v)
updates the list of publicly available cable service proceedings. Minor
changes are made to section 0.455. We update paragraph (a) to reflect
the Media Bureau materials currently available in its reference room.
We also amend former paragraph (c), now (b), to indicate that
Commission minutes and records for votes are available in the Office of
the Secretary, not the Agenda Group. References to separate Bureau
reference rooms, now consolidated in the Reference Information Center,
are also removed from section 0.455.
Section 0.460 governs requests for inspection of records that are
routinely available for public inspection under
[[Page 14075]]
sections 0.453 and 0.455. Our rules have provided that records
routinely available to the public can be requested either through the
Commission directly or through our copy contractor. 47 CFR 0.460(f).
See also 47 CFR 0.465(f). While a large portion of the records
routinely available for public inspection are available on our Web
site, there are still some routinely available records that are only
available in paper copy at the Commission. Processing written requests
for these records has placed a great burden on our staff. We are
therefore amending paragraph (f) to require that written requests to
obtain copies of records routinely available for public inspection must
be processed through the Commission's copy contractor under section
0.465. We are also amending section 0.465(f) to indicate that the
Commission's copy contractor will fulfill requests for records that are
routinely available under section 0.453 or 0.455. These changes do not
affect those personally inspecting records at the Commission. See 47
CFR 0.460(b).
Records Not Routinely Available for Public Inspection. Section
0.442 of our rules addresses situations in which we receive requests
from other Federal agencies for records that were submitted to us with
a request for confidential treatment or that we consider presumptively
confidential. 47 CFR 0.442. This rule, based on sections of the
Paperwork Reduction Act (PRA), 44 U.S.C. 3512 and 3510(b), indicates
that such records will receive confidential treatment when we share
them with other agencies, and sets forth the procedures we employ when
we receive such requests. We are amending paragraphs (a) and (d)(3) to
provide that the rule covers records that have been deemed confidential
under other statutes, FCC orders, or regulations in addition to those
deemed confidential under section 0.457 or 0.459. We are amending
section 0.442(b) to indicate that the Commission may initiate the
sharing of records with another Federal agency under this section.
Paragraph (d)(1) provides for notice to the submitter of confidential
information that we have received a request from another Federal agency
for the records. We are amending this paragraph to make clear that we
may provide this notice either individually or by public notice in
instances where there are many submitters of confidential information.
We are amending paragraph (d)(2) to provide that Federal agencies may
request that we not provide notice to the submitter of confidential
information if such notice would interfere with national security or
homeland defense activities as well as law enforcement activities. 47
CFR 0.442(d)(2)-(3). We are amending paragraph (d)(2) to indicate that
Federal agencies should submit such requests in writing to us. We note
that such a request may be made by e-mail.
In setting forth nine FOIA disclosure exemptions, the FOIA
recognizes that not all agency records may be available to the public.
5 U.S.C. 552(b)(1)-(9). Section 0.457 of our rules sets forth these
exemptions and lists circumstances in which we have already determined
that certain types of records are not routinely available for public
inspection. Section 0.457(a) is amended to clarify that documents for
which the Commission has requested national security classification
from another agency will not be disclosed pending a classification
determination. We have also amended section 0.457(c)(3) to reflect our
previous repeal of section 43.53. See Amendment of Sections 43.51,
43.52, 43.53, 43.54 and 43.74 of the Commission's Rules To Eliminate
Certain Reporting Requirements, 1 FCC Rcd 933 (1986). In addition, the
Commission determined in a 2004 rulemaking to accord confidential
treatment to outage reports filed under part 4 of our rules, but did
not update section 0.457(d) at that time. See New Part 4 of the
Commission's Rules Concerning Disruptions to Communications, 19 FCC Rcd
16830 (2004), adopting 47 CFR 4.2. We are therefore adding a new
section 0.457(d)(1)(vii) to reflect that action. A new section
0.457(d)(1)(viii) has also been added to reflect the commercially
sensitive nature of coordination of satellite systems pursuant to
procedures codified in the International Telecommunication Union (ITU)
Radio Regulations. See Robert J. Butler, 6 FCC Rcd 5414 (1991)
(documents that were generated during the course of certain
international negotiations withheld pursuant to FOIA Exemption 4). We
have deleted the reference to radio operator examinations that are no
longer administered, see Amendment of Part 13 of the Commission's Rules
To Privatize the Administration of Examinations for Commercial Operator
Licenses and To Clarify Certain Rules, 8 FCC Rcd 1046 (1992), as well
as a dated reference to equipment authorization procedures prior to
1974. 47 CFR 0.457(b)(3). In section 0.457(f) regarding personal
privacy under FOIA Exemption 6, 5 U.S.C. 552(b)(6), we are expanding
the reference to ``employees'' so as to include Commission contractors.
See U.S. Dep't of Justice v. Reporters' Committee for Freedom of the
Press, 489 U.S. 749, 774 (1989) (an individual doing business with the
federal government may have some protectible privacy interest). We are
amending section 0.457(g), regarding law enforcement information, to
more closely track the language of the FOIA.
Section 0.459 of our rules addresses requests for confidential
treatment. See generally Confidentiality R&O, 13 FCC Rcd at 34826-27
(prescribing showing to be made for requests for confidential
treatment). Where confidential treatment is sought for only a part of a
document, we will require the filing of a redacted public version. We
are adding a new paragraph indicating that this section does not apply
to comments or materials filed by means of our Electronic Filing System
(ECFS), consistent with the rulemaking decision adopting the ECFS
system. ECFS Decision, 13 FCC Rcd at 11330-31 (confidential materials
cannot be filed electronically through ECFS). We have added a new
paragraph (a)(3) reflecting the practice of using a ``checkbox''
mechanism for indicating confidentiality on some forms. We are amending
paragraph (c) concerning casual requests for confidential treatment to
indicate that the existing required showing before confidential
treatment will be granted means that simply stamping a record
``confidential'' will not be considered a request for confidential
treatment. We are also amending paragraph (g) to provide that when a
request for confidential treatment is denied, the person who submitted
the records will have 10 days to seek review, instead of the 5 days
currently provided for in the rule. This change harmonizes the time
period in this rule with the time period in section 0.461(i)(1).
Compare 47 CFR 0.459(g) (currently providing 5 days for filing an
application for review or seeking a judicial stay when a request for
confidentiality is denied in whole or in part) with 47 CFR 0.461(i)(1)
(currently providing 10 days for filing an application for review or a
judicial stay when in the context of a FOIA request a request for
confidentiality is denied in whole or in part).
Finally, section 0.458 of our rules addresses situations when
persons regulated by or practicing before the Commission come into
possession of written non-public information. We amend this section to
provide that such information should be returned to the Commission's
Office of Inspector General promptly and without further distribution
or use. This amendment tracks the current language of 47 CFR 19.735-
203.
[[Page 14076]]
Obtaining Records Not Routinely Available for Public Inspection.
Section 0.461 of our rules describes how the public may seek records
not routinely available for public inspection. We herein make several
amendments to section 0.461 to reflect our experience in processing
FOIA requests and to implement the OPEN Government Act. We have amended
section 0.461(a) to include the definition of ``records'' adopted in
the OPEN Government Act. OPEN Government Act, sec. 9, codified at 5
U.S.C. 552(f)(2). This definition specifies that records include
electronic records and records maintained for the Commission by another
entity for purposes of records management. Section 0.461(a) is also
amended to provide more detail for FOIA requesters concerning what
information should be submitted with a request for inspection of
records. We make this change to assist staff in processing FOIA
requests. By providing a more detailed FOIA request, we hope staff
processing the request will be able to locate the records quickly, thus
reducing search time charges to FOIA requesters. We hope that this will
minimize the need to contact FOIA requesters for clarification. See
OPEN Government Act, sec. 6(a), codified at 5 U.S.C. 552a)(6)(A)(ii)
(limiting the tolling of time for processing FOIA requests when
requesters must be contacted for clarification). See also OIP Guidance:
New Limitations on Tolling the FOIA's Response Time (DOJ/OIP November
11, 2008), available at https://www.usdoj.gov/oip/foiapost/2008foiapost29.htm. Section 0.461(a)(2) is amended to clarify that,
pursuant to FOIA section 552(a)(3)(B), while requesters may specify the
form or format of records to be produced, the records must be readily
reproducible in the requested form or format for the Commission to
comply with the request. See 5 U.S.C. 552(a)(3)(B). This is consistent
with our practice. See Rick Linsk, 18 FCC Rcd 25601, 25602 (2003),
citing TPS, Inc. v. U.S. Dep't of Defense, 330 F.3d 1191, 1193 (9th
Cir. 2003). Section 0.461(b) concerns information provided with FOIA
requests, and is amended to provide that mailing addresses be included
with a FOIA request so that we can mail paper copies of records
produced to FOIA requesters. It is also amended to remind requesters
that if they are seeking a FOIA fee waiver, such a request must be
included with their original FOIA request. See 47 CFR 0.470(c).
Section 0.461(d)(3) provides for notification of persons who have
submitted records to the Commission that are confidential under
sections 0.457 or 0.459 if a request for inspection of those records is
filed under section 0.461. We have amended this section to clarify
procedures for this notice and how all parties should serve each other
with any pleadings. We are also adding a note to this section reminding
parties that FOIA proceedings are permit-but-disclose proceedings under
our ex parte rules. See 47 CFR 1.1206(a)(7).
Section 0.461(e) is amended to indicate that a FOIA request is
deemed properly received when it is received and date stamped by our
FOIA Control Office and assigned to the Bureau or Office that is the
custodian of the records sought.See OPEN Government Act, sec. 6(a),
codified at 5 U.S.C. 552(a)(6)(A). See also OIP Guidance: Assigning
Tracking Numbers and Providing Status Information for Requests (DOJ/OIP
November 18, 2008), available at https://www.usdoj.gov/oip/foiapost/2008foiapost30.htm; OIP Guidance: New Requirement to Route Misdirected
FOIA Requests (DOJ/OIP November 18, 2008), available at https://www.usdoj.gov/oip/foiapost/2008foiapost31.htm. A new paragraph is being
added to paragraph (e), and language is added to sections 0.461(g)(1),
0.467(e)(2), and 0.469(c) concerning the tolling of the FOIA time
limits for processing requests, to implement the OPEN Government Act's
provisions. This paragraph provides that the time for responding to a
FOIA request is tolled while the custodian of records seeks reasonable
clarification from the requester. Such a request must be made within 10
days after a request is properly received by the custodian of records,
and only one such request may be made. The paragraph also provides for
a tolling of the time limits when fee issues (including fee waivers)
are unresolved. The OPEN Government Act allows us to make only one
request for clarification of the scope of a FOIA request, but does not
contain a similar restriction for fee matters. Compare 5 U.S.C.
552(a)(6)(A)(ii)(I) with 5 U.S.C. 552(a)(6)(A)(ii)(II). We will,
however, endeavor to resolve fee matters with only one inquiry to
requesters. Paragraph (e)(4) is also amended to reflect our practice of
assigning control numbers to FOIA requests, and to indicate that we
provide notice to a FOIA requester of the control number and of a
telephone number that may be called to obtain the status of the FOIA
request. These amendments reflect modifications to the FOIA made in the
OPEN Government Act. OPEN Government Act, sec. 7(a), codified at 5
U.S.C. 552(a)(7). See also OIP Guidance: Assigning Tracking Numbers and
Providing Status Information for Requests (DOJ/OIP November 18, 2008),
available at https://www.usdoj.gov/oip/foiapost/2008foiapost30.htm.
We sometimes receive FOIA requests that seek records that are the
property of another federal agency or department. We have clarified in
section 0.461(f) that such requesters will be directed to the correct
department or agency. We have also amended section 0.461(f)(5), which
addresses withholding part of a record pursuant to a FOIA exemption.
The OPEN Government Act amended the FOIA to require that when a
redaction is made to a record being released, we must indicate the FOIA
exemption relied upon at the site of the redaction. See sec. 12,
codified at 5 U.S.C. 552(b) (after paragraph 9). See also OIP Guidance:
Segregating and Marking Documents for Release in Accordance with the
Open Government Act (DOJ/OIP October 23, 2008), available at https://www.usdoj.gov/oip/foiapost/2008foiapost26.htm. Conforming or clarifying
edits are also made to section 0.461(g).
We have amended section 0.461(i) to add persons with a personal
privacy interest in a record to the categories of persons who may seek
review of a decision to grant access to the records. We have also added
a note to paragraphs 0.461(i) and (j) indicating that the General
Counsel will review applications for review of initial FOIA decisions
and may attempt informally to resolve issues with the applicant. This
has been our practice and we have found it to be a consumer-friendly
practice, consistent with the FOIA Executive Order. FOIA Executive
Order, sec. 1(b)-(d), 70 FR at 75373 (December 14, 2005). We have also
amended section 0.461(j) to make clear that applications for review of
fee determinations and fee waiver decisions may be sought under this
paragraph. See amended section 0.451(d) and new section 0.470(g). We
have provided in section 0.461(k)(2) that the Commission may
consolidate applications for review. Finally, we have clarified in
section 0.461(l)(2) that, as appropriate, we may continue to process
initial FOIA requests or applications for review if an action for
judicial review has been filed.
The Touhy Rule. Section 0.463 is the Commission's Touhy rule. See
United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951); 5 U.S.C. 301
(authorizing agencies to issue regulations regarding whether government
employees or documents may be subpoenaed). We amend this rule to
elaborate on the procedures used when determining whether Commission
employees will be
[[Page 14077]]
permitted to testify or provide records relating to their official
duties when they are directly subpoenaed or otherwise served with a
request. This amendment also specifies and clarifies the criteria that
the General Counsel will use when deciding whether to allow an employee
to testify or provide records. We make these amendments based on the
following: (1) Our experience in reviewing Touhy requests and the
information that we typically need to obtain from the requester in
order to properly evaluate the request; (2) our review of other
agencies' Touhy rules; and (3) the factors that courts have considered
when evaluating Administrative Procedure Act (APA) challenges to other
agencies' Touhy decisions. See, e.g., Houston Business Journal, Inc. v.
Office of the Comptroller of the Currency, United States Dep't of the
Treasury, 86 F.3d 1208 (D.C. Cir. 1996) (agency decisions under Touhy
regulation are reviewed under arbitrary or capricious standard under
the APA; Brobreski v. U.S. EPA, 284 F.Supp.2d 67, 79-80 (D.D.C. 2003)
(reviewing and upholding EPA's reasons for denying request for
testimony by an agency inspector).
FOIA Fee Related Rules. We also make a variety of changes to our
FOIA fee-related rules. 47 CFR 0.451(d), 0.465 through 0.470. In
section 0.465, we amend paragraph (b) to reflect the availability of
audio and video recordings or transcripts of Commission proceedings and
note that in certain cases, not all formats may exist. In paragraph
(c)(2), we reduce the per page copying fees we are required to charge
under the FOIA, 5 U.S.C. 552(a)(4)(A), from $0.17 to $0.10. This
reduction is a result of our re-evaluation of reproduction costs. We
are also adding to paragraph (c)(2) a charge of $5.00 per computer disk
for instance when we provide copies in an electronic format, and add a
reference to computer disks in this paragraph. Finally, we are amending
paragraph (e) to reflect the availability of many of our documents on
the Internet. Paragraphs (e) and (f) are also amended, consistent with
our amendment of section 0.460 discussed supra, to indicate that the
public must seek copies of records routinely available for public
inspection in person or from our copy contractor.
Section 0.466 of our rules contains the definitions related to FOIA
fees. In paragraph (a)(1) we are changing the definition of ``direct
costs'' to reflect that we add 20 percent to our labor costs to cover
benefits, to make it consistent with our current practice as reflected
in paragraph 0.467(a)(2). When sections 0.466 and 0.467 were first
amended to reflect the changes in the FOIA regarding fees, the
Commission indicated that it would add 16 percent to the basic rate of
pay to cover employee benefits. The Freedom of Information Reform Act
of 1986; Fee Schedule and Administrative Procedures, 3 FCC Rcd 5107
(1988). This was the percentage adopted in the OMB FOIA Fee Guidelines
for Federal personnel benefits to be added to the Federal pay levels
for search purposes. The Freedom of Information Reform Act of 1986;
Uniform Freedom of Information Act Fee Schedule and Guidelines, 52 FR
10012 (March 27, 1987) (OMB FOIA Fee Guidelines). The FOIA charged OMB
with promulgating ``guidelines * * * which shall provide for a uniform
schedule of fees.'' 5 U.S.C. 552(a)(4)(A)(i). Over the years, we have
updated the benefits section in paragraph 0.467(a)(1) to reflect actual
costs of personnel benefits. In 1994 it was changed to 19 percent (see
Amendment To The Fee Schedule For The Processing Of Requests For Agency
Records Pursuant To The Freedom Of Information Act, 9 FCC Rcd 1810
(1994)) and in 1996 to 20 percent (see Amendment To The Fee Schedule
For The Processing Of Requests For Agency Records Pursuant To The
Freedom Of Information Act, 11 FCC Rcd 3606 (1996)). Because the search
and review fees are to charge for our ``direct costs,'' 5 U.S.C.
552(a)(4)(A)(iv), which includes benefits, it was reasonable to
increase the percentage we added for benefits as those costs rose over
the years, even though OMB never changed the OMB FOIA Fee Guidelines in
this regard.
We amend paragraph (a)(7) to reflect the new definition of
``representative of the news media'' adopted in the OPEN Government
Act, OPEN Government Act, sec. 3, codified at 5 U.S.C.
552(a)(4)(A)(ii). We also amend paragraph (a)(3) to indicate that
dissemination of records by a representative of the news media shall
not be considered to be for a commercial use. See OMB FOIA Fee
Guidelines, 52 FR 10012, 10019 (March 27, 1987) (a request for records
from a representative of the news media ``shall not be considered to be
a request that is for a commercial use.''); National Security Archive
v. Dep't of Defense, 880 F.2d 1381, 1387-88 (DC Cir. 1989).
In section 0.467, which addresses search and review fees, we delete
the chart listing the hourly fee for FCC employees responding to FOIA
requests because the rates change when federal salaries change.
Instead, we provide that changes in the hourly fee will be announced by
Public Notice and will be posted on our FOIA Web site, https://www.fcc.gov/foia. We also specify in paragraph 0.461(a)(1) that labor
rates for non-FCC employees will be assessed at their actual hourly
cost to the agency. This includes Universal Service Administrative
Company (USAC) personnel, who search for USAC records in response to
FOIA requests. See Inter-Tel Technologies, Inc., 19 FCC Rcd 5204 n.3
(2004).
In section 0.470, we implement the OPEN Government Act section that
waives search fees for commercial and ``all others'' requesters and
waives duplication fees for educational requesters or representatives
of the news media when we fail to comply with FOIA's time limits in
processing a FOIA request. OPEN Government Act, sec. 6(b), codified at
5 U.S.C. 552(a)(4)(A)(viii). See also OIP Guidance: New Limitations on
Assessing Fees (DOJ.OIP November 11, 2008), available at https://www.usdoj.gov/oip/foiapost/2008foiapost28.htm. We are also codifying
the considerations we take into account when addressing requests for
FOIA fee waivers. These standards are well-established in judicial and
Commission case law, see, e.g., McClellan Ecological Seepage Situation
v. Carlucci, 835 F.2d 1282, 1286 (9th Cir. 1987); Robert J. Robbins,
Call Communications Group., Inc., 21 FCC Rcd 6685 (2006), and are being
set forth in this rule to provide guidance to any FOIA requesters who
seek a fee waiver. We note that simply repeating the language of the
FOIA fee waiver statute is an insufficient basis for requesting or our
granting a fee waiver. We are also adding a new paragraph 0.470(e)(5)
indicating that we generally will not rule on a request for fee waiver
if no fees or de minimis fees (fifteen dollars or less) are involved.
We give a requester ten working days, rather than the previous five, to
provide additional information in certain circumstances. Finally, we
have amended sections 0.451(d) and 0.461(j), and adopted a new section
0.470(g), to make clear that review may be sought for fee
determinations and initial fee waiver decisions.
No Notice and Comment Required. We have determined that the changes
we adopt here are general statements of policy, interpretive rules, or
rules of agency organization, procedure or practice, and are therefore
exempt from the notice and comment requirements of the APA, 5 U.S.C.
553(b)(A) (notice requirements inapplicable to ``interpretive rules,
general statements of policy, or rules of agency organization,
procedure or practice'').
[[Page 14078]]
See Confidentiality R&O, 14 FCC Rcd at 20131 (amending 47 CFR 0.459 and
0.461 without notice and comment), citing Aluminum Co. of America v.
FTC, 589 F. Supp. 169, 178 (S.D.N.Y. 1984) (holding FOIA rules are
procedural rules); United States ex rel. O'Keefe v. McDonnell Douglas
Corp., 132 F.3d 1252, 1255 (8th Cir. 1998) (Touhy regulations deal
exclusively with internal administrative procedure). The substantive
standards for obtaining agency records are set forth in the FOIA. See
generally 5 U.S.C. 552.
Regulatory Flexibility Act, Paperwork Reduction Act, and
Congressional Review Act. Section 603 of the Regulatory Flexibility
Act, as amended (RFA), requires an initial regulatory flexibility
analysis in notice and comment rulemaking proceedings. 5 U.S.C. 603(a).
As we are adopting these rules without notice and comment, no
regulatory flexibility analysis is required. This document does not
contain proposed information collection(s) subject to the Paperwork
Reduction Act of 1995 (PRA). 44 U.S.C. 3501-3520. In addition,
therefore, it does not contain any new or modified ``information
collection burden for small business concerns with fewer than 25
employees,'' pursuant to the Small Business Paperwork Relief Act of
2002. 44 U.S.C. 3506(c)(4). Our FOIA rule amendments are being adopted
without notice and comment, and therefore are not required to be
submitted to Congress under the Congressional Review Act. 5 U.S.C.
804(3)(C) (rules subject to the Congressional Review Act do not include
``any rule of agency organization, procedure, or practice that does not
substantially affect the rights or obligations of non-agency
parties'').
Segregability. It is our intention in adopting these rule changes
that, if any provision of the rules is held invalid by any court of
competent jurisdiction, the remaining provisions shall remain in effect
to the fullest extent permitted by law.
List of Subjects in 47 CFR Part 0
Freedom of information, Government publications, Organization and
functions (Government agencies), Privacy.
Federal Communications Commission.
William F. Caton,
Deputy Secretary.
Final Rules
0
For the reasons discussed in the preamble, the Federal Communications
Commission amends 47 CFR part 0 as follows:
PART 0--COMMISSION ORGANIZATION
Subpart C--General Information
Public Information and Inspection of Records
0
1. The authority citation continues to read as follows:
Authority: Sec. 5, 48 Stat. 1068, as amended: 47 U.S.C. 155,
225, unless otherwise noted.
0
2. Sections 0.441 through 0.470 are revised to read as follows:
Sec.
0.441 General.
0.442 Disclosure to other Federal government agencies of information
submitted to the Commission in confidence.
0.445 Publication availability and use of opinions, orders, policy
statements, interpretations, administrative manuals and staff
instructions.
0.451 Inspection of records: Generally.
0.453 Public reference rooms.
0.455 Other locations at which records may be inspected.
0.457 Records not routinely available for public inspection.
0.458 Nonpublic information.
0.459 Requests that materials or information submitted to the
Commission be withheld from public inspection.
0.460 Requests for inspection of records which are routinely
available for public inspection.
0.461 Requests for inspection of materials not routinely available
for public inspection.
0.463 Demand by competent authority for the production of documents
or testimony concerning information contained therein.
0.465 Request for copies of materials which are available, or made
available, for public inspection.
0.466 Definitions.
0.467 Search and review fees.
0.468 Interest.
0.469 Advance payments.
0.470 Assessment of fees.
Sec. 0.441 General.
(a) Any person desiring to obtain information from the Commission
may do so by contacting the Consumer and Governmental Affairs Bureau
(CGB). Requests for information and general inquiries may be submitted
by:
(1) Internet at https://www.fcc.gov/cgb/fccinfo or https://www.fcc.gov/foia.
(2) Telephone at 1-888-CALL-FCC (1-888-225-5322).
(3) TDD/TDY at 1-888-TELL-FCC (1-888-835-5322).
(4) Correspondence to: Consumer and Governmental Affairs Bureau,
445 12th Street, SW., Washington, DC 20554.
(5) Visiting the Reference Information Center of the Consumer and
Governmental Affairs Bureau at Room CY-A257 of the Commission's main
office at 445 12th Street, SW., Washington, DC 20554.
(6) Facsimile at 1-866-418-0232.
(7) Contacting the Commission's Copy Contractor, see Sec.
0.465(a).
(b) The Commission's FOIA Public Liaison is available to assist any
person requesting information from the Commission in resolving any
concerns related to a Freedom of Information Act request. See https://www.fcc.gov/foia/.
Sec. 0.442 Disclosure to other Federal government agencies of
information submitted to the Commission in confidence.
(a) The disclosure of records to other Federal government agencies
is generally governed by the Paperwork Reduction Act, 44 U.S.C. 3510,
rather than the Freedom of Information Act. The acceptance of materials
in confidence under Sec. 0.457 or Sec. 0.459, or any other statute,
rule or Commission order, does not preclude their disclosure to other
federal agencies.
(b) Information submitted to the Commission in confidence pursuant
to Sec. 0.457(c)(2) and (3), (d) and (g) or Sec. 0.459, or any other
statute, rule or order, may be disclosed to other agencies of the
Federal government upon request or upon the Commission's own motion,
provided:
(1) Specific Commission assurances against such disclosure have not
been given;
(2) The other agency has established a legitimate need for the
information;
(3) Disclosure is made subject to the provisions of 44 U.S.C.
3510(b); and
(4) Disclosure is not prohibited by the Privacy Act or other
provisions of law.
(c) The Commission's staff may give assurances against disclosure
of information to other Federal agencies only with the prior written
approval of the General Counsel. In no event will assurance against
disclosure to other agencies be given in advance of submission of the
information to the Commission if submission is required by statute or
by the provisions of this chapter; but the notice provisions of
paragraph (d) of this section will apply to such required submissions.
(d)(1) Except as provided in paragraphs (d)(2) and (d)(3) of this
section, a party who furnished records to the Commission with a request
for confidential treatment, see Sec. 0.459, will be notified at the
time that the request for disclosure is submitted and will be afforded
ten calendar days in which to submit an opposition to disclosure. This
notification may be made either individually or by public notice.
[[Page 14079]]
(2) If the agency requesting the records provides in writing to the
satisfaction of the Commission that notice to the party who furnished
the records to the Commission will interfere unduly with its law
enforcement, national security or homeland defense activities and
further states that it will notify that party of the Commission's
disclosure once the potential for such interference is eliminated, the
Commission will not give notice of disclosure.
(3) A party who furnished records to the Commission in confidence
will not be afforded prior notice when the disclosure is made to the
Comptroller General of the United States, in the Government
Accountability Office. Such a party will instead be notified of
disclosure of the records to the Comptroller General either
individually or by public notice.
(4) If disclosure is opposed and the Commission decides to make the
records available to the other agency, the party who furnished the
records to the Commission will be afforded ten calendar days from the
date of the ruling to move for a judicial stay of the Commission's
action. If the party does not move for stay within this period, the
records will be disclosed.
(e) Except as provided in paragraph (d)(3) of this section, nothing
in this section is intended to govern disclosure of information to
Congress or the Comptroller General.
Sec. 0.445 Publication, availability and use of opinions, orders,
policy statements, interpretations, administrative manuals, and staff
instructions.
(a) Adjudicatory opinions and orders of the Commission, or its
staff acting on delegated authority, are sent to the parties by mail,
delivery service, or e-mail, unless the Commission determines that
individual delivery would be unduly burdensome and instead issues a
public notice of its decision. As part of the record, these documents
are generally available for inspection in accordance with Sec. 0.453
and Sec. 0.455. In addition, many adjudicatory orders and opinions are
available on the Commission's Web site, https://www.fcc.gov. In
appropriate circumstances, the Commission may redact the copy made
available to the public in order to protect information not routinely
available to the public under Sec. 0.457, which is treated
confidentially pursuant to a request under Sec. 0.459, or which is
confidential pursuant to other statutes, regulations or orders.
(b) Texts adopted by the Commission or a member of its staff on
delegated authority and released through the Office of Media Relations
are published in the FCC Record. Older materials of this nature are
available in the FCC Reports. In the event that such older materials
are not published in the FCC Reports, reference should be made to the
Federal Register or Pike and Fischer Communications Regulation.
(c) All rulemaking documents or summaries thereof are published in
the Federal Register and are available on the Commission's Web site.
The complete text of the Commission decision also is released by the
Commission and is available for inspection and copying during normal
business hours in the Office of Media Relations, the Reference
Information Center, via the Electronic Comment Filing System (ECFS), or
as otherwise specified in the rulemaking document published in the
Federal Register. The complete texts of rulemaking decisions may also
be purchased from the Commission's copy contractor.
(d) Formal policy statements and interpretations designed to have
general applicability are published in the Federal Register, the FCC
Record, FCC Reports, or Pike and Fischer Communications Regulation.
Commission decisions and other Commission documents not entitled formal
policy statements or interpretations may contain substantive
interpretations and statements regarding policy, and these are
published as part of the document in the FCC Record, FCC Reports or
Pike and Fischer Communications Regulation. General statements
regarding policy and interpretations furnished to individuals, in
correspondence or otherwise, are not ordinarily published.
(e) If the documents described in paragraphs (a) through (d) of
this section are published in the Federal Register, the FCC Record, FCC
Reports, or Pike and Fischer Communications Regulation, they are
indexed, and they may be relied upon, used or cited as precedent by the
Commission or private parties in any manner. If they are not so
published, they may not be relied upon, used or cited as precedent,
except against persons who have actual notice of the document in
question or by such persons against the Commission. No person is
expected to comply with any requirement or policy of the Commission
unless he or she has actual notice of that requirement or policy or a
document stating it has been published as provided in this paragraph.
Nothing in this paragraph, however, shall be construed as precluding a
reference to a recent document that is pending publication.
(f) Subparts A and B of this part describe the functions of the
staff and list the matters on which authority has been delegated to the
staff. All general instructions to the staff and limitations upon its
authority are set forth in those subparts or in decisions of the
Commission published in the Federal Register. Instructions to the staff
in particular matters or cases are privileged and/or protected and are
not published or made available for public inspection.
(g) To the extent required to prevent a clearly unwarranted
invasion of personal privacy, or to prevent disclosure of information
required or authorized to be withheld by another statute, the
Commission may delete identifying details or confidential information
when it makes available or publishes any document described in this
section. The justification for any such deletion will be fully
explained in a preamble to the document.
Sec. 0.451 Inspection of records: Generally.
(a) Records which are routinely available for public inspection.
Sections 0.453 and 0.455 list those Commission records which are
routinely available for public inspection and the places at which those
records may be inspected. Procedures governing requests for inspection
of such records are set out in Sec. 0.460.
(b) Records which are not routinely available for public
inspection. Records which are not listed in Sec. 0.453 or Sec. 0.455
are not routinely available for public inspection. Such records fall
into two categories.
(1) The first category consists of those records or kinds of
records listed in Sec. 0.457 and of particular records withheld from
public inspection under Sec. 0.459. The Commission has determined that
there is a statutory basis for withholding these records from public
inspection. In some cases, the Commission is prohibited from permitting
the inspection of records. In other cases, the records are the property
of another agency, and the Commission has no authority to permit their
inspection. In still other cases, the Commission is authorized, for
reason of policy, to withhold records from inspection, but is not
required to do so.
(2) The second category consists of records that are not listed in
Sec. 0.453, Sec. 0.455, or Sec. 0.457 and have not been withheld
from inspection under Sec. 0.459. In some cases, these records have
not been identified for listing. In other cases (e.g., the general
correspondence files), the Commission is unable to determine either
that all records in a class should be routinely available for
inspection or that all records in that class should not
[[Page 14080]]
be routinely available for inspection, and individualized determination
is required.
(3) Procedures governing requests for inspection of these records
are set forth in Sec. 0.461.
(4) Procedures governing demands by competent authority for
inspection of these records are set forth in Sec. 0.463.
(5) Except as provided in Sec. 0.461 and Sec. 0.463, or pursuant
to Sec. 19.735-203 of this chapter, no officer or employee of the
Commission shall permit the inspection of records which are not
routinely available for public inspection under Sec. 0.453 or Sec.
0.455, or disclose information contained therein.
(c) Copies. Section 0.465 applies to requests for copies of
Commission records which are routinely available for public inspection
under Sec. 0.453 and Sec. 0.455 and those which are made available
for inspection under Sec. 0.461. Sections 0.467 and 0.465(c)(3) apply
to requests for certified copies of Commission records.
(d) Search and copying fees. Section 0.465(c)(2) prescribes the per
page fee for copying records made available for inspection under Sec.
0.460 or Sec. 0.461. Section 0.466 prescribes fees to cover the
expense of searching for and reviewing records made available for
inspection under Sec. 0.460 or Sec. 0.461. Review of initial fee
determinations under Sec. 0.467 through Sec. 0.470 and initial fee
reduction or waiver determinations under Sec. 0.470(e) may be sought
under Sec. 0.461(j).
Note to paragraph (d): The Commission may require advance
payment pursuant to Sec. 0.469 before releasing documents.
Sec. 0.453 Public reference rooms.
The Commission maintains the FCC Reference Information Center as
its public reference room at its offices in Washington, DC. Much of the
information available from the public reference room may also be
retrieved from the Commission's main Web site at https://www.fcc.gov and
its electronic reading room at https://www.fcc.gov/foia/e-room.html:
(a) The Reference Information Center. Maintains files containing
the record of all docketed cases, petitions for rule making and related
papers. A file is maintained for each docketed hearing case and for
each docketed rule making proceeding. Cards summarizing the history of
such cases for the years before 1984 are available for inspection.
Information summarizing the history of such cases for the years from
1984 through present is available online on the Electronic Comment
Filing System (ECFS).
(b) Broadcast Services. The following files and documents are
available, including:
(1) Applications for radio and television broadcast station
construction permits, licenses, modifications of facilities, license
renewal, assignments and transfer of control, including any Commission
correspondence or rulings pertaining to those applications;
(2) Petitions to deny, informal objections, and complaints directed
against the stations and/or station applications;
(3) Ownership reports filed by licensees pursuant to Sec. 73.3615
of this chapter;
(4) Television network application contracts, radio and television
time brokerage agreements, and other documents required to be filed
under Sec. 73.3613 of this chapter;
(5) Children's television programming reports filed by commercial
television licensees pursuant to Sec. 73.3526 of this chapter;
(6) Annual DTV ancillary/supplementary services reports filed by
commercial and non-commercial educational digital television licensees
pursuant to Sec. 73.624 of this chapter;
(7) Station requests for declaratory rulings, special temporary
authorizations, and other waivers;
(8) Annual employment reports filed by licensees and permittees of
broadcast stations pursuant to Sec. 73.3612 of this chapter; and.
(9) Responses from licensees to random audits of their Equal
Employment Opportunity programs conducted pursuant to Sec. 73.2080 of
this chapter.
(c) Common Carrier Services, including:
(1) Annual reports filed by carriers under Sec. 43.21 of this
chapter;
(2) Reports of proposed changes in depreciation rates filed by
carriers under Sec. 43.43 of this chapter;
(3) Rate-of-return reports filed by price-cap and rate-of-return
incumbent local exchange carriers under Sec. 65.600 of this chapter;
(4) All applications for common carrier authorizations acted upon
by the Enforcement Bureau, and related files;
(5) All formal and informal complaints against common carriers
filed under Sec. 1.711 through Sec. 1.735 of this chapter, all
documents filed in connection therewith, and all communications related
thereto;
(6) Annual employment reports filed by common carrier licensees or
permittees pursuant to Sec. 1.815 of this chapter;
(7) Enforcement proceedings and public inquiries and related
materials;
(8) Cost Allocation Manuals and related materials;
(9) Currently effective tariffs filed by Communications Common
Carriers pursuant to various FCC Rules and Regulations; and
(10) Recent revisions to tariff filings and the Reference
Information Center Log, which is prepared daily and lists the tariff
filings received the previous day.
(d) Wireless Telecommunications Services and Auction related data
including:
(1) Pending files containing applications for additional facilities
or modifications of existing facilities;
(2) Cellular and Paging Granted Station files and related
materials;
(3) Pending cellular and paging applications and related files;
(4) Electronically stored application and licensing data for
commercial radio operators and for all authorizations in the Wireless
Radio services are available for public inspection via the Commission's
Web site, https://wireless.fcc.gov/uls. Wireless Radio services include
Commercial and Private Mobile Radio, Common Carrier and Private
Operational Field point-to-point Microwave, Local Television
Transmission Service (LTTS), Digital Electronic Message Service (DEMS),
Aviation Ground and Marine Coast applications; and
(5) Petitions and related materials.
(e) International Services as follows, except to the extent they
are excluded from routine public inspection under another section of
this chapter:
(1) Satellite and earth station applications files and related
materials under part 25 of this chapter;
(2) Section 214 applications and related files under part 63 of
this chapter, to the extent that they concern international
communications facilities and services;
(3) International Fixed Public Radio applications and related files
under part 23 of this chapter;
(4) Files relating to submarine cable landing licenses and
applications for such licenses since June 30, 1934, except for maps
showing the exact location of submarine cables, which are withheld from
inspection under sec. 4(j) of the Communications Act, 47 U.S.C. 154(j)
(see Sec. 0.457(c)(1)(i));
(5) International broadcast applications, applications for
permission to deliver programming to foreign stations, and related
files under part 73 of this chapter; and
(6) Contracts and other arrangements filed under Sec. 43.51 of
this chapter, except for those that are filed with a request for
confidential treatment (see
[[Page 14081]]
Sec. 0.459) or are deemed confidential pursuant to sec. 412 of the
Communications Act (see also Sec. 0.457(c)(3)).
(f) Cable and other Multichannel Video Program Distribution
Services. The following files and records are available, including:
(1) Complaints regarding multichannel video programming, all
documents filed in connection therewith, and all communications related
thereto, unless the cable operator has submitted a request pursuant to
Sec. 0.459 that such information not be made routinely available for
public inspection;
(2) Special relief petitions and files pertaining to cable
television operations;
(3) Special relief petitions and files pertaining to DBS television
operations;
(4) Petitions and related documents concerning the enforcement of
regulations governing the installation of over-the-air reception
devices (OTARD) pursuant to Sec. 1.4000 of this chapter;
(5) Filings by cable television operators, including Cable Signal
Leakage Reports (Form 320 and Sec. 76.1804 of this chapter), Cable
System Registration Statements (Sec. 76.1801 of this chapter), Cable
System Operator Changes (Sec. 76.1610 of this chapter), Cable
Aeronautical Frequency Notifications (Sec. 76.1804 of this chapter),
Cable Annual Report (Form 325 and Sec. 76.403 of this chapter), and
filings related to CARS licenses (Part 78 of this chapter).
Note to paragraph (f)(5): This data also is available at https://www.fcc.gov/coals. Electronic submissions for cable filings
(excluding CARS) are mandatory. Original forms are not available for
information filed electronically, but the Reference Information
Center or the Commission's Copy Contractor may assist in producing
paper copies of information found in the COALS database;
(6) Annual employment reports filed by multichannel video
programming distributors pursuant to Sec. 76.1802 of this chapter; and
(7) Responses from multichannel video programming distributors to
random audits of their Equal Employment Opportunity programs conducted
pursuant to Sec. 76.77 of this chapter.
Sec. 0.455 Other locations at which records may be inspected.
Except as provided in Sec. 0.453, Sec. 0.457, and Sec. 0.459,
records are routinely available for inspection in the Reference
Information Center or the offices of the Bureau or Office which
exercises responsibility over the matters to which those records
pertain (see Sec. 0.5), or will be made available for inspection at
those offices upon request. Upon inquiry to the appropriate Bureau or
Office, persons desiring to inspect such records will be directed to
the specific location at which the particular records may be inspected.
Examples of the records available from Bureaus and Offices are set
forth in paragraphs (a) through (c).
(a) Media Bureau. (1) Rulings under secs. 312(a)(7), 315, and 317
of the Communications Act of 1934, as amended;
(2) All materials associated with a rate proceeding for basic cable
service and associated equipment over which the Commission has assumed
jurisdiction pursuant to Sec. 76.913 of this chapter;
(3) All materials associated with Commission review of franchise
authority decisions concerning the rate charged for the basic cable
service tier and associated equipment pursuant to Sec. 76.944 of this
chapter;
(4) All materials associated with local government requests for
authorization to regulate basic cable rates pursuant to Sec. 76.910 of
this chapter (Form 328);
(5) All materials associated with the certification of Open Video
System (OVS) operators pursuant to Sec. 76.1502 of this chapter;
(6) A list of all registered cable communities is maintained
electronically at https://www.fcc.gov/mb; and
(7) Public notices issued related to CARS licenses, Cable Special
Relief Petitions, and other filings are available electronically at
https://www.fcc.gov/Document_Indexes/Media/.
(b) Office of Managing Director. (1) All minutes of Commission
actions, containing a record of all final votes, minutes of actions and
internal management matters as provided in Sec. 0.457(b)(1) and
(c)(1)(i). These records and files are available for inspection in the
Office of the Secretary.
(2) Files containing information concerning the history of the
Commission's rules. These files are available for inspection in the
Office of the Secretary.
(3) Reports filed by employees pursuant to 5 CFR Parts 2634 and
3902 and applications for inspection of such reports. See Sec.
0.460(k).
(c) International Bureau. (1) The treaties and other international
and bilateral agreements listed in Sec. 73.1650 of this chapter are
available for inspection in the office of the Chief, Strategic Analysis
and Negotiations Division, International Bureau.
(2) Contracts and other arrangement filed under Sec. 43.51 of this
chapter and reports of negotiations regarding foreign communication
matters filed under Sec. 43.52 of this chapter, except those kept
confidential pursuant to sec. 412 of the Communications Act. See Sec.
0.457(c)(3).
(3) Files relating to international settlements under part 64 of
this chapter.
Sec. 0.457 Records not routinely available for public inspection.
The records listed in this section are not routinely available for
public inspection pursuant to 5 U.S.C. 552(b). The records are listed
in this section by category, according to the statutory basis for
withholding those records from inspection; under each category, if
appropriate, the underlying policy considerations affecting the
withholding and disclosure of records in that category are briefly
outlined. Except where the records are not the property of the
Commission or where the disclosure of those records is prohibited by
law, the Commission will entertain requests from members of the public
under Sec. 0.461 for permission to inspect particular records withheld
from inspection under the provisions of this section, and will weigh
the policy considerations favoring non-disclosure against the reasons
cited for permitting inspection in the light of the facts of the
particular case. In making such requests, there may be more than one
basis for withholding particular records from inspection. The listing
of records by category is not intended to imply the contrary but is
solely for