Freedom of Information Act Improvement Act Implementation Order, 4185-4197 [2016-31703]

Agencies

• FEDERAL COMMUNICATIONS COMMISSION

[Federal Register Volume 82, Number 9 (Friday, January 13, 2017)]
[Rules and Regulations]
[Pages 4185-4197]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-31703]


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FEDERAL COMMUNICATIONS COMMISSION

47 CFR Parts 0 and 1

[FCC 16-171]


Freedom of Information Act Improvement Act Implementation Order

AGENCY: Federal Communications Commission.

ACTION: Final rule.

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SUMMARY: In this document, the Federal Communications Commission amends 
its rules to update various sections implementing the Freedom of 
Information Act (FOIA) to reflect changes in the law made by the FOIA 
Improvement Act of 2016, to making conforming edits to reflect existing 
Commission FOIA practice, to streamline the Commission's FOIA 
procedures, and to provide for clerical corrections.

DATES: Effective February 13, 2017.

FOR FURTHER INFORMATION CONTACT: Ryan Yates, 202-418-0886 or TTY: 202-
418-0484; Ryan.Yates@fcc.gov.

SUPPLEMENTARY INFORMATION: 
    1. This is a synopsis of the Federal Communication Commission's 
Order, FCC 16-171, released on December 15, 2016, amending Parts 0 and 
1 of the Commission's rules to update sections implementing the FOIA. 
The complete text of the document is available on the Commission's Web 
site at https://www.fcc.gov or at https://apps.fcc.gov/edocs_public/attachmatch/FCC-16-171A1.pdf. It is also available for inspection and 
copying during normal business hours in the FCC Reference Information 
Center, Portals II, 445 12th Street SW., Room CY-A257, Washington, DC 
20554.
    2. By this Order, we amend Part 0 of the Commission's rules to 
update various sections implementing the Freedom of Information Act 
(FOIA). On June 30, 2016, the President signed into law the FOIA 
Improvement Act of 2016 (FOIA Improvement Act). The law went into 
effect July 1, 2016, and requires, inter alia, that agencies review 
their FOIA regulations and promulgate new rules in accordance with the 
substantive provisions of the law. These provisions included providing 
90 days for requesters to file appeals of FOIA requests, ensuring that 
requesters are informed of avenues for FOIA dispute resolution, and 
providing for public posting of materials that are requested multiple 
times. The Commission has completed review of its FOIA regulations and 
in this Order adopts amendments to the rules, thus fulfilling the 
requirements of section 3(a) of the FOIA Improvement Act.
    3. The amendments made by this Order can generally be grouped into 
two categories. First are rule amendments that are required by or flow 
directly from changes made by the FOIA Improvement Act. These include 
regulatory changes specifically mandated by the FOIA Improvement Act, 
as well as changes that are informed by the FOIA Improvement Act. 
Second are rule amendments designed to conform the rules to existing 
Commission FOIA practice, streamline FOIA procedures, and provide for 
clerical corrections. A number of years have passed since the 
Commission's FOIA regulations were last updated, and new technology, 
practices, and procedures have arisen since that time. We update the 
regulations to reflect the current state of the Commission's FOIA 
process.
    4. The Commission's FOIA implementing rules are presently found at 
47 CFR 0.441-0.470. The amended rules are set forth in the Appendix to 
this Order and are described in more detail below.
    5. The following rule changes are either required by the text of 
the FOIA Improvement Act or are made in response to issues raised in 
the FOIA Improvement Act.
    6. Section 0.251--Authority Delegated. Section 0.251 describes the 
authorities delegated to the General Counsel by the Commission. We add 
to the rule by delegating to the General Counsel the authority to act 
as the Chief FOIA Officer. The position of Chief FOIA Officer was 
created by the Open Government Act of 2007 and expanded upon by the 
FOIA Improvement Act.
    7. Section 0.441--General. Section 0.441 sets forth general 
information related to the Commission's FOIA practice. We make two 
changes to this section that are required by the FOIA Improvement Act. 
First, we include a notice that FOIA requesters may seek the assistance 
of the FOIA Public Liaison or the Office of Government Information 
Services to assist in resolving disputes, along with the procedure for 
engaging such assistance. These changes are specifically required by 
the FOIA Improvement Act. Second, in light of the FOIA Improvement 
Act's emphasis on the duties of the Chief FOIA Officer, including new 
responsibilities to offer training to agency staff and to serve as the 
liaison with the National Archives and Records Administration's Office 
of Government Information Services and the Department of Justice's 
Office of

[[Page 4186]]

Information Policy, we clarify that the General Counsel serves as the 
Commission's Chief FOIA Officer and may exercise the responsibilities 
assigned to that position in the FOIA statute.
    8. Section 0.445--Publication, availability, and use of opinions, 
orders, policy statements, interpretations, administrative manuals, 
staff instructions, and frequently requested records. Section 0.445 
instructs the public how to access certain publicly available 
documents. This rule implements various statutory requirements 
concerning the public availability of these documents. We amend the 
rule to make electronically available records that have been or are 
likely to be the subject of multiple FOIA requests, pursuant to the 
FOIA Improvement Act.
    9. Section 0.457--Records not routinely available for public 
inspection. Section 0.457 addresses some of the types of records that 
are routinely withheld from public inspection. We change the 
introductory paragraph to the section to articulate the reasonably 
foreseeable harm standard codified in the FOIA Improvement Act. We also 
amend section 0.457(e) to reflect changes brought about by the FOIA 
Improvement Act eliminating the deliberative process privilege of FOIA 
Exemption 5 for records more than 25 years old.
    10. Section 0.461--Requests for inspection of materials not 
routinely available for public inspection. Section 0.461 sets forth the 
rules for filing requests to view records that are not routinely 
available to the public. These rules govern the majority of requests 
under the FOIA. We extend the amount of time for requesters to file 
FOIA appeals (called applications for review under Commission practice) 
from 30 days to 90 days, consistent with the requirements of the FOIA 
Improvement Act. We will also make a conforming edit to section 
1.115(d) of our rules.
    11. Section 0.470--Assessment of fees. Section 0.470 sets out the 
three fee categories of FOIA requests and the rules regarding fee 
waivers. Consistent with the FOIA Improvement Act, we make 
modifications to make clear that the agency may not charge otherwise 
applicable search and duplication fees when it fails to meet the notice 
requirements and time limits under the FOIA, unless more than 5,000 
pages are necessary to respond to a single request or exceptional 
circumstances apply.
    12. The following rule changes are not specifically required by the 
FOIA Improvement Act. Instead, we adopt these rules changes to conform 
the rules to existing Commission FOIA practice, streamline FOIA 
procedures, and provide for clerical corrections.
    13. Section 0.251--Authority Delegated. Section 0.251 describes the 
authorities delegated to the General Counsel by the Commission. We 
grant to the General Counsel the authority to dismiss FOIA applications 
for review that are untimely, repetitious, or fail to articulate 
specific grounds for review. By giving the General Counsel this 
authority, procedurally defective requests can be dealt with 
efficiently and expediently without compromising substantive appeal 
rights, consistent with other regulations.
    14. Section 0.441--General. Section 0.441 sets forth general 
information related to the Commission's FOIA practice. We make two 
clerical changes to this rule. First, we amend this section to remove 
facsimile as a method of contacting the Commission regarding FOIA 
requests. Second, we remove a reference to the Commission's copy 
contractor, as the Commission no longer employs a copy contractor.
    15. Section 0.442--Disclosure to other Federal government agencies 
of information submitted to the Commission in confidence. Section 0.442 
applies to the sharing of confidential third-party information with 
other Federal agencies. We make no changes to this section.
    16. Section 0.445--Publication, availability, and use of opinions, 
orders, policy statements, interpretations, administrative manuals, 
staff instructions, and frequently requested records. Section 0.445 
instructs the public how to access certain publicly available 
documents. This rule implements various statutory requirements 
concerning the public availability of these documents. To reflect 
current Commission practice, we eliminate a reference to records being 
held by the Office of Media Relations. We also include a reference to 
the availability of records on the Electronic Document Management 
System (EDOCS) and through the Commission's Web site. Lastly, we remove 
a reference to the Commission's copy contractor, as the Commission no 
longer employs a copy contractor.
    17. Section 0.451--Inspection of records: Generally. Section 0.451 
provides an introduction to the broad category of records that are or 
are not available to the public, along with specifying where in the 
rules the procedures for requesting those records can be found. We 
modify section 0.451(b)(4) (previously numbered section 0.451(b)(5)) to 
reflect current Commission practice, which permits the release of 
certain non-internal documents without requiring the filing of a FOIA 
request. This will facilitate the bureaus' and offices' sharing of non-
internal documents without the need for a formal FOIA request. We also 
amend the rules to simplify the language used and consolidate related 
subsections.
    18. Section 0.453--Public reference rooms. Section 0.453 currently 
provides a listing of records routinely available in the Commission's 
public reference room. It derives from a time that various bureaus and 
offices of the Commission had individual reference rooms containing 
paper records for public access. These locations no longer exist, 
having been supplanted by one central Reference Information Center and 
the Commission's Web site. We amend the rule to add references to the 
resources available on the Commission's Web site. It is often simpler 
and more efficient for members of the public to access this information 
on the Commission's Web site rather than traveling to the Commission to 
inspect the records in person. Also, we delete the list of types of 
documents available in the reference room, and instead provide that a 
regularly updated list of records will be posted to the Commission's 
electronic reading room. Using an online list, as opposed to a list set 
forth in the Code of Federal Regulations, will give staff more 
flexibility to add to the list of routinely available records, 
consistent with the FOIA Improvement Act's emphasis on proactive 
release of records. It will also ensure that the posted list accurately 
reflects the current routinely available records. Lastly, we include 
additional information about the types of records available through the 
Commission's Electronic Comment Filing System (ECFS).
    19. Section 0.455--Other locations at which records may be 
inspected. Section 0.455 listed the various bureaus and offices of the 
Commission at which certain other types of records could be inspected. 
We delete this section in its entirety. As with section 0.453, we 
conclude it is more efficient to specify these records on a regularly 
updated online list rather than on a list in the Code of Federal 
Regulations.
    20. Section 0.457--Records not routinely available for public 
inspection. Section 0.457 articulates some of the types of records that 
are routinely withheld from public inspection. We update section 
0.457(b)(2) in conformance with the Supreme Court's holding in Milner 
v. Department of the Navy, reading the plain language of FOIA Exemption 
2. Consistent with existing Commission

[[Page 4187]]

practice, we remove several outdated or inapplicable references to 
types of records that are generally withheld. We add a reference to 
withholding of some copyrighted materials, in accordance with 
Department of Justice guidance. Also, we make several minor clerical 
changes to the rules.
    21. Section 0.458--Nonpublic information. Section 0.458 contains 
the rules for persons who come into possession of nonpublic information 
as the result of an inadvertent or unauthorized release. We make no 
changes to this section.
    22. Section 0.459--Requests that materials or information submitted 
to the Commission be withheld from public inspection. Section 0.459 
applies to third-party requests for confidential treatment of 
information given to the Commission. We make no changes to this 
section.
    23. Section 0.460--Requests for inspection of records which are 
routinely available to the public. Section 0.460 provides the rules for 
access to records which are routinely already available to the public. 
We streamline the process for requesting such records by removing the 
requirement that initial requests be specifically labeled and include 
the requester's mailing address, phone number, and email address in 
order to be considered valid. Instead, we provide that Commission staff 
may contact the requester if this information becomes necessary. We 
replace references to the copy contractor and instead direct parties to 
the Commission's Reference Information Center. We delete section 
0.460(i), which provided that records inspected in person be available 
for seven days. Given the limited number of persons who seek to inspect 
records in person, this limitation is unnecessary. We also make several 
minor clerical changes to improve accuracy and readability.
    24. Section 0.461--Requests for inspection of materials not 
routinely available for public inspection. Section 0.461 sets forth the 
rules for filing requests to view records that are not routinely 
available to the public. These rules govern the majority of requests 
under the FOIA. Consistent with section 0.460, we remove the 
requirement that requests be specifically labeled and include the 
requester's mailing address, phone number, and email address in order 
to be considered valid.
    25. We also amend subsection (d)(1) to remove the use of facsimile 
or email to file FOIA requests; instead, requesters are directed to 
submit their requests either via the postal mail or through the 
Commission's FOIAonline portal. In section 0.461(d)(2), we clarify that 
the responsibility to sign FOIA response letters may be delegated to 
staff of the bureau or office that is the custodian of the records. We 
amend the provisions of section 0.461(e)(1) concerning date stamping of 
incoming initial requests to reflect the current procedure as 
implemented through FOIAonline. In section 0.461(e)(2)(i)(B)(1), we 
modify the situations in which the processing time may be tolled 
pending the outcome of a fee matter, explicitly providing that the time 
for processing a FOIA request will be tolled in cases where the amount 
of fees authorized is less than the estimated cost for completing the 
production. This is consistent with existing practice. We update 
section 0.461(e)(3) to reflect the new methods for FOIA requesters to 
check on the status of their requests. We also provide for consultation 
with other agencies regarding records in which other agencies have 
equities in the Commission's decision concerning the disposition of a 
FOIA request for those records.
    26. In section 0.461(f)(4)-(5), we update the language regarding 
the use of discretionary authority and segregation of records, to 
conform it to existing Commission practice. We modify section 
0.461(g)(2) to clarify how records will be provided if a requester is 
unwilling to provide for an extension of time necessary to complete the 
production. Similar to our rules for FOIA fee waivers and 
confidentiality requests, in section 0.461(h)(2), we note that merely 
claiming that a request should be expedited is insufficient to warrant 
consideration. We also delete section 0.461(n), which provided that 
records inspected in person be available for only seven days. Given the 
limited number of persons who seek to inspect records in person, this 
limitation is unnecessary.
    27. We also make modifications to our FOIA appeals rules in section 
0.461(i)-(j). Consistent with section 1.7 of the Commission's rules, 
appeals are considered filed upon receipt. We also note the 
availability of the FOIA-Appeal@fcc.gov email inbox. Lastly, we take 
additional steps to limit repetitious or deficient FOIA appeals. 
Petitions for reconsideration will not be entertained after full 
Commission decisions on FOIA Applications for Review. Such an approach 
is more consistent with review process in the FOIA, beginning with an 
initial agency decision, followed by review of that decision by the 
head of the agency, and finally appeal to the district court.
    28. Section 0.463--Disclosure of Commission records and information 
in legal proceedings in which the Commission is a non-party. Section 
0.463 covers the Commission's procedures for responding to Touhy 
requests. We make no changes to this section.
    29. Section 0.465--Request for copies of materials which are 
available, or made available, for public inspection. Section 0.465 
specifies the rules for obtaining physical copies of documents. As the 
Commission does not currently employ a copy contractor, we replace 
references to the copy contractor and instead direct requesters to the 
Reference Information Center. We update the types of other media 
referred to in section 0.465(c)(2) to reflect current technology. We 
also make other minor adjustments to the language of the section to 
improve accuracy and readability.
    30. Section 0.466--Definitions. We make no changes to section 
0.466, which sets forth definitions applicable to sections 0.467-0.468.
    31. Section 0.467--Search and review fees. Section 0.467 explains 
what types of fees a requester might be charged in responding to a FOIA 
request. We delete section 0.467(h), which provided that records 
inspected in person be available for seven days, and additional fees 
may be charged if the records are requested again after that seven day 
period. Given the limited number of persons who seek to inspect records 
in person, this rule is unnecessary.
    32. Section 0.468--Interest. Section 0.468 specifies how interest 
will be calculated for unpaid FOIA fees. We make no changes to this 
section.
    33. Section 0.469--Advance payments. Section 0.469 states the 
circumstances where the Commission may require advance payment of 
estimated fees. We make no changes to this section.
    34. Section 0.470--Assessment of fees. Section 0.470 sets out the 
three fee categories of FOIA requests and the rules regarding fee 
waivers. We make minor clerical changes to sections 0.470(a)-(b), 
ensuring consistent use of the term ``duplication'' or ``duplicating,'' 
the terms used in the FOIA. In section 0.470(c), we remove a 
requirement that FOIA requesters include an explanation and 
certification when requesting a fee status other than commercial. As a 
matter of practice, the Commission does not require this. If not 
evident from the face of the request, staff may require the requester 
to provide additional information regarding his or her fee status. We 
delete the last sentence from section 0.470(d), as it only pertains to 
in person inspection of records, which, as noted above, is uncommon. 
Lastly, to improve

[[Page 4188]]

consistency with the FOIA and in line with current Commission practice, 
we modify section 0.470(f) to provide that fees will not be charged if 
the cost of collecting and processing the fees are greater than the 
actual amount of fees to be recovered.
    35. 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 Administrative Procedure Act.
    36. Section 603 of the Regulatory Flexibility Act, as amended, 
requires a regulatory flexibility analysis in notice and comment 
rulemaking proceedings. As we are adopting these rules without notice 
and comment, no regulatory flexibility analysis is required. This 
document does not contain any new proposed information collection(s) 
subject to the Paperwork Reduction Act of 1995. 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. The Commission will 
not send a copy of this Order pursuant to the Congressional Review Act, 
see 5 U.S.C. 801(a)(1)(A), because the adopted rules are rules of 
agency organization, procedure, or practice that do not ``substantially 
affect the rights or obligations of non-agency parties.''

List of Subjects

47 CFR Part 0

    Classified information, Freedom of information, Government 
publications, Organization and functions (Government agencies), 
Privacy, Reporting and recordkeeping requirements.

47 CFR Part 1

    Administrative practice and procedure, Government employees, 
Lawyers.

Federal Comunications Commission.
Katura Howard,
Federal Register Liaison Officer, Office of the Secretary.

Final Rules

    For the reasons discussed in the preamble, the Federal 
Communications amends 47 CFR parts 0 and 1 as follows:

PART 0--COMMISSION ORGANIZATION

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

    Authority:  Sec. 5, 48 Stat. 1068, as amended; 47 U.S.C. 155, 
225, unless otherwise noted.


0
2. Amend Sec.  0.251 by adding paragraph (j) to read as follows:


Sec.  0.251   Authority delegated.

* * * * *
    (j) The General Counsel is delegated authority to act as the 
Commission's Chief FOIA Officer, as specified in 5 U.S.C. 552(j). In 
this role, the General Counsel is delegated authority to dismiss FOIA 
applications for review that are untimely, repetitious, or fail to 
articulate specific grounds for review.
* * * * *

0
3. Revise Sec.  0.441 to read as follows:


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/consumer-governmental-affairs 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.
    (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. Requesters 
may contact the FOIA Public Liaison to seek assistance on resolving 
disputes related to FOIA requests. See https://www.fcc.gov/foia/.
    (c) The Office of Government Information Services is available to 
provide mediation services to help resolve disputes between FOIA 
requesters and Federal agencies. FOIA requesters may contact the Office 
of Government Information Services directly to seek its assistance. See 
https://ogis.archives.gov/.
    (d) The General Counsel shall, subject to the authority of the 
Chairman, exercise the responsibilities of the Chief FOIA Officer 
specified in 5 U.S.C. 552(j).

0
4. Revise Sec.  0.445 to read as follows:


Sec.  0.445   Publication, availability, and use of opinions, orders, 
policy statements, interpretations, administrative manuals, staff 
instructions, and frequently requested records.

    (a) Adjudicatory opinions and orders of the Commission, or its 
staff acting on delegated authority, are mailed or delivered by 
electronic means to the parties, and as part of the record, are 
available for inspection in accordance with Sec.  0.453.
    (b) Documents 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 Reference Information Center, via the Electronic 
Document Management System (EDOCS), or as otherwise specified in the 
rulemaking document published in the Federal Register.
    (d) Formal policy statements and interpretations designed to have 
general applicability are published on the Commission's Web site and 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) Copies of all records that have been released to any person 
under Sec.  0.461 and that because of the nature of their subject 
matter, the Commission determines have become or are likely to become 
the subject of subsequent requests for substantially the same records, 
or that have been requested three or more times, are made available in 
electronic format.

[[Page 4189]]

    (f) 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.
    (g) 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.
    (h) 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
5. Revise Sec.  0.451 to read as follows:


Sec.  0.451   Inspection of records: Generally.

    (a) Records which are routinely available for public inspection. 
Section 0.453 specifies those Commission records which are routinely 
available for public inspection and where 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 specified in Sec.  0.453 are not 
routinely available for public inspection. Such records fall into three 
categories.
    (1) The first category consists of categories 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. This category also includes records that are the 
property of another agency that the Commission has no authority to 
release for 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. As applicable, procedures governing 
demands by competent authority for inspection of these records are set 
forth in Sec.  0.463.
    (2) The second category consists of records that are not specified 
in Sec.  0.453 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 an individualized 
determination is required. Procedures governing requests for inspection 
of these records are set forth in Sec.  0.461. Procedures governing 
demands by competent authority for inspection of these records are set 
forth in Sec.  0.463.
    (3) The third category consists of material previously released 
consistent with the agency's rules that the agency determines is not 
likely to become the subject of a subsequent FOIA request or otherwise 
likely to be of broader public interest.
    (4) 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 
disclose information contained therein. This provision does not 
restrict the inspection or disclosure of records described in Sec.  
0.453(b)(3).
    (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 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).

0
6. Revise Sec.  0.453 to read as follows:


Sec.  0.453   Public reference rooms.

    The Commission's main Web site at https://www.fcc.gov and its 
electronic reading room at https://www.fcc.gov/general/freedom-information-act-electronic-reading-room host the Commission's online 
public reference room. The Commission also maintains the FCC Reference 
Information Center as its public reference room at its offices in 
Washington, DC.
    (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). ECFS serves as the repository for official 
filings in the FCC's docketed proceedings from 1992 to the present. The 
public can use ECFS to retrieve any document in the system, including 
selected pre-1992 documents.
    (b) The Commission will maintain a regularly updated listing of 
other routinely available records in its electronic reading room at 
https://www.fcc.gov/general/freedom-information-act-electronic-reading-room.


Sec.  0.455  [Removed]

0
7. Remove Sec.  0.455.

0
8. Revise Sec.  0.457 to read as follows:


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. 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 
Commission will permit inspection of records unless

[[Page 4190]]

Commission staff reasonably foresees that disclosure would harm an 
interest protected by the exemptions described in 5 U.S.C. 552(b) or 
where disclosure is prohibited by law. 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 Sec.  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. 13526, ``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.
    (b) Materials that are related solely to the internal personnel 
rules and practices of the Commission, 5 U.S.C. 552(b)(2).
    (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), 5 U.S.C. 552(b)(3). 
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-to-point 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 
Sec.  0.461. Normally, however, such data and information is available 
for inspection.
    (3) Under section 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 
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 Sec.  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) The Trade Secrets Act, 18 U.S.C. 1905, prohibits the 
unauthorized disclosure of certain confidential information. See 
paragraph (d) of this section and Sec.  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 Sec.  0.459. A persuasive showing as to the 
reasons for inspection will be required in requests submitted under 
Sec.  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 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 Sec.  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, except as otherwise specified by the Commission by order or by 
the International Bureau under delegated authority. See, e.g., 
International Settlements Policy Reform, IB Docket Nos. 11-80, 05-254, 
09-10, RM-11322, Report and Order, FCC 12-145 (rel. Nov. 29, 2012).
    (vi) Outage reports filed under part 4 of this chapter.

[[Page 4191]]

    (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 operator-to-operator 
arrangements.
    (viii) Information submitted with a 911 reliability certification 
pursuant to 47 CFR 12.4 that consists of descriptions and documentation 
of alternative measures to mitigate the risks of nonconformance with 
certification elements, information detailing specific corrective 
actions taken with respect to certification elements, or supplemental 
information requested by the Commission with respect to such 
certification.
    (ix) Confidential Broadcaster Information, as defined in Sec.  
1.2206(d) of this chapter, submitted by a broadcast television licensee 
in a broadcast television spectrum reverse auction conducted under 
section 6403 of the Middle Class Tax Relief and Job Creation Act of 
2012 (Pub. L. 112-96) (the ``Spectrum Act''), or in the application to 
participate in such a reverse auction, is not routinely available for 
public inspection until the reassignments and reallocations under 
section 6403(b)(1)(B) of the Spectrum Act become effective or until two 
years after public notice that the reverse auction is complete and that 
no such reassignments and reallocations shall become effective. In the 
event that reassignments and reallocations under section 6403(b)(1)(B) 
of the Spectrum Act become effective, Confidential Broadcaster 
Information pertaining to any unsuccessful reverse auction bid or 
pertaining to any unsuccessful application to participate in such a 
reverse auction will not be routinely available for public inspection 
until two years after the effective date.
    (x) Copyrighted materials the release of which would have a 
substantial adverse effect on the copyright holder's potential market, 
except to the extent such a release can be considered fair use.

    Note to paragraph (d)(1): 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 Sec.  0.459. If it is shown in the request 
that the materials contain trade secrets or 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 Sec.  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 Sec.  0.461. Normally such papers are 
privileged and not available to private parties through the discovery 
process, because 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. The Commission will not use this 
deliberative process exemption to withhold records created 25 years or 
more before the date on which the request was received.
    (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. 12107, 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 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
    (6) Could reasonably be expected to endanger the life or physical 
safety of any individual.

0
9. Revise Sec.  0.460 to read as follows:


Sec.  0.460  Requests for inspection of records which are routinely 
available for public inspection.

    (a) Section 0.453 specifies 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 Reference Information Center and ask to see the records. Many 
records also are available on the Commission's Web site, https://www.fcc.gov and the Commission's electronic reading room, https://www.fcc.gov/general/freedom-information-act-electronic-reading-room. 
Commission documents are generally published in the FCC Record, and 
many of these 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 Sec.  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

[[Page 4192]]

requesting them 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 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 for records routinely available for public 
inspection under Sec.  0.453 shall be directed to the Commission's 
Reference Information Center pursuant to the procedures set forth in 
Sec.  0.465. Requests shall set out all information known to the person 
making the request which would be helpful in identifying and locating 
the document, including the date range of the records sought, if 
applicable. Upon request by Commission staff, the requester shall 
provide his or her street address, phone number (if any), and email 
address (if any). Written requests shall, in addition, specify the 
maximum search fee the person making the request is prepared to pay 
(see Sec.  0.467).
    (2) Written requests shall be delivered or mailed directly to the 
Commission's Reference Information Center (see Sec.  0.465(a)).
    (f) When a written request is received by the Reference Information 
Center, it will be date-stamped.
    (g) All requests limited to records listed in Sec.  0.453 will be 
granted, subject to paragraph (j) of this section.
    (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;
    (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.

0
10. Revise Sec.  0.461 to read as follows:


Sec.  0.461   Requests for inspection of materials not routinely 
available for public inspection.

    Any person desiring to inspect Commission records that are not 
specified in Sec.  0.453 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 Sec.  
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.
    (2) The records in question must be reasonably described by the 
person requesting them to permit personnel to locate them 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 must 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 reasonably describe, for each document 
requested (see Sec.  0.461(a)(1)), all information known to the person 
making the request that would be helpful in identifying and locating 
the document, including the date range of the records sought, if 
applicable, and the persons/offices to be searched, if known. Upon 
request by Commission staff, the requester shall provide his or her 
street address, phone number (if any), and email address (if any).
    (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 Sec.  
0.470(e)). By filing a FOIA request, the requester agrees to pay all 
applicable fees charged under Sec.  0.467, unless the person making the 
request seeks a waiver of fees (see Sec.  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 Sec.  0.457 or if 
they have been withheld from inspection under Sec.  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) Filed electronically though the Internet at https://foiaonline.regulations.gov/; or
    (ii) Delivered or mailed to the Managing Director, Attn: FOIA 
Request, FCC, 445 12th Street SW., Room 1-A836, Washington, DC 20554.
    (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. The Chief of the Bureau or Office may also 
designate an appropriate person to sign the response to any FOIA 
request. See Sec.  0.461(m).
    (3) If the request is for materials submitted to the Commission by 
third parties and not open to routine public inspection under Sec.  
0.457(d), Sec.  0.459, or another Commission rule or order, or if a 
request for confidentiality is pending pursuant to Sec.  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 paragraph

[[Page 4193]]

(e) of this section) 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 submitters 
will be given ten calendar days to respond to the FOIA request. See 
Sec.  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 Sec.  
0.459). This response shall be served on the party seeking to inspect 
the records. The requester may submit a reply within ten calendar 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, Sec.  
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 entered into the FOIAonline system. The 
request will be reviewed and, if it is determined that the request 
meets all the requirements of a proper FOIA request, will be designated 
as perfected. 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) Where the amount of fees authorized is less than the estimated 
cost for completing the production;
    (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 Sec.  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 inspection of records under 
paragraph (e)(2)(i)(A) of this section. Such request must be made no 
later than ten calendar days after a request is properly received by 
the custodian of records under paragraph (e)(1) of this section.
    (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 
email at foia-public-liaison@fcc.gov or by viewing their request at 
https://foiaonline.regulations.gov/.
    (4) Multiple FOIA requests by the same or different FOIA requesters 
may be consolidated for disposition. See also Sec.  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.
    (iii) If the records in the possession of the Commission involve 
the equities of another agency, the Commission will consult with that 
agency prior to releasing the records.
    (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 has 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 Commission may, at its discretion, grant the 
request in full or in part, or deny the request.
    (5) If there is a statutory basis for withholding part of a 
document from inspection, to the extent that portion is reasonably 
segregable, that part will be deleted and the remainder will be made 
available for inspection. Unless doing so would harm an interest 
protected by an applicable exemption, records disclosed in part shall 
be marked or annotated, if technically feasible, to show the amount of 
information deleted, the location of the information deleted, and the 
exemption under which the deletion is made.
    (6) In locating and recovering records responsive to an FOIA 
request, only those records within the Commission's possession and 
control as of the date a request is perfected 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 
perfected by the FOIA Control Office. However, if a request for 
clarification has been made under paragraph (e)(2)(i)(A) of this 
section or an issue is outstanding regarding the payment of fees for 
processing the FOIA request is pending under paragraph (e)(2)(i)(B) of 
this section, 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, upon timely notice to the requester, 
extend the time for action by up to ten business days, in any of the 
following circumstances:
    (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

[[Page 4194]]

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 email 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 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 provide the requester 
with the records, if any, that could be located and produced within the 
allotted time. The requester may file an application for review by the 
Commission.
    (3) If the custodian of the records grants a request for inspection 
of records submitted to the Commission in confidence under Sec.  
0.457(d), Sec.  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 
paragraph (i) of this section.
    (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 paragraph (d) of this section.
    (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. 
Simply stating that the request should be expedited is not a sufficient 
basis to obtain expedited processing.
    (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 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 shall be delivered or mailed to the General 
Counsel. (For general procedures relating to applications for review, 
see Sec.  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 Sec.  0.457(d), Sec.  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 shall 
be filed within ten business days after the date of the written ruling, 
shall be delivered or mailed to the General Counsel, or sent via email 
to FOIA-Appeal@fcc.gov, 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. An application for review is considered filed when it 
is received by the Commission. 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. A denial of an application for review is not subject to 
a petition for reconsideration under Sec.  1.106 of this chapter.
    (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 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 Sec.  0.467 through Sec.  0.470), 
or a fee reduction or waiver decision (see Sec.  0.470(e)) may be filed 
only by the person who made the request. The application shall be filed 
within 90 calendar days after the date of the written ruling by the 
custodian of records. An application for review is considered filed 
when it is received by the Commission. The application shall be 
delivered or mailed to the General Counsel, or sent via email to FOIA-Appeal@fcc.gov. If the proceeding involves records subject to 
confidential treatment under Sec.  0.457 or Sec.  0.459, or involves a 
person with an interest as described in Sec.  0.461(i), the application 
for review shall be served on such persons. That person may file a 
response within 14 calendar 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 14 calendar 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 Sec.  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 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

[[Page 4195]]

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 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 paragraph (i) or (j) of this section.
    (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.

0
11. Revise Sec.  0.465 to read as follows:


Sec.  0.465   Request for copies of materials which are available, or 
made available, for public inspection.

    (a) The Commission may award 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, if any, 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/consumer-governmental-affairs. Questions regarding this information should be 
directed to the Reference Information Center of the Consumer and 
Governmental Affairs Bureau at 202-418-0270.

    (b)(1) Records routinely available for public inspection under 
Sec.  0.453 are available to the public through the Commission's 
Reference Information Center. Section 0.461 does not apply to such 
records.
    (2) Audio or video recordings or transcripts of Commission 
proceedings are available to the public through the Commission's 
Reference Information Center. 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 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 Sec.  0.467. For copies prepared with 
other media, such as thumb drives or other portable electronic storage, 
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.

    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 Sec.  0.470(e).

    (3) Certified documents. Copies of documents which are available or 
made available, for inspection under Sec. Sec.  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 
paragraph (c)(2) of this section. The fee for certification shall be 
$10 for each document.
    (d)(1) Computer maintained databases produced by the Commission and 
routinely available to the public (see Sec.  0.453) 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 Reference Information Center.
    (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 Reference Information Center (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 Sec. Sec.  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 
Sec. Sec.  0.421 and 0.423) or on the Commission's Web site, https://www.fcc.gov/formpage.html.

0
12. Revise Sec.  0.467 to read as follows:

[[Page 4196]]

Sec.  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 Sec.  0.460 or 
Sec.  0.461, unless such fees are reduced or waived pursuant to Sec.  
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 non-FCC personnel who conduct a search.

    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 or 
the hourly rate of non-FCC personnel, including in addition 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 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 Sec.  0.465(c)(2) and 
Sec.  0.470(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 Sec.  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.

0
13. Revise Sec.  0.470 to read as follows:


Sec.  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 Sec.  0.466 and Sec.  0.467.
    (ii) Commercial use requesters shall not be assessed search fees if 
the Commission fails to comply with the time limits under Sec.  
0.461(g), except as provided in paragraph (a)(1)(iii) of this section.
    (iii) Commercial requesters may still be assessed search fees when 
the Commission fails to comply with the time limits under Sec.  
0.461(g) if the Commission determines that unusual circumstances apply 
and more than 5,000 pages are necessary to respond to the request, so 
long as the Commission has provided a timely written notice to the 
requester and has discussed with the requester (or made not less than 
three good-faith attempts to do so) how the requester could effectively 
limit the scope of the request. Additionally, if a court has determined 
that exceptional circumstances exist, a failure to comply with a time 
limit under Sec.  0.461(g) will be excused for the length of time 
provided by the court order.
    (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 duplication only, pursuant to Sec.  0.465 
above, excluding duplication 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 
duplication if the Commission fails to comply with the time limits 
under Sec.  0.461(g), except as provided in paragraph (a)(2)(iii) of 
this section.
    (iii) Educational requesters or requesters who are representatives 
of the news media may still be assessed duplication fees when the 
Commission fails to comply with the time limits under Sec.  0.461(g) if 
the Commission determines that unusual circumstances apply and more 
than 5,000 pages are necessary to respond to the request, so long as 
the Commission has provided a timely written notice to the requester 
and has discussed with the requester (or made not less than three good-
faith attempts to do so) how the requester could effectively limit the 
scope of the request. Additionally, if a court has determined that 
exceptional circumstances exist, a failure to comply with a time limit 
under Sec.  0.461(g) will be excused for the length of time provided by 
the court order.
    (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 duplicating 
records that are responsive to the request, pursuant to Sec.  0.465 and 
Sec.  0.467, except that the first 100 pages of duplication 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 Sec.  0.461(g), 
except as provided in paragraph (a)(3)(iii) of this section.
    (iii) All other requesters may still be assessed search fees when 
the Commission fails to comply with the time limits under Sec.  
0.461(g) if the Commission determines that unusual circumstances apply 
and more than 5,000 pages are necessary to respond to the request, so 
long as the Commission has provided a timely written notice to the 
requester and has discussed with the requester (or made not less than 
three good-faith attempts to do so) how the requester could effectively 
limit the scope of the request. Additionally, if a court has determined 
that exceptional circumstances exist, a failure to comply with a time 
limit under Sec.  0.461(g) will be excused for the length of time 
provided by the court order.
    (b)(1) The 100 page restriction on assessment of duplication fees 
in paragraphs (a)(2) and (3) of this section refers to 100 paper copies 
of a standard size, which will normally be 8\1/2\'' x 11'' or 11'' x 
14''.
    (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

[[Page 4197]]

agency will aggregate any such requests and assess charges accordingly.
    (c) When a requester believes he or she is entitled to 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 
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.
    (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 Sec.  0.467(e)(2).
    (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 Commission staff determines that the total fee 
calculated under this section likely is less than the cost to collect 
and process the fee, no fee will be charged.
    (g) Review of initial fee determinations under Sec.  0.467 through 
Sec.  0.470 and initial fee reduction or waiver determinations under 
paragraph (e) of this section may be sought under Sec.  0.461(j).

PART 1--PRACTICE AND PROCEDURE

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

    Authority: 15 U.S.C. 79 et seq.; 47 U.S.C. 151, 154(i), 154(j), 
155, 157, 160, 201, 225, 227, 303, 309, 310, 332, 1403, 1404, 1451, 
1452, and 1455.

0
15. Amend Sec.  1.115 by revising paragraph (d) to read as follows:


Sec.  1.115   Application for review of action taken pursuant to 
delegated authority.

* * * * *
    (d) Except as provided in paragraph (e) of this section and in 
Sec.  0.461(j) of this chapter, the application for review and any 
supplemental thereto shall be filed within 30 days of public notice of 
such action, as that date is defined in Sec.  1.4(b). Opposition to the 
application shall be filed within 15 days after the application for 
review is filed. Except as provided in paragraph (e)(3) of this 
section, replies to oppositions shall be filed within 10 days after the 
opposition is filed and shall be limited to matters raised in the 
opposition.
* * * * *
[FR Doc. 2016-31703 Filed 1-12-17; 8:45 am]
 BILLING CODE 6712-01-P