Freedom of Information Act Regulations, 3699-3701 [2019-02181]
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Federal Register / Vol. 84, No. 30 / Wednesday, February 13, 2019 / Rules and Regulations
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rule, a publisher may register a group of
newspapers if the applicant submits the
claim using the appropriate electronic
application and submits a PDF copy of
each issue within three months after the
publication of the earliest issue in the
group.5 Unlike the paper application,
the electronic registration system
contains automated validations that
enforce this three-month deadline.
Since the Office implemented these
new requirements, several newspaper
publishers have reported difficulty and
delays in creating PDF copies. Many
publishers have not been able to submit
their claims before the three-month
deadline. And some publishers have
attempted to bypass the validations in
the electronic system by submitting a
paper application and microfilm copies.
The Office has refused to register these
claims, because they were submitted on
a paper form and with the wrong
deposit, or because they were received
after the deadline. On average, it takes
three months or more to process a paper
application and a physical deposit,6 so
by the time the Office has issued a
refusal, the publisher may not have an
opportunity to resubmit their claim on
the appropriate form and with an
appropriate deposit.
To address these problems and ensure
that newspaper publishers can obtain
the statutory benefits of registration, the
Office has decided to eliminate the
three-month filing requirement. This
will provide more flexibility for
applicants, and allow them to register
issues that otherwise would be
ineligible for registration. The Office
will remove the automated validation
that prevents publishers from
submitting issues that are more than
three months old. Beginning on
February 18, 2019, publishers will be
permitted to submit claims through the
electronic registration system, regardless
of when their issues were published.
Likewise, publishers may electronically
resubmit claims that were refused
because they were filed on a paper form
or without a digital deposit, or because
they were received after the three month
deadline. To do so, publishers must
submit a new application (using the
electronic form designated for
newspaper issues), a new digital
deposit, and a new filing fee.
5 37 CFR 202.4(e). The new deadline was based
on the date of publication for the earliest issue in
the group (rather than the most recent) for the
reasons stated in the notice of proposed rulemaking
dated November 6, 2017. See 82 FR at 51377–78.
6 See U.S. Copyright Office, Registration
Processing Times, available at https://
www.copyright.gov/registration/docs/processingtimes-faqs.pdf.
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Jkt 247001
The Office will monitor this change to
the rule to determine whether it
succeeds in incentivizing increased
registrations and to ensure that it does
not have an adverse effect on the
Library’s collections. In the meantime,
the Office has prepared a video tutorial
that provides step-by-step instructions
on how to complete the electronic
application and upload digital copies.7
The help text that accompanies the
application also provides answers to
frequently asked questions.8 And the
Office has published a circular that
provides detailed information about the
group registration process.9
The Office still encourages publishers
to submit their claims within three
months of publication, because it may
provide certain legal benefits. To seek
statutory damages and attorney’s fees in
an infringement action, publishers must
register their issues in a timely manner.
Specifically, a publisher typically may
seek these remedies if a newspaper
issue was registered (i) before the
infringement commenced or (ii) within
three months after the first publication
of that work. See 17 U.S.C. 412.
The Office finds there is good cause
for adopting this amendment without
first publishing a notice of proposed
rulemaking, because it is a ‘‘rule[ ] of
agency organization, procedure, or
practice.’’ 10 It does not adversely ‘‘alter
the rights or interests of parties’’—if
anything, it eases the requirements for
applicants choosing to exercise this
option by removing the time restriction
on its availability.11 It therefore merely
‘‘alter[s] the manner in which the
parties present themselves . . . to the
agency.’’ 12 Id. Thus, notice and
comment is not required under the
Administrative Procedure Act.
All other provisions in the current
regulation on group registration of
newspapers remain unaffected.
List of Subjects in 37 CFR Part 202
Copyright.
For the reasons set forth above, the
Copyright Office amends 37 CFR part
202 as follows:
7 See Group of Newspaper Issues Tutorial, U.S.
Copyright Office, https://www.copyright.gov/eco/
newspaper.mp4.
8 See Help: Group Registration of Newspaper
Issues, U.S. Copyright Office, https://
www.copyright.gov/eco/help-newspapers.html.
9 See U.S. Copyright Office, Circular 62A: Group
Registration of Newspapers (2018), available at
https://www.copyright.gov/circs/circ62a.pdf.
10 5 U.S.C. 553(b)(A).
11 JEM Broad. Co. v. FCC, 22 F.3d 320, 326 (D.C.
Cir. 1994); see also 5 U.S.C. 553(d)(1) (publication
30 days before effective date of substantive rule not
required for rule that ‘‘grants or recognizes an
exemption or relieves a restriction’’).
12 JEM Broad. Co., 22 F.3d at 326.
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3699
PART 202—PREREGISTRATION AND
REGISTRATION OF CLAIMS TO
COPYRIGHT
1. The authority citation for part 202
continues to read as follows:
■
Authority: 17 U.S.C. 408(f), 702.
§ 202.4
[Amended]
2. Amend § 202.4 by removing
paragraph (e)(7).
■
Dated: January 31, 2019.
Karyn A. Temple,
Acting Register of Copyrights and Director
Of the U.S. Copyright Office.
Approved by:
Carla D. Hayden,
Librarian of Congress.
[FR Doc. 2019–02186 Filed 2–12–19; 8:45 am]
BILLING CODE 1410–30–P
LIBRARY OF CONGRESS
Copyright Office
37 CFR Part 203
[Docket No. 2017–1]
Freedom of Information Act
Regulations
U.S. Copyright Office, Library
of Congress.
ACTION: Final rule.
AGENCY:
The U.S. Copyright Office is
issuing a final rule that amends its
regulations governing its practices and
procedures under the Freedom of
Information Act (FOIA). The final rule
closely follows the February 7, 2017
interim rule, implementing the FOIA
Improvement Act of 2016. The final rule
makes limited modifications to align
with public comments and to promote
further regulatory clarity and customer
service.
DATES: Effective date: March 15, 2019.
FOR FURTHER INFORMATION CONTACT:
Regan A. Smith, General Counsel and
Associate Register of Copyrights, by
email at regans@copyright.gov, or by
telephone at 202–707–8350; or
Catherine Zaller Rowland, Associate
Register of Copyrights and Director of
Public Information and Education, by
email at crowland@copyright.gov, or by
telephone at 202–707–0956.
SUPPLEMENTARY INFORMATION:
SUMMARY:
I. Background
The Freedom of Information Act
(FOIA), section 552 of title 5 of the
United States Code, provides a statutory
right of access to federal agency records.
In part, FOIA establishes procedures by
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3700
Federal Register / Vol. 84, No. 30 / Wednesday, February 13, 2019 / Rules and Regulations
which a member of the public may
request records from a federal agency
and the parameters by which an agency
must operate when responding to a
request from the public. FOIA requires
agencies to promulgate regulations
addressing the logistical requirements of
making requests, fees, and expedited
processing 1 while providing areas of
discretionary authority.
In 2017, the Copyright Office (the
‘‘Office’’) published an Interim Rule 2 in
response to the FOIA Improvement Act
of 2016 (the ‘‘Act’’),3 which amended
FOIA to address a range of procedural
issues and required federal agencies
subject to FOIA to review and update
their regulations. In its interim rule, the
Office updated its regulations to
conform with the Act, including the
Act’s prohibition on charging fees after
certain agency failures, specifying a
ninety-day period for filing an
administrative appeal, and requiring
that records be made available in
electronic format. The Office also
adopted, where appropriate, the
template for agency FOIA regulations
released by the Office of Information
Policy at the Department of Justice (DOJ
OIP). The template provided a clear
structure for the required regulatory
provisions, allowed the Office to
formalize its multi-track processing
practices, and established clear
regulatory language to improve
customer service.4 In December 2018,
the Office also made minor technical
changes to its FOIA regulations to
reflect the Office’s current
organizational structure while updating
its licensing regulations relating to
section 115 of title 17.5
The Office received comments from
two individuals as well as the National
Archives and Records Administration
(NARA).6 Having reviewed and
carefully considered these comments,
the Office now issues a final rule that
closely follows the proposed rule, with
minor amendments as discussed below.
II. Discussion of Comments and Other
Considerations
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A. NARA Record Schedule Technical
Correction
NARA submitted a technical
comment related to § 203.10,
Preservation of Records, which
referenced General Records Schedule
15
U.S.C. 552 (a)(1), (a)(4)(A)(i), and (a)(6)(E)(i).
FR 9505 (Feb. 7, 2017).
3 Public Law 114–185, 130 Stat. 538 (2016).
4 82 FR at 9506 (Feb. 7, 2017).
5 83 FR 63061 at 63064–65 (Dec. 7, 2018).
6 The comments can be found on the Copyright
Office’s website at https://www.copyright.gov/
rulemaking/foia2016/.
2 82
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16:46 Feb 12, 2019
Jkt 247001
(GRS) 14. NARA notes that GRS 14 was
replaced with a new records schedule,
GRS 4.2.7 The final rule incorporates
this change.
B. Comments From Individuals
Both individual commenters wrote in
support of the Office’s interim rule as an
effort to provide citizens with access to
records and improve agency
responsiveness to the public. One
commenter also voiced a general
concern that access to records should
not be dependent upon access to
technology.8 The Office recognizes that
individuals without access to
technology can encounter unique
obstacles to accessing the Office’s
information and records but believes
that these concerns are adequately
addressed by the Office’s regulations
and practices and that no amendments
are required to the rule.
The Office receives a large number of
its FOIA requests from individuals
without access to technology, often for
records that are already made publicly
available by the Office in electronic
form. When the Office receives such a
request, it responds in writing by mail
and includes copies of the requested
documents, even if they are otherwise
publicly available on the Office’s
website at www.copyright.gov. Further,
the Office maintains the Public
Information Office (PIO), which assists
callers and correspondents in accessing
information, including by providing
printed copies of proactively disclosed
records upon request.
C. Other Considerations and Technical
Changes
The Office has made three additional
technical changes to the final rule based
on its ongoing review of the law and
additional guidance made publicly
available by DOJ OIP. First, the Office
has added language to the rule in
§ 203.7(c), explaining that the Office
will alert requesters as to the availability
of mediation services offered by NARA’s
Office of Government Information
Services when the Office provides
notice of unusual circumstances. The
interim rule included language
explaining that the Office would alert a
requester of the dispute resolution
services when issuing a denial
notification but inadvertently omitted
similar language in the rule with regard
to notices of delays due to unusual
circumstances. The Office’s practices
have been to notify requesters of their
right to dispute resolution services in
both denials and notices of unusual
7 NARA
8 Jenna
PO 00000
Comment at 1.
Rainey Comment at 1.
Frm 00032
Fmt 4700
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circumstances, and the final rule now
reflects the Office’s practices.
Second, the final rule clarifies in
§ 203.11(j) that only Privacy Act 9
requests are processed under the
Office’s Privacy Act fee schedule. The
Office makes this technical amendment
to clear up any possible confusion about
the Privacy Act fee schedule by
changing the language to focus on the
type of request rather than the requester.
Third, the Office has amended
§ 203.11(k) to adopt the streamlined fee
waiver factors published by the DOJ OIP
subsequent to the publication of the
Office’s interim rule.10 This updated
template language improves regulatory
clarity but does not materially change
the proposed § 203.11(k).
Accordingly, for the reasons
explained above, the Office has
determined that these additional
amendments comprise non-substantive,
procedural changes not ‘‘alter[ing] the
rights or interests of the parties,’’ and
thus are not subject to further notice and
comment requirements of the
Administrative Procedure Act.11
List of Subjects in 37 CFR Part 203
Freedom of information.
Final Regulations
For the reasons set forth above, the
Copyright Office adopts the interim rule
amending 37 CFR part 203 which was
published at 82 FR 9505 on February 7,
2017, as amended by 83 FR 63064 on
December 7, 2018, as final with the
following changes:
PART 203—FREEDOM OF
INFORMATION ACT: POLICIES AND
PROCEDURES
1. The authority citation for part 203
continues to read as follows:
■
Authority: 5 U.S.C. 552.
2. Amend § 203.7 by revising
paragraph (c)(1)(i) introductory text to
read as follows:
■
§ 203.7
*
Timing of responses to requests.
*
*
(c) * * *
95
*
*
U.S.C. 552a.
Template for Agency FOIA Regulations,
https://www.justice.gov/oip/template-agency-foiaregulations (last updated Feb. 22, 2017).
11 See Nat’l Mining Ass’n v. McCarthy, 758 F.3d
243, 250 (D.C. Cir. 2014) (‘‘The critical feature of
a procedural rule is that it covers agency actions
that do not themselves alter the rights or interests
of parties, although it may alter the manner in
which the parties present themselves or their
viewpoints to the agency.’’) (internal quotation
marks omitted); 5 U.S.C. 553(b)(A) (notice and
comment not required for ‘‘interpretative rules,
general statements of policy, or rules of agency
organization, procedure, or practice’’).
10 See
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Federal Register / Vol. 84, No. 30 / Wednesday, February 13, 2019 / Rules and Regulations
(1)(i) Whenever the Office cannot
meet the statutory time limit for
processing a request because of
‘‘unusual circumstances,’’ as defined in
paragraph (c)(2) of this section, the
Office will notify the requester in
writing of the unusual circumstances
and the estimated date of determination,
and alert requesters to the availability of
the Office of Government Information
Services (OGIS) to provide dispute
resolution services. Where an extension
of time greater than 10 days is required,
the Office will give the requester the
opportunity to:
*
*
*
*
*
§ 203.10
[Amended]
3. Amend § 203.10 by removing
‘‘General Records Schedule 14’’ and
adding in its place ‘‘General Records
Schedule 4.2’’.
■ 4. Amend § 203.11 by revising
paragraphs (j) and (k) to read as follows:
■
§ 203.11
Fees.
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*
*
*
*
*
(j) Other statutes specifically
providing for fees. The provisions of this
section do not apply with respect to the
charging of fees for which the copyright
law requires a fee to be charged.
Requests processed under the Privacy
Act of 1974, 5 U.S.C. 552a, shall be
subject to the fee schedule found in
§ 204.6 of this chapter. Fees for services
by the Office in the administration of
the copyright law are contained in
§ 201.3 of this chapter. In instances
where records responsive to a request
are subject to the statutorily-based fee
schedule, the Office will inform the
requester of the service and appropriate
fee.
(k) Requirements for waiver or
reduction of fees. (1) Requesters may
seek a waiver of fees by submitting a
written application demonstrating how
disclosure of the requested information
is in the public interest because it is
likely to contribute significantly to
public understanding of the operations
or activities of the government and is
not primarily in the commercial interest
of the requester.
(2) The Office shall furnish records
responsive to a request without charge
or at a reduced rate when it determines,
based on all available information, that
the factors described in paragraphs
(k)(2)(i) through (iii) of this section are
satisfied:
(i) Disclosure of the requested
information would shed light on the
operations or activities of the
government. The subject of the request
must concern identifiable operations or
activities of the Federal Government
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16:46 Feb 12, 2019
Jkt 247001
with a connection that is direct and
clear, not remote or attenuated.
(ii) Disclosure of the requested
information is likely to contribute
significantly to public understanding of
those operations or activities. This
factor is satisfied when the following
criteria are met:
(A) Disclosure of the requested
records must be meaningfully
informative about government
operations or activities. The disclosure
of information that already is in the
public domain, in either the same or a
substantially identical form, would not
be meaningfully informative if nothing
new would be added to the public’s
understanding.
(B) The disclosure must contribute to
the understanding of a reasonably broad
audience of persons interested in the
subject, as opposed to the individual
understanding of the requester. A
requester’s expertise in the subject area
as well as the requester’s ability and
intention to effectively convey
information to the public will be
considered. The Office will presume
that a representative of the news media
will satisfy this consideration.
(iii) The disclosure must not be
primarily in the commercial interest of
the requester. To determine whether
disclosure of the requested information
is primarily in the commercial interest
of the requester, the Office will consider
the following criteria:
(A) The Office shall identify whether
the requester has any commercial
interest that would be furthered by the
requested disclosure. A commercial
interest includes any commercial, trade,
or profit interest. Requesters shall be
given an opportunity to provide
explanatory information regarding this
consideration.
(B) If there is an identified
commercial interest, the Office shall
determine whether that is the primary
interest furthered by the request. A
waiver or reduction of fees is justified
when the requirements of paragraphs
(k)(2)(i) and (ii) of this section are
satisfied and any commercial interest is
not the primary interest furthered by the
request. The Office ordinarily will
presume that when a news media
requester has satisfied factors in
paragraphs (k)(2)(i) and (ii) of this
section, the request is not primarily in
the commercial interest of the requester.
Disclosure to data brokers or others who
merely compile and market government
information for direct economic return
will not be presumed to primarily serve
the public interest.
(3) Where only some of the records to
be released satisfy the requirements for
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3701
a waiver of fees, a waiver shall be
granted for those records.
(4) Requests for a waiver or reduction
of fees should be made when the request
is first submitted to the Office and
should address the criteria referenced
above. A requester may submit a fee
waiver request at a later time so long as
the underlying record request is
pending or on administrative appeal.
When a requester who has committed to
pay fees subsequently asks for a waiver
of those fees and that waiver is denied,
the requester shall be required to pay
any costs incurred up to the date the fee
waiver request was received.
Dated: January 28, 2019.
Karyn A. Temple,
Acting Register of Copyrights and Director
of the U.S. Copyright Office.
Approved by:
Carla D. Hayden,
Librarian of Congress.
[FR Doc. 2019–02181 Filed 2–12–19; 8:45 am]
BILLING CODE 1410–30–P
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 52
[EPA–R05–OAR–2017–0212; FRL–9989–23–
Region 5]
Air Plan Approval; Wisconsin;
Reasonable Further Progress Plan and
Other Plan Elements for the Moderate
Nonattainment Chicago Area for the
2008 Ozone Standards
Environmental Protection
Agency (EPA).
ACTION: Final rule.
AGENCY:
The Environmental Protection
Agency (EPA) is finalizing approval of
a revision to the Wisconsin State
Implementation Plan (SIP) to meet the
base year emissions inventory,
reasonable further progress (RFP), RFP
contingency measure, nitrogen oxides
(NOX) reasonably available control
technology (RACT), and motor vehicle
inspection and maintenance (I/M)
requirements of the Clean Air Act (CAA)
for the Wisconsin portion of the
Chicago-Naperville, Illinois-IndianaWisconsin nonattainment area (Chicago
area) for the 2008 ozone National
Ambient Air Quality Standards
(NAAQS or standards). EPA is also
finalizing approval of the 2017 and 2018
transportation conformity motor vehicle
emissions budgets (MVEBs) for the
Wisconsin portion of the Chicago area
for the 2008 ozone NAAQS. EPA
proposed approval of these attainment
planning elements on August 16, 2018,
SUMMARY:
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]]>Agencies
[Federal Register Volume 84, Number 30 (Wednesday, February 13, 2019)]
[Rules and Regulations]
[Pages 3699-3701]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-02181]
-----------------------------------------------------------------------
LIBRARY OF CONGRESS
Copyright Office
37 CFR Part 203
[Docket No. 2017-1]
Freedom of Information Act Regulations
AGENCY: U.S. Copyright Office, Library of Congress.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The U.S. Copyright Office is issuing a final rule that amends
its regulations governing its practices and procedures under the
Freedom of Information Act (FOIA). The final rule closely follows the
February 7, 2017 interim rule, implementing the FOIA Improvement Act of
2016. The final rule makes limited modifications to align with public
comments and to promote further regulatory clarity and customer
service.
DATES: Effective date: March 15, 2019.
FOR FURTHER INFORMATION CONTACT: Regan A. Smith, General Counsel and
Associate Register of Copyrights, by email at regans@copyright.gov, or
by telephone at 202-707-8350; or Catherine Zaller Rowland, Associate
Register of Copyrights and Director of Public Information and
Education, by email at crowland@copyright.gov, or by telephone at 202-
707-0956.
SUPPLEMENTARY INFORMATION:
I. Background
The Freedom of Information Act (FOIA), section 552 of title 5 of
the United States Code, provides a statutory right of access to federal
agency records. In part, FOIA establishes procedures by
[[Page 3700]]
which a member of the public may request records from a federal agency
and the parameters by which an agency must operate when responding to a
request from the public. FOIA requires agencies to promulgate
regulations addressing the logistical requirements of making requests,
fees, and expedited processing \1\ while providing areas of
discretionary authority.
---------------------------------------------------------------------------
\1\ 5 U.S.C. 552 (a)(1), (a)(4)(A)(i), and (a)(6)(E)(i).
---------------------------------------------------------------------------
In 2017, the Copyright Office (the ``Office'') published an Interim
Rule \2\ in response to the FOIA Improvement Act of 2016 (the
``Act''),\3\ which amended FOIA to address a range of procedural issues
and required federal agencies subject to FOIA to review and update
their regulations. In its interim rule, the Office updated its
regulations to conform with the Act, including the Act's prohibition on
charging fees after certain agency failures, specifying a ninety-day
period for filing an administrative appeal, and requiring that records
be made available in electronic format. The Office also adopted, where
appropriate, the template for agency FOIA regulations released by the
Office of Information Policy at the Department of Justice (DOJ OIP).
The template provided a clear structure for the required regulatory
provisions, allowed the Office to formalize its multi-track processing
practices, and established clear regulatory language to improve
customer service.\4\ In December 2018, the Office also made minor
technical changes to its FOIA regulations to reflect the Office's
current organizational structure while updating its licensing
regulations relating to section 115 of title 17.\5\
---------------------------------------------------------------------------
\2\ 82 FR 9505 (Feb. 7, 2017).
\3\ Public Law 114-185, 130 Stat. 538 (2016).
\4\ 82 FR at 9506 (Feb. 7, 2017).
\5\ 83 FR 63061 at 63064-65 (Dec. 7, 2018).
---------------------------------------------------------------------------
The Office received comments from two individuals as well as the
National Archives and Records Administration (NARA).\6\ Having reviewed
and carefully considered these comments, the Office now issues a final
rule that closely follows the proposed rule, with minor amendments as
discussed below.
---------------------------------------------------------------------------
\6\ The comments can be found on the Copyright Office's website
at https://www.copyright.gov/rulemaking/foia2016/.
---------------------------------------------------------------------------
II. Discussion of Comments and Other Considerations
A. NARA Record Schedule Technical Correction
NARA submitted a technical comment related to Sec. 203.10,
Preservation of Records, which referenced General Records Schedule
(GRS) 14. NARA notes that GRS 14 was replaced with a new records
schedule, GRS 4.2.\7\ The final rule incorporates this change.
---------------------------------------------------------------------------
\7\ NARA Comment at 1.
---------------------------------------------------------------------------
B. Comments From Individuals
Both individual commenters wrote in support of the Office's interim
rule as an effort to provide citizens with access to records and
improve agency responsiveness to the public. One commenter also voiced
a general concern that access to records should not be dependent upon
access to technology.\8\ The Office recognizes that individuals without
access to technology can encounter unique obstacles to accessing the
Office's information and records but believes that these concerns are
adequately addressed by the Office's regulations and practices and that
no amendments are required to the rule.
---------------------------------------------------------------------------
\8\ Jenna Rainey Comment at 1.
---------------------------------------------------------------------------
The Office receives a large number of its FOIA requests from
individuals without access to technology, often for records that are
already made publicly available by the Office in electronic form. When
the Office receives such a request, it responds in writing by mail and
includes copies of the requested documents, even if they are otherwise
publicly available on the Office's website at www.copyright.gov.
Further, the Office maintains the Public Information Office (PIO),
which assists callers and correspondents in accessing information,
including by providing printed copies of proactively disclosed records
upon request.
C. Other Considerations and Technical Changes
The Office has made three additional technical changes to the final
rule based on its ongoing review of the law and additional guidance
made publicly available by DOJ OIP. First, the Office has added
language to the rule in Sec. 203.7(c), explaining that the Office will
alert requesters as to the availability of mediation services offered
by NARA's Office of Government Information Services when the Office
provides notice of unusual circumstances. The interim rule included
language explaining that the Office would alert a requester of the
dispute resolution services when issuing a denial notification but
inadvertently omitted similar language in the rule with regard to
notices of delays due to unusual circumstances. The Office's practices
have been to notify requesters of their right to dispute resolution
services in both denials and notices of unusual circumstances, and the
final rule now reflects the Office's practices.
Second, the final rule clarifies in Sec. 203.11(j) that only
Privacy Act \9\ requests are processed under the Office's Privacy Act
fee schedule. The Office makes this technical amendment to clear up any
possible confusion about the Privacy Act fee schedule by changing the
language to focus on the type of request rather than the requester.
---------------------------------------------------------------------------
\9\ 5 U.S.C. 552a.
---------------------------------------------------------------------------
Third, the Office has amended Sec. 203.11(k) to adopt the
streamlined fee waiver factors published by the DOJ OIP subsequent to
the publication of the Office's interim rule.\10\ This updated template
language improves regulatory clarity but does not materially change the
proposed Sec. 203.11(k).
---------------------------------------------------------------------------
\10\ See Template for Agency FOIA Regulations, https://www.justice.gov/oip/template-agency-foia-regulations (last updated
Feb. 22, 2017).
---------------------------------------------------------------------------
Accordingly, for the reasons explained above, the Office has
determined that these additional amendments comprise non-substantive,
procedural changes not ``alter[ing] the rights or interests of the
parties,'' and thus are not subject to further notice and comment
requirements of the Administrative Procedure Act.\11\
---------------------------------------------------------------------------
\11\ See Nat'l Mining Ass'n v. McCarthy, 758 F.3d 243, 250 (D.C.
Cir. 2014) (``The critical feature of a procedural rule is that it
covers agency actions that do not themselves alter the rights or
interests of parties, although it may alter the manner in which the
parties present themselves or their viewpoints to the agency.'')
(internal quotation marks omitted); 5 U.S.C. 553(b)(A) (notice and
comment not required for ``interpretative rules, general statements
of policy, or rules of agency organization, procedure, or
practice'').
---------------------------------------------------------------------------
List of Subjects in 37 CFR Part 203
Freedom of information.
Final Regulations
For the reasons set forth above, the Copyright Office adopts the
interim rule amending 37 CFR part 203 which was published at 82 FR 9505
on February 7, 2017, as amended by 83 FR 63064 on December 7, 2018, as
final with the following changes:
PART 203--FREEDOM OF INFORMATION ACT: POLICIES AND PROCEDURES
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1. The authority citation for part 203 continues to read as follows:
Authority: 5 U.S.C. 552.
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2. Amend Sec. 203.7 by revising paragraph (c)(1)(i) introductory text
to read as follows:
Sec. 203.7 Timing of responses to requests.
* * * * *
(c) * * *
[[Page 3701]]
(1)(i) Whenever the Office cannot meet the statutory time limit for
processing a request because of ``unusual circumstances,'' as defined
in paragraph (c)(2) of this section, the Office will notify the
requester in writing of the unusual circumstances and the estimated
date of determination, and alert requesters to the availability of the
Office of Government Information Services (OGIS) to provide dispute
resolution services. Where an extension of time greater than 10 days is
required, the Office will give the requester the opportunity to:
* * * * *
Sec. 203.10 [Amended]
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3. Amend Sec. 203.10 by removing ``General Records Schedule 14'' and
adding in its place ``General Records Schedule 4.2''.
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4. Amend Sec. 203.11 by revising paragraphs (j) and (k) to read as
follows:
Sec. 203.11 Fees.
* * * * *
(j) Other statutes specifically providing for fees. The provisions
of this section do not apply with respect to the charging of fees for
which the copyright law requires a fee to be charged. Requests
processed under the Privacy Act of 1974, 5 U.S.C. 552a, shall be
subject to the fee schedule found in Sec. 204.6 of this chapter. Fees
for services by the Office in the administration of the copyright law
are contained in Sec. 201.3 of this chapter. In instances where
records responsive to a request are subject to the statutorily-based
fee schedule, the Office will inform the requester of the service and
appropriate fee.
(k) Requirements for waiver or reduction of fees. (1) Requesters
may seek a waiver of fees by submitting a written application
demonstrating how disclosure of the requested information is in the
public interest because it is likely to contribute significantly to
public understanding of the operations or activities of the government
and is not primarily in the commercial interest of the requester.
(2) The Office shall furnish records responsive to a request
without charge or at a reduced rate when it determines, based on all
available information, that the factors described in paragraphs
(k)(2)(i) through (iii) of this section are satisfied:
(i) Disclosure of the requested information would shed light on the
operations or activities of the government. The subject of the request
must concern identifiable operations or activities of the Federal
Government with a connection that is direct and clear, not remote or
attenuated.
(ii) Disclosure of the requested information is likely to
contribute significantly to public understanding of those operations or
activities. This factor is satisfied when the following criteria are
met:
(A) Disclosure of the requested records must be meaningfully
informative about government operations or activities. The disclosure
of information that already is in the public domain, in either the same
or a substantially identical form, would not be meaningfully
informative if nothing new would be added to the public's
understanding.
(B) The disclosure must contribute to the understanding of a
reasonably broad audience of persons interested in the subject, as
opposed to the individual understanding of the requester. A requester's
expertise in the subject area as well as the requester's ability and
intention to effectively convey information to the public will be
considered. The Office will presume that a representative of the news
media will satisfy this consideration.
(iii) The disclosure must not be primarily in the commercial
interest of the requester. To determine whether disclosure of the
requested information is primarily in the commercial interest of the
requester, the Office will consider the following criteria:
(A) The Office shall identify whether the requester has any
commercial interest that would be furthered by the requested
disclosure. A commercial interest includes any commercial, trade, or
profit interest. Requesters shall be given an opportunity to provide
explanatory information regarding this consideration.
(B) If there is an identified commercial interest, the Office shall
determine whether that is the primary interest furthered by the
request. A waiver or reduction of fees is justified when the
requirements of paragraphs (k)(2)(i) and (ii) of this section are
satisfied and any commercial interest is not the primary interest
furthered by the request. The Office ordinarily will presume that when
a news media requester has satisfied factors in paragraphs (k)(2)(i)
and (ii) of this section, the request is not primarily in the
commercial interest of the requester. Disclosure to data brokers or
others who merely compile and market government information for direct
economic return will not be presumed to primarily serve the public
interest.
(3) Where only some of the records to be released satisfy the
requirements for a waiver of fees, a waiver shall be granted for those
records.
(4) Requests for a waiver or reduction of fees should be made when
the request is first submitted to the Office and should address the
criteria referenced above. A requester may submit a fee waiver request
at a later time so long as the underlying record request is pending or
on administrative appeal. When a requester who has committed to pay
fees subsequently asks for a waiver of those fees and that waiver is
denied, the requester shall be required to pay any costs incurred up to
the date the fee waiver request was received.
Dated: January 28, 2019.
Karyn A. Temple,
Acting Register of Copyrights and Director of the U.S. Copyright
Office.
Approved by:
Carla D. Hayden,
Librarian of Congress.
[FR Doc. 2019-02181 Filed 2-12-19; 8:45 am]
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