thefederalregister.com

Daily Rules, Proposed Rules, and Notices of the Federal Government

FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 0

[FCC 08-282]

Public Information, the Inspection of Records, and Implementation of Freedom of Information Act Amendments

AGENCY: Federal Communications Commission.
ACTION: Final rule.
SUMMARY: The Commission amends its rules implementing the Freedom of Information Act (FOIA) to reflect changes in that law made by the OPEN Government Act of 2007. In addition, the rules are updated to reflect the current structure of the agency; to reflect the increased availability of records on the agency's Web site and the Commission's decisions over the years with respect to whether certain records are routinely available for public inspection; to ensure that the rules reflect the agency's experience with processing FOIA requests; and to clarify the fees applicable to FOIA requests.
DATES: Effective April 29, 2009.
FOR FURTHER INFORMATION CONTACT: Laurence H. Schecker, Special Counsel, Administrative Law Division, Office of General Counsel, 202-418-1720 orLaurence.Schecker@fcc.gov.
SUPPLEMENTARY INFORMATION:

In this Order, we amend part 0 of the Commission's rules to update sections implementing the Freedom of Information Act (FOIA), 5 U.S.C. 552.

On December 14, 2005, the President issued an Executive Order concerning implementation of the FOIA. Executive Order No. 13392,Improving Agency Disclosure of Information, 70 FR 75373 (December 14, 2005) (FOIA Executive Order). Among other things, the Executive Order required each agency to review its FOIA operations,see id.sec. 3(a), 70 FR at 75375 (December 14, 2005), to develop a plan to improve its FOIA operations,id. sec. 3(b)(iii), 70 FR at 75375 (December 14, 2005), and to report to the Attorney General about its review and plan for improving FOIA operations.Id.sec. 3(c), 70 FR at 75375 (December 14, 2005). Consistent with the Executive Order, the Commission reviewed its FOIA operations, developed a plan for improvement, and issued its report.Improving Agency Disclosure of Information: Executive Order 13392(June 14, 2006) (FCC FOIA Report),available at http://www.fcc.gov/foia/2006improv_disclosure_ report.pdf.See alsoLetter from Samuel Feder, General Counsel and Chief FOIA Officer, to Clay Johnson, III, Chairman, President's Management Council (July 30, 2007) (Updated Status Report—FOIA Implementation Plan),available at http://www.fcc.gov/foia/2006improv-update.pdf; Letter from Matthew Berry, General Counsel and Chief FOIA Officer, to Chairman Johnson (February 27, 2008) (Updated Status Report).

The Commission committed,inter alia, to review its FOIA implementing rules “[t]o ensure that the FCC's information access regulations reflect the current structure of the agency, the availability of records to the public and whether more records should be posted pursuant to [FOIA] subsection (a)(2), [5 U.S.C. 552(a)(2)], the proper procedures for processing FOIA requests and appeals, and current fee information.”FCC FOIA Reportat 9.

In late 2007, Congress passed and the President signed the Openness Promotes Effectiveness in our National Government Act, known as the OPEN Government Act. Public Law No. 110-175, 121 Stat. 2524 (2007),codified at scattered sections of5 U.S.C. 552. The FOIA amendments adopted in this statute require additional changes to our FOIA implementing regulations.

In our FY 2007 FOIA Annual Report, we modified the target date for reviewing and amending our FOIA regulations so that a single revision of the rules could address the OPEN Government Act as well as the commitment made in the FCC's FOIA Report.SeeFCC FY 2007 FOIA Annual Report, at 8-9 (Section XII.C) (http://www.fcc.gov/foia/2007foiareport.pdf);see alsoletter from Matthew Berry to Chairman Johnson (Feb. 27, 2008) (noting the change in the target date for revising our FOIA regulations). We have now completed an extensive review of our FOIA regulations and in this Order adopt various amendments to the rules. By this Order, we fulfill the commitment made in theFCC FOIA Report, as modified in our FY2007 FOIA Annual Report.

Our FOIA implementing rules are presently found at 47 CFR 0.441 through 0.470. The rules amended in this Order may generally be grouped into three sections: (1) rules describing records that are routinely available for public inspection (47 CFR 0.441, 0.445, 0.451, 0.453, 0.455, 0.460 and 0.465); (2) rules describing records that are not routinely available for public inspection and governing requests for confidential treatment (47 CFR 0.442, 0.457, 0.458, 0.459, 0.461, and 0.463); and (3) the FOIA fee rules (47 CFR 0.451(d), 0.465 through 0.470). We have reviewed these rules and, as set forth in Appendix,adopt a variety of changes to (i) reflect the current structure of the agency; (ii) reflect the increased availability of records on the FCC's Web site and the Commission's decisions over the years with respect to whether certain records are routinely available for public inspection; (iii) implement the changes to the FOIA enacted in the OPEN Government Act; (iv) ensure that the rules reflect our experience with processing FOIA requests; and (v) clarify the fees applicable to FOIA requests. The following paragraphs describe the changes we adopt in the rules.

Records Routinely Available for Public Inspection.The FOIA requires that a variety of records be made “available for public inspection and copying.” 5 U.S.C. 552(a)(2)(A)-(D) (requiring each agency to make available for public inspection and copying “final opinions * * * [and] orders made in the adjudication of cases;” policy statements that “are not published in theFederal Register;” “administrative staff manuals and instructions to staff that affect a member of the public;” and records released pursuant to a FOIA request that “the agency determines have become or are likely to become the subject of subsequent requests for substantially the same records”); FOIA Executive Order, sec. 1(b). The Electronic Freedom of Information Act Amendments of 1996 (EFOIA), Public Law No. 104-231, 110 Stat. 3048 (1996),codified at scattered sections of5 U.S.C. 552.See Amendment of Part 0 of the Commission's Rules to Implement the Electronic Freedom of Information Act Amendments of 1996, 13 FCC Rcd 3419 (1997), requires, and the FOIA Executive Order provides for, the use of electronic information technology to make records available to the public.See5 U.S.C. 552(a)(2); FOIA Executive Order, sec. 3(a)(iv), 70 FR at 75375 (December 14, 2005). We have developed an extensive Web site,http://www.fcc.gov, providing the public with broad access to our records. Our Web site also affirmatively discloses much information about the Commission, consistent with the FOIA Executive Order's direction that agencies make “proactive” and “spontaneous disclosure of information to the public” to reduce the need for the public to make FOIA requests to obtain information from agencies.Id., sec. 3(a)(iv). For example, our Web site makes available Commission and Bureau/Office level decisions, Commission rules, comments filed in rulemaking proceedings, public notices, applications for licenses or other authorizations, and policy statements and staff guidance concerning our rules and operations, just to mention a few categories of records. We also maintain paper reading rooms for public access to our records. Our rules governing access to routinely available records require updating in light of changes in the structure of the Commission, changes in the types of proceedings we conduct, Internet availability of many of our records, and electronic filing and referencing capabilities for many of our proceedings. We therefore update sections 0.441, 0.445, 0.451, 0.453, 0.455, 0.460 and 0.465 of our rules as discussed below and as set forth in the rule changes.

Section 0.441 is amended to indicate that in addition to the sources for obtaining Commission information previously listed in the rule, information may be obtained from the Commission's copy contractor. It also contains updated Internet citations and FCC headquarters locations for obtaining information. We have also amended section 0.441 to note the availability of our FOIA Public Liaison to assist persons requesting information from the Commission in resolving any concerns relating to a FOIA request. OPEN Government Act, sec. 6(b)(1)(B);see http://www.fcc.gov/foia/#contact(FOIA Public Liaison contact).

Section 0.445 contains our regulation concerning the availability of our opinions, orders, policy statements, interpretations, administrative manuals and staff instructions. 47 CFR 0.445. This rule implements various statutory requirements concerning the public availability of these documents.See5 U.S.C. 552(a)(2)(A)-(C). We are making minor modifications to this rule. We are changing the reference to Pike and Fisher Radio Regulation in section 0.445(b) to Pike and Fisher Communications Regulation, the current title of that publication.See commreg.pf.com. We are also removing paragraph (g), which currently refers to the FCC Administrative Manual, a document that no longer exists. We are modifying current paragraph (h), which will become paragraph (g), to reflect that general instructions to staff may be contained in orders published in theFederal Register. Finally, current paragraph (i), which will become paragraph (h), indicates we may redact information from published documents to protect personal privacy.See5 U.S.C. 552(a) (allowing deletion of information to protect personal privacy). We are amending this section to indicate we may also redact information required or authorized to be withheld pursuant to other Federal statutes. This amendment reflects our practice of issuing decisions redacting confidential commercial information, consistent with the Trade Secrets Act, 18 U.S.C. 1905.See Examination of Current Policy Concerning Treatment of Confidential Information Submitted to the Commission, 13 FCC Rcd 24816, 24854 (1998) (Confidentiality RO) (orders containing confidential commercial information may be released in part under seal),recon. den., 14 FCC Rcd 20128 (1999).

We are making a minor clarifying amendment to section 0.451(d), which currently refers only to search fees, to cross-reference copying and review fees that are provided for elsewhere in our FOIA regulations. We also amend section 0.451(b)(5) to cross-reference part 19 of our rules.

Two of our FOIA rules, sections 0.453 and 0.455, set out the public availability of records in our public reference rooms. 47 CFR 0.453 and 0.455. These rules are being updated to reflect the current nature of our proceedings and the structure of the agency. Section 0.453(a) is being amended to reflect the availability of the Commission's Electronic Comment Filing System (ECFS), which makes case histories available on the Internet to the public.Electronic Filing of Documents in Rulemaking Proceedings, 13 FCC Rcd 11322 (1998) (ECFS Decision). Section 0.453(a)(2)(i) provides a current list of Broadcast Services proceedings which have records that are routinely available, and section 0.453(a)(2)(ii) updates common carrier proceedings presently in the Wireline Competition Bureau. Section 0.453(a)(2)(iii)(E) is amended to delete the last sentence to reflect that the Uniform Licensing System (ULS) is now fully functional. Section 0.453(a)(2)(iv) is amended to reflect the availability of certain contracts and to eliminate references to INTELSAT and INMARSAT in light of the privatization of those entities. Finally, section 0.453(a)(2)(v) updates the list of publicly available cable service proceedings. Minor changes are made to section 0.455. We update paragraph (a) to reflect the Media Bureau materials currently available in its reference room. We also amend former paragraph (c), now (b), to indicate that Commission minutes and records for votes are available in the Office of the Secretary, not the Agenda Group. References to separate Bureau reference rooms, now consolidated in the Reference Information Center, are also removed from section 0.455.

Section 0.460 governs requests for inspection of records that are routinely available for public inspection undersections 0.453 and 0.455. Our rules have provided that records routinely available to the public can be requested either through the Commission directly or through our copy contractor. 47 CFR 0.460(f).See also47 CFR 0.465(f). While a large portion of the records routinely available for public inspection are available on our Web site, there are still some routinely available records that are only available in paper copy at the Commission. Processing written requests for these records has placed a great burden on our staff. We are therefore amending paragraph (f) to require that written requests to obtain copies of records routinely available for public inspection must be processed through the Commission's copy contractor under section 0.465. We are also amending section 0.465(f) to indicate that the Commission's copy contractor will fulfill requests for records that are routinely available under section 0.453 or 0.455. These changes do not affect those personally inspecting records at the Commission.See47 CFR 0.460(b).

Records Not Routinely Available for Public Inspection. Section 0.442 of our rules addresses situations in which we receive requests from other Federal agencies for records that were submitted to us with a request for confidential treatment or that we consider presumptively confidential. 47 CFR 0.442. This rule, based on sections of the Paperwork Reduction Act (PRA), 44 U.S.C. 3512 and 3510(b), indicates that such records will receive confidential treatment when we share them with other agencies, and sets forth the procedures we employ when we receive such requests. We are amending paragraphs (a) and (d)(3) to provide that the rule covers records that have been deemed confidential under other statutes, FCC orders, or regulations in addition to those deemed confidential under section 0.457 or 0.459. We are amending section 0.442(b) to indicate that the Commission may initiate the sharing of records with another Federal agency under this section. Paragraph (d)(1) provides for notice to the submitter of confidential information that we have received a request from another Federal agency for the records. We are amending this paragraph to make clear that we may provide this notice either individually or by public notice in instances where there are many submitters of confidential information. We are amending paragraph (d)(2) to provide that Federal agencies may request that we not provide notice to the submitter of confidential information if such notice would interfere with national security or homeland defense activities as well as law enforcement activities. 47 CFR 0.442(d)(2)-(3). We are amending paragraph (d)(2) to indicate that Federal agencies should submit such requests in writing to us. We note that such a request may be made by e-mail.

In setting forth nine FOIA disclosure exemptions, the FOIA recognizes that not all agency records may be available to the public. 5 U.S.C. 552(b)(1)-(9). Section 0.457 of our rules sets forth these exemptions and lists circumstances in which we have already determined that certain types of records are not routinely available for public inspection. Section 0.457(a) is amended to clarify that documents for which the Commission has requested national security classification from another agency will not be disclosed pending a classification determination. We have also amended section 0.457(c)(3) to reflect our previous repeal of section 43.53.See Amendment of Sections 43.51, 43.52, 43.53, 43.54 and 43.74 of the Commission's Rules To Eliminate Certain Reporting Requirements, 1 FCC Rcd 933 (1986). In addition, the Commission determined in a 2004 rulemaking to accord confidential treatment to outage reports filed under part 4 of our rules, but did not update section 0.457(d) at that time.See New Part 4 of the Commission's Rules Concerning Disruptions to Communications, 19 FCC Rcd 16830 (2004),adopting47 CFR 4.2. We are therefore adding a new section 0.457(d)(1)(vii) to reflect that action. A new section 0.457(d)(1)(viii) has also been added to reflect the commercially sensitive nature of coordination of satellite systems pursuant to procedures codified in the International Telecommunication Union (ITU) Radio Regulations.See Robert J. Butler, 6 FCC Rcd 5414 (1991) (documents that were generated during the course of certain international negotiations withheld pursuant to FOIA Exemption 4). We have deleted the reference to radio operator examinations that are no longer administered,see Amendment of Part 13 of the Commission's Rules To Privatize the Administration of Examinations for Commercial Operator Licenses and To Clarify Certain Rules, 8 FCC Rcd 1046 (1992), as well as a dated reference to equipment authorization procedures prior to 1974. 47 CFR 0.457(b)(3). In section 0.457(f) regarding personal privacy under FOIA Exemption 6, 5 U.S.C. 552(b)(6), we are expanding the reference to “employees” so as to include Commission contractors.See U.S. Dep't of Justicev.Reporters' Committee for Freedom of the Press, 489 U.S. 749, 774 (1989) (an individual doing business with the federal government may have some protectible privacy interest). We are amending section 0.457(g), regarding law enforcement information, to more closely track the language of the FOIA.

Section 0.459 of our rules addresses requests for confidential treatment.See generally Confidentiality RO, 13 FCC Rcd at 34826-27 (prescribing showing to be made for requests for confidential treatment). Where confidential treatment is sought for only a part of a document, we will require the filing of a redacted public version. We are adding a new paragraph indicating that this section does not apply to comments or materials filed by means of our Electronic Filing System (ECFS), consistent with the rulemaking decision adopting the ECFS system.ECFS Decision, 13 FCC Rcd at 11330-31 (confidential materials cannot be filed electronically through ECFS). We have added a new paragraph (a)(3) reflecting the practice of using a “checkbox” mechanism for indicating confidentiality on some forms. We are amending paragraph (c) concerning casual requests for confidential treatment to indicate that the existing required showing before confidential treatment will be granted means that simply stamping a record “confidential” will not be considered a request for confidential treatment. We are also amending paragraph (g) to provide that when a request for confidential treatment is denied, the person who submitted the records will have 10 days to seek review, instead of the 5 days currently provided for in the rule. This change harmonizes the time period in this rule with the time period in section 0.461(i)(1).Compare47 CFR 0.459(g) (currently providing 5 days for filing an application for review or seeking a judicial stay when a request for confidentiality is denied in whole or in part)with47 CFR 0.461(i)(1) (currently providing 10 days for filing an application for review or a judicial stay when in the context of a FOIA request a request for confidentiality is denied in whole or in part).

Finally, section 0.458 of our rules addresses situations when persons regulated by or practicing before the Commission come into possession of written non-public information. We amend this section to provide that such information should be returned to the Commission's Office of Inspector General promptly and without further distribution or use. This amendment tracks the current language of 47 CFR 19.735-203.

Obtaining Records Not Routinely Available for Public Inspection. Section 0.461 of our rules describes how the public may seek records not routinely available for public inspection. We herein make several amendments to section 0.461 to reflect our experience in processing FOIA requests and to implement the OPEN Government Act. We have amended section 0.461(a) to include the definition of “records” adopted in the OPEN Government Act. OPEN Government Act, sec. 9,codified at5 U.S.C. 552(f)(2). This definition specifies that records include electronic records and records maintained for the Commission by another entity for purposes of records management. Section 0.461(a) is also amended to provide more detail for FOIA requesters concerning what information should be submitted with a request for inspection of records. We make this change to assist staff in processing FOIA requests. By providing a more detailed FOIA request, we hope staff processing the request will be able to locate the records quickly, thus reducing search time charges to FOIA requesters. We hope that this will minimize the need to contact FOIA requesters for clarification.SeeOPEN Government Act, sec. 6(a),codified at5 U.S.C. 552a)(6)(A)(ii) (limiting the tolling of time for processing FOIA requests when requesters must be contacted for clarification).See also OIP Guidance: New Limitations on Tolling the FOIA's Response Time(DOJ/OIP November 11, 2008),available at http://www.usdoj.gov/oip/foiapost/2008foiapost29.htm. Section 0.461(a)(2) is amended to clarify that, pursuant to FOIA section 552(a)(3)(B), while requesters may specify the form or format of records to be produced, the records must be readily reproducible in the requested form or format for the Commission to comply with the request.See5 U.S.C. 552(a)(3)(B). This is consistent with our practice.See Rick Linsk, 18 FCC Rcd 25601, 25602 (2003),citing TPS, Inc.v.U.S. Dep't of Defense, 330 F.3d 1191, 1193 (9th Cir. 2003). Section 0.461(b) concerns information provided with FOIA requests, and is amended to provide that mailing addresses be included with a FOIA request so that we can mail paper copies of records produced to FOIA requesters. It is also amended to remind requesters that if they are seeking a FOIA fee waiver, such a request must be included with their original FOIA request.See47 CFR 0.470(c).

Section 0.461(d)(3) provides for notification of persons who have submitted records to the Commission that are confidential under sections 0.457 or 0.459 if a request for inspection of those records is filed under section 0.461. We have amended this section to clarify procedures for this notice and how all parties should serve each other with any pleadings. We are also adding a note to this section reminding parties that FOIA proceedings are permit-but-disclose proceedings under our ex parte rules.See47 CFR 1.1206(a)(7).

Section 0.461(e) is amended to indicate that a FOIA request is deemed properly received when it is received and date stamped by our FOIA Control Office and assigned to the Bureau or Office that is the custodian of the records sought.SeeOPEN Government Act, sec. 6(a),codified at5 U.S.C. 552(a)(6)(A).See also OIP Guidance: Assigning Tracking Numbers and Providing Status Information for Requests(DOJ/OIP November 18, 2008),available at http://www.usdoj.gov/oip/foiapost/2008foiapost30.htm;OIP Guidance: New Requirement to Route Misdirected FOIA Requests(DOJ/OIP November 18, 2008),available at http://www.usdoj.gov/oip/foiapost/2008foiapost31.htm. A new paragraph is being added to paragraph (e), and language is added to sections 0.461(g)(1), 0.467(e)(2), and 0.469(c) concerning the tolling of the FOIA time limits for processing requests, to implement the OPEN Government Act's provisions. This paragraph provides that the time for responding to a FOIA request is tolled while the custodian of records seeks reasonable clarification from the requester. Such a request must be made within 10 days after a request is properly received by the custodian of records, and only one such request may be made. The paragraph also provides for a tolling of the time limits when fee issues (including fee waivers) are unresolved. The OPEN Government Act allows us to make only one request for clarification of the scope of a FOIA request, but does not contain a similar restriction for fee matters.Compare5 U.S.C. 552(a)(6)(A)(ii)(I)with5 U.S.C. 552(a)(6)(A)(ii)(II). We will, however, endeavor to resolve fee matters with only one inquiry to requesters. Paragraph (e)(4) is also amended to reflect our practice of assigning control numbers to FOIA requests, and to indicate that we provide notice to a FOIA requester of the control number and of a telephone number that may be called to obtain the status of the FOIA request. These amendments reflect modifications to the FOIA made in the OPEN Government Act. OPEN Government Act, sec. 7(a),codified at5 U.S.C. 552(a)(7).See also OIP Guidance: Assigning Tracking Numbers and Providing Status Information for Requests(DOJ/OIP November 18, 2008),available at http://www.usdoj.gov/oip/foiapost/2008foiapost30.htm.

We sometimes receive FOIA requests that seek records that are the property of another federal agency or department. We have clarified in section 0.461(f) that such requesters will be directed to the correct department or agency. We have also amended section 0.461(f)(5), which addresses withholding part of a record pursuant to a FOIA exemption. The OPEN Government Act amended the FOIA to require that when a redaction is made to a record being released, we must indicate the FOIA exemption relied upon at the site of the redaction.Seesec. 12, codified at 5 U.S.C. 552(b) (after paragraph 9).See also OIP Guidance: Segregating and Marking Documents for Release in Accordance with the Open Government Act(DOJ/OIP October 23, 2008), available athttp://www.usdoj.gov/oip/foiapost/2008foiapost26.htm. Conforming or clarifying edits are also made to section 0.461(g).

We have amended section 0.461(i) to add persons with a personal privacy interest in a record to the categories of persons who may seek review of a decision to grant access to the records. We have also added a note to paragraphs 0.461(i) and (j) indicating that the General Counsel will review applications for review of initial FOIA decisions and may attempt informally to resolve issues with the applicant. This has been our practice and we have found it to be a consumer-friendly practice, consistent with the FOIA Executive Order. FOIA Executive Order, sec. 1(b)-(d), 70 FR at 75373 (December 14, 2005). We have also amended section 0.461(j) to make clear that applications for review of fee determinations and fee waiver decisions may be sought under this paragraph.Seeamended section 0.451(d) and new section 0.470(g). We have provided in section 0.461(k)(2) that the Commission may consolidate applications for review. Finally, we have clarified in section 0.461(l)(2) that, as appropriate, we may continue to process initial FOIA requests or applications for review if an action for judicial review has been filed.

The Touhy Rule.Section 0.463 is the Commission'sTouhyrule.See United States ex rel. Touhyv.Ragen, 340 U.S. 462 (1951); 5 U.S.C. 301 (authorizing agencies to issue regulations regarding whether government employees or documents may be subpoenaed). We amend this rule to elaborate on the procedures used when determining whether Commission employees will bepermitted to testify or provide records relating to their official duties when they are directly subpoenaed or otherwise served with a request. This amendment also specifies and clarifies the criteria that the General Counsel will use when deciding whether to allow an employee to testify or provide records. We make these amendments based on the following: (1) Our experience in reviewingTouhyrequests and the information that we typically need to obtain from the requester in order to properly evaluate the request; (2) our review of other agencies'Touhyrules; and (3) the factors that courts have considered when evaluating Administrative Procedure Act (APA) challenges to other agencies'Touhydecisions.See, e.g., Houston Business Journal, Inc.v.Office of the Comptroller of the Currency, United States Dep't of the Treasury, 86 F.3d 1208 (D.C. Cir. 1996) (agency decisions underTouhyregulation are reviewed under arbitrary or capricious standard under the APA;Brobreskiv.U.S. EPA, 284 F.Supp.2d 67, 79-80 (D.D.C. 2003) (reviewing and upholding EPA's reasons for denying request for testimony by an agency inspector).

FOIA Fee Related Rules.We also make a variety of changes to our FOIA fee-related rules. 47 CFR 0.451(d), 0.465 through 0.470. In section 0.465, we amend paragraph (b) to reflect the availability of audio and video recordings or transcripts of Commission proceedings and note that in certain cases, not all formats may exist. In paragraph (c)(2), we reduce the per page copying fees we are required to charge under the FOIA, 5 U.S.C. 552(a)(4)(A), from $0.17 to $0.10. This reduction is a result of our re-evaluation of reproduction costs. We are also adding to paragraph (c)(2) a charge of $5.00 per computer disk for instance when we provide copies in an electronic format, and add a reference to computer disks in this paragraph. Finally, we are amending paragraph (e) to reflect the availability of many of our documents on the Internet. Paragraphs (e) and (f) are also amended, consistent with our amendment of section 0.460 discussedsupra, to indicate that the public must seek copies of records routinely available for public inspection in person or from our copy contractor.

Section 0.466 of our rules contains the definitions related to FOIA fees. In paragraph (a)(1) we are changing the definition of “direct costs” to reflect that we add 20 percent to our labor costs to cover benefits, to make it consistent with our current practice as reflected in paragraph 0.467(a)(2). When sections 0.466 and 0.467 were first amended to reflect the changes in the FOIA regarding fees, the Commission indicated that it would add 16 percent to the basic rate of pay to cover employee benefits.The Freedom of Information Reform Act of 1986; Fee Schedule and Administrative Procedures, 3 FCC Rcd 5107 (1988). This was the percentage adopted in theOMB FOIA Fee Guidelinesfor Federal personnel benefits to be added to the Federal pay levels for search purposes.The Freedom of Information Reform Act of 1986; Uniform Freedom of Information Act Fee Schedule and Guidelines, 52 FR 10012 (March 27, 1987) (OMB FOIA Fee Guidelines). The FOIA charged OMB with promulgating “guidelines * * * which shall provide for a uniform schedule of fees.” 5 U.S.C. 552(a)(4)(A)(i). Over the years, we have updated the benefits section in paragraph 0.467(a)(1) to reflect actual costs of personnel benefits. In 1994 it was changed to 19 percent (see Amendment To The Fee Schedule For The Processing Of Requests For Agency Records Pursuant To The Freedom Of Information Act, 9 FCC Rcd 1810 (1994)) and in 1996 to 20 percent (see Amendment To The Fee Schedule For The Processing Of Requests For Agency Records Pursuant To The Freedom Of Information Act, 11 FCC Rcd 3606 (1996)). Because the search and review fees are to charge for our “direct costs,” 5 U.S.C. 552(a)(4)(A)(iv), which includes benefits, it was reasonable to increase the percentage we added for benefits as those costs rose over the years, even though OMB never changed theOMB FOIA Fee Guidelinesin this regard.

We amend paragraph (a)(7) to reflect the new definition of “representative of the news media” adopted in the OPEN Government Act, OPEN Government Act, sec. 3,codified at5 U.S.C. 552(a)(4)(A)(ii). We also amend paragraph (a)(3) to indicate that dissemination of records by a representative of the news media shall not be considered to be for a commercial use.See OMB FOIA Fee Guidelines, 52 FR 10012, 10019 (March 27, 1987) (a request for records from a representative of the news media “shall not be considered to be a request that is for a commercial use.”);National Security Archivev.Dep't of Defense, 880 F.2d 1381, 1387-88 (DC Cir. 1989).

In section 0.467, which addresses search and review fees, we delete the chart listing the hourly fee for FCC employees responding to FOIA requests because the rates change when federal salaries change. Instead, we provide that changes in the hourly fee will be announced by Public Notice and will be posted on our FOIA Web site,http://www.fcc.gov/foia. We also specify in paragraph 0.461(a)(1) that labor rates for non-FCC employees will be assessed at their actual hourly cost to the agency. This includes Universal Service Administrative Company (USAC) personnel, who search for USAC records in response to FOIA requests.See Inter-Tel Technologies, Inc.,19 FCC Rcd 5204 n.3 (2004).

In section 0.470, we implement the OPEN Government Act section that waives search fees for commercial and “all others” requesters and waives duplication fees for educational requesters or representatives of the news media when we fail to comply with FOIA's time limits in processing a FOIA request. OPEN Government Act, sec. 6(b),codified at5 U.S.C. 552(a)(4)(A)(viii).See also OIP Guidance: New Limitations on Assessing Fees(DOJ.OIP November 11, 2008), available athttp://www.usdoj.gov/oip/foiapost/2008foiapost28.htm. We are also codifying the considerations we take into account when addressing requests for FOIA fee waivers. These standards are well-established in judicial and Commission case law,see, e.g., McClellan Ecological Seepage Situationv.Carlucci, 835 F.2d 1282, 1286 (9th Cir. 1987);Robert J. Robbins, Call Communications Group., Inc.,21 FCC Rcd 6685 (2006), and are being set forth in this rule to provide guidance to any FOIA requesters who seek a fee waiver. We note that simply repeating the language of the FOIA fee waiver statute is an insufficient basis for requesting or our granting a fee waiver. We are also adding a new paragraph 0.470(e)(5) indicating that we generally will not rule on a request for fee waiver if no fees or de minimis fees (fifteen dollars or less) are involved. We give a requester ten working days, rather than the previous five, to provide additional information in certain circumstances. Finally, we have amended sections 0.451(d) and 0.461(j), and adopted a new section 0.470(g), to make clear that review may be sought for fee determinations and initial fee waiver decisions.

No Notice and Comment Required.We have determined that the changes we adopt here are general statements of policy, interpretive rules, or rules of agency organization, procedure or practice, and are therefore exempt from the notice and comment requirements of the APA, 5 U.S.C. 553(b)(A) (notice requirements inapplicable to “interpretive rules, general statements of policy, or rules of agency organization, procedure or practice”). See Confidentiality RO,14 FCC Rcd at 20131 (amending 47 CFR 0.459 and 0.461 without notice and comment),citing Aluminum Co. of Americav.FTC,589 F. Supp. 169, 178 (S.D.N.Y. 1984) (holding FOIA rules are procedural rules);United States ex rel. O'Keefev.McDonnell Douglas Corp.,132 F.3d 1252, 1255 (8th Cir. 1998) (Touhyregulations deal exclusively with internal administrative procedure). The substantive standards for obtaining agency records are set forth in the FOIA.See generally5 U.S.C. 552.

Regulatory Flexibility Act, Paperwork Reduction Act, and Congressional Review Act.Section 603 of the Regulatory Flexibility Act, as amended (RFA), requires an initial regulatory flexibility analysis in notice and comment rulemaking proceedings. 5 U.S.C. 603(a). As we are adopting these rules without notice and comment, no regulatory flexibility analysis is required. This document does not contain proposed information collection(s) subject to the Paperwork Reduction Act of 1995 (PRA). 44 U.S.C. 3501-3520. In addition, therefore, it does not contain any new or modified “information collection burden for small business concerns with fewer than 25 employees,” pursuant to the Small Business Paperwork Relief Act of 2002. 44 U.S.C. 3506(c)(4). Our FOIA rule amendments are being adopted without notice and comment, and therefore are not required to be submitted to Congress under the Congressional Review Act. 5 U.S.C. 804(3)(C) (rules subject to the Congressional Review Act do not include “any rule of agency organization, procedure, or practice that does not substantially affect the rights or obligations of non-agency parties”).

Segregability.It is our intention in adopting these rule changes that, if any provision of the rules is held invalid by any court of competent jurisdiction, the remaining provisions shall remain in effect to the fullest extent permitted by law.

List of Subjects in 47 CFR Part 0

Freedom of information, Government publications, Organization and functions (Government agencies), Privacy.

Federal Communications Commission. William F. Caton, Deputy Secretary. Final Rules For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 0 as follows: PART 0—COMMISSION ORGANIZATION Subpart C—General Information Public Information and Inspection of Records 1. The authority citation continues to read as follows: Authority:

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

2. Sections 0.441 through 0.470 are revised to read as follows: Sec. 0.441 General. 0.442 Disclosure to other Federal government agencies of information submitted to the Commission in confidence. 0.445 Publication availability and use of opinions, orders, policy statements, interpretations, administrative manuals and staff instructions. 0.451 Inspection of records: Generally. 0.453 Public reference rooms. 0.455 Other locations at which records may be inspected. 0.457 Records not routinely available for public inspection. 0.458 Nonpublic information. 0.459 Requests that materials or information submitted to the Commission be withheld from public inspection. 0.460 Requests for inspection of records which are routinely available for public inspection. 0.461 Requests for inspection of materials not routinely available for public inspection. 0.463 Demand by competent authority for the production of documents or testimony concerning information contained therein. 0.465 Request for copies of materials which are available, or made available, for public inspection. 0.466 Definitions. 0.467 Search and review fees. 0.468 Interest. 0.469 Advance payments. 0.470 Assessment of fees.
§ 0.441 General.

(a) Any person desiring to obtain information from the Commission may do so by contacting the Consumer and Governmental Affairs Bureau (CGB). Requests for information and general inquiries may be submitted by:

(1) Internet athttp://www.fcc.gov/cgb/fccinfoorhttp://www.fcc.gov/foia.

(2) Telephone at 1-888-CALL-FCC (1-888-225-5322).

(3) TDD/TDY at 1-888-TELL-FCC (1-888-835-5322).

(4) Correspondence to: Consumer and Governmental Affairs Bureau, 445 12th Street, SW., Washington, DC 20554.

(5) Visiting the Reference Information Center of the Consumer and Governmental Affairs Bureau at Room CY-A257 of the Commission's main office at 445 12th Street, SW., Washington, DC 20554.

(6) Facsimile at 1-866-418-0232.

(7) Contacting the Commission's Copy Contractor, see § 0.465(a).

(b) The Commission's FOIA Public Liaison is available to assist any person requesting information from the Commission in resolving any concerns related to a Freedom of Information Act request. Seehttp://www.fcc.gov/foia/.

§ 0.442 Disclosure to other Federal government agencies of information submitted to the Commission in confidence.

(a) The disclosure of records to other Federal government agencies is generally governed by the Paperwork Reduction Act, 44 U.S.C. 3510, rather than the Freedom of Information Act. The acceptance of materials in confidence under § 0.457 or § 0.459, or any other statute, rule or Commission order, does not preclude their disclosure to other federal agencies.

(b) Information submitted to the Commission in confidence pursuant to § 0.457(c)(2) and (3), (d) and (g) or § 0.459, or any other statute, rule or order, may be disclosed to other agencies of the Federal government upon request or upon the Commission's own motion, provided:

(1) Specific Commission assurances against such disclosure have not been given;

(2) The other agency has established a legitimate need for the information;

(3) Disclosure is made subject to the provisions of 44 U.S.C. 3510(b); and

(4) Disclosure is not prohibited by the Privacy Act or other provisions of law.

(c) The Commission's staff may give assurances against disclosure of information to other Federal agencies only with the prior written approval of the General Counsel. In no event will assurance against disclosure to other agencies be given in advance of submission of the information to the Commission if submission is required by statute or by the provisions of this chapter; but the notice provisions of paragraph (d) of this section will apply to such required submissions.

(d)(1) Except as provided in paragraphs (d)(2) and (d)(3) of this section, a party who furnished records to the Commission with a request for confidential treatment, see § 0.459, will be notified at the time that the request for disclosure is submitted and will be afforded ten calendar days in which to submit an opposition to disclosure. This notification may be made either individually or by public notice.

(2) If the agency requesting the records provides in writing to the satisfaction of the Commission that notice to the party who furnished the records to the Commission will interfere unduly with its law enforcement, national security or homeland defense activities and further states that it will notify that party of the Commission's disclosure once the potential for such interference is eliminated, the Commission will not give notice of disclosure.

(3) A party who furnished records to the Commission in confidence will not be afforded prior notice when the disclosure is made to the Comptroller General of the United States, in the Government Accountability Office. Such a party will instead be notified of disclosure of the records to the Comptroller General either individually or by public notice.

(4) If disclosure is opposed and the Commission decides to make the records available to the other agency, the party who furnished the records to the Commission will be afforded ten calendar days from the date of the ruling to move for a judicial stay of the Commission's action. If the party does not move for stay within this period, the records will be disclosed.

(e) Except as provided in paragraph (d)(3) of this section, nothing in this section is intended to govern disclosure of information to Congress or the Comptroller General.

§ 0.445 Publication, availability and use of opinions, orders, policy statements, interpretations, administrative manuals, and staff instructions.

(a) Adjudicatory opinions and orders of the Commission, or its staff acting on delegated authority, are sent to the parties by mail, delivery service, or e-mail, unless the Commission determines that individual delivery would be unduly burdensome and instead issues a public notice of its decision. As part of the record, these documents are generally available for inspection in accordance with § 0.453 and § 0.455. In addition, many adjudicatory orders and opinions are available on the Commission's Web site,http://www.fcc.gov. In appropriate circumstances, the Commission may redact the copy made available to the public in order to protect information not routinely available to the public under § 0.457, which is treated confidentially pursuant to a request under § 0.459, or which is confidential pursuant to other statutes, regulations or orders.

(b) Texts adopted by the Commission or a member of its staff on delegated 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 theFederal Registeror Pike and Fischer Communications Regulation.

(c) All rulemaking documents or summaries thereof are published in theFederal Registerand are available on the Commission's Web site. The complete text of the Commission decision also is released by the Commission and is available for inspection and copying during normal business hours in the Office of Media Relations, the Reference Information Center, via the Electronic Comment Filing System (ECFS), or as otherwise specified in the rulemaking document published in theFederal Register. The complete texts of rulemaking decisions may also be purchased from the Commission's copy contractor.

(d) Formal policy statements and interpretations designed to have general applicability are published in theFederal Register, the FCC Record, FCC Reports, or Pike and Fischer Communications Regulation. Commission decisions and other Commission documents not entitled formal policy statements or interpretations may contain substantive interpretations and statements regarding policy, and these are published as part of the document in the FCC Record, FCC Reports or Pike and Fischer Communications Regulation. General statements regarding policy and interpretations furnished to individuals, in correspondence or otherwise, are not ordinarily published.

(e) If the documents described in paragraphs (a) through (d) of this section are published in theFederal Register, the FCC Record, FCC Reports, or Pike and Fischer Communications Regulation, they are indexed, and they may be relied upon, used or cited as precedent by the Commission or private parties in any manner. If they are not so published, they may not be relied upon, used or cited as precedent, except against persons who have actual notice of the document in question or by such persons against the Commission. No person is expected to comply with any requirement or policy of the Commission unless he or she has actual notice of that requirement or policy or a document stating it has been published as provided in this paragraph. Nothing in this paragraph, however, shall be construed as precluding a reference to a recent document that is pending publication.

(f) Subparts A and B of this part describe the functions of the staff and list the matters on which authority has been delegated to the staff. All general instructions to the staff and limitations upon its authority are set forth in those subparts or in decisions of the Commission published in theFederal Register. Instructions to the staff in particular matters or cases are privileged and/or protected and are not published or made available for public inspection.

(g) To the extent required to prevent a clearly unwarranted invasion of personal privacy, or to prevent disclosure of information required or authorized to be withheld by another statute, the Commission may delete identifying details or confidential information when it makes available or publishes any document described in this section. The justification for any such deletion will be fully explained in a preamble to the document.

§ 0.451 Inspection of records: Generally.

(a)Records which are routinely available for public inspection. Sections 0.453 and 0.455 list those Commission records which are routinely available for public inspection and the places at which those records may be inspected. Procedures governing requests for inspection of such records are set out in § 0.460.

(b)Records which are not routinely available for public inspection.Records which are not listed in § 0.453 or § 0.455 are not routinely available for public inspection. Such records fall into two categories.

(1) The first category consists of those records or kinds of records listed in § 0.457 and of particular records withheld from public inspection under § 0.459. The Commission has determined that there is a statutory basis for withholding these records from public inspection. In some cases, the Commission is prohibited from permitting the inspection of records. In other cases, the records are the property of another agency, and the Commission has no authority to permit their inspection. In still other cases, the Commission is authorized, for reason of policy, to withhold records from inspection, but is not required to do so.

(2) The second category consists of records that are not listed in § 0.453, § 0.455, or § 0.457 and have not been withheld from inspection under § 0.459. In some cases, these records have not been identified for listing. In other cases (e.g., the general correspondence files), the Commission is unable to determine either that all records in a class should be routinely available for inspection or that all records in that class should notbe routinely available for inspection, and individualized determination is required.

(3) Procedures governing requests for inspection of these records are set forth in § 0.461.

(4) Procedures governing demands by competent authority for inspection of these records are set forth in § 0.463.

(5) Except as provided in § 0.461 and § 0.463, or pursuant to § 19.735-203 of this chapter, no officer or employee of the Commission shall permit the inspection of records which are not routinely available for public inspection under § 0.453 or § 0.455, or disclose information contained therein.

(c)Copies.Section 0.465 applies to requests for copies of Commission records which are routinely available for public inspection under § 0.453 and § 0.455 and those which are made available for inspection under § 0.461. Sections 0.467 and 0.465(c)(3) apply to requests for certified copies of Commission records.

(d)Search and copying fees.Section 0.465(c)(2) prescribes the per page fee for copying records made available for inspection under § 0.460 or § 0.461. Section 0.466 prescribes fees to cover the expense of searching for and reviewing records made available for inspection under § 0.460 or § 0.461. Review of initial fee determinations under § 0.467 through § 0.470 and initial fee reduction or waiver determinations under § 0.470(e) may be sought under § 0.461(j).

Note to paragraph (d):

The Commission may require advance payment pursuant to § 0.469 before releasing documents.

§ 0.453 Public reference rooms.

The Commission maintains the FCC Reference Information Center as its public reference room at its offices in Washington, DC. Much of the information available from the public reference room may also be retrieved from the Commission's main Web site athttp://www.fcc.govand its electronic reading room athttp://www.fcc.gov/foia/e-room.html:

(a)The Reference Information Center. Maintains files containing the record of all docketed cases, petitions for rule making and related papers. A file is maintained for each docketed hearing case and for each docketed rule making proceeding. Cards summarizing the history of such cases for the years before 1984 are available for inspection. Information summarizing the history of such cases for the years from 1984 through present is available online on the Electronic Comment Filing System (ECFS).

(b)Broadcast Services. The following files and documents are available, including:

(1) Applications for radio and television broadcast station construction permits, licenses, modifications of facilities, license renewal, assignments and transfer of control, including any Commission correspondence or rulings pertaining to those applications;

(2) Petitions to deny, informal objections, and complaints directed against the stations and/or station applications;

(3) Ownership reports filed by licensees pursuant to § 73.3615 of this chapter;

(4) Television network application contracts, radio and television time brokerage agreements, and other documents required to be filed under § 73.3613 of this chapter;

(5) Children's television programming reports filed by commercial television licensees pursuant to § 73.3526 of this chapter;

(6) Annual DTV ancillary/supplementary services reports filed by commercial and non-commercial educational digital television licensees pursuant to § 73.624 of this chapter;

(7) Station requests for declaratory rulings, special temporary authorizations, and other waivers;

(8) Annual employment reports filed by licensees and permittees of broadcast stations pursuant to § 73.3612 of this chapter; and.

(9) Responses from licensees to random audits of their Equal Employment Opportunity programs conducted pursuant to § 73.2080 of this chapter.

(c)Common Carrier Services, including:

(1) Annual reports filed by carriers under § 43.21 of this chapter;

(2) Reports of proposed changes in depreciation rates filed by carriers under § 43.43 of this chapter;

(3) Rate-of-return reports filed by price-cap and rate-of-return incumbent local exchange carriers under § 65.600 of this chapter;

(4) All applications for common carrier authorizations acted upon by the Enforcement Bureau, and related files;

(5) All formal and informal complaints against common carriers filed under § 1.711 through § 1.735 of this chapter, all documents filed in connection therewith, and all communications related thereto;

(6) Annual employment reports filed by common carrier licensees or permittees pursuant to § 1.815 of this chapter;

(7) Enforcement proceedings and public inquiries and related materials;

(8) Cost Allocation Manuals and related materials;

(9) Currently effective tariffs filed by Communications Common Carriers pursuant to various FCC Rules and Regulations; and

(10) Recent revisions to tariff filings and the Reference Information Center Log, which is prepared daily and lists the tariff filings received the previous day.

(d)Wireless Telecommunications Services and Auctionrelated data including:

(1) Pending files containing applications for additional facilities or modifications of existing facilities;

(2) Cellular and Paging Granted Station files and related materials;

(3) Pending cellular and paging applications and related files;

(4) Electronically stored application and licensing data for commercial radio operators and for all authorizations in the Wireless Radio services are available for public inspection via the Commission's Web site,http://wireless.fcc.gov/uls. Wireless Radio services include Commercial and Private Mobile Radio, Common Carrier and Private Operational Field point-to-point Microwave, Local Television Transmission Service (LTTS), Digital Electronic Message Service (DEMS), Aviation Ground and Marine Coast applications; and

(5) Petitions and related materials.

(e)International Servicesas follows, except to the extent they are excluded from routine public inspection under another section of this chapter:

(1) Satellite and earth station applications files and related materials under part 25 of this chapter;

(2) Section 214 applications and related files under part 63 of this chapter, to the extent that they concern international communications facilities and services;

(3) International Fixed Public Radio applications and related files under part 23 of this chapter;

(4) Files relating to submarine cable landing licenses and applications for such licenses since June 30, 1934, except for maps showing the exact location of submarine cables, which are withheld from inspection under sec. 4(j) of the Communications Act, 47 U.S.C. 154(j) (see § 0.457(c)(1)(i));

(5) International broadcast applications, applications for permission to deliver programming to foreign stations, and related files under part 73 of this chapter; and

(6) Contracts and other arrangements filed under § 43.51 of this chapter, except for those that are filed with a request for confidential treatment (see§ 0.459) or are deemed confidential pursuant to sec. 412 of the Communications Act (see also § 0.457(c)(3)).

(f)Cable and other Multichannel Video Program Distribution Services. The following files and records are available, including:

(1) Complaints regarding multichannel video programming, all documents filed in connection therewith, and all communications related thereto, unless the cable operator has submitted a request pursuant to § 0.459 that such information not be made routinely available for public inspection;

(2) Special relief petitions and files pertaining to cable television operations;

(3) Special relief petitions and files pertaining to DBS television operations;

(4) Petitions and related documents concerning the enforcement of regulations governing the installation of over-the-air reception devices (OTARD) pursuant to § 1.4000 of this chapter;

(5) Filings by cable television operators, including Cable Signal Leakage Reports (Form 320 and § 76.1804 of this chapter), Cable System Registration Statements (§ 76.1801 of this chapter), Cable System Operator Changes (§ 76.1610 of this chapter), Cable Aeronautical Frequency Notifications (§ 76.1804 of this chapter), Cable Annual Report (Form 325 and § 76.403 of this chapter), and filings related to CARS licenses (Part 78 of this chapter).

Note to paragraph (f)(5):

This data also is available athttp://www.fcc.gov/coals. Electronic submissions for cable filings (excluding CARS) are mandatory. Original forms are not available for information filed electronically, but the Reference Information Center or the Commission's Copy Contractor may assist in producing paper copies of information found in the COALS database;

(6) Annual employment reports filed by multichannel video programming distributors pursuant to § 76.1802 of this chapter; and

(7) Responses from multichannel video programming distributors to random audits of their Equal Employment Opportunity programs conducted pursuant to § 76.77 of this chapter.

§ 0.455 Other locations at which records may be inspected.

Except as provided in § 0.453, § 0.457, and § 0.459, records are routinely available for inspection in the Reference Information Center or the offices of the Bureau or Office which exercises responsibility over the matters to which those records pertain (see § 0.5), or will be made available for inspection at those offices upon request. Upon inquiry to the appropriate Bureau or Office, persons desiring to inspect such records will be directed to the specific location at which the particular records may be inspected. Examples of the records available from Bureaus and Offices are set forth in paragraphs (a) through (c).

(a)Media Bureau.(1) Rulings under secs. 312(a)(7), 315, and 317 of the Communications Act of 1934, as amended;

(2) All materials associated with a rate proceeding for basic cable service and associated equipment over which the Commission has assumed jurisdiction pursuant to § 76.913 of this chapter;

(3) All materials associated with Commission review of franchise authority decisions concerning the rate charged for the basic cable service tier and associated equipment pursuant to § 76.944 of this chapter;

(4) All materials associated with local government requests for authorization to regulate basic cable rates pursuant to § 76.910 of this chapter (Form 328);

(5) All materials associated with the certification of Open Video System (OVS) operators pursuant to § 76.1502 of this chapter;

(6) A list of all registered cable communities is maintained electronically athttp://www.fcc.g