[Federal Register: October 28, 1997 (Volume 62, Number 208)]
[Rules and Regulations]
[Page 55740-55742]
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LIBRARY OF CONGRESS
Copyright Office
37 CFR Part 203
[Docket No. 97-7]
Implementation of the Electronic Freedom of Information Act
Amendments of 1996
AGENCY: Copyright Office, Library of Congress.
ACTION: Interim regulations with request for comments.
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SUMMARY: The Copyright Office is issuing interim regulations regarding
the Freedom of Information Act to comply with changes mandated by the
Electronic Freedom of Information Act Amendments of 1996. The effect of
the interim regulations is to permit public access to Office records
that were created on or after October 1, 1996, in electronic format.
The Office seeks comment on these interim regulations.
EFFECTIVE DATE: This interim regulation is effective November 1, 1997.
Written comments should be received on or before November 28, 1997.
ADDRESSES: By mail: Ten copies of written comments should be addressed
to David O. Carson, General Counsel, Copyright GC/I&R, P.O. Box 70400,
Southwest Station, Washington, D.C. 20024. By hand: Ten copies of
written
[[Page 55741]]
comments should be delivered to the Office of the General Counsel, U.S.
Copyright Office, James Madison Memorial Building, Room 403, First and
Independence Avenue, S.E., Washington, D.C.
FOR FURTHER INFORMATION CONTACT: Marilyn J. Kretsinger, Assistant
General Counsel, or Patricia L. Sinn, Senior Attorney, Copyright GC/
I&R, P.O. Box 70400, Southwest Station, Washington, D.C. 20024.
Telephone: (202)707-8380. Fax: (202)707-8366.
SUPPLEMENTARY INFORMATION:
I. Background
The Copyright Office is adopting interim regulations to Part 203 of
its regulations to implement the Electronic Freedom of Information Act
Amendments of 1996 (EFOIA), Pub. L. No. 104-231, 110 Stat. 3048 (1996),
which amends the Administrative Procedure Act (APA), title 5, United
States Code. The Office is subject to the Freedom of Information Act
(FOIA), which is part of the APA, under 17 U.S.C. 701(d). Section
701(d) provides that ``[e]xcept as provided by section 706(b) and the
regulations issued thereunder, all actions taken by the Register of
Copyrights under this title are subject to the provisions of the
Administrative Procedure Act of June 11, 1946, as amended * * *''
Copyright Office regulations describe records and documents available
for public inspection under the Copyright Act and under the FOIA. See
37 CFR 201.2, 203. The Copyright Office is part of the Library of
Congress, a legislative agency, and is an office of public record
governed in its record-keeping activities by sections of the copyright
statute that designate which records are available for public
inspection and search. See 17 U.S.C. 705, 706. Copyright Office records
include deposits, registrations, indexes, recordations, and other
actions taken under title 17. 17 U.S.C. 705(a). Public records
maintained by the Office are the subject of most requests for
information received; thus, the Office receives few actual FOIA
requests that must be answered outside the realm of its normal public
information services.
The FOIA, which establishes a right of access to certain federal
agency records, was enacted 30 years ago, before the extensive use of
computers to create and retain records in electronic formats. With the
advent and widespread acceptance of new information technologies,
questions arose about how electronic records should be handled under
the FOIA. The EFOIA, signed into law on October 2, 1996, contains
amendments that address methods required to make agency records
available to the public by electronic means and in electronic formats.
This interim regulation revises several provisions of the Office's FOIA
regulations under 37 CFR 203 to comply with provisions of the EFOIA.
II. Interim Amendments
A. Form or Format Requests
A significant change enacted in the EFOIA is the requirement that
agencies honor requests to provide records created after October 1,
1996, in specific formats, including electronic formats, so long as the
records are ``readily reproducible by the agency in that form or
format'' by use of reasonable efforts. EFOIA sec. 5 (codified as 5
U.S.C. 552(a)(3)(B). The Office will consider the particular set of
circumstances involved with each individual FOIA request to determine
whether it can reasonably comply with a request to provide a record in
a particular format. Prior to this amendment, the FOIA did not place
agencies under an obligation to accommodate a FOIA requester's
preferences as to format. The Office is amending Sec. 203.4(a) of its
regulations to reflect EFOIA requirements by adding language to reflect
that the Office will produce agency records in response to a FOIA
request in either traditional paper form or, if possible, in electronic
form.
B. Fees
Fees currently set forth in 37 CFR 203.6 apply to the costs of
duplication, review of documents, and copying of paper pages. Under 37
CFR 203.6(b)(2), the current charge of $0.45 per page for copies of
Office records will be assessed for paper pages of computer printouts
generated by the Office, matching the current per-page charge for
copies beyond the first 15 pages, for which seven dollars is charged.
These fees will be modified if the Office adjusts its fees to cover the
costs of providing services. The Office will charge a requester the
actual cost for provision of computer discs containing requested
information. For security reasons, the Office will not use discs or
other electronic storage media supplied by requesters for purposes of
downloading requested information.
In addition to EFOIA adjustment, the Office is adjusting fees in 37
CFR 203.6(b)(6) regarding fees for services rendered. The time charged
for an employee's computer search of records remains the actual cost of
the search including the cost of operating equipment for the time
directly attributable to searching for records responsive to a request,
but modifies the cost of the operator/programmer's time involved in
conducting a search from $10.00 per hour or fraction thereof to $20.00
per hour or fraction thereof. The Office's authority to raise
discretionary fees is found in 17 U.S.C. 708(a)(10).
C. Time for Processing Initial FOIA Requests
The EFOIA provides that effective October 2, 1997, agencies will
have twenty working days, rather than the current ten working days, to
respond to initial FOIA requests. EFOIA sec. 8(b)(codified as 5 U.S.C.
552(a)(6)(A)(i)). The Office proposes to amend Sec. 203.4(f) of its
FOIA regulations to implement this aspect of the EFOIA.
The EFOIA recognizes that in ``unusual circumstances'' agencies may
need more than twenty working days to process FOIA requests. EFOIA sec.
7(b) (codified as 5 U.S.C. 552(a)(6)(B). If an extension of more than
ten working days is sought, the EFOIA amendments require that an agency
provide requesters with the opportunity to limit the scope of their
requests to enable processing within the ten day statutory time limit
for extensions, or to negotiate an alternate time frame for processing
requests. Id. The Office proposes to amend its FOIA regulations to
reflect these changes.
D. Expedited Processing
The EFOIA requires agencies to promulgate through a notice and
comment rulemaking regulations to consider requests for ``expedited
processing'' of initial FOIA requests. EFOIA sec. 8(a) (codified as 5
U.S.C. 552(a)(6)(E)). Such requests must be granted whenever a
``compelling need'' is demonstrated by the requesting party.
``Compelling need'' is defined in the EFOIA as: (1) involving ``an
imminent threat to the life or physical safety of an individual,'' or
(2) in the case of a request made by ``a person primarily engaged in
disseminating information, urgency to inform the public concerning
actual or alleged Federal Government activity.'' EFOIA sec. 8(a)
(codified as 5 U.S.C. 552(a)(6)(E)(v)). When a request for expedited
processing is made, an agency must notify the requester of its decision
whether or not to grant the expedited request within ten (10) calendar
days. If expedited processing is granted, an agency must process the
request as soon as practicable. If the request is denied, an agency
must consider an appeal of such a denial. To implement the expedited
processing requirements of the EFOIA amendments, the Office proposes to
amend section 203.4 of our regulations
[[Page 55742]]
by adding that the Office will process requests granted expedited
processing status ``as soon as is practicable.'' EFOIA sec. 8(a)
(codified as 5 U.S.C. 552(a)(6)(E)(iii)).
E. Electronic Reading Room
The FOIA requires agencies to make available for inspection and
copying statements of policy and interpretations not published in the
Federal Register, and administrative staff manuals and instructions to
staff that affect the public. 5 U.S.C. 552(a)(2). The Office maintains
these materials in paper form in its Public Information Office. See 37
CFR 203.4. The EFOIA requires agencies to make available by ``computer
telecommunications or * * * by other electronic means'' all reading
room materials that are created on or after October 1, 1996. EFOIA sec.
4 (codified at 5 U.S.C. 552(a)(2). The statute envisions that agencies
will develop both a traditional reading room and an electronic reading
room. The Office proposes an interim regulation stating which materials
are available on-line or in an accessible electronic format.
List of Subjects in 37 CFR Part 203
Freedom of Information Act, Policies and procedures.
Interim Regulations
In consideration of the foregoing, the Copyright Office is amending
part 203 of 37 CFR, chapter II, in the manner set forth below:
PART 203--FREEDOM OF INFORMATION ACT: POLICIES AND PROCEDURES
1. The authority citation for part 203 is amended to read as
follows:
Authority: 17 U.S.C. 702; and 5 U.S.C. 552, as amended.
2. Section 203.3 is amended by revising paragraph (i) to read as
follows:
Sec. 203.3 Organization.
* * * * *
(i) The Copyright Office maintains an ``electronic reading room''
by making available certain documents and records on its World Wide Web
page and by providing access to documents that affect the public in
electronic format pursuant to 5 USC 552(a)(2). Copyright Office records
in machine-readable form cataloged from January 1, 1978, to the
present, including registration information and recorded documents, are
available on the Internet. Frequently requested Copyright Office
circulars, announcements, and recently proposed as well as final
regulations are available on-line. The address for the Copyright
Office's home page is: http://www.loc.gov/copyright; information may
also be accessed by connecting to the Library of Congress' home page on
the World Wide Web. The address is: http://www.loc.gov. Other
Copyright
Office documents may be provided on disk when so requested.
3. Section 203.4 is amended by revising paragraph (f) and adding a
new paragraph (i) to read as follows:
Sec. 203.4 Methods of operation.
* * * * *
(f) The Office will respond to all properly marked mailed requests
and all personally delivered written requests for records within twenty
(20) working days of receipt by the Supervisory Copyright Information
Specialist. Inquiries should be mailed to: Copyright Office, GC/I&R,
P.O. Box 70400 Southwest Station, Washington, D.C. 20024. If hand
delivered, materials should go to: Copyright Public Information Office,
LM 401, James Madison Memorial Building, Library of Congress, 101
Independence Avenue, S.E., Washington, D.C. Office hours are from 8:30
a.m. to 5:00 p.m., Monday through Friday, excluding holidays. If it is
determined that an extension of time greater than ten (10) working days
is necessary to respond to a request due to unusual circumstances, as
defined in paragraph (i) of this section, the Supervisory Copyright
Information Specialist shall so notify the requester and give the
requester the opportunity to:
(1) Limit the scope of the request so that it may be processed
within twenty (20) working days, or
(2) Arrange with the Office an alternative time frame for
processing the request or a modified request. If a request is denied,
the written notification will include the basis for the denial, names
of all individuals who participated in the determination, and
procedures available to appeal the determination.
* * * * *
(i) The Supervisory Copyright Information Specialist will consider
requests for expedited processing of requests in cases where the
requester demonstrates a compelling need for such processing. The term
``compelling need'' means:
(1) That a failure to obtain requested records on an expedited
basis could reasonably be expected to pose an imminent threat to the
life or physical safety of an individual; or
(2) With respect to a request made by a person primarily engaged in
disseminating information, urgency to inform the public concerning
actual or alleged Federal Government activity. Requesters for expedited
processing must include in their requests a statement setting forth the
basis for the claim that a ``compelling need'' exists for the requested
information, certified by the requester to be true and correct to the
best of his or her knowledge and belief. The Office will determine
whether to grant a request for expedited processing and will notify the
requester of such determination within ten (10) days of receipt of the
request. If a request for expedited processing is approved, documents
responsive to the request will be processed as soon as is practicable.
Denials of requests for expedited processing may be appealed to the
Office of the General Counsel, who will expeditiously determine any
such appeal.
Sec. 203.6 [Amended]
5. Section 203.6(b)(6) is amended by revising the parenthetical at
the end of the sentence to read ``(at no less than $20.00 per hour or
fraction thereof).''
Dated: October 21, 1997.
Marybeth Peters,
Register of Copyrights.
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