[Federal Register Volume 62, Number 191 (Thursday, October 2, 1997)]
[Proposed Rules]
[Pages 51610-51614]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-26065]


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Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of 
the proposed issuance of rules and regulations. The purpose of these 
notices is to give interested persons an opportunity to participate in 
the rule making prior to the adoption of the final rules.

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Federal Register / Vol. 62, No. 191 / Thursday, October 2, 1997 / 
Proposed Rules

[[Page 51610]]


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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

18 CFR Part 388

[Docket No. RM97-8-000]


Information and Requests

September 25, 1997.
AGENCY: Federal Energy Regulatory Commission, DOE.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Federal Energy Regulatory Commission (Commission) proposes 
to amend its regulations governing information and requests to reflect 
the requirements and specifications of the Electronic Freedom of 
Information Act Amendments of 1996. The Commission also proposes to 
correct minor editorial inconsistencies in its regulations.

DATES: Written comments must be received by the Commission by November 
3, 1997.

ADDRESSES: Office of the Secretary, Federal Energy Regulatory 
Commission, 888 First Street, N.E., Washington, DC 20426.

FOR FURTHER INFORMATION CONTACT: Charles A. Beamon, Office of the 
General Counsel, Federal Energy Regulatory Commission, 888 First 
Street, N.E., Washington, DC 20426, (202) 208-0780.

SUPPLEMENTARY INFORMATION: In addition to publishing the full text of 
this document in the Federal Register, the Commission also provides all 
interested persons an opportunity to inspect or copy the contents of 
this document during normal business hours in the Public Reference Room 
at 888 First Street, N.E., Washington, D.C. 20426.
    The Commission Issuance Posting System (CIPS), an electronic 
bulletin board service, provides access to the texts of formal 
documents issued by the Commission. CIPS is available at no charge to 
the user and may be accessed using a personal computer with a modem by 
dialing 202-208-1397 if dialing locally or 1-800-856-3920 if dialing 
long distance. To access CIPS, set your communications software to 
19200, 14400, 12000, 9600, 7200, 4800, 2400, or 1200 bps, full duplex, 
no parity, 8 data bits and 1 stop bit. The full text of this order will 
be available on CIPS in ASCII and WordPerfect 6.1 format. CIPS user 
assistance is available at 202-208-2474.
    CIPS is also available on the Internet. Telnet software is 
required. To access CIPS via the Internet, point your browser to the 
URL address: http://www.ferc.fed.us and select the Bulletin Board 
System. Read instructions on the next page, select FedWorld Dialup/
Telnet. A screen will appear presenting you with several options, 
select option 1. There will be a welcome message from FedWorld and a 
log on prompt. Enter your user ID and password (if you already have an 
account). To establish an account, type the word NEW and answer the 
questions which follow. Upon establishing an account, the FedWorld Main 
Menu will appear. From the Main Menu, type /go ferc.
    Finally, the complete text on diskette in WordPerfect format may be 
purchased from the Commission's copy contractor, La Dorn Systems 
Corporation. La Dorn Systems Corporation is located in the Public 
Reference Room at 888 First Street, N.E., Washington, D.C. 20426.

I. Introduction

    This proposed rule amends 18 CFR part 388 to implement the 
provisions of the Electronic Freedom of Information Act Amendments of 
1996 (the Act).<SUP>1</SUP> The Act amended the Freedom of Information 
Act (FOIA) <SUP>2</SUP> by imposing a number of new requirements 
governing the public availability of information, including electronic 
information. The proposed rule also clarifies minor discrepancies in 
part 388.
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    \1\ Pub. L. No. 104-231, 110 Stat. 3048 (1996).
    \2\ 5 U.S.C. 552.
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II. Background

    The underlying goal of the Act is to encourage the electronic 
distribution of information.<SUP>3</SUP> The Act expands FOIA's 
definition of a record to include information maintained in electronic 
format; requires agencies to accommodate requesters' reasonable format 
preferences; and to conduct reasonable agency searches for electronic 
records. It also provides for the electronic availability of all 
``public reading room'' materials created as of November 1, 
1996.<SUP>4</SUP>
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    \3\ H.R. Rep. No. 104-795, at 11 (1996).
    \4\ Pub. L. No. 104-231, Secs. 3, 4 and 5, 110 Stat. 3048, 3049-
50, 5 U.S.C. 552 (a)(2), (a)(3)(B), (a)(3)(C) and (f)(2), as 
amended.
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    In addition, the Act requires an agency to place in its public 
reading room certain documents that are subject to repeated requests. 
Agencies must maintain a public index of such documents.<SUP>5</SUP> 
The Act grants agencies 20 working days to process FOIA requests 
instead of the current 10 days, allows extensions beyond the former 10-
day deadline in limited circumstances, and expressly gives requesters 
the opportunity to avoid extensions by limiting the scope of their 
requests.<SUP>6</SUP>
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    \5\ Pub. L. No. 104-231, Sec. 4, 110 Stat. 3048, 3049, 5 U.S.C. 
552(a)(2)(D) and (E), as amended.
    \6\ Pub. L. No. 104-231, Secs. 7 and 8, 110 Stat. 3048, 3050-52, 
5 U.S.C. 552(a)(6)(A)(1) and (6)(B), as amended, effective October 
2, 1997.
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    Moreover, the Act allows multitrack processing of FOIA requests. 
Multitrack processing creates a fast track for requests capable of 
resolution with a limited amount of time and effort, and slower tracks 
for requests that demand a more intensive effort.<SUP>7</SUP> In 
addition to optional multitrack processing, the Act mandates expedited 
treatment for requesters who (1) demonstrate an imminent threat to life 
or safety, or (2) are engaged in disseminating information, and 
demonstrate an urgency to inform the public concerning Federal 
Government activity.<SUP>8</SUP>
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    \7\ Pub. L. No. 104-231, Sec. 7, 110 Stat. 3048, 3050-51, 5 
U.S.C. 552(a)(6)(D), as amended, effective October 2, 1997.
    \8\ See Pub. L. No. 104-231, Sec. 8, 110 Stat. 3048, 3051-52, 5 
U.S.C. 552(a)(6)(E), as amended, effective October 2, 1997; and H.R. 
Rep., supra note 3, at 26.
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    The Act requires agencies to promulgate regulations to implement 
expedited processing. This proposed rule responds to the Act's mandate 
regarding expedited processing, and other changes wrought by the Act. 
It also makes several minor grammatical and technical changes for the 
sake of clarity.

[[Page 51611]]

III. Discussion

Part 388--Information and Requests

Authority
    The proposed rule revises the Authority for Part 388 to reflect 
that the FOIA, 5 U.S.C. 552, should be cited ``as amended.''

Sections 388.101-388.105

    No changes.

Section 388.106

    This section is revised to expand the categories of information 
that are available in the Commission's Public Reference Room, and to 
inform the public of the electronic availability of information created 
after November 1, 1996 (proposed para. (a)(2), and (b)). In addition to 
making electronic records available, information will, of course, 
continue to remain available through ``in person'' visits or written 
requests.
    The new categories of information to be available are copies of 
records released under FOIA that are likely to be requested again, an 
index of such records, and reference materials and guides to further 
enhance the public's access to Commission information. The proposed 
definition of the term ``Commission correspondence'' is amended to 
include information in electronic format, consistent with Commission 
practice (proposed para. (c)(1)).
    The section is also revised to explicitly include statements of 
policy and interpretations which have been adopted by the Commission 
and are not published in the Federal Register; and administrative staff 
manuals and instructions to staff that affect a member of the public 
(proposed paras. (b)(19) and (b)(20)). These information categories 
were required to be made available under FOIA even before the 1996 
amendments.

Section 388.107

    The proposed language corrects a typographical error. The term 
``natural defense'' in paragraph (a)(1) is changed to ``national 
defense.''

Section 388.108

    The proposed revisions to this section implement multitrack 
processing, as allowed by the Act, and expedited processing, as 
required by the Act. Multitrack processing establishes a fast track for 
requests requiring a limited amount of time and effort, and slower 
tracks for requests requiring a more intensive effort. The Commission 
proposes to adopt a three part multitracking system that should 
increase efficiency (proposed para. (b)(1)). Under the proposed 
approach, the Director, Office of External Affairs, will place a newly 
received request into one of three tracks for processing: track one--
records that are readily identifiable and were previously cleared for 
release (including those capable of multiple requests and placed in the 
Public Reference Room); track two--records that are readily 
identifiable, or are not voluminous, and require limited review; and 
track three--complex and/or voluminous records requiring a significant 
search and/or review.
    Although the Commission has sometimes employed multitracking in the 
past, its regular use should be advantageous to the public and the 
Commission as simple requests are sometimes backlogged because of 
earlier-filed complex requests. The proposed rule specifies that each 
track will be processed on a first in, first out basis. Requesters are 
permitted to modify their requests to obtain processing on a faster 
track.
    Pursuant to the Act, the proposed rule changes the time for 
processing requests from 10 to 20 working days (proposed para. (c)(1)); 
<SUP>9</SUP> and clarifies the Commission's obligation to specify the 
information that is denied under a request, including the volume of 
withheld materials and the extent and location of redactions in 
partially released materials (proposed para. (c)(3)).
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    \9\ This time limit does not apply to requests for expedited 
processing, which are explained below.
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    The proposed rule makes expedited processing available where the 
requester demonstrates a compelling need: (1) Due to an imminent threat 
to an individual's life or physical safety, or (2) in the case of 
requesters who are primarily engaged in disseminating information, 
where the requester demonstrates an urgency to inform the public 
concerning Federal Government activity (proposed para. (d)(1)). The 
proposed rule emphasizes that a request for expedited processing must 
be supported with credible documentation and a statement certified to 
be true and correct (proposed para. (d)(2)). The proposed rule states 
that only the compelling circumstances indicated will qualify a 
requester for expedited processing. A denial of expedited processing 
will be subject to appeal. Accordingly, the appeal procedure for denial 
of records is amended to include denial of expedited treatment 
(proposed para. (e)).
    For purposes of this proposed rule, a ``requester primarily engaged 
in the dissemination of information'' does not include an individual or 
organization engaged only incidentally in the dissemination of 
information.<SUP>10</SUP> The requester's main business must be the 
dissemination of information.<SUP>11</SUP> Thus, a bona fide member of 
the news media would likely qualify. An organization that periodically 
distributes information to its members would not likely qualify.
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    \10\ H.R. Rep., supra note 3, at 26.
    \11\ Id.
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    In addition to meeting the dissemination requirement, the requester 
must credibly demonstrate that expedited processing is needed to avoid 
a likely, significant adverse consequence to a recognized 
interest.<SUP>12</SUP> The public's right to know, standing alone, is 
not sufficient to satisfy this standard.<SUP>13</SUP>
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    \12\ Id.
    \13\ Id.
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    Under the proposed rule, the Director, Office of External Affairs, 
will rule on a request for expedited processing within 10 calendar days 
from the date the request is received (proposed para. (d)(3)). A denial 
of expedited processing will be explained, and the requester will be 
provided notice of administrative appeal rights.
    Other proposed revisions to the section include a formal 
codification of the Commission's practice of not processing a request 
until after fee issues have been resolved, unless the requester has 
provided a written statement agreeing to pay some or all applicable 
fees pending the resolution of fee issues (proposed para. (a)(5)). The 
purpose of this rule is to avoid an expenditure of Commission resources 
to process a request before the requester has agreed to pay all 
applicable processing fees. The proposed rule also makes minor 
revisions in terminology in the interest of clarity.

Section 388.109

    Paragraph (b)(2)(iii), as currently drafted, charges some non-
commercial requesters for review time. The proposed revision to this 
section deletes charges for review time from non-commercial requesters, 
consistent with 5 U.S.C. Sec. 552(a)(4), the applicable Office of 
Management and Budget's (OMB) Guidelines and Fee Schedule for FOIA, and 
actual Commission practice. Similarly, proposed revisions to paragraph 
(b)(2)(iv) remove ordinary postage fees, consistent with OMB guidelines 
and Commission practice. Requesters remain responsible for special 
delivery fees such as express mail provided in accordance with their 
specifications.
    Paragraph (b)(2)(vii), as currently drafted, authorizes the 
Commission to

[[Page 51612]]

aggregate multiple requests on related topics that are subdivided to 
avoid an assessment of fees. As allowed by the Act, proposed paragraph 
(b)(2)(vii) expands the instances where the Commission may aggregate 
one or more requests for joint processing. The proposed language allows 
aggregation anytime the Commission reasonably believes that such 
multiple requests constitute a single request, and notes that 
aggregated requests may qualify for an extension of time under 
Sec. 388.110(b). The proposed revisions further clarify that the 
Commission has no obligation to process a request under Sec. 388.108 
where there is no assurance or agreement of payment.

Section 388.110

    Pursuant to the Act, the proposed rule makes the administrative 
appeal rights in paragraph (a)(1) applicable to a denial of expedited 
processing. Proposed paragraph (a)(2) provides that such appeals will 
be considered as expeditiously as possible within the 20 working day 
period specified for appeals, and that a requester denied expedited 
processing in an appeal will be notified of judicial review provisions.
    Proposed paragraph (b)(2) allows an extension of time not to exceed 
10 working days beyond the standard deadlines for processing initial 
requests and appeals, as permitted by the Act. As also provided by the 
Act, the proposed rule specifies that an extension in excess of 10 
working days may be available but only where the requester is given the 
opportunity to limit the scope of the request to allow processing 
within 20 working days, or to arrange an alternative time frame.
    Proposed paragraph (b)(3) specifies that requests aggregated under 
Sec. 388.109(b)(2)(vii) qualify for an extension of time when they 
satisfy the unusual circumstances specified in this section.

Section 388.111

    No changes.

Section 388.112

    The proposed language merely reflects a correction of typographical 
errors. Paragraph (c)(1)'s references to paragraphs (b)(2) and (b)(3) 
are corrected to (b)(1)(ii) and (b)(1)(iii), respectively.

IV. Regulatory Flexibility Act Certification

    The Regulatory Flexibility Act of 1980 (RFA) <SUP>14</SUP> 
generally requires a description and analysis of rules that will have 
significant economic impact on a substantial number of small entities. 
Pursuant to section 605(b) of the RFA, the Commission hereby certifies 
that this rule will not have a significant impact on a substantial 
number of small entities. The proposed changes improve the public's 
access to information, and impose additional obligations on the 
Commission to ensure the availability of such information. By 
comparison, the public's obligations would not significantly increase.
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    \14\ 5 U.S.C. 601-602.
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V. Environmental Statement

    Issuance of this proposed rule would not represent a major federal 
action having a significant adverse effect on the human environment 
under the Commission regulations implementing the National 
Environmental Policy Act.<SUP>15</SUP> This proposed rule falls within 
the regulatory exemption which specifies that information gathering, 
analysis, and dissemination are not major federal actions that have a 
significant effect on the human environment.<SUP>16</SUP> Thus, neither 
an environmental impact statement nor an environmental assessment is 
required.
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    \15\ Order No. 486, 52 FR 47897 (Dec. 17, 1987); FERC Stats. & 
Regs. Regs. (Preambles 1986-90) para. 30,783 (Dec. 10, 1987) 
(codified at 18 CFR part 380).
    \16\ 18 CFR 380.4(a)(5).
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VI. Information Collection Statement

    OMB regulations require that OMB approve certain information 
collection requirements imposed by agency rule.<SUP>17</SUP> This 
proposed rule contains no information reporting requirements, and is 
not subject to OMB approval.
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    \17\ 5 CFR part 1320.
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VII. Written Comment Procedure

    The Commission invites interested persons to submit written 
comments or other information concerning this proposed rulemaking. All 
comments in response to this notice should be submitted to the Office 
of the Secretary, Federal Energy Regulatory Commission, 888 First 
Street, N.E., Washington, D.C. 20426, and should refer to Docket No. 
RM97-8-000. An original and fourteen (14) copies of such comments 
should be filed with the Commission on or before November 3, 1997.

Lists of Subjects in 18 CFR Part 388

    Freedom of Information; Public Reference Materials.

    By direction of the Commission.
Lois D. Cashell,
Secretary.

    In consideration of the foregoing, the Commission proposes to amend 
Part 388, Chapter I, Title 18, Code of Federal Regulations, as set 
forth below.

PART 388--INFORMATION AND REQUESTS

    1. The authority citation for Part 388 is revised to read as 
follows:

    Authority: 5 U.S.C. 301-305, 551, 552 (as amended), 553-557; 42 
U.S.C. 7101-7352.

    2. In Sec. 388.106, paragraph (a) is redesignated as (a)(1); 
paragraph (a)(2) is added; paragraph (b) introductory text is revised; 
paragraph (b)(19) is redesignated as (b)(23); new paragraphs (b)(19) 
through (b)(22) are added; and paragraph (c)(1) is revised to read as 
follows:


Sec. 388.106  Requests for Commission records available in the Public 
Reference Room.

    (a)(1) * * *
    (2) Documents created on or after November 1, 1996, or earlier in 
some instances, also are electronically available on the Commission's 
World Wide Web site, www.ferc.fed.us; the Commission Issuance Posting 
System (CIPS) (an electronic bulletin board); or the Records 
Information Management Systems (RIMS). These may be accessed in person 
using a personal computer in the Public Reference Room, or by using a 
personal computer with a modem at a remote location.
    (b) The public records of the Commission that are available for 
inspection and copying upon request in the Public Reference Room, or 
are otherwise available under paragraph (a)(2) of this section, 
include:
* * * * *
    (19) Statements of policy and interpretations which have been 
adopted by the Commission and are not published in the Federal 
Register;
    (20) Administrative staff manuals and instructions to staff that 
affect a member of the public;
    (21)(i) Copies of all records released under Sec. 388.108, which, 
because of their nature and subject, the Director of the Office of 
External Affairs has determined are likely to be requested again, and
    (ii) An index of the records so designated;
    (22) Reference materials and guides for requesting Commission 
records as required by 5 U.S.C. 552(g), as amended; and
    (23) Commission correspondence relating to the foregoing.
    (c) * * *
    (1) Commission correspondence includes written communications and 
enclosures, in hard copy or electronic format, received from others 
outside the

[[Page 51613]]

staff and intended for the Commission or sent to others outside the 
staff and signed by the Chairman, a Commissioner, the Secretary, the 
Executive Director, or other authorized official, except those which 
are personal.
* * * * *


Sec. 388.107  [Amended]

    3. In Sec. 388.107(a)(1), remove the word ``natural'' and add, in 
its place, the word ``national.''
    4. In Sec. 388.108, paragraphs (a)(1) introductory text, 
(a)(1)(iii) and (a)(2) through (a)(4) are revised; new paragraph (a)(5) 
is added; paragraphs (b) and (c) are redesignated as (c) and (e) 
respectively and revised, and new paragraphs (b) and (d) are added, to 
read as follows:


Sec. 388.108  Requests for Commission records not available through the 
Public Reference Room (FOIA requests).

    (a)(1) Except as provided in paragraph (a)(2), of this section, a 
person may request access to Commission records, including records 
maintained in electronic format, that are not available through the 
Public Reference Room, by using the following procedures:
* * * * *
    (iii) The request must identify the fee category of the request, 
consistent with the provisions of Sec. 388.109(b)(1) and (2).
    (2) A request that fails to provide the identification required in 
paragraph (a)(1)(iii) of this section will not be processed until the 
Director, Office of External Affairs, can ascertain the requester's fee 
category.
    (3) A request for records received by the Commission not addressed 
and marked as indicated in paragraph (a)(1)(i) of this section will be 
so addressed and marked by Commission personnel as soon as it is 
properly identified, and forwarded immediately to the Director, Office 
of External Affairs.
    (4) Requests made pursuant to this section will be considered to be 
received upon actual receipt by the Director, Office of External 
Affairs, unless otherwise indicated in paragraph (a)(5) of this 
section.
    (5) Except for the purpose of making a determination regarding 
expedited processing under paragraph (d)(3) of this section, no request 
will be deemed received while there is an unresolved fee waiver issue 
under Sec. 388.109(b)(6), unless the requester has provided a written 
statement agreeing to pay some or all fees pending the outcome of the 
waiver question.
    (b)(1) Multitrack processing. Upon receipt of a request, the 
Director, Office of External Affairs, will place the request in one of 
three tracks for processing:
    (i) Track One--records that are readily identifiable and were 
previously cleared for release (including those subject to multiple 
requests and placed in the Public Reference Room);
    (ii) Track Two--records that are readily identifiable, and require 
limited review; and
    (iii) Track Three--complex and/or voluminous records requiring a 
significant search and/or review.
    (2) Each track specified in paragraph (b)(1) of this section will 
be processed on a first in, first out basis, where practicable. A 
requester may modify a request to obtain processing on a faster track.
    (c) (1) Timing of response. Except as provided in paragraphs (c)(4) 
and (d)(3) of this section, within 20 working days after receipt of the 
request for agency records, the Director, Office of External Affairs, 
will comply with the request or deny the request in whole or in part, 
and will notify the requester of the determination, of the reasons for 
a decision to withhold any part of a requested document, and of the 
right of the requester to appeal any adverse determination in writing 
to the General Counsel or General Counsel's designee.
    (2) The Director, Office of External Affairs, will attempt to 
provide records in the form or format requested, where feasible, but 
will not provide more than one copy of any record to a requester.
    (3) Any determination by the Director, Office of External Affairs, 
to withhold information will, where feasible, indicate the approximate 
volume of information withheld, and will indicate, for partially-
released materials, where redactions have been made, unless to do so 
would harm an interest protected by a FOIA exemption.
    (4) The time limit for the initial determination required by 
paragraph (c)(1) of this section may be extended as set forth in 
Sec. 388.110(b).
    (d)(1) Expedited processing. A requester may seek expedited 
processing on the basis of a compelling need. Expedited processing will 
be granted if the requester demonstrates that:
    (i) Failure to obtain the records on an expedited basis can 
reasonably be expected to pose an imminent threat to the life or 
physical safety of an individual, or
    (ii) In the case of a requester primarily engaged in the 
dissemination of information, there is an urgency to inform the public 
concerning Federal Government activity.
    (2) A request for expedited processing under this section must be 
supported with detailed credible documentation, including a statement 
certified to be true and correct to the requester's best knowledge and 
belief.
    (3) The Director, Office of External Affairs, will decide within 10 
calendar days of receipt of the request whether it is eligible for 
expedited processing. The Director will notify the requester of the 
reasons for denial of expedited processing and of the right of the 
requester to appeal to the General Counsel or General Counsel's 
designee.
    (e) The procedure for appeal of denial of a request for Commission 
records, or denial of a request for expedited processing, is set forth 
in Sec. 388.110.
    5. In Sec. 388.109, the first sentence of paragraph (b)(2)(iii), 
and paragraphs(b)(2)(iv), (b)(2)(vii), and (b)(5)(ii) are revised; 
paragraph (b)(5)(iii) is removed; paragraph (b)(6) is redesignated as 
paragraph (c) and revised, and paragraphs (b)(7) and (b)(8)(i) and (ii) 
are redesignated as (d) and (e)(1) and (2) respectively, to read as 
follows:


Sec. 388.109  Fees for records requests.

* * * * *
    (b) * * *
    (2) * * *
    (iii) For a request not described in paragraphs (b)(2)(i) or (ii) 
of this section the Commission will charge the employee's hourly pay 
rate plus 16 percent for benefits for document search time and 15 cents 
per page for duplication. * * *
    (iv) The Director, Office of External Affairs, will normally 
provide documents by regular mail, with postage prepaid by the 
Commission. However, the requester may authorize special delivery, such 
as express mail, at the requester's own expense.
* * * * *
    (vii) Requesters may not file multiple requests at the same time, 
each seeking portions of a document or documents, solely in order to 
avoid payment of fees. When the Commission reasonably believes that a 
requester, or a group of requesters acting in concert, is attempting to 
break a request down into a series of requests for the purpose of 
evading assessment of fees, or otherwise reasonably believes that two 
or more requests constitute a single request, the Commission may 
aggregate any such requests and charge the requester accordingly. The 
Commission will not aggregate multiple requests on unrelated subjects 
from a requester. Aggregated requests may qualify for an extension of 
time under Sec. 388.110(b).
* * * * *

[[Page 51614]]

    (5) * * *
    (ii) A requester has previously failed to pay a fee charged in a 
timely fashion. The Commission will require the requester to pay the 
full amount owed plus any applicable interest, and to make an advance 
payment of the full amount of the estimated fee before the Commission 
will begin to process a new request or a pending request from that 
requester. When the Commission requires advance payment or an agreement 
to pay under this paragraph, or under Sec. 388.108(a)(5), the 
administrative time limits prescribed in this part will begin only 
after the Commission has received the required payments, or agreements.
    (c) Fee reduction or waiver. (1) Any fee described in this section 
may be reduced or waived if the requester demonstrates that disclosure 
of the information sought is:
    (i) In the public interest because it is likely to contribute 
significantly to public understanding of the operations or activities 
of the government, and
    (ii) Not primarily in the commercial interest of the requester.
    (2) The Commission will consider the following criteria to 
determine the public interest standard:
    (i) Whether the subject of the requested records concerns the 
operations or activities of the government;
    (ii) Whether the disclosure is likely to contribute to an 
understanding of government operations or activities;
    (iii) Whether disclosure of the requested information will 
contribute to public understanding; and
    (iv) Whether the disclosure is likely to contribute significantly 
to public understanding of government operations or facilities.
    (3) The Commission will consider the following criteria to 
determine the commercial interest of the requester:
    (i) Whether the requester has a commercial interest that would be 
furthered by the requested disclosure; and, if so
    (ii) Whether the magnitude of the identified commercial interest of 
the requester is sufficiently large, in comparison with the public 
interest in disclosure, that disclosure is primarily in the commercial 
interest of the requester.
    (4) This request for fee reduction or waiver must accompany the 
initial request for records and will be decided under the same 
procedures used for record requests.
* * * * *
    6. In section 388.110 the section heading, the first sentence of 
paragraph (a)(1), paragraph (a)(2), and paragraph (b) are revised to 
read as follows:


Sec. 388.110  Procedure for appeal of denial of requests for Commission 
records not publicly available or not available through the Public 
Reference Room, denial of requests for fee waiver or reduction, and 
denial of requests for expedited processing.

    (a) (1) A person whose request for records, request for fee waiver 
or reduction, or request for expedited processing is denied in whole or 
part may appeal that determination to the General Counsel or General 
Counsel's designee within 45 days of the determination. * * *
    (2) The General Counsel or the General Counsel's designee will make 
a determination with respect to any appeal within 20 working days after 
the receipt of such appeal. An appeal of the denial of expedited 
processing will be considered as expeditiously as possible within the 
20 working day period. If, on appeal, the denial of the request for 
records, fee reduction, or expedited processing is upheld in whole or 
in part, the General Counsel or the General Counsel's designee will 
notify the person making the appeal of the provisions for judicial 
review of that determination.
    (b)(1) Extension of time. In unusual circumstances, the time limits 
prescribed for making the initial determination pursuant to 
Sec. 388.108 and for deciding an appeal pursuant to this section may be 
extended by up to 10 working days, by the Secretary, who will send 
written notice to the requester setting forth the reasons for such 
extension and the date on which a determination or appeal is expected 
to be dispatched.
    (2) The extension permitted by paragraph (b)(1) of this section may 
be made longer than 10 working days when the Commission notifies the 
requester within the initial response time that the request cannot be 
processed in the specified time, and the requester is provided an 
opportunity to limit the scope of the request to allow processing 
within 20 working days; or to arrange with the Commission an 
alternative time frame.
    (3) Two or more requests aggregated into a single request under 
Sec. 388.109(b)(2)(vii) may qualify for an extension of time if the 
requests, as aggregated, otherwise satisfy the unusual circumstances 
specified in this section.
    (4) Unusual circumstances means:
    (i) The need to search for and collect the requested records from 
field facilities or other establishments that are separate from the 
office processing the requests;
    (ii) The need to search for, collect, and appropriately examine a 
voluminous amount of separate and distinct records which are demanded 
in a single request; or
    (iii) The need for consultation, which will be conducted with all 
practicable speed, with another agency having a substantial interest in 
the determination of the request or among two or more components of the 
agency having substantial subject-matter interest therein.
    7. In Sec. 388.112, paragraph(c)(1)(i)'s reference to ``paragraph 
(b)(2)'' is revised to read ``paragraph (b)(1)(ii),'' and paragraph 
(c)(1)(ii)'s reference to ``paragraph (b)(3)'' is revised to read 
``paragraph (b)(1)(iii).''

[FR Doc. 97-26065 Filed 10-1-97; 8:45 am]
BILLING CODE 6717-01-P