Federal Register / Vol. 63, No. 148 / Monday, August 3, 1998 /Rules and Regulations 41193

under FOR FURTHER INFORMATION

CONTACT.

III. Regulatory Assessment

Requirements

This action does not impose any new

requirements. It only defers the effective

date of a previously issued final rule.

Any assessments necessary for the final

rule are discussed in that final rule and

are not affected by today’s action. In

fact, this action does not require review

by the Office of Management and

Budget under Executive Order 12866,

entitled Regulatory Planning and

Review (58 FR 51735, October 4, 1993),

the Paperwork Reduction Act, 44 U.S.C.

3501 et seq., or Executive Order 13045,

entitled Protection of Children from

Environmental Health Risks and Safety

Risks (62 FR 19885, April 23, 1997). For

the same reason, it does not require any

action under Title II of the Unfunded

Mandates Reform Act of 1995 (Pub. L.

104–4), Executive Order 12875, entitled

Enhancing the Intergovernmental

Partnership (58 FR 58093, October 28,

1993), or Executive Order 12898,

entitled Federal Actions to Address

Environmental Justice in Minority

Populations and Low-Income

Populations (59 FR 7629, February 16,

1994). In addition, since this type of

action does not require any proposal, no

action is needed under the Regulatory

Flexibility Act (5 U.S.C. 601 et seq.).

IV. Submission to Congress and the

Comptroller General

The Congressional Review Act, 5

U.S.C. 801 et seq., as added by the Small

Business Regulatory Enforcement

Fairness Act of 1996, generally provides

that before a rule may take effect, the

Agency promulgating the rule must

submit a rule report, which includes a

copy of the rule, to each House of the

Congress and the Comptroller General of

the United States. EPA will submit a

report containing this action and other

required information to the U.S. Senate,

the U.S. House of Representatives and

the Comptroller General of the United

States prior to publication of the action

in the Federal Register. This is a

deferral of the compliance date of a rule,

and is not a ‘‘major rule’’ as defined by

5 U.S.C. 804(2).

List of Subjects in 40 CFR Part 159

Environmental protection, Pesticides

and pests, Policy statements, Reporting

and recordkeeping requirements.

Dated: July 16, 1998.

Lynn R. Goldman,

Assistant Administrator for Prevention,

Pesticides and Toxic Substances.

Therefore, 40 CFR part 159 is

amended as follows:

PART 159—[AMENDED]

1. The authority citation for part 159

continues to read as follows:

Authority: 7 U.S.C. 136–136y.

2. Section 159.159 is amended by

revising the introductory text of

paragraph (a) to read as follows:

§ 159.159 Information obtained before

promulgation of the rule.

(a) Notwithstanding any other

provision of this part, information held

by registrants on August 17, 1998 which

has not been previously submitted to

the Agency, but which is reportable

under the terms of this part, must be

submitted to the Agency if it meets any

of the following criteria:

* * * * *

[FR Doc. 98–20615 Filed 7–31–98; 8:45 am]

BILLING CODE 6560–50–F

LEGAL SERVICES CORPORATION

45 CFR Part 1602

Procedures for Disclosure of

Information Under the Freedom of

Information Act

AGENCY: Legal Services Corporation.

ACTION: Final rule.

SUMMARY: This final rule substantially

revises the Legal Services Corporation’s

(LSC or Corporation) regulation on the

disclosure of information under the

Freedom of Information Act. This

revised rule implements the 1996

amendments to the FOIA regarding

electronic records, time limits, and

standards for processing requests for

records. In addition, the rule is

restructured for clarity, titles are revised

to better identify the purpose of the

sections, and revisions are made to

incorporate procedures for Office of

Inspector General records.

DATES: This final rule is effective

September 2, 1998.

FOR FURTHER INFORMATION CONTACT:

Suzanne B. Glasow, 202–336–8817.

SUPPLEMENTARY INFORMATION: The Legal

Services Corporation revised and

published its Freedom of Information

Act (FOIA) rule as final in 1993,

principally to include the Office of

Inspector General (OIG) in the FOIA

process. However, the rule was

withdrawn before it became effective. In

1996, Congress amended the FOIA. See

‘‘Electronic Freedom of Information Act

Amendments of 1996.’’ Pub. L. 104–231.

The Office of Information and Privacy of

the Department of Justice has issued a

final rule and guidances on the 1996

amendments, which LSC has relied on

for many of this rule’s revisions. See 63

FR 29591 (June 1, 1998). Generally, the

1996 amendments deal with electronic

records, but changes were also made to

time limits and to procedures and

standards for processing requests. On

February 6, 1998, the Corporation’s

Operations and Regulations Committee

(Committee) of the Corporation’s Board

of Directors (Board) met to consider a

draft proposed rule to revise 45 CFR

Part 1602, which sets out the

Corporation’s procedures for the

disclosure of information under the

FOIA. After making changes to the draft

rule, the Committee adopted a proposed

rule that was published in the Federal

Register on March 9, 1998. See 63 FR

11303 (March 9, 1998).

The Corporation received only one

comment on the proposed rule from the

Public Citizen Litigation Group (Public

Citizen), a nonprofit consumer advocacy

organization. Public Citizen disagreed

with the rule’s interpretation of a

provision in Sec. 552(a)(2) of FOIA

which requires agencies to make their

public reading room records created

after November 1, 1996, available

electronically. Section 1602.5 of the

proposed rule applied this requirement

only to records ‘‘created’’ by the

Corporation. Public Citizen argued that

the requirement should also apply to

records obtained by the Corporation

from outside sources, such as recipient

reports and grant applications. Public

Citizen was specifically concerned

about the new category of reading room

records included in the 1996 FOIA

amendments, that is, records released

pursuant to a request for records that the

Corporation determines are likely to

become the subject of subsequent

requests (subsequent request records).

See § 1602.8.

The Board did not agree and the final

rule continues to apply the electronic

record requirement only to records

‘‘created by the Corporation’’ after

November 1, 1996. This is consistent

with the interpretation of the Office of

Information and Privacy of the

Department of Justice (DOJ) and

applicable case law. The Office of

Information and Privacy, which

specializes in FOIA and the Privacy Act,

advised Federal agencies in 1997 that

records generated from outside the

agency ‘‘are not created by the agency

and should not be regarded as subject to
41194 Federal Register / Vol. 63, No. 148 / Monday, August 3, 1998 /Rules and Regulations

the new electronic availability

requirement.’’ DOJ FOIA Update, Winter

1997 at 4–5. In addition, the final DOJ

FOIA rule continues this interpretation

and applies the electronic records

requirement only to public reading

room records created by DOJ. 63 FR

29591–29604 (June 1, 1998).

Case law also supports this

interpretation. In United States Dep’t of

Justice v. Tax Analysts, 492 U.S. 136,

144 (1989), the Supreme Court

recognized that agency records subject

to FOIA fall into 2 categories: records

that are ‘‘created’’ by agencies and

records that are ‘‘obtained’’ by agencies.

The electronic reading room

requirement uses the term ‘‘created’’

and nothing in the legislative history of

the 1996 amendments requires the term

‘‘created’’ to include records obtained

by an agency. See H. R. Rep. No. 104–

795 (1996). This interpretation is

consistent with the nature of reading

room records. Except for subsequent

request records obtained from outside of

the agency, records required by FOIA to

be maintained in an agency’s public

reading room are records created by an

agency. Such records include an

agency’s final opinions and orders,

statements of policy and interpretations

adopted by the agency, administrative

staff manuals and instructions to staff

that affect the public, and an index of

such records in their public reading

rooms. Sec. 552(a)(2) of FOIA.

Of course, the Corporation may

choose, as a matter of discretion, to

make subsequent request records that

are generated from outside the

Corporation available electronically in

any case in which it determines that to

do so would be most cost effective in

serving public access needs under

subsection 552(a)(2)(D) of FOIA.

Other technical changes have also

been included in this final rule. For

example, headings have been added to

several paragraphs for clarity and the

reference to regional offices has been

deleted because the Corporation no

longer has any regional offices. A

section-by-section analysis follows.

Section-by-Section Analysis

Section 1602.1 Purpose

The purpose of this part is to set out

the rules and procedures the

Corporation follows to make

information available to the public

under the FOIA. This section is revised

to reflect the addition of a new section,

§ 1602.4, that implements the FOIA

requirement that certain Corporation

records be published in the Federal

Register.

Section 1602.2 Definitions

Several definitions from the prior rule

have been deleted in this final rule. The

definitions of ‘‘clerical,’’

‘‘management,’’ ‘‘professional staff,’’

and ‘‘professional support,’’ are deleted

because they are no longer consistent

with the Corporation’s personnel

system. The definition of ‘‘direct costs’’

is also deleted. It was used in the prior

rule only in § 1602.4 to clarify the cost

of duplication of the index. The final

rule applies the same standard

duplication charges to the index that

apply to other Corporation records.

Requirement To Use OMB Definitions

FOIA requires that agencies

promulgate rules specifying a schedule

of fees based on guidance published by

the Director of the Office of

Management and Budget (OMB). See 52

FR 10012 (March 27, 1987). The terms

defined in this section that are used in

the section on fees, § 1602.13, were

promulgated in 1988 and are based, as

required, on the OMB guidance. See 53

FR 6151–6154 (March 1, 1988).

Commercial use request. The

definition of this term is based on the

OMB guidance, and the term is based on

a standard for determining fees in the

FOIA. The definition eliminates a

reference to looking at the identity of

the requester to help determine whether

the request is for commercial use. OMB

included the references to the

requester’s identity in its proposed

guidance, but deleted it in the final

guidance.

Duplication. The definition of this

term is based on the OMB guidance, and

the term is included in the section on

fees (§ 1602.13) which permits charging

of fees for certain duplication of records.

Educational institution, noncommercial scientific institution,

representative of the news media. The

definitions of these terms are based on

the OMB guidance and are used in the

section on fees, § 1602.13. Minor

technical revisions have been made.

Office of Inspector General records.

The definition of this term distinguishes

OIG records from Corporation records.

This definition and other OIG

provisions in this rule are proposed to

provide regulatory authority to the OIG

to process and to grant or deny FOIA

requests for OIG records.

Records. The definition of records is

revised to clarify that the term includes

electronic records.

Review. This term is used in the

section on fees (§ 1602.13) and is based

on the OMB guidance. The revisions are

technical. The prior definition included

a reference to commercial use requests,

because review fees are charged only for

such requests. The section on fees

which uses this term, however, makes it

clear that review fees are charged only

for commercial use requests, so it is

redundant to include reference to

commercial use requests in the

definition of review. The first sentence

of the definition describes how the

review process preliminarily identifies

portions of information that clearly are

exempt. If the reviewer is not certain

whether certain information is exempt,

and there is a need for qualified staff to

resolve any legal or policy issues on

disclosure, the time spent resolving

such issues or policy is not included in

the meaning of review, as is made clear

in the third sentence of this definition.

Search. The term ‘‘search’’ is used in

the section on fees (§ 1602.13). The

revisions are intended to conform the

definition to the revised definition in

the FOIA as amended in 1996 and

includes searching for information by

automated means.

Section 1602.3 Policy

This section generally states that it is

the policy of the Corporation to make

every reasonable effort to comply with

the requirements of the FOIA. The

revisions to this section are technical or

eliminate unnecessary information. A

reference to ‘‘a recipient’’ is added.

Section 1602.4 Records Published in

the Federal Register

This is a new section. Section

552(a)(1) of FOIA requires each agency

to currently publish in the Federal

Register for the guidance of the public

a range of basic information regarding

its structure and operations, including

information on the agency’s

organization, functions, procedural and

substantive rules, and general

statements of policy. The Corporation

routinely publishes such information in

the Federal Register as it is revised or

amended. Such publications include its

regulations, notices, and requests for

proposals. Information on the

Corporation’s structure and location is

annually published in the United States

Government Manual, a special

publication of the Federal Register.

Section 1602.5 Public Reading Room

This section sets out the process by

which the Corporation makes available

for public inspection and copying

records listed in paragraph (b) of this

section, as required by Sec. 552(a)(2) of

the FOIA. This rule changes the title of

this section from central records room to

public reading room to better describe

the function of the room. Paragraph (a)
Federal Register / Vol. 63, No. 148 / Monday, August 3, 1998 /Rules and Regulations 41195

provides the address and hours of

business of the public reading room.

Paragraph (b) lists the types of reading

room records. These records include

final opinions and orders, statements of

policy and interpretations adopted by

the Corporation that are not published

in the Federal Register and

administrative staff manuals and

instructions that affect the public or

recipients. A new category of public

reading room record are records

provided pursuant to a public request

(see § 1602.8) that the Corporation

determines are likely to be subject to

multiple subsequent requests. For

example, the website for the Federal

Bureau of Investigation includes records

on Elvis Presley, Marilyn Monroe, Elliot

Ness, Baby Face Nelson, Jackie

Robinson and Will Rodgers. Currently,

the Corporation has not identified any

subsequent request records.

The use of the term ‘‘will be made

available’’ in paragraph (b) is intended

to clarify that certain public reading

room records will normally be

maintained in the public reading room

while others will be kept in close

proximity elsewhere in the

Corporation’s headquarters in

Washington DC. In response to a

request, any records kept in close

proximity will be made available for

inspection and copying in the public

reading room.

Paragraph (c) sets out the protections

from public disclosure that may apply

to certain reading room records and the

process the Corporation will use to edit

or delete protected information.

Paragraph (d) provides that reading

room records created by the Corporation

after November 1, 1996, and an index of

such records, will be made available

electronically. The Corporation is in the

process of converting such records to

electronic form. As they are so

converted, they will be made available

electronically in the public reading

room.

Paragraph (e) states that the

Corporation will make most of its

electronic public reading room records

available on its websites.

Section 1602.6 Procedures for Use of

Public Reading Room

This section describes the process by

which a member of the public may

inspect and copy public reading room

records. Persons interested in using the

public reading room are advised to

make arrangements ahead of time to

facilitate their access to the requested

information.

Section 1602.7 Index of Records

The FOIA requires the Corporation to

maintain and make available an index of

reading room records. This section

clarifies that the index the Corporation

maintains will be made available in the

Corporation’s public reading room and

on the Corporation’s websites. A

revision is proposed that would make

the cost of duplicating the index

consistent with the charges for

duplication of other Corporation

records.

Section 1602.8 Requests for Records

The FOIA also addresses a third

category of records, which are records

required to be made available by the

Corporation upon request by any person

unless they are exempt from mandatory

disclosure under any of the FOIA

exemptions. This type of record is any

Corporation record that is not a public

reading room record or a record

published in the Federal Register. Such

records commonly include information

obtained by the Corporation from its

grantees, correspondence, financial and

statistical reports obtained or created by

the Corporation, compliance review

reports and competition records.

Section 1602.8 sets out the process by

which the Corporation makes such

records available. It has been

restructured and revised to better

describe the procedures for submitting

and processing requests for records.

Minor revisions are made to paragraph

(a) to make it consistent with other

revisions to the rule.

Paragraphs (b), (c) and (d) describe

how requests should be made. In order

to facilitate the location of records by

Corporation staff, requests should

reasonably describe the records sought.

Paragraph (e) clarifies that the FOIA

does not require the Corporation to

create a record or perform research on

a matter to satisfy a request.

Paragraph (f) requires that a requester

be promptly informed of any estimated

fees that may be charged for the request

as set out in the rule’s section on fees,

§ 1602.13.

Paragraph (g) provides that any

request for a fee waiver or reduction

should be included in the FOIA request,

and that the Corporation must respond

promptly to such requests for a fee

waiver or reduction.

Paragraphs (i) through (l) set out the

process and time limits for responding

to requests. The OIG provisions are new

and are included in recognition of the

establishment of an OIG at the

Corporation.

Paragraph (m) provides a process and

standard for dealing with requests for

expedited treatment and implements the

1996 amendments to the FOIA. One

criterion that will be considered when

determining whether to provide

expedited processing is whether there is

an urgent need to inform the public

about actual or alleged Corporation or

government activity and the requester is

a person primarily engaged in

disseminating information. Consistent

with the DOJ rules, a person primarily

engaged in disseminating information is

a full-time representative of the news

media, as defined in this part, or a

person whose primary profession is that

of a representative of the news media.

Section 1602.9 Exemptions for

Withholding Records

This section delineates the

exemptions that protect certain records

from mandatory disclosure. All of the

exemptions in this section are based on

the FOIA, although not all FOIA

exemptions are included in this rule,

because certain exemptions are not

applicable to the Corporation. For

example, the exemption for information

on geological information related to

wells is not included. Technical

changes are made to this section to

better conform the language to the

FOIA.

The language for § 1602.9(a)(6)(iv) is

revised in recognition of the

establishment of the OIG at the

Corporation. This FOIA exemption

protects documents that might identify

a confidential source, and also, in the

case of a criminal investigation, that

might identify the information

furnished by the source. LSC’s prior rule

made no reference to information

compiled for law enforcement purposes.

Because the OIG conducts investigations

into criminal activities, addition of this

reference to such information is

appropriate. This exemption was

included in the published rule that was

withdrawn in 1993. A reference to ‘‘a

recipient’’ is also added to

§ 1602.9(a)(6)(ii).

Paragraph (b) explains the process by

which the Corporation will segregate

protected information from information

that must be made available to the

requester. The 1996 amendments to the

FOIA require the Corporation to

indicate the amount and location of

deleted material (if technically feasible),

unless such action would harm the

interest protected by the applicable

exemption.

Paragraph (c) sets out the standard by

which the Corporation may exercise

discretion to release information

otherwise protected from disclosure.

The consultation language is intended

to address OIG records.
41196 Federal Register / Vol. 63, No. 148 / Monday, August 3, 1998 /Rules and Regulations

Section 1602.10 Officials Authorized

To Grant or Deny Requests for Records

This section identifies the officials

within the Corporation authorized to

grant or deny requests for records. The

revisions to paragraphs (a) and (b) are

added to include the OIG in the

Corporation’s processing of FOIA

requests when OIG records are

requested and to be consistent with the

Corporation’s current procedures.

Section 1602.11 Denials

This section sets out the process the

Corporation shall follow when a request

for records is denied.

Section 1602.12 Appeals of Denials

This section describes the process by

which a person may appeal a denial.

Provisions including the OIG in the

appeal process have been added.

Section 1602.13 Fees

Revisions to this section are largely

technical. Paragraph (e) sets out the

schedule of charges for services

regarding the production or disclosure

of the Corporation’s records. Revisions

to paragraph (e) reflect changes to the

Corporation’s salary system. The term

‘‘band’’ in paragraph (e) refers to a

specific range of pay, just as the term

‘‘schedule’’ refers to a pay range for

Federal employees.

References to the Corporation have

been added to paragraph (f) to apply

certain fee waiver provisions to the

Corporation as well as to governmental

entities.

A revision to paragraph (j) is proposed

to allow rather than require the

Corporation to charge interest, which is

consistent with the OMB guidance.

List of Subjects in 45 CFR Part 1602

Freedom of information.

For reasons set forth in the preamble,

LSC revises 45 CFR part 1602 as

follows:

PART 1602—PROCEDURES FOR

DISCLOSURE OF INFORMATION

UNDER THE FREEDOM OF

INFORMATION ACT

Sec.

1602.1 Purpose.

1602.2 Definitions.

1602.3 Policy.

1602.4 Records published in the Federal

Register.

1602.5 Public reading room.

1602.6 Procedures for use of public reading

room.

1602.7 Index of records.

1602.8 Requests for records.

1602.9 Exemptions for withholding records.

1602.10 Officials authorized to grant or

deny requests for records.

1602.11 Denials.

1602.12 Appeals of denials.

1602.13 Fees.

Authority: 42 U.S.C. 2996d(g); 5 U.S.C.

552.

§ 1602.1 Purpose.

This part contains the rules and

procedures the Legal Services

Corporation follows in making records

available to the public under the

Freedom of Information Act.

§ 1602.2 Definitions.

As used in this part—

(a) Commercial use request means a

request from or on behalf of one who

seeks information for a use or purpose

that furthers the commercial, trade, or

profit interests of the requester or the

person on whose behalf the request is

made. In determining whether a

requester properly belongs in this

category, the Corporation will look to

the use to which a requester will put the

documents requested. When the

Corporation has reasonable cause to

doubt the requester’s stated use of the

records sought, or where the use is not

clear from the request itself, it will seek

additional clarification before assigning

the request to a category.

(b) Duplication means the process of

making a copy of a requested record

pursuant to this part. Such copies can

take the form of paper copy, microform,

audio-visual materials, or machine

readable electronic documents, among

others.

(c) Educational institution means a

preschool, a public or private

elementary or secondary school, an

institution of undergraduate or graduate

higher education, or an institution of

professional or vocational education

which operates a program or programs

of scholarly research.

(d) FOIA means the Freedom of

Information Act, 5 U.S.C. 552.

(e) Non-commercial scientific

institution means an institution that is

not operated on a ‘‘commercial’’ basis

and which is operated solely for the

purpose of conducting scientific

research, the results of which are not

intended to promote any particular

product or industry.

(f) Office of Inspector General records

means those records as defined

generally in this section which are

exclusively in the possession and

control of the Office of Inspector

General of the Legal Services

Corporation.

(g) Records means books, papers,

maps, photographs, or other

documentary materials, regardless of

whether the format is physical or

electronic, made or received by the

Corporation in connection with the

transaction of the Corporation’s

business and preserved by the

Corporation as evidence of the

organization, functions, policies,

decisions, procedures, operations, or

other activities of the Corporation, or

because of the informational value of

data in them. The term does not

include, inter alia, books, magazines, or

other materials acquired solely for

library purposes.

(h) Representative of the news media

means any person actively gathering

news for an entity that is organized and

operated to publish or broadcast news to

the public. The term ‘‘news’’ means

information that is about current events

or that would be of current interest to

the public. Examples of news media

entities include television or radio

stations broadcasting to the public at

large and publishers of periodicals (but

only in those instances when they can

qualify as disseminators of ‘‘news’’) who

make their products available for

purchase or subscription by the general

public. These examples are not intended

to be all-inclusive. Moreover, as

traditional methods of news delivery

evolve (e.g., electronic dissemination of

newspapers through

telecommunications services), such

alternative media would be included in

this category. In the case of ‘‘freelance’’

journalists, they will be regarded as

working for a news organization if they

can demonstrate a solid basis for

expecting publication through that

organization, even though not actually

employed by it.

(i) Review means the process of

examining documents located in

response to a request to determine

whether any portion of any such

document is exempt from disclosure. It

also includes processing any such

documents for disclosure. Review does

not include time spent resolving general

legal or policy issues regarding the

application of exemptions.

(j) Search means the process of

looking for and retrieving records that

are responsive to a request for records.

It includes page-by-page or line-by-line

identification of material within

documents and also includes reasonable

efforts to locate and retrieve information

from records maintained in electronic

form or format. Searches may be

conducted manually or by automated

means and will be conducted in the

most efficient and least expensive

manner.

§ 1602.3 Policy.

The Corporation will make records

concerning its operations, activities, and

business available to the public to the
Federal Register / Vol. 63, No. 148 / Monday, August 3, 1998 /Rules and Regulations 41197

maximum extent reasonably possible.

Records will be withheld from the

public only in accordance with the

FOIA and this part. Records exempt

from disclosure under the FOIA may be

made available as a matter of discretion

when disclosure is not prohibited by

law, and disclosure would not

foreseeably harm a legitimate interest of

the public, the Corporation, a recipient,

or any individual.

§ 1602.4 Records published in the Federal

Register.

The Corporation routinely publishes

in the Federal Register information on

its basic structure and operations

necessary to inform the public how to

deal effectively with the Corporation.

The Corporation will make reasonable

efforts to currently update such

information, which will include basic

information on the Corporation’s

location, functions, rules of procedure,

substantive rules, statements of general

policy, and information regarding how

the public may obtain information,

make submittals or requests, or obtain

decisions.

§ 1602.5 Public reading room.

(a) The Corporation will maintain a

public reading room at its office at 750

First Street, NE., Washington DC 20002–

4250. This room will be supervised and

will be open to the public during the

regular business hours of the

Corporation for inspecting and copying

records described in paragraph (b) of

this section.

(b) Subject to the limitation stated in

paragraph (c) of this section, the

following records will be made available

in the public reading room:

(1) All final opinions, including

concurring and dissenting opinions, and

orders issued in the adjudication of

cases;

(2) Statements of policy and

interpretations adopted by the

Corporation that are not published in

the Federal Register;

(3) Administrative staff manuals and

instructions to the staff that affect the

public or recipients;

(4) Copies of records, regardless of

form or format, released to any person

in response to a public request for

records pursuant to § 1602.8 which the

Corporation has determined are likely to

become subject to subsequent requests

for substantially the same records, and

a general index of such records;

(5) The current index required by

§ 1602.7;

(6) To the extent feasible, other

records considered to be of general

interest to recipients or members of the

public in understanding activities of the

Corporation or in dealing with the

Corporation in connection with those

activities.

(c) Certain records otherwise required

by FOIA to be available in the public

reading room may be exempt from

mandatory disclosure pursuant to

section 552(b) of the FOIA and § 1602.9.

Such records will not be made available

in the public reading room. Other

records maintained in the public

reading room may be edited by the

deletion of identifying details

concerning individuals to prevent a

clearly unwarranted invasion of

personal privacy. In such cases, the

record shall have attached to it a full

explanation of the deletion. The extent

of the deletion shall be indicated, unless

doing so would harm an interest

protected by the exemption under

which the deletion is made. If

technically feasible, the extent of the

deletion shall be indicated at the place

in the record where the deletion was

made.

(d) Records required by the FOIA to

be maintained and made available in the

public reading room that are created by

the Corporation on or after November 1,

1996, shall be made available

electronically. This includes the index

of published and reading room records,

which shall indicate which records are

available electronically.

(e) Most electronic public reading

room records will also be made

available to the public on the

Corporation’s websites at http://

www.lsc.gov and http://oig.lsc.gov.

§ 1602.6 Procedures for use of public

reading room.

Any member of the public may

inspect or copy records described in

§ 1602.5(b) in the public reading room

during regular business hours. Because

it will sometimes be impossible to

produce records or copies of records on

short notice, a person who wishes to

inspect or copy records is advised to

arrange a time in advance, by telephone

or letter request made to the Office of

the General Counsel. Persons submitting

requests by telephone will be notified

whether a written request would be

advisable to aid in the identification and

expeditious processing of the records

sought. Written requests should identify

the records sought in the manner

provided in § 1602.8(b) and should

request a specific date for inspecting the

records. The requester will be advised

as promptly as possible if, for any

reason, it may not be possible to make

the records sought available on the date

requested.

§ 1602.7 Index of records.

The Corporation will maintain a

current index identifying any matter

within the scope of § 1602.4 and

§ 1602.5(b) (1) through (5). The index

will be maintained and made available

for public inspection and copying at the

Corporation’s office in Washington, DC.

The cost of a copy of the index will not

exceed the standard charge for

duplication set out in § 1602.13(e). The

Corporation will also make the index

available on its websites.

§ 1602.8 Requests for records.

(a) Except for records required by the

FOIA to be published in the Federal

Register (§ 1602.4) or to be made

available in the public reading room

(§ 1602.5), Corporation records will be

made promptly available, upon request,

to any person in accordance with this

section, unless it is determined that

such records should be withheld and

are exempt from mandatory disclosure

under the FOIA and § 1602.9.

(b) Requests. Requests for records

under this section shall be made in

writing, with the envelope and the letter

or e-mail request clearly marked

Freedom of Information Request. All

such requests shall be addressed to the

Corporation’s Office of the General

Counsel. Requests by letter shall use the

address given in § 1602.5(a). E-mail

requests shall be addressed to

info@smtp.lsc.gov. Any request not

marked and addressed as specified in

this paragraph will be so marked by

Corporation personnel as soon as it is

properly identified, and will be

forwarded immediately to the Office of

the General Counsel. A request

improperly addressed will not be

deemed to have been received for

purposes of the time period set forth in

paragraph (i) of this section until it has

been received by the Office of the

General Counsel. Upon receipt of an

improperly addressed request, the

General Counsel or designee shall notify

the requester of the date on which the

time period began.

(c) A request must reasonably

describe the records requested so that

employees of the Corporation who are

familiar with the subject area of the

request are able, with a reasonable

amount of effort, to determine which

particular records are within the scope

of the request. If it is determined that a

request does not reasonably describe the

records sought, the requester shall be so

informed and provided an opportunity

to confer with Corporation personnel in

order to attempt to reformulate the

request in a manner that will meet the

needs of the requester and the

requirements of this paragraph.
41198 Federal Register / Vol. 63, No. 148 / Monday, August 3, 1998 /Rules and Regulations

(d) To facilitate the location of records

by the Corporation, a requester should

try to provide the following kinds of

information, if known:

(1) The specific event or action to

which the record refers;

(2) The unit or program of the

Corporation which may be responsible

for or may have produced the record;

(3) The date of the record or the date

or period to which it refers or relates;

(4) The type of record, such as an

application, a grant, a contract, or a

report;

(5) Personnel of the Corporation who

may have prepared or have knowledge

of the record;

(6) Citations to newspapers or

publications which have referred to the

record.

(e) The Corporation is not required to

create a record or to perform research to

satisfy a request.

(f) Estimated fees. The Corporation

shall advise the requester of any

estimated fees as promptly as possible.

The Corporation may require that fees

be paid in advance, in accordance with

§ 1602.13(i), and the Corporation will

advise a requester as promptly as

possible if the fees are estimated to

exceed $25 or any limit indicated by the

requester.

(g) Any request for a waiver or

reduction of fees should be included in

the FOIA request, and any such request

should indicate the grounds for a waiver

or reduction of fees, as set out in

§ 1602.13(f). The Corporation shall

respond to such request as promptly as

possible.

(h) Format. The Corporation will

provide records in the form or format

indicated by the requester to the extent

such records are readily reproducible in

the requested form or format.

(i)(1) The General Counsel or

designee, upon request for any records

made in accordance with this section,

except in the case of a request for Office

of Inspector General records, shall make

an initial determination of whether to

comply with or deny such request and

dispatch such determination to the

requester within 20 days (excepting

Saturdays, Sundays, and legal public

holidays) after receipt of such request,

except for unusual circumstances, in

which case the time limit may be

extended for up to 10 working days by

written notice to the requester setting

forth the reasons for such extension and

the date on which a determination is

expected to be dispatched.

(2) Initial response/delays. If the

General Counsel or designee determines

that a request or portion thereof is for

Office of Inspector General records, the

General Counsel or designee shall

promptly refer the request or portion

thereof to the Office of Inspector

General and send notice of such referral

to the requester. In such case, the

Counsel to the Inspector General or

designee shall make an initial

determination of whether to comply

with or deny such request and dispatch

such determination to the requester

within 20 working days after receipt of

such request, except for unusual

circumstances, in which case the time

limit may be extended for up to 10

working days by written notice to the

requester setting forth the reasons for

such extension and the date on which

a determination is expected to be

dispatched.

(3) Unusual circumstances. As used in

this part, ‘‘unusual circumstances’’ are

limited to the following, but only to the

extent reasonably necessary for the

proper processing of the particular

request:

(i) The need to search for and collect

the requested records from

establishments that are separate from

the office processing the request;

(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

shall be conducted with all practicable

speed, with another agency or

organization, such as a recipient, having

a substantial interest in the

determination of the request or among

two or more components of the

Corporation having substantial subject

matter interest therein.

(j) If a request is particularly broad or

complex so that it cannot be completed

within the time periods stated in

paragraph (i) of this section, the

Corporation may ask the requester to

narrow the request or agree to an

additional delay.

(k) When no determination can be

dispatched within the applicable time

limit, the General Counsel or designee

or the Counsel to the Inspector General

or designee shall inform the requester of

the reason for the delay, the date on

which a determination may be expected

to be dispatched, and the requester’s

right to treat the delay as a denial and

to appeal to the Corporation’s President

or Inspector General, in accordance with

§ 1602.12. If no determination has been

dispatched by the end of the 20-day

period, or the last extension thereof, the

requester may deem the request denied,

and exercise a right of appeal in

accordance with § 1602.12. The General

Counsel or designee or the Counsel to

the Inspector General or designee may

ask the requester to forego appeal until

a determination is made.

(l) After it has been determined that

a request will be granted, the

Corporation will act with due diligence

in providing a substantive response.

(m)(1) Expedited treatment. Requests

and appeals will be taken out of order

and given expedited treatment

whenever the requester demonstrates a

compelling need. A compelling need

means:

(i) Circumstances in which the lack of

expedited treatment could reasonably be

expected to pose an imminent threat to

the life or physical safety of an

individual;

(ii) An urgency to inform the public

about an actual or alleged Corporation

or Federal government activity and the

request is made by a person primarily

engaged in disseminating information;

(iii) The loss of substantial due

process rights; or

(iv) A matter of widespread and

exceptional media interest in which

there exist possible questions about the

Corporation’s or the Federal

government’s integrity which affect

public confidence.

(2) A request for expedited processing

may be made at the time of the initial

request for records or at any later time.

For a prompt determination, a request

for expedited processing must be

properly addressed and marked and

received by the Corporation pursuant to

paragraphs (b) of this section.

(3) A requester who seeks expedited

processing must submit a statement

demonstrating a compelling need that is

certified by the requester to be true and

correct to the best of that person’s

knowledge and belief, explaining in

detail the basis for requesting expedited

processing.

(4) Within ten calendar days of its

receipt of a request for expedited

processing, the General Counsel or

designee or the Inspector General or

designee shall decide whether to grant

the request and shall notify the

requester of the decision. If a request for

expedited treatment is granted, the

request shall be given priority and shall

be processed as soon as practicable. If a

request for expedited processing is

denied, any appeal of that decision shall

be acted on expeditiously by the

Corporation.

§ 1602.9 Exemptions for withholding

records.

(a) A requested record of the

Corporation may be withheld from

public disclosure only if one or more of

the following categories exempted by

the FOIA apply:
Federal Register / Vol. 63, No. 148 / Monday, August 3, 1998 /Rules and Regulations 41199

(1) Matter which is related solely to

the internal personnel rules and

practices of the Corporation;

(2) Matter which is specifically

exempted from disclosure by statute

(other than the exemptions under FOIA

at 5 U.S.C. 552(b)), provided that such

statute requires that the matters be

withheld from the public in such a

manner as to leave no discretion on the

issues, or establishes particular criteria

for withholding, or refers to particular

types of matters to be withheld;

(3) Trade secrets and commercial or

financial information obtained from a

person and privileged or confidential;

(4) Inter-agency or intra-agency

memoranda or letters which would not

be available by law to a party other than

an agency in litigation with the

Corporation;

(5) Personnel and medical files and

similar files, the disclosure of which

would constitute a clearly unwarranted

invasion of personal privacy;

(6) Records or information compiled

for law enforcement purposes including

enforcing the Legal Services Corporation

Act or any other law, but only to the

extent that the production of such law

enforcement records or information:

(i) Could reasonably be expected to

interfere with enforcement proceedings;

(ii) Would deprive a person or a

recipient of a right to a fair trial or an

impartial adjudication;

(iii) Could reasonably be expected to

constitute an unwarranted invasion of

personal privacy;

(iv) Could reasonably be expected to

disclose the identity of a confidential

source, including a State, local, or

foreign agency or authority or any

private institution which furnished

information on a confidential basis, and

in the case of a record or information

compiled by a criminal law enforcement

authority in the course of a criminal

investigation, information furnished by

a confidential source;

(v) Would disclose techniques and

procedures for law enforcement

investigations or prosecutions, or would

disclose guidelines for law enforcement

investigations or prosecutions if such

disclosure could reasonably be expected

to risk circumvention of the law; or

(vi) Could reasonably be expected to

endanger the life or physical safety of

any individual;

(b) In the event that one or more of the

exemptions in paragraph (a) of this

section apply, any reasonably segregable

portion of a record shall be provided to

the requester after deletion of the

portions that are exempt. The amount of

information deleted shall be indicated

on the released portion of the record,

unless doing so would harm the interest

protected by the exemption under

which the deletion is made. If

technically feasible, the amount of

information deleted shall be indicated at

the place in the record where the

deletion is made. In appropriate

circumstances, at the discretion of the

Corporation officials authorized to grant

or deny a request for records, and after

appropriate consultation as provided in

§ 1602.10, it may be possible to provide

a requester with:

(1) A summary of information in the

exempt portion of a record; or

(2) An oral description of the exempt

portion of a record.

(c) No requester shall have a right to

insist that any or all of the techniques

in paragraph (b) of this section should

be employed in order to satisfy a

request.

(d) Records that may be exempt from

disclosure pursuant to paragraph (a) of

this section may be made available at

the discretion of the Corporation official

authorized to grant or deny the request

for records, after appropriate

consultation as provided in § 1602.10.

Records may be made available

pursuant to this paragraph when

disclosure is not prohibited by law, and

it does not appear adverse to legitimate

interests of the Corporation, the public,

a recipient, or any person.

§ 1602.10 Officials authorized to grant or

deny requests for records.

(a) The General Counsel shall furnish

necessary advice to Corporation officials

and staff as to their obligations under

this part and shall take such other

actions as may be necessary or

appropriate to assure a consistent and

equitable application of the provisions

of this part by and within the

Corporation.

(b) The General Counsel or designee

and the Counsel to the Inspector

General or designee are authorized to

grant or deny requests under this part.

In the absence of a Counsel to the

Inspector General, the Inspector General

shall name a designee who will be

authorized to grant or deny requests

under this part and who will perform all

other functions of the Counsel to the

Inspector General under this part. The

General Counsel or designee shall

consult with the Office of Inspector

General prior to granting or denying any

request for records or portions of

records which originated with the Office

of Inspector General, or which contain

information which originated with the

Office of Inspector General, but which

are maintained by other components of

the Corporation. The Counsel to the

Inspector General or designee shall

consult with the Office of the General

Counsel prior to granting or denying any

requests for records.

§ 1602.11 Denials.

(a) A denial of a written request for a

record that complies with the

requirements of § 1602.8 shall be in

writing and shall include the following:

(1) A reference to the applicable

exemption or exemptions in § 1602.9 (a)

upon which the denial is based;

(2) An explanation of how the

exemption applies to the requested

records;

(3) A statement explaining why it is

deemed unreasonable to provide

segregable portions of the record after

deleting the exempt portions;

(4) An estimate of the volume of

requested matter denied unless

providing such estimate would harm the

interest protected by the exemption

under which the denial is made;

(5) The name and title of the person

or persons responsible for denying the

request; and

(6) An explanation of the right to

appeal the denial and of the procedures

for submitting an appeal, including the

address of the official to whom appeals

should be submitted.

(b) Whenever the Corporation makes

a record available subject to the deletion

of a portion of the record, such action

shall be deemed a denial of a record for

purposes of paragraph (a) of this section.

(c) All denials shall be treated as final

opinions under § 1602.5(b).

§ 1602.12 Appeals of denials.

(a) Any person whose written request

has been denied is entitled to appeal the

denial within 90 days by writing to the

President of the Corporation or, in the

case of a denial of a request for Office

of Inspector General records, the

Inspector General, at the addresses

given in § 1602.5(a) and § 1602.8(b). The

envelope and letter or e-mail appeal

should be clearly marked: ‘‘Freedom of

Information Appeal.’’ An appeal need

not be in any particular form, but

should adequately identify the denial, if

possible, by describing the requested

record, identifying the official who

issued the denial, and providing the

date on which the denial was issued.

(b) No personal appearance, oral

argument, or hearing will ordinarily be

permitted on appeal of a denial. Upon

request and a showing of special

circumstances, however, this limitation

may be waived and an informal

conference may be arranged with the

President or designee, or Inspector

General or designee, for this purpose.

(c) The decision of the President or

the Inspector General on an appeal shall

be in writing and, in the event the
41200 Federal Register / Vol. 63, No. 148 / Monday, August 3, 1998 /Rules and Regulations

denial is in whole or in part upheld,

shall contain an explanation responsive

to the arguments advanced by the

requester, the matters described in

§ 1602.11(a) (1) through (4), and the

provisions for judicial review of such

decision under section 552(a)(4) of the

FOIA. The decision shall be dispatched

to the requester within 20 working days

after receipt of the appeal, unless an

additional period is justified pursuant to

§ 1602.8(i) and such period taken

together with any earlier extension does

not exceed 10 days. The decision of the

President or the Inspector General shall

constitute the final action of the

Corporation. All such decisions shall be

treated as final opinions under

§ 1602.5(b).

(d) On an appeal, the President or

designee shall consult with the Office of

Inspector General prior to reversing in

whole or in part the denial of any

request for records or portions of

records which originated with the Office

of Inspector General, or which contain

information which originated with the

Office of Inspector General, but which

are maintained by other components of

the Corporation. The Inspector General

or designee shall consult with the

President prior to reversing in whole or

in part the denial.

§ 1602.13 Fees.

(a) No fees will be charged for

information routinely provided in the

normal course of doing business.

(b) Fees shall be limited to reasonable

standard charges for document search,

review, and duplication, when records

are requested for commercial use;

(c) Fees shall be limited to reasonable

standard charges for document

duplication after the first 100 pages,

when records are sought by a

representative of the news media or by

an educational or non-commercial

scientific institution; and

(d) For all other requests, fees shall be

limited to reasonable standard charges

for search time after the first 2 hours

and duplication after the first 100 pages.

(e) The schedule of charges for

services regarding the production or

disclosure of the Corporation’s records

is as follows:

(1) Manual search for and review of

records will be charged as follows:

(i) Band 1: $10.26 per hour;

(ii) Band 2: $16.12 per hour;

(iii) Band 3: $25.22 per hour;

(iv) Band 4–5: $42 per hour;

(v) Charges for search and review time

less than a full hour will be billed by

quarter-hour segments;

(2) Computer time: actual charges as

incurred;

(3) Duplication by paper copy: 10

cents per page;

(4) Duplication by other methods:

actual charges as incurred;

(5) Certification of true copies: $1.00

each;

(6) Packing and mailing records: no

charge for regular mail;

(7) Special delivery or express mail:

actual charges as incurred.

(f) Fee waivers. Fees will be waived

or reduced below the fees established

under paragraph (e) of this section if

disclosure of the information is in the

public interest because it is likely to

contribute significantly to public

understanding of the operations or

activities of the Corporation or Federal

government and is not primarily in the

commercial interest of the requester.

(1) In order to determine whether

disclosure of the information is in the

public interest because it is likely to

contribute significantly to public

understanding of the operations or

activities of the Corporation or Federal

government, the Corporation will

consider the following four criteria:

(i) The subject of the request: Whether

the subject of the requested records

concerns ‘‘the operations or activities of

the Corporation or the Federal

government’’;

(ii) The informative value of the

information to be disclosed: Whether

the disclosure is ‘‘likely to contribute’’

to an understanding of Corporation or

Federal government operations or

activities;

(iii) The contribution to an

understanding of the subject by the

general public likely to result from

disclosure: Whether disclosure of the

requested information will contribute to

‘‘public understanding’’; and

(iv) The significance of the

contribution to public understanding:

Whether the disclosure is likely to

contribute ‘‘significantly’’ to public

understanding of the Corporation or

Federal government operations or

activities.

(2) In order to determine whether

disclosure of the information is not

primarily in the commercial interest of

the requester, the Corporation will

consider the following two factors:

(i) The existence and magnitude of a

commercial interest: Whether the

requester has a commercial interest that

would be furthered by the requested

disclosure; and, if so,

(ii) The primary interest in disclosure:

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.’’

(3) These fee waiver/reduction

provisions will be subject to appeal in

the same manner as appeals from denial

under § 1602.12.

(g) No fee will be charged under this

section unless the cost of routine

collection and processing of the fee

payment is likely to exceed $6.50.

(h) Requesters must agree to pay all

fees charged for services associated with

their requests. The Corporation will

assume that requesters agree to pay all

charges for services associated with

their requests up to $25 unless

otherwise indicated by the requester.

For requests estimated to exceed $25,

the Corporation will first consult with

the requester prior to processing the

request, and such requests will not be

deemed to have been received by the

Corporation until the requester agrees in

writing to pay all fees charged for

services.

(i) No requester will be required to

make an advance payment of any fee

unless:

(1) The requester has previously failed

to pay a required fee within 30 days of

the date of billing, in which case an

advance deposit of the full amount of

the anticipated fee together with the fee

then due plus interest accrued may be

required. (The request will not be

deemed to have been received by the

Corporation until such payment is

made.); or

(2) The Corporation determines that

an estimated fee will exceed $250, in

which case the requester shall be

notified of the amount of the anticipated

fee or such portion thereof as can

readily be estimated. Such notification

shall be transmitted as soon as possible,

but in any event within 5 working days

of receipt by the Corporation, giving the

best estimate then available. The

notification shall offer the requester the

opportunity to confer with appropriate

representatives of the Corporation for

the purpose of reformulating the request

so as to meet the needs of the requester

at a reduced cost. The request will not

be deemed to have been received by the

Corporation for purposes of the initial

20-day response period until the

requester makes a deposit on the fee in

an amount determined by the

Corporation.

(j) Interest may be charged to those

requesters who fail to pay the fees

charged. Interest will be assessed on the

amount billed, starting on the 31st day

following the day on which the billing

was sent. The rate charged will be as

prescribed in 31 U.S.C. 3717.

(k) If the Corporation reasonably

believes that a requester or group of

requesters is attempting to break a

request into a series of requests for the

purpose of evading the assessment of

fees, the Corporation shall aggregate
Federal Register / Vol. 63, No. 148 / Monday, August 3, 1998 /Rules and Regulations 41201

such requests and charge accordingly.

Likewise, the Corporation will aggregate

multiple requests for documents

received from the same requester within

45 days.

(l) The Corporation reserves the right

to limit the number of copies that will

be provided of any document to any one

requester or to require that special

arrangements for duplication be made in

the case of bound volumes or other

records representing unusual problems

of handling or reproduction.

Dated: July 29, 1998.

Victor M. Fortuno,

General Counsel.

[FR Doc. 98–20643 Filed 7–31–98; 8:45 am]

BILLING CODE 7050–01–P

FEDERAL COMMUNICATIONS

COMMISSION

47 CFR Parts 22, 24, 26, 27, 90 and 97

[ET Docket No. 96–2, FCC 98–140]

Arecibo Coordination Zone

AGENCY: Federal Communications

Commission.

ACTION: Final rule.

SUMMARY: This Memorandum Opinion

and Order (‘‘MO&O’’) clarifies the rules

regarding the Arecibo Radio Astronomy

Observatory (Observatory) Coordination

Zone that covers the islands of Puerto

Rico, Desecheo, Mona, Vieques, and

Culebra within the Commonwealth of

Puerto Rico (the Puerto Rican Islands).

This action will promote efficient

coordination between the Observatory

and service applicants in the

Coordination Zone.

EFFECTIVE DATE: September 2, 1998.

FOR FURTHER INFORMATION CONTACT:

Rodney Small, Office of Engineering

and Technology, (202) 418–2452.

SUPPLEMENTARY INFORMATION: This is a

summary of the Commission’s

Memorandum Opinion and Order, ET

Docket 96–2, FCC 98–140, adopted June

29, 1998, and released July 2, 1998. The

full text of this Commission decision is

available for inspection and copying

during normal business hours in the

FCC Reference Center (Room 239), 1919

M Street, NW, Washington, DC, and also

may be purchased from the

Commission’s duplication contractor,

International Transcription Service,

(202) 857–3800, 1231 20th Street, NW

Washington, DC 20036.

Summary of the Memorandum Opinion

and Order

1. In the Report and Order (R&O), 62

FR 55525, October 27, 1997, in this

proceeding, we established a

Coordination Zone that covers the

Puerto Rican Islands. The policies that

we established regarding the

Coordination Zone require that: (1)

applicants for new radio facilities in

various communications services must

provide notification of their proposed

operations to the Observatory no later

than the time their license applications

are submitted to us; (2) applicants for

modified radio facilities in these

services must provide notification of

their proposed operations to the

Observatory no later than the time their

license applications are submitted to us,

but only if the modified facilities pose

an interference threat to the operations

of the Observatory; and (3) applicants

for new radio facilities in commercial

wireless services in which individual

station licenses are not issued must

provide notification of their proposed

operations to the Observatory at least 45

days in advance of their proposed

operations if their facilities pose an

interference threat to the operations of

the Observatory.

2. In the R&O, we provided the

Observatory 20 days to file comments

with us regarding each service

applicant’s potential for interference,

and applicants are responsible for

making reasonable efforts to

accommodate the interference concerns

of the Observatory. We did not establish

interference standards, but required the

operator of the Observatory—Cornell

University (Cornell)—to provide

interference guidelines to service

applicants so that applicants may

consider protection to the Observatory

in the early design phase of radio

facilities.

3. Puerto Rico Telephone Company

(PRTC) filed a petition for

reconsideration of the R&O, in which it

urges us to reconsider three aspects of

this decision. First, PRTC contends, we

have inappropriately left control of

interference standards to Cornell. PRTC

argues that we should establish specific

standards or, alternatively, require

Cornell to develop standards and submit

them to us for review. Second, PRTC

urges us to place restrictions on what

‘‘reasonable efforts’’ will be required to

satisfy Cornell in a given instance. PRTC

contends that the record in the

proceeding is not clear as to whether

even as significant a change to a

broadcast station’s operating parameters

as mandatory time-sharing of

frequencies with the Observatory would

be deemed ‘‘reasonable’’ by the

Commission. Finally, PRTC urges us to

reconsider our decision to apply

coordination filing requirements to

commercial wireless services for which

we award licenses for geographic

service areas but not for individual

operating facilities. PRTC argues that it

is inconsistent to create a duty to file

notifications with Cornell when such

licensees are not required to file any

information with us, and that the Notice

of Proposed Rule Making (NPRM), 61 FR

10709, March 15, 1996, in this

proceeding gave no notice that we were

considering creating such a duty.

4. As discussed in the R&O,

interference guidelines may

significantly lessen coordination

problems, and Cornell has pledged to

develop such guidelines. We are

convinced that a guideline approach is

preferable to a standards approach. We

find it efficient for Cornell to develop

guidelines because it has gained

expertise over many years through

informal coordination with service

applicants in the Coordination Zone.

We reiterate our statement in the R&O

that telecommunications service

providers in Puerto Rico provide highly

important services that must be

maintained. Further, we believe it is in

Cornell’s self-interest to develop

realistic guidelines so as to avoid

unnecessary disputes with service

applicants. Accordingly, we are

affirming our decision and requiring

Cornell to establish interference

guidelines for each service in the

Coordination Zone.

5. In the R&O, we stated that

‘‘reasonable efforts [to minimize

interference from various

telecommunications services to the

Observatory] will vary from case-tocase, dependent on the degree of harm

to the Observatory’s operations and the

extent of the change needed to prevent

such harm’’ and ‘‘to attempt to set forth

a general definition of the term

‘reasonable efforts’ is extremely

difficult, if not impossible.’’

Accordingly, we are denying PRTC’s

request to place general restrictions on

the types of reasonable efforts that will

be required of service applicants in the

Coordination Zone.

6. However, while what is reasonable

in each individual situation will vary,

we can alleviate PRTC’s specific

concern regarding time-sharing of

frequencies. As we stated in the R&O:

‘‘We also observe that adoption of a

Coordination Zone would neither

allocate additional spectrum for RAS

[Radio Astronomy Service] use, nor

provide the Observatory additional

rights to spectrum allocated to other

services.’’ Requiring service providers in

the Coordination Zone to time-share

spectrum with the Observatory would

provide it ‘‘additional rights to spectrum

allocated to other services.’’