Federal Register / Vol. 74, No. 59 / Monday, March 30, 2009 / Rules and Regulations 14073 

crabs with a shell width of 61/2inches 

or greater may be taken or possessed; 

(B) All crab pots used for subsistence 

fishing and left in saltwater unattended 

longer than a 2–week period must have 

all bait and bait containers removed and 

all doors secured fully open; 

(C) You may take crabs only from June 

1 through January 31. 

(iv) The daily harvest and possession 

limit is 12 male Tanner crabs per 

person; only crabs with a shell width of 

51/2inches or greater may be taken or 

possessed. 

(6) Bering Sea Area. 

(i) In that portion of the area north of 

the latitude of Cape Newenham, 

shellfish may only be taken by shovel, 

jigging gear, pots, and ring net. 

(ii) The operator of a commercially 

licensed and registered shrimp fishing 

vessel must obtain a subsistence fishing 

permit from the ADF&G prior to 

subsistence shrimp fishing during a 

closed commercial shrimp fishing 

season or within a closed commercial 

shrimp fishing district, section, or 

subsection; the permit must specify the 

area and the date the vessel operator 

intends to fish; no more than 500 

pounds (227 kg) of shrimp may be in 

possession aboard the vessel. 

(iii) In waters south of 60° North 

latitude, the daily harvest and 

possession limit is 12 male Dungeness 

crabs per person. 

(iv) In the subsistence taking of king 

crab: 

(A) In waters south of 60° North 

latitude, the daily harvest and 

possession limit is six male crabs per 

person; 

(B) All crab pots used for subsistence 

fishing and left in saltwater unattended 

longer than a 2–week period must have 

all bait and bait containers removed and 

all doors secured fully open; 

(C) In waters south of 60° North 

latitude, you may take crab only from 

June 1 through January 31; 

(D) In the Norton Sound Section of 

the Northern District, you must have a 

subsistence permit. 

(v) In waters south of 60° North 

latitude, the daily harvest and 

possession limit is 12 male Tanner 

crabs. 

Dated: March 3, 2009. 

Peter J. Probasco, 

Acting Chair, Federal Subsistence Board. 

Dated: March 5, 2009. 

Calvin Casipit, 

Subsistence Program Leader, USDA-Forest 

Service. 

[FR Doc. E9–6937 Filed 3–27–09; 8:45 am] 

BILLING CODE 4310–55–S 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Part 0 

[FCC 08–282] 

Public Information, the Inspection of 

Records, and Implementation of 

Freedom of Information Act 

Amendments 

AGENCY: Federal Communications 

Commission. 

ACTION: Final rule. 

SUMMARY: The Commission amends its 

rules implementing the Freedom of 

Information Act (FOIA) to reflect 

changes in that law made by the OPEN 

Government Act of 2007. In addition, 

the rules are updated to reflect the 

current structure of the agency; to reflect 

the increased availability of records on 

the agency’s Web site and the 

Commission’s decisions over the years 

with respect to whether certain records 

are routinely available for public 

inspection; to ensure that the rules 

reflect the agency’s experience with 

processing FOIA requests; and to clarify 

the fees applicable to FOIA requests. 

DATES: Effective April 29, 2009. 

FOR FURTHER INFORMATION CONTACT: 

Laurence H. Schecker, Special Counsel, 

Administrative Law Division, Office of 

General Counsel, 202–418–1720 or 

Laurence.Schecker@fcc.gov. 

SUPPLEMENTARY INFORMATION: In this 

Order, we amend part 0 of the 

Commission’s rules to update sections 

implementing the Freedom of 

Information Act (FOIA), 5 U.S.C. 552. 

On December 14, 2005, the President 

issued an Executive Order concerning 

implementation of the FOIA. Executive 

Order No. 13392, Improving Agency 

Disclosure of Information, 70 FR 75373 

(December 14, 2005) (FOIA Executive 

Order). Among other things, the 

Executive Order required each agency to 

review its FOIA operations, see id. sec. 

3(a), 70 FR at 75375 (December 14, 

2005), to develop a plan to improve its 

FOIA operations, id. sec. 3(b)(iii), 70 FR 

at 75375 (December 14, 2005), and to 

report to the Attorney General about its 

review and plan for improving FOIA 

operations. Id. sec. 3(c), 70 FR at 75375 

(December 14, 2005). Consistent with 

the Executive Order, the Commission 

reviewed its FOIA operations, 

developed a plan for improvement, and 

issued its report. Improving Agency 

Disclosure of Information: Executive 

Order 13392 (June 14, 2006) (FCC FOIA 

Report), available at http://www.fcc.gov/ 

foia/2006improv_disclosure_ report.pdf. 

See also Letter from Samuel Feder, 

General Counsel and Chief FOIA 

Officer, to Clay Johnson, III, Chairman, 

President’s Management Council (July 

30, 2007) (Updated Status Report— 

FOIA Implementation Plan), available at 

http://www.fcc.gov/foia/2006improvupdate.pdf; Letter from Matthew Berry, 

General Counsel and Chief FOIA 

Officer, to Chairman Johnson (February 

27, 2008) (Updated Status Report). 

The Commission committed, inter 

alia, to review its FOIA implementing 

rules ‘‘[t]o ensure that the FCC’s 

information access regulations reflect 

the current structure of the agency, the 

availability of records to the public and 

whether more records should be posted 

pursuant to [FOIA] subsection (a)(2), [5 

U.S.C. 552(a)(2)], the proper procedures 

for processing FOIA requests and 

appeals, and current fee information.’’ 

FCC FOIA Report at 9. 

In late 2007, Congress passed and the 

President signed the Openness Promotes 

Effectiveness in our National 

Government Act, known as the OPEN 

Government Act. Public Law No. 110– 

175, 121 Stat. 2524 (2007), codified at 

scattered sections of 5 U.S.C. 552. The 

FOIA amendments adopted in this 

statute require additional changes to our 

FOIA implementing regulations. 

In our FY 2007 FOIA Annual Report, 

we modified the target date for 

reviewing and amending our FOIA 

regulations so that a single revision of 

the rules could address the OPEN 

Government Act as well as the 

commitment made in the FCC’s FOIA 

Report. See FCC FY 2007 FOIA Annual 

Report, at 8–9 (Section XII.C) (http:// 

www.fcc.gov/foia/2007foiareport.pdf); 

see also letter from Matthew Berry to 

Chairman Johnson (Feb. 27, 2008) 

(noting the change in the target date for 

revising our FOIA regulations). We have 

now completed an extensive review of 

our FOIA regulations and in this Order 

adopt various amendments to the rules. 

By this Order, we fulfill the 

commitment made in the FCC FOIA 

Report, as modified in our FY2007 FOIA 

Annual Report. 

Our FOIA implementing rules are 

presently found at 47 CFR 0.441 through 

0.470. The rules amended in this Order 

may generally be grouped into three 

sections: (1) rules describing records 

that are routinely available for public 

inspection (47 CFR 0.441, 0.445, 0.451, 

0.453, 0.455, 0.460 and 0.465); (2) rules 

describing records that are not routinely 

available for public inspection and 

governing requests for confidential 

treatment (47 CFR 0.442, 0.457, 0.458, 

0.459, 0.461, and 0.463); and (3) the 

FOIA fee rules (47 CFR 0.451(d), 0.465 

through 0.470). We have reviewed these 

rules and, as set forth in Appendix, 


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14074 Federal Register / Vol. 74, No. 59 / Monday, March 30, 2009 / Rules and Regulations 

adopt a variety of changes to (i) reflect 

the current structure of the agency; (ii) 

reflect the increased availability of 

records on the FCC’s Web site and the 

Commission’s decisions over the years 

with respect to whether certain records 

are routinely available for public 

inspection; (iii) implement the changes 

to the FOIA enacted in the OPEN 

Government Act; (iv) ensure that the 

rules reflect our experience with 

processing FOIA requests; and (v) 

clarify the fees applicable to FOIA 

requests. The following paragraphs 

describe the changes we adopt in the 

rules. 

Records Routinely Available for 

Public Inspection. The FOIA requires 

that a variety of records be made 

‘‘available for public inspection and 

copying.’’ 5 U.S.C. 552(a)(2)(A)–(D) 

(requiring each agency to make available 

for public inspection and copying ‘‘final 

opinions * * * [and] orders made in the 

adjudication of cases;’’ policy 

statements that ‘‘are not published in 

the Federal Register;’’ ‘‘administrative 

staff manuals and instructions to staff 

that affect a member of the public;’’ and 

records released pursuant to a FOIA 

request that ‘‘the agency determines 

have become or are likely to become the 

subject of subsequent requests for 

substantially the same records’’); FOIA 

Executive Order, sec. 1(b). The 

Electronic Freedom of Information Act 

Amendments of 1996 (EFOIA), Public 

Law No. 104–231, 110 Stat. 3048 (1996), 

codified at scattered sections of 5 U.S.C. 

552. See Amendment of Part 0 of the 

Commission’s Rules to Implement the 

Electronic Freedom of Information Act 

Amendments of 1996, 13 FCC Rcd 3419 

(1997), requires, and the FOIA 

Executive Order provides for, the use of 

electronic information technology to 

make records available to the public. 

See 5 U.S.C. 552(a)(2); FOIA Executive 

Order, sec. 3(a)(iv), 70 FR at 75375 

(December 14, 2005). We have 

developed an extensive Web site, 

http://www.fcc.gov, providing the public 

with broad access to our records. Our 

Web site also affirmatively discloses 

much information about the 

Commission, consistent with the FOIA 

Executive Order’s direction that 

agencies make ‘‘proactive’’ and 

‘‘spontaneous disclosure of information 

to the public’’ to reduce the need for the 

public to make FOIA requests to obtain 

information from agencies. Id., sec. 

3(a)(iv). For example, our Web site 

makes available Commission and 

Bureau/Office level decisions, 

Commission rules, comments filed in 

rulemaking proceedings, public notices, 

applications for licenses or other 

authorizations, and policy statements 

and staff guidance concerning our rules 

and operations, just to mention a few 

categories of records. We also maintain 

paper reading rooms for public access to 

our records. Our rules governing access 

to routinely available records require 

updating in light of changes in the 

structure of the Commission, changes in 

the types of proceedings we conduct, 

Internet availability of many of our 

records, and electronic filing and 

referencing capabilities for many of our 

proceedings. We therefore update 

sections 0.441, 0.445, 0.451, 0.453, 

0.455, 0.460 and 0.465 of our rules as 

discussed below and as set forth in the 

rule changes. 

Section 0.441 is amended to indicate 

that in addition to the sources for 

obtaining Commission information 

previously listed in the rule, 

information may be obtained from the 

Commission’s copy contractor. It also 

contains updated Internet citations and 

FCC headquarters locations for 

obtaining information. We have also 

amended section 0.441 to note the 

availability of our FOIA Public Liaison 

to assist persons requesting information 

from the Commission in resolving any 

concerns relating to a FOIA request. 

OPEN Government Act, sec. 6(b)(1)(B); 

see http://www.fcc.gov/foia/#contact 

(FOIA Public Liaison contact). 

Section 0.445 contains our regulation 

concerning the availability of our 

opinions, orders, policy statements, 

interpretations, administrative manuals 

and staff instructions. 47 CFR 0.445. 

This rule implements various statutory 

requirements concerning the public 

availability of these documents. See 5 

U.S.C. 552(a)(2)(A)–(C). We are making 

minor modifications to this rule. We are 

changing the reference to Pike and 

Fisher Radio Regulation in section 

0.445(b) to Pike and Fisher 

Communications Regulation, the current 

title of that publication. See 

commreg.pf.com. We are also removing 

paragraph (g), which currently refers to 

the FCC Administrative Manual, a 

document that no longer exists. We are 

modifying current paragraph (h), which 

will become paragraph (g), to reflect that 

general instructions to staff may be 

contained in orders published in the 

Federal Register. Finally, current 

paragraph (i), which will become 

paragraph (h), indicates we may redact 

information from published documents 

to protect personal privacy. See 5 U.S.C. 

552(a) (allowing deletion of information 

to protect personal privacy). We are 

amending this section to indicate we 

may also redact information required or 

authorized to be withheld pursuant to 

other Federal statutes. This amendment 

reflects our practice of issuing decisions 

redacting confidential commercial 

information, consistent with the Trade 

Secrets Act, 18 U.S.C. 1905. See 

Examination of Current Policy 

Concerning Treatment of Confidential 

Information Submitted to the 

Commission, 13 FCC Rcd 24816, 24854 

(1998) (Confidentiality R&O) (orders 

containing confidential commercial 

information may be released in part 

under seal), recon. den., 14 FCC Rcd 

20128 (1999). 

We are making a minor clarifying 

amendment to section 0.451(d), which 

currently refers only to search fees, to 

cross-reference copying and review fees 

that are provided for elsewhere in our 

FOIA regulations. We also amend 

section 0.451(b)(5) to cross-reference 

part 19 of our rules. 

Two of our FOIA rules, sections 0.453 

and 0.455, set out the public availability 

of records in our public reference 

rooms. 47 CFR 0.453 and 0.455. These 

rules are being updated to reflect the 

current nature of our proceedings and 

the structure of the agency. Section 

0.453(a) is being amended to reflect the 

availability of the Commission’s 

Electronic Comment Filing System 

(ECFS), which makes case histories 

available on the Internet to the public. 

Electronic Filing of Documents in 

Rulemaking Proceedings, 13 FCC Rcd 

11322 (1998) (ECFS Decision). Section 

0.453(a)(2)(i) provides a current list of 

Broadcast Services proceedings which 

have records that are routinely 

available, and section 0.453(a)(2)(ii) 

updates common carrier proceedings 

presently in the Wireline Competition 

Bureau. Section 0.453(a)(2)(iii)(E) is 

amended to delete the last sentence to 

reflect that the Uniform Licensing 

System (ULS) is now fully functional. 

Section 0.453(a)(2)(iv) is amended to 

reflect the availability of certain 

contracts and to eliminate references to 

INTELSAT and INMARSAT in light of 

the privatization of those entities. 

Finally, section 0.453(a)(2)(v) updates 

the list of publicly available cable 

service proceedings. Minor changes are 

made to section 0.455. We update 

paragraph (a) to reflect the Media 

Bureau materials currently available in 

its reference room. We also amend 

former paragraph (c), now (b), to 

indicate that Commission minutes and 

records for votes are available in the 

Office of the Secretary, not the Agenda 

Group. References to separate Bureau 

reference rooms, now consolidated in 

the Reference Information Center, are 

also removed from section 0.455. 

Section 0.460 governs requests for 

inspection of records that are routinely 

available for public inspection under 


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Federal Register / Vol. 74, No. 59 / Monday, March 30, 2009 / Rules and Regulations 14075 

sections 0.453 and 0.455. Our rules have 

provided that records routinely 

available to the public can be requested 

either through the Commission directly 

or through our copy contractor. 47 CFR 

0.460(f). See also 47 CFR 0.465(f). While 

a large portion of the records routinely 

available for public inspection are 

available on our Web site, there are still 

some routinely available records that are 

only available in paper copy at the 

Commission. Processing written 

requests for these records has placed a 

great burden on our staff. We are 

therefore amending paragraph (f) to 

require that written requests to obtain 

copies of records routinely available for 

public inspection must be processed 

through the Commission’s copy 

contractor under section 0.465. We are 

also amending section 0.465(f) to 

indicate that the Commission’s copy 

contractor will fulfill requests for 

records that are routinely available 

under section 0.453 or 0.455. These 

changes do not affect those personally 

inspecting records at the Commission. 

See 47 CFR 0.460(b). 

Records Not Routinely Available for 

Public Inspection. Section 0.442 of our 

rules addresses situations in which we 

receive requests from other Federal 

agencies for records that were submitted 

to us with a request for confidential 

treatment or that we consider 

presumptively confidential. 47 CFR 

0.442. This rule, based on sections of 

the Paperwork Reduction Act (PRA), 44 

U.S.C. 3512 and 3510(b), indicates that 

such records will receive confidential 

treatment when we share them with 

other agencies, and sets forth the 

procedures we employ when we receive 

such requests. We are amending 

paragraphs (a) and (d)(3) to provide that 

the rule covers records that have been 

deemed confidential under other 

statutes, FCC orders, or regulations in 

addition to those deemed confidential 

under section 0.457 or 0.459. We are 

amending section 0.442(b) to indicate 

that the Commission may initiate the 

sharing of records with another Federal 

agency under this section. Paragraph 

(d)(1) provides for notice to the 

submitter of confidential information 

that we have received a request from 

another Federal agency for the records. 

We are amending this paragraph to 

make clear that we may provide this 

notice either individually or by public 

notice in instances where there are 

many submitters of confidential 

information. We are amending 

paragraph (d)(2) to provide that Federal 

agencies may request that we not 

provide notice to the submitter of 

confidential information if such notice 

would interfere with national security 

or homeland defense activities as well 

as law enforcement activities. 47 CFR 

0.442(d)(2)–(3). We are amending 

paragraph (d)(2) to indicate that Federal 

agencies should submit such requests in 

writing to us. We note that such a 

request may be made by e-mail. 

In setting forth nine FOIA disclosure 

exemptions, the FOIA recognizes that 

not all agency records may be available 

to the public. 5 U.S.C. 552(b)(1)–(9). 

Section 0.457 of our rules sets forth 

these exemptions and lists 

circumstances in which we have already 

determined that certain types of records 

are not routinely available for public 

inspection. Section 0.457(a) is amended 

to clarify that documents for which the 

Commission has requested national 

security classification from another 

agency will not be disclosed pending a 

classification determination. We have 

also amended section 0.457(c)(3) to 

reflect our previous repeal of section 

43.53. See Amendment of Sections 

43.51, 43.52, 43.53, 43.54 and 43.74 of 

the Commission’s Rules To Eliminate 

Certain Reporting Requirements, 1 FCC 

Rcd 933 (1986). In addition, the 

Commission determined in a 2004 

rulemaking to accord confidential 

treatment to outage reports filed under 

part 4 of our rules, but did not update 

section 0.457(d) at that time. See New 

Part 4 of the Commission’s Rules 

Concerning Disruptions to 

Communications, 19 FCC Rcd 16830 

(2004), adopting 47 CFR 4.2. We are 

therefore adding a new section 

0.457(d)(1)(vii) to reflect that action. A 

new section 0.457(d)(1)(viii) has also 

been added to reflect the commercially 

sensitive nature of coordination of 

satellite systems pursuant to procedures 

codified in the International 

Telecommunication Union (ITU) Radio 

Regulations. See Robert J. Butler, 6 FCC 

Rcd 5414 (1991) (documents that were 

generated during the course of certain 

international negotiations withheld 

pursuant to FOIA Exemption 4). We 

have deleted the reference to radio 

operator examinations that are no longer 

administered, see Amendment of Part 

13 of the Commission’s Rules To 

Privatize the Administration of 

Examinations for Commercial Operator 

Licenses and To Clarify Certain Rules, 8 

FCC Rcd 1046 (1992), as well as a dated 

reference to equipment authorization 

procedures prior to 1974. 47 CFR 

0.457(b)(3). In section 0.457(f) regarding 

personal privacy under FOIA 

Exemption 6, 5 U.S.C. 552(b)(6), we are 

expanding the reference to ‘‘employees’’ 

so as to include Commission 

contractors. See U.S. Dep’t of Justice v. 

Reporters’ Committee for Freedom of the 

Press, 489 U.S. 749, 774 (1989) (an 

individual doing business with the 

federal government may have some 

protectible privacy interest). We are 

amending section 0.457(g), regarding 

law enforcement information, to more 

closely track the language of the FOIA. 

Section 0.459 of our rules addresses 

requests for confidential treatment. See 

generally Confidentiality R&O, 13 FCC 

Rcd at 34826–27 (prescribing showing 

to be made for requests for confidential 

treatment). Where confidential 

treatment is sought for only a part of a 

document, we will require the filing of 

a redacted public version. We are 

adding a new paragraph indicating that 

this section does not apply to comments 

or materials filed by means of our 

Electronic Filing System (ECFS), 

consistent with the rulemaking decision 

adopting the ECFS system. ECFS 

Decision, 13 FCC Rcd at 11330–31 

(confidential materials cannot be filed 

electronically through ECFS). We have 

added a new paragraph (a)(3) reflecting 

the practice of using a ‘‘checkbox’’ 

mechanism for indicating 

confidentiality on some forms. We are 

amending paragraph (c) concerning 

casual requests for confidential 

treatment to indicate that the existing 

required showing before confidential 

treatment will be granted means that 

simply stamping a record ‘‘confidential’’ 

will not be considered a request for 

confidential treatment. We are also 

amending paragraph (g) to provide that 

when a request for confidential 

treatment is denied, the person who 

submitted the records will have 10 days 

to seek review, instead of the 5 days 

currently provided for in the rule. This 

change harmonizes the time period in 

this rule with the time period in section 

0.461(i)(1). Compare 47 CFR 0.459(g) 

(currently providing 5 days for filing an 

application for review or seeking a 

judicial stay when a request for 

confidentiality is denied in whole or in 

part) with 47 CFR 0.461(i)(1) (currently 

providing 10 days for filing an 

application for review or a judicial stay 

when in the context of a FOIA request 

a request for confidentiality is denied in 

whole or in part). 

Finally, section 0.458 of our rules 

addresses situations when persons 

regulated by or practicing before the 

Commission come into possession of 

written non-public information. We 

amend this section to provide that such 

information should be returned to the 

Commission’s Office of Inspector 

General promptly and without further 

distribution or use. This amendment 

tracks the current language of 47 CFR 

19.735–203. 


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Obtaining Records Not Routinely 

Available for Public Inspection. Section 

0.461 of our rules describes how the 

public may seek records not routinely 

available for public inspection. We 

herein make several amendments to 

section 0.461 to reflect our experience 

in processing FOIA requests and to 

implement the OPEN Government Act. 

We have amended section 0.461(a) to 

include the definition of ‘‘records’’ 

adopted in the OPEN Government Act. 

OPEN Government Act, sec. 9, codified 

at 5 U.S.C. 552(f)(2). This definition 

specifies that records include electronic 

records and records maintained for the 

Commission by another entity for 

purposes of records management. 

Section 0.461(a) is also amended to 

provide more detail for FOIA requesters 

concerning what information should be 

submitted with a request for inspection 

of records. We make this change to 

assist staff in processing FOIA requests. 

By providing a more detailed FOIA 

request, we hope staff processing the 

request will be able to locate the records 

quickly, thus reducing search time 

charges to FOIA requesters. We hope 

that this will minimize the need to 

contact FOIA requesters for 

clarification. See OPEN Government 

Act, sec. 6(a), codified at 5 U.S.C. 

552a)(6)(A)(ii) (limiting the tolling of 

time for processing FOIA requests when 

requesters must be contacted for 

clarification). See also OIP Guidance: 

New Limitations on Tolling the FOIA’s 

Response Time (DOJ/OIP November 11, 

2008), available at http:// 

www.usdoj.gov/oip/foiapost/ 

2008foiapost29.htm. Section 0.461(a)(2) 

is amended to clarify that, pursuant to 

FOIA section 552(a)(3)(B), while 

requesters may specify the form or 

format of records to be produced, the 

records must be readily reproducible in 

the requested form or format for the 

Commission to comply with the request. 

See 5 U.S.C. 552(a)(3)(B). This is 

consistent with our practice. See Rick 

Linsk, 18 FCC Rcd 25601, 25602 (2003), 

citing TPS, Inc. v. U.S. Dep’t of Defense, 

330 F.3d 1191, 1193 (9th Cir. 2003). 

Section 0.461(b) concerns information 

provided with FOIA requests, and is 

amended to provide that mailing 

addresses be included with a FOIA 

request so that we can mail paper copies 

of records produced to FOIA requesters. 

It is also amended to remind requesters 

that if they are seeking a FOIA fee 

waiver, such a request must be included 

with their original FOIA request. See 47 

CFR 0.470(c). 

Section 0.461(d)(3) provides for 

notification of persons who have 

submitted records to the Commission 

that are confidential under sections 

0.457 or 0.459 if a request for inspection 

of those records is filed under section 

0.461. We have amended this section to 

clarify procedures for this notice and 

how all parties should serve each other 

with any pleadings. We are also adding 

a note to this section reminding parties 

that FOIA proceedings are permit-butdisclose proceedings under our ex parte 

rules. See 47 CFR 1.1206(a)(7). 

Section 0.461(e) is amended to 

indicate that a FOIA request is deemed 

properly received when it is received 

and date stamped by our FOIA Control 

Office and assigned to the Bureau or 

Office that is the custodian of the 

records sought.See OPEN Government 

Act, sec. 6(a), codified at 5 U.S.C. 

552(a)(6)(A). See also OIP Guidance: 

Assigning Tracking Numbers and 

Providing Status Information for 

Requests (DOJ/OIP November 18, 2008), 

available at http://www.usdoj.gov/oip/ 

foiapost/2008foiapost30.htm; OIP 

Guidance: New Requirement to Route 

Misdirected FOIA Requests (DOJ/OIP 

November 18, 2008), available at 

http://www.usdoj.gov/oip/foiapost/ 

2008foiapost31.htm. A new paragraph is 

being added to paragraph (e), and 

language is added to sections 

0.461(g)(1), 0.467(e)(2), and 0.469(c) 

concerning the tolling of the FOIA time 

limits for processing requests, to 

implement the OPEN Government Act’s 

provisions. This paragraph provides that 

the time for responding to a FOIA 

request is tolled while the custodian of 

records seeks reasonable clarification 

from the requester. Such a request must 

be made within 10 days after a request 

is properly received by the custodian of 

records, and only one such request may 

be made. The paragraph also provides 

for a tolling of the time limits when fee 

issues (including fee waivers) are 

unresolved. The OPEN Government Act 

allows us to make only one request for 

clarification of the scope of a FOIA 

request, but does not contain a similar 

restriction for fee matters. Compare 5 

U.S.C. 552(a)(6)(A)(ii)(I) with 5 U.S.C. 

552(a)(6)(A)(ii)(II). We will, however, 

endeavor to resolve fee matters with 

only one inquiry to requesters. 

Paragraph (e)(4) is also amended to 

reflect our practice of assigning control 

numbers to FOIA requests, and to 

indicate that we provide notice to a 

FOIA requester of the control number 

and of a telephone number that may be 

called to obtain the status of the FOIA 

request. These amendments reflect 

modifications to the FOIA made in the 

OPEN Government Act. OPEN 

Government Act, sec. 7(a), codified at 5 

U.S.C. 552(a)(7). See also OIP Guidance: 

Assigning Tracking Numbers and 

Providing Status Information for 

Requests (DOJ/OIP November 18, 2008), 

available at http://www.usdoj.gov/oip/ 

foiapost/2008foiapost30.htm. 

We sometimes receive FOIA requests 

that seek records that are the property 

of another federal agency or department. 

We have clarified in section 0.461(f) that 

such requesters will be directed to the 

correct department or agency. We have 

also amended section 0.461(f)(5), which 

addresses withholding part of a record 

pursuant to a FOIA exemption. The 

OPEN Government Act amended the 

FOIA to require that when a redaction 

is made to a record being released, we 

must indicate the FOIA exemption 

relied upon at the site of the redaction. 

See sec. 12, codified at 5 U.S.C. 552(b) 

(after paragraph 9). See also OIP 

Guidance: Segregating and Marking 

Documents for Release in Accordance 

with the Open Government Act (DOJ/ 

OIP October 23, 2008), available at 

http://www.usdoj.gov/oip/foiapost/ 

2008foiapost26.htm. Conforming or 

clarifying edits are also made to section 

0.461(g). 

We have amended section 0.461(i) to 

add persons with a personal privacy 

interest in a record to the categories of 

persons who may seek review of a 

decision to grant access to the records. 

We have also added a note to 

paragraphs 0.461(i) and (j) indicating 

that the General Counsel will review 

applications for review of initial FOIA 

decisions and may attempt informally to 

resolve issues with the applicant. This 

has been our practice and we have 

found it to be a consumer-friendly 

practice, consistent with the FOIA 

Executive Order. FOIA Executive Order, 

sec. 1(b)–(d), 70 FR at 75373 (December 

14, 2005). We have also amended 

section 0.461(j) to make clear that 

applications for review of fee 

determinations and fee waiver decisions 

may be sought under this paragraph. See 

amended section 0.451(d) and new 

section 0.470(g). We have provided in 

section 0.461(k)(2) that the Commission 

may consolidate applications for review. 

Finally, we have clarified in section 

0.461(l)(2) that, as appropriate, we may 

continue to process initial FOIA 

requests or applications for review if an 

action for judicial review has been filed. 

The Touhy Rule. Section 0.463 is the 

Commission’s Touhy rule. See United 

States ex rel. Touhy v. Ragen, 340 U.S. 

462 (1951); 5 U.S.C. 301 (authorizing 

agencies to issue regulations regarding 

whether government employees or 

documents may be subpoenaed). We 

amend this rule to elaborate on the 

procedures used when determining 

whether Commission employees will be 


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permitted to testify or provide records 

relating to their official duties when 

they are directly subpoenaed or 

otherwise served with a request. This 

amendment also specifies and clarifies 

the criteria that the General Counsel 

will use when deciding whether to 

allow an employee to testify or provide 

records. We make these amendments 

based on the following: (1) Our 

experience in reviewing Touhy requests 

and the information that we typically 

need to obtain from the requester in 

order to properly evaluate the request; 

(2) our review of other agencies’ Touhy 

rules; and (3) the factors that courts 

have considered when evaluating 

Administrative Procedure Act (APA) 

challenges to other agencies’ Touhy 

decisions. See, e.g., Houston Business 

Journal, Inc. v. Office of the Comptroller 

of the Currency, United States Dep’t of 

the Treasury, 86 F.3d 1208 (D.C. Cir. 

1996) (agency decisions under Touhy 

regulation are reviewed under arbitrary 

or capricious standard under the APA; 

Brobreski v. U.S. EPA, 284 F.Supp.2d 

67, 79–80 (D.D.C. 2003) (reviewing and 

upholding EPA’s reasons for denying 

request for testimony by an agency 

inspector). 

FOIA Fee Related Rules. We also 

make a variety of changes to our FOIA 

fee-related rules. 47 CFR 0.451(d), 0.465 

through 0.470. In section 0.465, we 

amend paragraph (b) to reflect the 

availability of audio and video 

recordings or transcripts of Commission 

proceedings and note that in certain 

cases, not all formats may exist. In 

paragraph (c)(2), we reduce the per page 

copying fees we are required to charge 

under the FOIA, 5 U.S.C. 552(a)(4)(A), 

from $0.17 to $0.10. This reduction is a 

result of our re-evaluation of 

reproduction costs. We are also adding 

to paragraph (c)(2) a charge of $5.00 per 

computer disk for instance when we 

provide copies in an electronic format, 

and add a reference to computer disks 

in this paragraph. Finally, we are 

amending paragraph (e) to reflect the 

availability of many of our documents 

on the Internet. Paragraphs (e) and (f) 

are also amended, consistent with our 

amendment of section 0.460 discussed 

supra, to indicate that the public must 

seek copies of records routinely 

available for public inspection in person 

or from our copy contractor. 

Section 0.466 of our rules contains the 

definitions related to FOIA fees. In 

paragraph (a)(1) we are changing the 

definition of ‘‘direct costs’’ to reflect 

that we add 20 percent to our labor costs 

to cover benefits, to make it consistent 

with our current practice as reflected in 

paragraph 0.467(a)(2). When sections 

0.466 and 0.467 were first amended to 

reflect the changes in the FOIA 

regarding fees, the Commission 

indicated that it would add 16 percent 

to the basic rate of pay to cover 

employee benefits. The Freedom of 

Information Reform Act of 1986; Fee 

Schedule and Administrative 

Procedures, 3 FCC Rcd 5107 (1988). 

This was the percentage adopted in the 

OMB FOIA Fee Guidelines for Federal 

personnel benefits to be added to the 

Federal pay levels for search purposes. 

The Freedom of Information Reform Act 

of 1986; Uniform Freedom of 

Information Act Fee Schedule and 

Guidelines, 52 FR 10012 (March 27, 

1987) (OMB FOIA Fee Guidelines). The 

FOIA charged OMB with promulgating 

‘‘guidelines * * * which shall provide 

for a uniform schedule of fees.’’ 5 U.S.C. 

552(a)(4)(A)(i). Over the years, we have 

updated the benefits section in 

paragraph 0.467(a)(1) to reflect actual 

costs of personnel benefits. In 1994 it 

was changed to 19 percent (see 

Amendment To The Fee Schedule For 

The Processing Of Requests For Agency 

Records Pursuant To The Freedom Of 

Information Act, 9 FCC Rcd 1810 

(1994)) and in 1996 to 20 percent (see 

Amendment To The Fee Schedule For 

The Processing Of Requests For Agency 

Records Pursuant To The Freedom Of 

Information Act, 11 FCC Rcd 3606 

(1996)). Because the search and review 

fees are to charge for our ‘‘direct costs,’’ 

5 U.S.C. 552(a)(4)(A)(iv), which 

includes benefits, it was reasonable to 

increase the percentage we added for 

benefits as those costs rose over the 

years, even though OMB never changed 

the OMB FOIA Fee Guidelines in this 

regard. 

We amend paragraph (a)(7) to reflect 

the new definition of ‘‘representative of 

the news media’’ adopted in the OPEN 

Government Act, OPEN Government 

Act, sec. 3, codified at 5 U.S.C. 

552(a)(4)(A)(ii). We also amend 

paragraph (a)(3) to indicate that 

dissemination of records by a 

representative of the news media shall 

not be considered to be for a commercial 

use. See OMB FOIA Fee Guidelines, 52 

FR 10012, 10019 (March 27, 1987) (a 

request for records from a representative 

of the news media ‘‘shall not be 

considered to be a request that is for a 

commercial use.’’); National Security 

Archive v. Dep’t of Defense, 880 F.2d 

1381, 1387–88 (DC Cir. 1989). 

In section 0.467, which addresses 

search and review fees, we delete the 

chart listing the hourly fee for FCC 

employees responding to FOIA requests 

because the rates change when federal 

salaries change. Instead, we provide that 

changes in the hourly fee will be 

announced by Public Notice and will be 

posted on our FOIA Web site, http:// 

www.fcc.gov/foia. We also specify in 

paragraph 0.461(a)(1) that labor rates for 

non-FCC employees will be assessed at 

their actual hourly cost to the agency. 

This includes Universal Service 

Administrative Company (USAC) 

personnel, who search for USAC records 

in response to FOIA requests. See InterTel Technologies, Inc., 19 FCC Rcd 5204 

n.3 (2004). 

In section 0.470, we implement the 

OPEN Government Act section that 

waives search fees for commercial and 

‘‘all others’’ requesters and waives 

duplication fees for educational 

requesters or representatives of the news 

media when we fail to comply with 

FOIA’s time limits in processing a FOIA 

request. OPEN Government Act, sec. 

6(b), codified at 5 U.S.C. 

552(a)(4)(A)(viii). See also OIP 

Guidance: New Limitations on 

Assessing Fees (DOJ.OIP November 11, 

2008), available at http:// 

www.usdoj.gov/oip/foiapost/ 

2008foiapost28.htm. We are also 

codifying the considerations we take 

into account when addressing requests 

for FOIA fee waivers. These standards 

are well-established in judicial and 

Commission case law, see, e.g., 

McClellan Ecological Seepage Situation 

v. Carlucci, 835 F.2d 1282, 1286 (9th 

Cir. 1987); Robert J. Robbins, Call 

Communications Group., Inc., 21 FCC 

Rcd 6685 (2006), and are being set forth 

in this rule to provide guidance to any 

FOIA requesters who seek a fee waiver. 

We note that simply repeating the 

language of the FOIA fee waiver statute 

is an insufficient basis for requesting or 

our granting a fee waiver. We are also 

adding a new paragraph 0.470(e)(5) 

indicating that we generally will not 

rule on a request for fee waiver if no fees 

or de minimis fees (fifteen dollars or 

less) are involved. We give a requester 

ten working days, rather than the 

previous five, to provide additional 

information in certain circumstances. 

Finally, we have amended sections 

0.451(d) and 0.461(j), and adopted a 

new section 0.470(g), to make clear that 

review may be sought for fee 

determinations and initial fee waiver 

decisions. 

No Notice and Comment Required. 

We have determined that the changes 

we adopt here are general statements of 

policy, interpretive rules, or rules of 

agency organization, procedure or 

practice, and are therefore exempt from 

the notice and comment requirements of 

the APA, 5 U.S.C. 553(b)(A) (notice 

requirements inapplicable to 

‘‘interpretive rules, general statements 

of policy, or rules of agency 

organization, procedure or practice’’). 


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See Confidentiality R&O, 14 FCC Rcd at 

20131 (amending 47 CFR 0.459 and 

0.461 without notice and comment), 

citing Aluminum Co. of America v. FTC, 

589 F. Supp. 169, 178 (S.D.N.Y. 1984) 

(holding FOIA rules are procedural 

rules); United States ex rel. O’Keefe v. 

McDonnell Douglas Corp., 132 F.3d 

1252, 1255 (8th Cir. 1998) (Touhy 

regulations deal exclusively with 

internal administrative procedure). The 

substantive standards for obtaining 

agency records are set forth in the FOIA. 

See generally 5 U.S.C. 552. 

Regulatory Flexibility Act, Paperwork 

Reduction Act, and Congressional 

Review Act. Section 603 of the 

Regulatory Flexibility Act, as amended 

(RFA), requires an initial regulatory 

flexibility analysis in notice and 

comment rulemaking proceedings. 5 

U.S.C. 603(a). As we are adopting these 

rules without notice and comment, no 

regulatory flexibility analysis is 

required. This document does not 

contain proposed information 

collection(s) subject to the Paperwork 

Reduction Act of 1995 (PRA). 44 U.S.C. 

3501–3520. In addition, therefore, it 

does not contain any new or modified 

‘‘information collection burden for 

small business concerns with fewer than 

25 employees,’’ pursuant to the Small 

Business Paperwork Relief Act of 2002. 

44 U.S.C. 3506(c)(4). Our FOIA rule 

amendments are being adopted without 

notice and comment, and therefore are 

not required to be submitted to Congress 

under the Congressional Review Act. 5 

U.S.C. 804(3)(C) (rules subject to the 

Congressional Review Act do not 

include ‘‘any rule of agency 

organization, procedure, or practice that 

does not substantially affect the rights or 

obligations of non-agency parties’’). 

Segregability. It is our intention in 

adopting these rule changes that, if any 

provision of the rules is held invalid by 

any court of competent jurisdiction, the 

remaining provisions shall remain in 

effect to the fullest extent permitted by 

law. 

List of Subjects in 47 CFR Part 0 

Freedom of information, Government 

publications, Organization and 

functions (Government agencies), 

Privacy. 

Federal Communications Commission. 

William F. Caton, 

Deputy Secretary. 

Final Rules 

■ For the reasons discussed in the 

preamble, the Federal Communications 

Commission amends 47 CFR part 0 as 

follows: 

PART 0—COMMISSION 

ORGANIZATION 

Subpart C—General Information 

Public Information and Inspection of 

Records 

■ 1. The authority citation continues to 

read as follows: 

Authority: Sec. 5, 48 Stat. 1068, as 

amended: 47 U.S.C. 155, 225, unless 

otherwise noted. 

■ 2. Sections 0.441 through 0.470 are 

revised to read as follows: 

Sec. 

0.441 General. 

0.442 Disclosure to other Federal 

government agencies of information 

submitted to the Commission in 

confidence. 

0.445 Publication availability and use of 

opinions, orders, policy statements, 

interpretations, administrative manuals 

and staff instructions. 

0.451 Inspection of records: Generally. 

0.453 Public reference rooms. 

0.455 Other locations at which records may 

be inspected. 

0.457 Records not routinely available for 

public inspection. 

0.458 Nonpublic information. 

0.459 Requests that materials or 

information submitted to the 

Commission be withheld from public 

inspection. 

0.460 Requests for inspection of records 

which are routinely available for public 

inspection. 

0.461 Requests for inspection of materials 

not routinely available for public 

inspection. 

0.463 Demand by competent authority for 

the production of documents or 

testimony concerning information 

contained therein. 

0.465 Request for copies of materials which 

are available, or made available, for 

public inspection. 

0.466 Definitions. 

0.467 Search and review fees. 

0.468 Interest. 

0.469 Advance payments. 

0.470 Assessment of fees. 

§ 0.441 General. 

(a) Any person desiring to obtain 

information from the Commission may 

do so by contacting the Consumer and 

Governmental Affairs Bureau (CGB). 

Requests for information and general 

inquiries may be submitted by: 

(1) Internet at http://www.fcc.gov/cgb/ 

fccinfo or http://www.fcc.gov/foia. 

(2) Telephone at 1–888–CALL–FCC 

(1–888–225–5322). 

(3) TDD/TDY at 1–888–TELL–FCC 

(1–888–835–5322). 

(4) Correspondence to: Consumer and 

Governmental Affairs Bureau, 445 12th 

Street, SW., Washington, DC 20554. 

(5) Visiting the Reference Information 

Center of the Consumer and 

Governmental Affairs Bureau at Room 

CY–A257 of the Commission’s main 

office at 445 12th Street, SW., 

Washington, DC 20554. 

(6) Facsimile at 1–866–418–0232. 

(7) Contacting the Commission’s Copy 

Contractor, see § 0.465(a). 

(b) The Commission’s FOIA Public 

Liaison is available to assist any person 

requesting information from the 

Commission in resolving any concerns 

related to a Freedom of Information Act 

request. See http://www.fcc.gov/foia/. 

§ 0.442 Disclosure to other Federal 

government agencies of information 

submitted to the Commission in 

confidence. 

(a) The disclosure of records to other 

Federal government agencies is 

generally governed by the Paperwork 

Reduction Act, 44 U.S.C. 3510, rather 

than the Freedom of Information Act. 

The acceptance of materials in 

confidence under § 0.457 or § 0.459, or 

any other statute, rule or Commission 

order, does not preclude their disclosure 

to other federal agencies. 

(b) Information submitted to the 

Commission in confidence pursuant to 

§ 0.457(c)(2) and (3), (d) and (g) or 

§ 0.459, or any other statute, rule or 

order, may be disclosed to other 

agencies of the Federal government 

upon request or upon the Commission’s 

own motion, provided: 

(1) Specific Commission assurances 

against such disclosure have not been 

given; 

(2) The other agency has established 

a legitimate need for the information; 

(3) Disclosure is made subject to the 

provisions of 44 U.S.C. 3510(b); and 

(4) Disclosure is not prohibited by the 

Privacy Act or other provisions of law. 

(c) The Commission’s staff may give 

assurances against disclosure of 

information to other Federal agencies 

only with the prior written approval of 

the General Counsel. In no event will 

assurance against disclosure to other 

agencies be given in advance of 

submission of the information to the 

Commission if submission is required 

by statute or by the provisions of this 

chapter; but the notice provisions of 

paragraph (d) of this section will apply 

to such required submissions. 

(d)(1) Except as provided in 

paragraphs (d)(2) and (d)(3) of this 

section, a party who furnished records 

to the Commission with a request for 

confidential treatment, see § 0.459, will 

be notified at the time that the request 

for disclosure is submitted and will be 

afforded ten calendar days in which to 

submit an opposition to disclosure. This 

notification may be made either 

individually or by public notice. 


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(2) If the agency requesting the 

records provides in writing to the 

satisfaction of the Commission that 

notice to the party who furnished the 

records to the Commission will interfere 

unduly with its law enforcement, 

national security or homeland defense 

activities and further states that it will 

notify that party of the Commission’s 

disclosure once the potential for such 

interference is eliminated, the 

Commission will not give notice of 

disclosure. 

(3) A party who furnished records to 

the Commission in confidence will not 

be afforded prior notice when the 

disclosure is made to the Comptroller 

General of the United States, in the 

Government Accountability Office. 

Such a party will instead be notified of 

disclosure of the records to the 

Comptroller General either individually 

or by public notice. 

(4) If disclosure is opposed and the 

Commission decides to make the 

records available to the other agency, 

the party who furnished the records to 

the Commission will be afforded ten 

calendar days from the date of the ruling 

to move for a judicial stay of the 

Commission’s action. If the party does 

not move for stay within this period, the 

records will be disclosed. 

(e) Except as provided in paragraph 

(d)(3) of this section, nothing in this 

section is intended to govern disclosure 

of information to Congress or the 

Comptroller General. 

§ 0.445 Publication, availability and use of 

opinions, orders, policy statements, 

interpretations, administrative manuals, and 

staff instructions. 

(a) Adjudicatory opinions and orders 

of the Commission, or its staff acting on 

delegated authority, are sent to the 

parties by mail, delivery service, or email, unless the Commission determines 

that individual delivery would be 

unduly burdensome and instead issues 

a public notice of its decision. As part 

of the record, these documents are 

generally available for inspection in 

accordance with § 0.453 and § 0.455. In 

addition, many adjudicatory orders and 

opinions are available on the 

Commission’s Web site, http:// 

www.fcc.gov. In appropriate 

circumstances, the Commission may 

redact the copy made available to the 

public in order to protect information 

not routinely available to the public 

under § 0.457, which is treated 

confidentially pursuant to a request 

under § 0.459, or which is confidential 

pursuant to other statutes, regulations or 

orders. 

(b) Texts adopted by the Commission 

or a member of its staff on delegated 

authority and released through the 

Office of Media Relations are published 

in the FCC Record. Older materials of 

this nature are available in the FCC 

Reports. In the event that such older 

materials are not published in the FCC 

Reports, reference should be made to 

the Federal Register or Pike and Fischer 

Communications Regulation. 

(c) All rulemaking documents or 

summaries thereof are published in the 

Federal Register and are available on 

the Commission’s Web site. The 

complete text of the Commission 

decision also is released by the 

Commission and is available for 

inspection and copying during normal 

business hours in the Office of Media 

Relations, the Reference Information 

Center, via the Electronic Comment 

Filing System (ECFS), or as otherwise 

specified in the rulemaking document 

published in the Federal Register. The 

complete texts of rulemaking decisions 

may also be purchased from the 

Commission’s copy contractor. 

(d) Formal policy statements and 

interpretations designed to have general 

applicability are published in the 

Federal Register, the FCC Record, FCC 

Reports, or Pike and Fischer 

Communications Regulation. 

Commission decisions and other 

Commission documents not entitled 

formal policy statements or 

interpretations may contain substantive 

interpretations and statements regarding 

policy, and these are published as part 

of the document in the FCC Record, FCC 

Reports or Pike and Fischer 

Communications Regulation. General 

statements regarding policy and 

interpretations furnished to individuals, 

in correspondence or otherwise, are not 

ordinarily published. 

(e) If the documents described in 

paragraphs (a) through (d) of this section 

are published in the Federal Register, 

the FCC Record, FCC Reports, or Pike 

and Fischer Communications 

Regulation, they are indexed, and they 

may be relied upon, used or cited as 

precedent by the Commission or private 

parties in any manner. If they are not so 

published, they may not be relied upon, 

used or cited as precedent, except 

against persons who have actual notice 

of the document in question or by such 

persons against the Commission. No 

person is expected to comply with any 

requirement or policy of the 

Commission unless he or she has actual 

notice of that requirement or policy or 

a document stating it has been 

published as provided in this paragraph. 

Nothing in this paragraph, however, 

shall be construed as precluding a 

reference to a recent document that is 

pending publication. 

(f) Subparts A and B of this part 

describe the functions of the staff and 

list the matters on which authority has 

been delegated to the staff. All general 

instructions to the staff and limitations 

upon its authority are set forth in those 

subparts or in decisions of the 

Commission published in the Federal 

Register. Instructions to the staff in 

particular matters or cases are privileged 

and/or protected and are not published 

or made available for public inspection. 

(g) To the extent required to prevent 

a clearly unwarranted invasion of 

personal privacy, or to prevent 

disclosure of information required or 

authorized to be withheld by another 

statute, the Commission may delete 

identifying details or confidential 

information when it makes available or 

publishes any document described in 

this section. The justification for any 

such deletion will be fully explained in 

a preamble to the document. 

§ 0.451 Inspection of records: Generally. 

(a) Records which are routinely 

available for public inspection. Sections 

0.453 and 0.455 list those Commission 

records which are routinely available for 

public inspection and the places at 

which those records may be inspected. 

Procedures governing requests for 

inspection of such records are set out in 

§ 0.460. 

(b) Records which are not routinely 

available for public inspection. Records 

which are not listed in § 0.453 or § 0.455 

are not routinely available for public 

inspection. Such records fall into two 

categories. 

(1) The first category consists of those 

records or kinds of records listed in 

§ 0.457 and of particular records 

withheld from public inspection under 

§ 0.459. The Commission has 

determined that there is a statutory basis 

for withholding these records from 

public inspection. In some cases, the 

Commission is prohibited from 

permitting the inspection of records. In 

other cases, the records are the property 

of another agency, and the Commission 

has no authority to permit their 

inspection. In still other cases, the 

Commission is authorized, for reason of 

policy, to withhold records from 

inspection, but is not required to do so. 

(2) The second category consists of 

records that are not listed in § 0.453, 

§ 0.455, or § 0.457 and have not been 

withheld from inspection under § 0.459. 

In some cases, these records have not 

been identified for listing. In other cases 

(e.g., the general correspondence files), 

the Commission is unable to determine 

either that all records in a class should 

be routinely available for inspection or 

that all records in that class should not 


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be routinely available for inspection, 

and individualized determination is 

required. 

(3) Procedures governing requests for 

inspection of these records are set forth 

in § 0.461. 

(4) Procedures governing demands by 

competent authority for inspection of 

these records are set forth in § 0.463. 

(5) Except as provided in § 0.461 and 

§ 0.463, or pursuant to § 19.735–203 of 

this chapter, no officer or employee of 

the Commission shall permit the 

inspection of records which are not 

routinely available for public inspection 

under § 0.453 or § 0.455, or disclose 

information contained therein. 

(c) Copies. Section 0.465 applies to 

requests for copies of Commission 

records which are routinely available for 

public inspection under § 0.453 and 

§ 0.455 and those which are made 

available for inspection under § 0.461. 

Sections 0.467 and 0.465(c)(3) apply to 

requests for certified copies of 

Commission records. 

(d) Search and copying fees. Section 

0.465(c)(2) prescribes the per page fee 

for copying records made available for 

inspection under § 0.460 or § 0.461. 

Section 0.466 prescribes fees to cover 

the expense of searching for and 

reviewing records made available for 

inspection under § 0.460 or § 0.461. 

Review of initial fee determinations 

under § 0.467 through § 0.470 and initial 

fee reduction or waiver determinations 

under § 0.470(e) may be sought under 

§ 0.461(j). 

Note to paragraph (d): The Commission 

may require advance payment pursuant to 

§ 0.469 before releasing documents. 

§ 0.453 Public reference rooms. 

The Commission maintains the FCC 

Reference Information Center as its 

public reference room at its offices in 

Washington, DC. Much of the 

information available from the public 

reference room may also be retrieved 

from the Commission’s main Web site at 

http://www.fcc.gov and its electronic 

reading room at http://www.fcc.gov/ 

foia/e-room.html: 

(a) The Reference Information Center. 

Maintains files containing the record of 

all docketed cases, petitions for rule 

making and related papers. A file is 

maintained for each docketed hearing 

case and for each docketed rule making 

proceeding. Cards summarizing the 

history of such cases for the years before 

1984 are available for inspection. 

Information summarizing the history of 

such cases for the years from 1984 

through present is available online on 

the Electronic Comment Filing System 

(ECFS). 

(b) Broadcast Services. The following 

files and documents are available, 

including: 

(1) Applications for radio and 

television broadcast station construction 

permits, licenses, modifications of 

facilities, license renewal, assignments 

and transfer of control, including any 

Commission correspondence or rulings 

pertaining to those applications; 

(2) Petitions to deny, informal 

objections, and complaints directed 

against the stations and/or station 

applications; 

(3) Ownership reports filed by 

licensees pursuant to § 73.3615 of this 

chapter; 

(4) Television network application 

contracts, radio and television time 

brokerage agreements, and other 

documents required to be filed under 

§ 73.3613 of this chapter; 

(5) Children’s television programming 

reports filed by commercial television 

licensees pursuant to § 73.3526 of this 

chapter; 

(6) Annual DTV ancillary/ 

supplementary services reports filed by 

commercial and non-commercial 

educational digital television licensees 

pursuant to § 73.624 of this chapter; 

(7) Station requests for declaratory 

rulings, special temporary 

authorizations, and other waivers; 

(8) Annual employment reports filed 

by licensees and permittees of broadcast 

stations pursuant to § 73.3612 of this 

chapter; and. 

(9) Responses from licensees to 

random audits of their Equal 

Employment Opportunity programs 

conducted pursuant to § 73.2080 of this 

chapter. 

(c) Common Carrier Services, 

including: 

(1) Annual reports filed by carriers 

under § 43.21 of this chapter; 

(2) Reports of proposed changes in 

depreciation rates filed by carriers 

under § 43.43 of this chapter; 

(3) Rate-of-return reports filed by 

price-cap and rate-of-return incumbent 

local exchange carriers under § 65.600 

of this chapter; 

(4) All applications for common 

carrier authorizations acted upon by the 

Enforcement Bureau, and related files; 

(5) All formal and informal 

complaints against common carriers 

filed under § 1.711 through § 1.735 of 

this chapter, all documents filed in 

connection therewith, and all 

communications related thereto; 

(6) Annual employment reports filed 

by common carrier licensees or 

permittees pursuant to § 1.815 of this 

chapter; 

(7) Enforcement proceedings and 

public inquiries and related materials; 

(8) Cost Allocation Manuals and 

related materials; 

(9) Currently effective tariffs filed by 

Communications Common Carriers 

pursuant to various FCC Rules and 

Regulations; and 

(10) Recent revisions to tariff filings 

and the Reference Information Center 

Log, which is prepared daily and lists 

the tariff filings received the previous 

day. 

(d) Wireless Telecommunications 

Services and Auction related data 

including: 

(1) Pending files containing 

applications for additional facilities or 

modifications of existing facilities; 

(2) Cellular and Paging Granted 

Station files and related materials; 

(3) Pending cellular and paging 

applications and related files; 

(4) Electronically stored application 

and licensing data for commercial radio 

operators and for all authorizations in 

the Wireless Radio services are available 

for public inspection via the 

Commission’s Web site, http:// 

wireless.fcc.gov/uls. Wireless Radio 

services include Commercial and 

Private Mobile Radio, Common Carrier 

and Private Operational Field point-topoint Microwave, Local Television 

Transmission Service (LTTS), Digital 

Electronic Message Service (DEMS), 

Aviation Ground and Marine Coast 

applications; and 

(5) Petitions and related materials. 

(e) International Services as follows, 

except to the extent they are excluded 

from routine public inspection under 

another section of this chapter: 

(1) Satellite and earth station 

applications files and related materials 

under part 25 of this chapter; 

(2) Section 214 applications and 

related files under part 63 of this 

chapter, to the extent that they concern 

international communications facilities 

and services; 

(3) International Fixed Public Radio 

applications and related files under part 

23 of this chapter; 

(4) Files relating to submarine cable 

landing licenses and applications for 

such licenses since June 30, 1934, 

except for maps showing the exact 

location of submarine cables, which are 

withheld from inspection under sec. 4(j) 

of the Communications Act, 47 U.S.C. 

154(j) (see § 0.457(c)(1)(i)); 

(5) International broadcast 

applications, applications for 

permission to deliver programming to 

foreign stations, and related files under 

part 73 of this chapter; and 

(6) Contracts and other arrangements 

filed under § 43.51 of this chapter, 

except for those that are filed with a 

request for confidential treatment (see 


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§ 0.459) or are deemed confidential 

pursuant to sec. 412 of the 

Communications Act (see also 

§ 0.457(c)(3)). 

(f) Cable and other Multichannel 

Video Program Distribution Services. 

The following files and records are 

available, including: 

(1) Complaints regarding 

multichannel video programming, all 

documents filed in connection 

therewith, and all communications 

related thereto, unless the cable operator 

has submitted a request pursuant to 

§ 0.459 that such information not be 

made routinely available for public 

inspection; 

(2) Special relief petitions and files 

pertaining to cable television 

operations; 

(3) Special relief petitions and files 

pertaining to DBS television operations; 

(4) Petitions and related documents 

concerning the enforcement of 

regulations governing the installation of 

over-the-air reception devices (OTARD) 

pursuant to § 1.4000 of this chapter; 

(5) Filings by cable television 

operators, including Cable Signal 

Leakage Reports (Form 320 and 

§ 76.1804 of this chapter), Cable System 

Registration Statements (§ 76.1801 of 

this chapter), Cable System Operator 

Changes (§ 76.1610 of this chapter), 

Cable Aeronautical Frequency 

Notifications (§ 76.1804 of this chapter), 

Cable Annual Report (Form 325 and 

§ 76.403 of this chapter), and filings 

related to CARS licenses (Part 78 of this 

chapter). 

Note to paragraph (f)(5): This data also is 

available at http://www.fcc.gov/coals. 

Electronic submissions for cable filings 

(excluding CARS) are mandatory. Original 

forms are not available for information filed 

electronically, but the Reference Information 

Center or the Commission’s Copy Contractor 

may assist in producing paper copies of 

information found in the COALS database; 

(6) Annual employment reports filed 

by multichannel video programming 

distributors pursuant to § 76.1802 of this 

chapter; and 

(7) Responses from multichannel 

video programming distributors to 

random audits of their Equal 

Employment Opportunity programs 

conducted pursuant to § 76.77 of this 

chapter. 

§ 0.455 Other locations at which records 

may be inspected. 

Except as provided in § 0.453, § 0.457, 

and § 0.459, records are routinely 

available for inspection in the Reference 

Information Center or the offices of the 

Bureau or Office which exercises 

responsibility over the matters to which 

those records pertain (see § 0.5), or will 

be made available for inspection at 

those offices upon request. Upon 

inquiry to the appropriate Bureau or 

Office, persons desiring to inspect such 

records will be directed to the specific 

location at which the particular records 

may be inspected. Examples of the 

records available from Bureaus and 

Offices are set forth in paragraphs (a) 

through (c). 

(a) Media Bureau. (1) Rulings under 

secs. 312(a)(7), 315, and 317 of the 

Communications Act of 1934, as 

amended; 

(2) All materials associated with a rate 

proceeding for basic cable service and 

associated equipment over which the 

Commission has assumed jurisdiction 

pursuant to § 76.913 of this chapter; 

(3) All materials associated with 

Commission review of franchise 

authority decisions concerning the rate 

charged for the basic cable service tier 

and associated equipment pursuant to 

§ 76.944 of this chapter; 

(4) All materials associated with local 

government requests for authorization to 

regulate basic cable rates pursuant to 

§ 76.910 of this chapter (Form 328); 

(5) All materials associated with the 

certification of Open Video System 

(OVS) operators pursuant to § 76.1502 of 

this chapter; 

(6) A list of all registered cable 

communities is maintained 

electronically at http://www.fcc.gov/mb; 

and 

(7) Public notices issued related to 

CARS licenses, Cable Special Relief 

Petitions, and other filings are available 

electronically at http://www.fcc.gov/ 

Document_Indexes/Media/. 

(b) Office of Managing Director. (1) 

All minutes of Commission actions, 

containing a record of all final votes, 

minutes of actions and internal 

management matters as provided in 

§ 0.457(b)(1) and (c)(1)(i). These records 

and files are available for inspection in 

the Office of the Secretary. 

(2) Files containing information 

concerning the history of the 

Commission’s rules. These files are 

available for inspection in the Office of 

the Secretary. 

(3) Reports filed by employees 

pursuant to 5 CFR Parts 2634 and 3902 

and applications for inspection of such 

reports. See § 0.460(k). 

(c) International Bureau. (1) The 

treaties and other international and 

bilateral agreements listed in § 73.1650 

of this chapter are available for 

inspection in the office of the Chief, 

Strategic Analysis and Negotiations 

Division, International Bureau. 

(2) Contracts and other arrangement 

filed under § 43.51 of this chapter and 

reports of negotiations regarding foreign 

communication matters filed under 

§ 43.52 of this chapter, except those kept 

confidential pursuant to sec. 412 of the 

Communications Act. See § 0.457(c)(3). 

(3) Files relating to international 

settlements under part 64 of this 

chapter. 

§ 0.457 Records not routinely available for 

public inspection. 

The records listed in this section are 

not routinely available for public 

inspection pursuant to 5 U.S.C. 552(b). 

The records are listed in this section by 

category, according to the statutory basis 

for withholding those records from 

inspection; under each category, if 

appropriate, the underlying policy 

considerations affecting the withholding 

and disclosure of records in that 

category are briefly outlined. Except 

where the records are not the property 

of the Commission or where the 

disclosure of those records is prohibited 

by law, the Commission will entertain 

requests from members of the public 

under § 0.461 for permission to inspect 

particular records withheld from 

inspection under the provisions of this 

section, and will weigh the policy 

considerations favoring non-disclosure 

against the reasons cited for permitting 

inspection in the light of the facts of the 

particular case. In making such requests, 

there may be more than one basis for 

withholding particular records from 

inspection. The listing of records by 

category is not intended to imply the 

contrary but is solely for the information 

and assistance of persons making such 

requests. Requests to inspect or copy the 

transcripts, recordings or minutes of 

closed agency meetings will be 

considered under § 0.607 rather than 

under the provisions of this section. 

(a) Materials that are specifically 

authorized under criteria established by 

Executive Order (E.O.) to be kept secret 

in the interest of national defense or 

foreign policy and are in fact properly 

classified pursuant to such Executive 

Order, 5 U.S.C. 552(b)(1). 

(1) Classified materials and 

information will not be made available 

for public inspection, including 

materials classified under E.O. 10450, 

‘‘Security Requirements for Government 

Employees’’; E.O. 10501, as amended, 

‘‘Safeguarding Official Information in 

the Interests of the Defense of the 

United States’’; and E.O. 12958, 

‘‘Classified National Security 

Information,’’ or any other executive 

order concerning the classification of 

records. See also 47 U.S.C. 154(j). 

(2) Materials referred to another 

Federal agency for classification will not 

be disclosed while such a determination 

is pending. 


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(b) Materials that are related solely to 

the internal personnel rules and 

practices of the Commission, 5 U.S.C. 

552(b)(2). 

(1) Materials related solely to internal 

management matters, including minutes 

of Commission actions on such matters 

(see paragraph (f) of this section). 

(2) Materials relating to the 

negotiation of contracts. 

(c) Materials that are specifically 

exempted from disclosure by statute 

(other than the Government in the 

Sunshine Act, 5 U.S.C. 552b, provided 

that such statute either requires that the 

materials be withheld from the public in 

such a manner as to leave no discretion 

on the issue, or establishes particular 

criteria for withholding or refers to 

particular types of materials to be 

withheld). The Commission is 

authorized under the following statutory 

provisions to withhold materials from 

public inspection. 

(1) Section 4(j) of the 

Communications Act, 47 U.S.C. 154(j), 

provides, in part, that, ‘‘The 

Commission is authorized to withhold 

publication of records or proceedings 

containing secret information affecting 

the national defense.’’ Pursuant to that 

provision, it has been determined that 

the following materials should be 

withheld from public inspection (see 

also paragraph (a) of this section): 

(i) Maps showing the exact location of 

submarine cables. 

(ii) Minutes of Commission actions on 

classified matters. 

(iii) Maps of nation-wide point-topoint microwave networks. 

(2) Under section 213 of the 

Communications Act, 47 U.S.C. 213(f), 

the Commission is authorized to order, 

with the reasons therefor, that records 

and data pertaining to the valuation of 

the property of common carriers and 

furnished to the Commission by the 

carriers pursuant to the provisions of 

that section, shall not be available for 

public inspection. If such an order has 

been issued, the data and records will 

be withheld from public inspection, 

except under the provisions of § 0.461. 

Normally, however, such data and 

information is available for inspection. 

(3) Under sec. 412 of the 

Communications Act, 47 U.S.C. 412, the 

Commission may withhold from public 

inspection certain contracts, agreements 

and arrangements between common 

carriers relating to foreign wire or radio 

communication. Any person may file a 

petition requesting that such materials 

be withheld from public inspection. To 

support such action, the petition must 

show that the contract, agreement or 

arrangement relates to foreign wire or 

radio communications; that its 

publication would place American 

communication companies at a 

disadvantage in meeting the 

competition of foreign communication 

companies; and that the public interest 

would be served by keeping its terms 

confidential. If the Commission orders 

that such materials be kept confidential, 

they will be made available for 

inspection only under the provisions of 

§ 0.461. 

(4) Section 605 of the 

Communications Act, 47 U.S.C. 605(a), 

provides, in part, that, ‘‘no person not 

being authorized by the sender shall 

intercept any communication [by wire 

or radio] and divulge or publish the 

existence, contents, substance, purport, 

effect, or meaning of such intercepted 

communications to any person.’’ In 

executing its responsibilities, the 

Commission regularly monitors radio 

transmissions. Except as required for the 

enforcement of the communications 

laws, treaties and the provisions of this 

chapter, or as authorized in sec. 605, the 

Commission is prohibited from 

divulging information obtained in the 

course of these monitoring activities; 

and such information, and materials 

relating thereto, will not be made 

available for public inspection. 

(5) Section 1905 of the federal 

criminal code, the Trade Secrets Act, 18 

U.S.C. 1905, prohibits the unauthorized 

disclosure of certain confidential 

information. See paragraph (d) of this 

section and § 19.735–203 of this 

chapter. 

(d) Trade secrets and commercial or 

financial information obtained from any 

person and privileged or confidential— 

categories of materials not routinely 

available for public inspection, 5 U.S.C. 

552(b)(4) and 18 U.S.C. 1905. 

(1) The materials listed in this 

paragraph have been accepted, or are 

being accepted, by the Commission on 

a confidential basis pursuant to 5 U.S.C. 

552(b)(4). To the extent indicated in 

each case, the materials are not 

routinely available for public 

inspection. If the protection afforded is 

sufficient, it is unnecessary for persons 

submitting such materials to submit 

therewith a request for non-disclosure 

pursuant to § 0.459. A persuasive 

showing as to the reasons for inspection 

will be required in requests submitted 

under § 0.461 for inspection of such 

materials. 

(i) Financial reports submitted by 

radio or television licensees. 

(ii) Applications for equipment 

authorizations (type acceptance, type 

approval, certification, or advance 

approval of subscription television 

systems), and materials relating to such 

applications, are not routinely available 

for public inspection prior to the 

effective date of the authorization. The 

effective date of the authorization will, 

upon request, be deferred to a date no 

earlier than that specified by the 

applicant. Following the effective date 

of the authorization, the application and 

related materials (including technical 

specifications and test measurements) 

will be made available for inspection 

upon request (see § 0.460). Portions of 

applications for equipment certification 

of scanning receivers and related 

materials will not be made available for 

inspection. 

(iii) Information submitted in 

connection with audits, investigations 

and examination of records pursuant to 

47 U.S.C. 220. 

(iv) Programming contracts between 

programmers and multichannel video 

programming distributors. 

(v) The rates, terms and conditions in 

any agreement between a U.S. carrier 

and a foreign carrier that govern the 

settlement of U.S. international traffic, 

including the method for allocating 

return traffic, if the U.S. international 

route is exempt from the international 

settlements policy under § 43.51(e)(3) of 

this chapter. 

(vi) Outage reports filed under Part 4 

of this chapter. 

(vii) The following records, relating to 

coordination of satellite systems 

pursuant to procedures codified in the 

International Telecommunication Union 

(ITU) Radio Regulations: 

(A) Records of communications 

between the Commission and the ITU 

related to the international coordination 

process, and 

(B) Documents prepared in 

connection with coordination, 

notification, and recording of frequency 

assignments and Plan modifications, 

including but not limited to minutes of 

meetings, supporting exhibits, 

supporting correspondence, and 

documents and correspondence 

prepared in connection with operatorto-operator arrangements. 

Note to paragraph (d): The content of the 

communications described in paragraph 

(d)(1)(vii)(A) of this section is in some 

circumstances separately available through 

the ITU’s publication process, or through 

records available in connection with the 

Commission’s licensing procedures. 

(2) Unless the materials to be 

submitted are listed in paragraph (d)(1) 

of this section and the protection 

thereby afforded is adequate, any person 

who submits materials which he or she 

wishes withheld from public inspection 

under 5 U.S.C. 552(b)(4) must submit a 

request for non-disclosure pursuant to 

§ 0.459. If it is shown in the request that 

the materials contain trade secrets or 


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privileged or confidential commercial, 

financial or technical data, the materials 

will not be made routinely available for 

inspection; and a persuasive showing as 

to the reasons for inspection will be 

required in requests for inspection 

submitted under § 0.461. In the absence 

of a request for non-disclosure, the 

Commission may, in the unusual 

instance, determine on its own motion 

that the materials should not be 

routinely available for public 

inspection. 

(e) Interagency and intra-agency 

memoranda or letters, 5 U.S.C. 

552(b)(5). Interagency and intra-agency 

memoranda or letters and the work 

papers of members of the Commission 

or its staff will not be made available for 

public inspection, except in accordance 

with the procedures set forth in § 0.461. 

Normally such papers are privileged 

and not available to private parties 

through the discovery process, since 

their disclosure would tend to restrain 

the commitment of ideas to writing, 

would tend to inhibit communication 

among Government personnel, and 

would, in some cases, involve 

premature disclosure of their contents. 

(f) Personnel, medical and other files 

whose disclosure would constitute a 

clearly unwarranted invasion of 

personal privacy, 5 U.S.C. 552(b)(6). 

Under E.O. 10561, the Commission 

maintains an Official Personnel Folder 

for each of its employees. Such folders 

are under the jurisdiction and control, 

and are a part of the records, of the U.S. 

Office of Personnel Management. Except 

as provided in the rules of the Office of 

Personnel Management (5 CFR 293.311), 

such folders will not be made available 

for public inspection by the 

Commission. In addition, other records 

of the Commission containing private, 

personal or financial information 

concerning particular employees and 

Commission contractors will be 

withheld from public inspection. 

(g) Under 5 U.S.C. 552(b)(7), records 

compiled for law enforcement purposes, 

to the extent that production of such 

records: 

(1) Could reasonably be expected to 

interfere with enforcement proceedings; 

(2) Would deprive a person of a right 

to fair trial or an impartial adjudication; 

(3) Could reasonably be expected to 

constitute an unwarranted invasion of 

personal privacy; 

(4) Could reasonably be expected to 

disclose the identity of a confidential 

source; 

(5) Would disclose investigative 

techniques or procedures or would 

disclose investigative guidelines if such 

disclosure could reasonably be expected 

to risk circumvention of the law; or 

(6) Could reasonably be expected to 

endanger the life or physical safety of 

any individual. 

§ 0.458 Nonpublic information. 

Any person regulated by or practicing 

before the Commission coming into 

possession of written nonpublic 

information (including written material 

transmitted in electronic form) as 

described in § 19.735–203(a) of this 

chapter under circumstances where it 

appears that its release was inadvertent 

or otherwise unauthorized shall be 

obligated to and shall promptly return 

the information to the Commission’s 

Office of Inspector General without 

further distribution or use. See 47 CFR 

19.735–203. 

§ 0.459 Requests that materials or 

information submitted to the Commission 

be withheld from public inspection. 

(a)(1) Any person submitting 

information or materials to the 

Commission may submit therewith a 

request that such information not be 

made routinely available for public 

inspection. (If the materials are 

specifically listed in § 0.457, such a 

request is unnecessary.) A copy of the 

request shall be attached to and shall 

cover all of the materials to which it 

applies and all copies of those materials. 

If feasible, the materials to which the 

request applies shall be physically 

separated from any materials to which 

the request does not apply; if this is not 

feasible, the portion of the materials to 

which the request applies shall be 

identified. In the latter circumstance, 

where confidential treatment is sought 

only for a portion of a document, the 

person submitting the document shall 

submit a redacted version for the public 

file. 

(2) Comments and other materials 

may not be submitted by means of the 

Commission’s Electronic Comment 

Filing System (ECFS) with a request for 

confidential treatment under this 

section. 

(3) The Commission may use 

abbreviated means for indicating that 

the submitter of a record seeks 

confidential treatment, such as a 

checkbox enabling the submitter to 

indicate that the record is confidential. 

However, upon receipt of a request for 

inspection of such records pursuant to 

§ 0.461, the submitter will be notified of 

such request pursuant to § 0.461(d)(3) 

and will be requested to justify the 

confidential treatment of the record, as 

set forth in paragraph (b) of this section. 

(b) Except as provided in § 0.459(a)(3), 

each such request shall contain a 

statement of the reasons for withholding 

the materials from inspection (see 

§ 0.457) and of the facts upon which 

those records are based, including: 

(1) Identification of the specific 

information for which confidential 

treatment is sought; 

(2) Identification of the Commission 

proceeding in which the information 

was submitted or a description of the 

circumstances giving rise to the 

submission; 

(3) Explanation of the degree to which 

the information is commercial or 

financial, or contains a trade secret or is 

privileged; 

(4) Explanation of the degree to which 

the information concerns a service that 

is subject to competition; 

(5) Explanation of how disclosure of 

the information could result in 

substantial competitive harm; 

(6) Identification of any measures 

taken by the submitting party to prevent 

unauthorized disclosure; 

(7) Identification of whether the 

information is available to the public 

and the extent of any previous 

disclosure of the information to third 

parties; 

(8) Justification of the period during 

which the submitting party asserts that 

material should not be available for 

public disclosure; and 

(9) Any other information that the 

party seeking confidential treatment 

believes may be useful in assessing 

whether its request for confidentiality 

should be granted. 

(c) Casual requests (including simply 

stamping pages ‘‘confidential’’) which 

do not comply with the requirements of 

paragraphs (a) and (b) of this section 

will not be considered. 

(d)(1) If a response in opposition to a 

confidentiality request is filed, the party 

requesting confidentiality may file a 

reply within ten business days. All 

responses or replies filed under this 

paragraph must be served on all parties. 

(2) Requests which comply with the 

requirements of paragraphs (a) and (b) of 

this section will be acted upon by the 

appropriate custodian of records (see 

§ 0.461(d)(1)), who is directed to grant 

the request if it demonstrates by a 

preponderance of the evidence that nondisclosure is consistent with the 

provisions of the Freedom of 

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

request for confidentiality is granted, 

the ruling will be placed in the public 

file in lieu of the materials withheld 

from public inspection. 

(3) The Commission may defer acting 

on requests that materials or 

information submitted to the 

Commission be withheld from public 

inspection until a request for inspection 

has been made pursuant to § 0.460 or 

§ 0.461. The information will be 


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accorded confidential treatment, as 

provided for in § 0.459(g) and § 0.461, 

until the Commission acts on the 

confidentiality request and all 

subsequent appeal and stay proceedings 

have been exhausted. 

(e) If the materials are submitted 

voluntarily (i.e., absent any requirement 

by statute, regulation, or the 

Commission), the person submitting 

them may request the Commission to 

return the materials without 

consideration if the request for 

confidentiality should be denied. In that 

event, the materials will ordinarily be 

returned (e.g., an application will be 

returned if it cannot be considered on a 

confidential basis). Only in the unusual 

instance where the public interest so 

requires will the materials be made 

available for public inspection. 

However, no materials submitted with a 

request for confidentiality will be 

returned if a request for inspection has 

been filed under § 0.461. If submission 

of the materials is required by the 

Commission and the request for 

confidentiality is denied, the materials 

will be made available for public 

inspection once the period for review of 

the denial has passed. 

(f) If no request for confidentiality is 

submitted, the Commission assumes no 

obligation to consider the need for nondisclosure but, in the unusual instance, 

may determine on its own motion that 

the materials should be withheld from 

public inspection. See § 0.457(g). 

(g) If a request for confidentiality is 

denied, the person who submitted the 

request may, within ten business days, 

file an application for review by the 

Commission. If the application for 

review is denied, the person who 

submitted the request will be afforded 

ten business days in which to seek a 

judicial stay of the ruling. If these 

periods expire without action by the 

person who submitted the request, the 

materials will be returned to the person 

who submitted them or will be placed 

in a public file. Notice of denial and of 

the time for seeking review or a judicial 

stay will be given by telephone, with 

follow-up notice in writing. The first 

day to be counted in computing the time 

periods established in this paragraph is 

the day after the date of oral notice. 

Materials will be accorded confidential 

treatment, as provided in § 0.459(g) and 

§ 0.461, until the Commission acts on 

any timely applications for review of an 

order denying a request for 

confidentiality, and until a court acts on 

any timely motion for stay of such an 

order denying confidential treatment. 

(h) If the request for confidentiality is 

granted, the status of the materials is the 

same as that of materials listed in 

§ 0.457. Any person wishing to inspect 

them may submit a request for 

inspection under § 0.461. 

(i) Third party owners of materials 

submitted to the Commission by another 

party may participate in the proceeding 

resolving the confidentiality of the 

materials. 

§ 0.460 Requests for inspection of records 

which are routinely available for public 

inspection. 

(a) Sections 0.453 and 0.455 list those 

Commission records which are 

routinely available for public inspection 

and the places at which those records 

may be inspected. Subject to the 

limitations set out in this section, a 

person who wants to inspect such 

records need only appear at the 

specified location and ask to see the 

records. Many such records also are 

available through the Commission’s 

Web site, located at http://www.fcc.gov 

and the Commission’s electronic 

reading room, located on its Web site at 

http://www.fcc.gov/foia/e-room.html. 

Commission documents listed in § 0.416 

and § 0.445 are published in the FCC 

Record, and many such documents or 

summaries thereof are also published in 

the Federal Register. 

(b) A person who wishes to inspect 

the records must appear at the specified 

location during the office hours of the 

Commission and must inspect the 

records at that location. (Procedures 

governing requests for copies are set out 

in § 0.465.) However, arrangements may 

be made in advance, by telephone or by 

correspondence, to make the records 

available for inspection on a particular 

date, and there are many circumstances 

in which such advance arrangements 

will save inconvenience. If the request 

is for a large number of documents, for 

example, a delay in collecting them is 

predictable. Current records may be in 

use by the staff when the request is 

made. Older records may have been 

forwarded to another location for 

storage. 

(c) The records in question must be 

reasonably described by the person 

requesting them so as to permit their 

location by staff personnel. The 

information needed to locate the records 

will vary, depending on the records 

requested. Advice concerning the kind 

of information needed to locate 

particular records will be furnished in 

advance upon request. Members of the 

public will not be given access to the 

area in which records are kept and will 

not be permitted to search the files. 

(d) If it appears that there will be an 

appreciable delay in locating or 

producing the records (as where a large 

number of documents is the subject of 

a single request or where an extended 

search for a document appears to be 

necessary), the requester may be 

directed to submit or confirm the 

request in writing in appropriate 

circumstances. 

(e)(1) Written requests shall be 

directed to the Commission’s copy 

contractor pursuant to the procedures 

set forth in § 0.465. Requests shall be 

captioned ‘‘Request For Inspection Of 

Records,’’ shall be dated, shall list the 

mailing address, telephone number (if 

any) of the person making the request, 

and the e-mail address (if any) and for 

each document requested, shall set out 

all information known to the person 

making the request which would be 

helpful in identifying and locating the 

document. Written requests shall, in 

addition, specify the maximum search 

fee the person making the request is 

prepared to pay (see § 0.467). 

(2) Written requests shall be delivered 

or mailed directly to the Commission’s 

copy contractor (see § 0.465(a)). 

(f) When a written request is received 

by the copy contractor, it will be datestamped. 

(g) All requests limited to records 

listed in § 0.453 and § 0.455 will be 

granted, subject to paragraph (k) of this 

section. Requests for records listed in 

those sections shall not be combined 

with requests for other records. 

(h) The records will be produced for 

inspection at the earliest possible time. 

(i) Records shall be inspected within 

7 days after notice is given that they 

have been located and are available for 

inspection. After that period, they will 

be returned to storage and additional 

charges may be imposed for again 

producing them. 

(j) In addition to the other 

requirements of this section, the 

following provisions apply to the 

reports filed with the Commission 

pursuant to 5 CFR Parts 2634 and 3902. 

(1) Such reports shall not be obtained 

or used: 

(i) For any unlawful purpose; 

(ii) For any commercial purpose, 

other than by news and 

communications media for 

dissemination to the general public; 

(iii) For determining or establishing 

the credit rating of any individual; or 

(iv) For use, directly or indirectly, in 

the solicitation of money for any 

political, charitable, or other purpose. 

(2) Such reports may not be made 

available to any person nor may any 

copy thereof be provided to any person 

except upon a written application by 

such person stating: 

(i) That person’s name, occupation 

and address; 


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(ii) The name and address of any 

other person or organization on whose 

behalf the inspection or copying is 

requested; and 

(iii) That such person is aware of the 

prohibitions on the obtaining or use of 

the report. Further, any such application 

for inspection shall be made available to 

the public throughout the period during 

which the report itself is made available 

to the public. (Secs. 4, 303, 307, 48 Stat., 

as amended, 1066, 1082, 1083; 47 U.S.C. 

154, 303, 397; 18 U.S.C. 207(j)) 

§ 0.461 Requests for inspection of 

materials not routinely available for public 

inspection. 

Any person desiring to inspect 

Commission records that are not listed 

in § 0.453 or § 0.455 shall file a request 

for inspection meeting the requirements 

of this section. The FOIA Public Liaison 

is available to assist persons seeking 

records under this section. See 

§ 0.441(a). 

(a)(1) Records include: 

(i) Any information that would be an 

agency record subject to the 

requirements of the Freedom of 

Information Act when maintained by 

the Commission in any format, 

including an electronic format; and 

(ii) Any information maintained for 

the Commission by an entity under 

Government contract, for purposes of 

records management. 

(2) The records in question must be 

reasonably described by the person 

requesting them, so as to permit their 

location by staff personnel with a 

reasonable amount of effort. Whenever 

possible, a request should include 

specific information about each record 

sought, such as the title or name, author, 

recipient, and subject matter of the 

record. Requests should also specify the 

date or time period for the records 

sought. The custodian of records sought 

may contact the requester to obtain 

further information about the records 

sought to assist in locating them. 

(3) The person requesting records 

under this section may specify the form 

or format of the records to be produced 

provided that the records may be made 

readily reproducible in the requested 

form or format. 

(b)(1) Requests shall be captioned 

‘‘Freedom of Information Act Request,’’ 

shall be dated, shall list the telephone 

number (if any), street address, and email address (if any) of the person 

making the request, and should 

reasonably describe, for each document 

requested (see § 0.461(a)(1)), all 

information known to the person 

making the request that would be 

helpful in identifying and locating the 

document. 

(2) The request shall, in addition, 

specify the maximum search fee the 

person making the request is prepared 

to pay or a request for waiver or 

reduction of fees if the requester is 

eligible (see § 0.470(e)). By filing a FOIA 

request, the requester agrees to pay all 

applicable fees charged under § 0.467, 

unless the person making the request 

seeks a waiver of fees (see § 0.470(e)), in 

which case the Commission will rule on 

the waiver request before proceeding 

with the search. 

(c) If the records are of the kinds 

listed in § 0.457 or if they have been 

withheld from inspection under § 0.459, 

the request shall, in addition, contain a 

statement of the reasons for inspection 

and the facts in support thereof. In the 

case of other materials, no such 

statement need accompany the request, 

but the custodian of the records may 

require the submission of such a 

statement if he or she determines that 

the materials in question may lawfully 

be withheld from inspection. 

(d)(1) Requests shall be 

(i) Delivered or mailed to the 

Managing Director, FCC, 445—12th 

Street, SW., Room 1–A836, Washington, 

DC 20554; 

(ii) Sent by e-mail to foia@fcc.gov; 

(iii) Filed electronically though the 

Internet at http://www.fcc.gov/foia/ 

#reqform; or 

(iv) Sent by facsimile to (202) 418– 

2826 or (202) 418–0521. 

If the request is filed by mail or 

facsimile, an original and two copies of 

the request shall be submitted. If the 

request is enclosed in an envelope, the 

envelope shall be marked, ‘‘Freedom of 

Information Act Request.’’ 

(2) For purposes of this section, the 

custodian of the records is the Chief of 

the Bureau or Office where the records 

are located. The Chief of the Bureau or 

Office may designate an appropriate 

person to act on a FOIA request. 

(3) If the request is for materials 

submitted to the Commission by third 

parties and not open to routine public 

inspection under § 0.457(d), § 0.459, or 

another Commission rule or order, or if 

a request for confidentiality is pending 

pursuant to § 0.459, or if the custodian 

of records has reason to believe that the 

information may contain confidential 

commercial information, one copy of 

the request will be provided by the 

custodian of the records (see § 0.461(e)) 

to the person who originally submitted 

the materials to the Commission. If there 

are many persons who originally 

submitted the records and are entitled to 

notice under this paragraph, the 

custodian of records may use a public 

notice to notify the submitters of the 

request for inspection. The submitter or 

submitters will be given ten calendar 

days to respond to the FOIA request. 

See § 0.459(d)(1). If a submitter has any 

objection to disclosure, he or she is 

required to submit a detailed written 

statement specifying all grounds for 

withholding any portion of the 

information (see § 0.459). This response 

shall be served on the party seeking to 

inspect the records. The requester may 

submit a reply within ten business days 

unless a different period is specified by 

the custodian of records. The reply shall 

be served on all parties that filed a 

response. In the event that a submitter 

fails to respond within the time 

specified, the submitter will be 

considered to have no objection to 

disclosure of the information. 

Note to paragraph (d)(3): Under the ex 

parte rules, § 1.1206(a)(7) of this chapter, a 

proceeding involving a FOIA request is a 

permit-but-disclose proceeding, but is subject 

to the special service rules in this paragraph. 

We also note that while the FOIA request 

itself is a permit-but-disclose proceeding, a 

pleading in a FOIA proceeding may also 

constitute a presentation in another 

proceeding if it addresses the merits of that 

proceeding. 

(e)(1) When the request is received by 

the Managing Director, it will be 

assigned to the Freedom of Information 

Act (FOIA) Control Office, where it will 

be date-stamped and assigned to the 

appropriate custodian of the records. A 

FOIA request is then considered 

properly received. This will occur no 

later than ten calendar days after the 

request is first received by the agency. 

(2)(i) Except for the purpose of 

making a determination regarding 

expedited processing under paragraph 

(h) of this section, the time for 

processing a request for inspection of 

records will be tolled 

(A) While the custodian of records 

seeks reasonable clarification of the 

request; 

(B) Until clarification with the 

requester of issues regarding fee 

assessment occurs, including: 

(1) While there is an unresolved fee 

waiver issue pending under § 0.470(e), 

unless the requester has provided a 

written statement agreeing to pay some 

or all of the fees pending the outcome 

of the waiver question; 

(2) Following the denial of a fee 

waiver, unless the requester had 

provided a written statement agreeing to 

pay the fees if the fee waiver was 

denied; 

(3) Where advance payment is 

required pursuant to § 0.469 and has not 

been made. 

(ii) Only one Commission request for 

information shall be deemed to toll the 

time for processing a request for 


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inspection of records under 

§ 0.461(e)(2)(i)(A). Such request must be 

made no later than ten calendar days 

after a request is properly received by 

the custodian of records under 

§ 0.461(e)(1). 

(3) The FOIA Control Office will send 

an acknowledgement to the requester 

notifying the requester of the control 

number assigned to the request, the due 

date of the response, and the telephone 

contact number (202–418–0440) to be 

used by the requester to obtain the 

status of the request. Requesters may 

also obtain the status of an FOIA request 

via e-mail at foia@fcc.gov. 

(4) Multiple FOIA requests by the 

same or different FOIA requesters may 

be consolidated for disposition. See also 

§ 0.470(b)(2). 

(f) Requests for inspection of records 

will be acted on as follows by the 

custodian of the records. 

(1) If the Commission is prohibited 

from disclosing the records in question, 

the request for inspection will be denied 

with a statement setting forth the 

specific grounds for denial. 

(2)(i) If records in the possession of 

the Commission are the property of 

another agency, the request will be 

referred to that agency and the person 

who submitted the request will be so 

advised, with the reasons for referral. 

(ii) If it is determined that the FOIA 

request seeks only records of another 

agency or department, the FOIA 

requester will be so informed by the 

FOIA Control Officer and will be 

directed to the correct agency or 

department. 

(3) If it is determined that the 

Commission does not have authority to 

withhold the records from public 

inspection, the request will be granted. 

(4) If it is determined that the 

Commission does have authority to 

withhold the records from public 

inspection, the considerations favoring 

disclosure and non-disclosure will be 

weighed in light of the facts presented, 

and the request will be granted, either 

conditionally or unconditionally, or 

denied. 

(5) If there is a statutory basis for 

withholding part of a document from 

inspection, that part will be deleted and 

the remainder will be made available for 

inspection. Records disclosed in part 

shall be marked or annotated to show 

the amount of information deleted 

unless doing so would harm an interest 

protected by an applicable exemption. 

The location of the information deleted 

and the exemption under which the 

deletion is made also shall be indicated 

on the record, if technically feasible. 

(6) In locating and recovering records 

responsive to an FOIA request, only 

those records within the Commission’s 

possession and control as of the date of 

its receipt of the request shall be 

considered. 

(g)(1) The custodian of the records 

will make every effort to act on the 

request within twenty business days 

after it is received and date-stamped by 

the FOIA Control Office. 

However, if a request for clarification 

has been made under § 0.461(e)(2)(i)(A) 

or an issue is outstanding regarding the 

payment of fees for processing the FOIA 

request is pending under 

§ 0.461(e)(2)(i)(B), the counting of time 

will start upon resolution of these 

requests. If it is not possible to locate 

the records and to determine whether 

they should be made available for 

inspection within twenty business days, 

the custodian may, in any of the 

following circumstances, extend the 

time for action by up to ten business 

days: 

(i) It is necessary to search for and 

collect the requested records from field 

facilities or other establishments that are 

separate from the office processing the 

request. 

(ii) It is necessary to search for, collect 

and appropriately examine a 

voluminous amount of separate and 

distinct records which are demanded in 

a single request; or 

(iii) It is necessary to consult with 

another agency having a substantial 

interest in the determination of the 

request, or among two or more 

components of the Commission having 

substantial subject matter interest 

therein. 

(2) The custodian of the records will 

notify the requester in writing of any 

extension of time exercised pursuant to 

paragraph (g) of this section. The 

custodian of the records may also call 

the requester to extend the time 

provided a subsequent written 

confirmation is provided. If it is not 

possible to locate the records and make 

the determination within the extended 

period, the person or persons who made 

the request will be provided an 

opportunity to limit the scope of the 

request so that it may be processed 

within the extended time limit, or an 

opportunity to arrange an alternative 

time frame for processing the request or 

a modified request, and asked to 

consent to an extension or further 

extension. If the requester agrees to an 

extension, the custodian of the records 

will confirm the agreement in a letter or 

e-mail specifying the length of the 

agreed-upon extension. If he or she does 

not agree to an extension, the request 

will be denied, on the grounds that the 

custodian has not been able to locate the 

records and/or to make the 

determination within the period for a 

ruling mandated by the Freedom of 

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

event, the custodian will continue to 

search for and/or assess the records and 

will advise the person who made the 

request of further developments; but 

that person may file an application for 

review by the Commission. When action 

is taken by the custodian of the records, 

written notice of the action will be 

given. Records will be made available 

with the written notice of action or as 

soon thereafter as is feasible. 

(3) If the custodian of the records 

grants a request for inspection of records 

submitted to the Commission in 

confidence under § 0.457(d), § 0.459, or 

some other Commission rule or order, 

the custodian of the records will give 

the submitter written notice of the 

decision and of the submitter’s right to 

seek review pursuant to § 0.461(i). 

(h)(1) Requesters who seek expedited 

processing of FOIA requests shall 

submit such requests, along with their 

FOIA requests, to the Managing 

Director, as described in § 0.461(d). If 

the request is enclosed in an envelope, 

the envelope shall be marked ‘‘Request 

for Expedited Proceeding—FOIA 

Request.’’ An original and two copies of 

the request for expedition shall be 

submitted, but only one copy is 

necessary if submitted by e-mail or by 

the Internet. When the request is 

received by the Managing Director, it, 

and the accompanying FOIA request, 

will be assigned to the FOIA Control 

Office, where it will be date-stamped 

and assigned to the custodian of 

records. 

(2) Expedited processing shall be 

granted to a requester demonstrating a 

compelling need that is certified by the 

requester to be true and correct to the 

best of his or her knowledge and belief. 

(3) For purposes of this section, 

compelling need means— 

(i) That failure to obtain requested 

records on an expedited basis could 

reasonably be expected to pose an 

imminent threat to the life or physical 

safety of an individual; or 

(ii) With respect to a request made by 

a person primarily engaged in 

disseminating information, there is an 

urgency to inform the public concerning 

actual or alleged Federal Government 

activity. 

(4)(i) Notice of the determination 

whether to grant expedited processing 

shall be provided to the requester by the 

custodian of records within ten calendar 

days after receipt of the request by the 

FOIA Control Office. Once the 

determination has been made to grant 

expedited processing, the custodian 


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shall process the FOIA request as soon 

as practicable. 

(ii) If a request for expedited 

processing is denied, the person seeking 

expedited processing may file an 

application for review within five 

business days after the date of the 

written denial. The application for 

review and the envelope containing it (if 

any) shall be captioned ‘‘Review of 

FOIA Expedited Proceeding Request.’’ 

The application for review shall be 

delivered or mailed to the General 

Counsel. (For general procedures 

relating to applications for review, see 

§ 1.115 of this chapter.) The 

Commission shall act expeditiously on 

the application for review, and shall 

notify the custodian of records and the 

requester of the disposition of such an 

application for review. 

(i)(1) If a request for inspection of 

records submitted to the Commission in 

confidence under § 0.457(d), § 0.459, or 

another Commission rule or order is 

granted in whole or in part, an 

application for review may be filed by 

the person who submitted the records to 

the Commission, by a third party owner 

of the records or by a person with a 

personal privacy interest in the records, 

or by the person who filed the request 

for inspection of records within the ten 

business days after the date of the 

written ruling. The application for 

review and the envelope containing it (if 

any) shall be captioned ‘‘Review of 

Freedom of Information Action.’’ The 

application for review shall be filed 

within ten business days after the date 

of the written ruling, shall be delivered 

or mailed to the General Counsel, and 

shall be served on the person who filed 

the request for inspection of records and 

any other parties to the proceeding. The 

person who filed the request for 

inspection of records may respond to 

the application for review within ten 

business days after it is filed. 

(2) The first day to be counted in 

computing the time period for filing the 

application for review is the day after 

the date of the written ruling. If an 

application for review is not filed 

within this period, the records will be 

produced for inspection. 

(3) If an application for review is 

denied, the person filing the application 

for review will be notified in writing 

and advised of his or her rights. 

(4) If an application for review filed 

by the person who submitted, owns, or 

has a personal privacy interest in the 

records to the Commission is denied, or 

if the records are made available on 

review which were not initially made 

available, the person will be afforded 

ten business days from the date of the 

written ruling in which to move for a 

judicial stay of the Commission’s action. 

The first day to be counted in 

computing the time period for seeking a 

judicial stay is the day after the date of 

the written ruling. If a motion for stay 

is not made within this period, the 

records will be produced for inspection. 

(j) Except as provided in paragraph (i) 

of this section, an application for review 

of an initial action on a request for 

inspection of records, a fee 

determination (see § 0.467 through 

§ 0.470), or a fee reduction or waiver 

decision (see § 0.470(e)) may be filed 

only by the person who made the 

request. The application shall be filed 

within 30 calendar days after the date of 

the written ruling by the custodian of 

records. The application for review and 

the envelope (if any) shall be captioned, 

‘‘Review of Freedom of Information 

Action.’’ The application shall be 

delivered or mailed to the General 

Counsel. If the proceeding involves 

records subject to confidential treatment 

under § 0.457 or § 0.459, or involves a 

person with an interest as described in 

§ 0.461(i), the application for review 

shall be served on such persons. That 

person may file a response within ten 

business days after the application for 

review is filed. If the records are made 

available for review, the person who 

submitted them to the Commission will 

be afforded ten business days after the 

date of the written ruling to seek a 

judicial stay. See paragraph (i) of this 

section. The first day to be counted in 

computing the time period for filing the 

application for review or seeking a 

judicial stay is the day after the date of 

the written ruling. 

Note to paragraphs (i) and (j): The General 

Counsel may review applications for review 

with the custodian of records and attempt to 

informally resolve outstanding issues with 

the consent of the requester. For general 

procedures relating to applications for 

review, see § 1.115 of this chapter. 

(k)(1)(i) The Commission will make 

every effort to act on an application for 

review of an action on a request for 

inspection of records within twenty 

business days after it is filed. In the 

following circumstances and to the 

extent time has not been extended 

under paragraphs (g)(1)(i), (ii), or (iii) of 

§ 0.461(g) of this section, the 

Commission may extend the time for 

acting on the application for review up 

to ten business days. (The total period 

of extensions taken under this 

paragraph and under paragraph (g) of 

this section without the consent of the 

person who submitted the request shall 

not exceed ten business days.): 

(A) It is necessary to search for and 

collect the requested records from field 

facilities or other establishments that are 

separate from the office processing the 

request; 

(B) It is necessary to search for, collect 

and appropriately examine a 

voluminous amount of separate and 

distinct records which are demanded in 

a single request; or 

(C) It is necessary to consult with 

another agency having a substantial 

interest in the determination of the 

request or among two or more 

components of the Commission having 

substantial subject matter interest 

therein. 

(ii) If these circumstances are not 

present, the person who made the 

request may be asked to consent to an 

extension or further extension. If the 

requester or person who made the 

request agrees to an extension, the 

General Counsel will confirm the 

agreement in a letter specifying the 

length of the agreed-upon extension. If 

the requestor or person who made the 

request does not agree to an extension, 

the Commission will continue to search 

for and/or assess the records and will 

advise the person who made the request 

of further developments; but that person 

may file a complaint in an appropriate 

United States district court. 

(2) The Commission may at its 

discretion or upon request consolidate 

for consideration related applications 

for review filed under § 0.461(i) or 

§ 0.461(j). 

(l)(1) Subject to the application for 

review and judicial stay provisions of 

paragraphs (i) and (j) of this section, if 

the request is granted, the records will 

be produced for inspection at the 

earliest possible time. 

(2) If a request for inspection of 

records becomes the subject of an action 

for judicial review before the custodian 

of records has acted on the request, or 

before the Commission has acted on an 

application for review, the Commission 

may continue to consider the request for 

production of records. 

(m) Staff orders and letters ruling on 

requests for inspection are signed by the 

official (or officials) who give final 

approval of their contents. Decisions of 

the Commission ruling on applications 

for review will set forth the names of the 

Commissioners participating in the 

decision. 

(n) Records shall be inspected within 

seven days after notice is given that they 

have been located and are available for 

inspection. After that period, they will 

be returned to storage, and additional 

charges may be imposed for again 

producing them. 


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14088 Federal Register / Vol. 74, No. 59 / Monday, March 30, 2009 / Rules and Regulations 

§ 0.463 Disclosure of Commission records 

and information in legal proceedings in 

which the Commission is a non-party. 

(a) This section sets forth procedures 

to be followed with respect to the 

production or disclosure of any material 

within the custody and control of the 

Commission, any information relating to 

such material, or any information 

acquired by any person while employed 

by the Commission as part of the 

person’s official duties or because of the 

person’s official status. 

(b) In the event that a demand is made 

by a court or other competent authority 

outside the Commission for the 

production of records or testimony (e.g., 

a subpoena, order, or other demand), the 

General Counsel shall promptly be 

advised of such demand, the nature of 

the records or testimony sought, and all 

other relevant facts and circumstances. 

The General Counsel, in consultation 

with the Managing Director, will 

thereupon issue such instructions as he 

or she may deem advisable consistent 

with this subpart. 

(c) A party in a court or 

administrative legal proceeding in 

which the Commission is a non-party 

who wishes to obtain records or 

testimony from the Commission shall 

submit a written request to the General 

Counsel. Such request must be 

accompanied by a statement setting 

forth the nature of the proceeding 

(including any relevant supporting 

documentation, e.g., a copy of the 

Complaint), the relevance of the records 

or testimony to the proceeding 

(including a proffer concerning the 

anticipated scope and duration of the 

testimony), a showing that other 

evidence reasonably suited to the 

requester’s needs is not available from 

any other source (including a request 

submitted pursuant to § 0.460 or § 0.461 

of the Commission’s rules), and any 

other information that may be relevant 

to the Commission’s consideration of 

the request for records or testimony. The 

purpose of the foregoing requirements is 

to assist the General Counsel in making 

an informed decision regarding whether 

the production of records or the 

testimony should be authorized. 

(d) In deciding whether to authorize 

the release of records or to permit the 

testimony of present or former 

Commission personnel, the General 

Counsel, in consultation with the 

Managing Director, shall consider the 

following factors: 

(1) Whether the request or demand 

would involve the Commission in issues 

or controversies unrelated to the 

Commission’s mission; 

(2) Whether the request or demand is 

unduly burdensome; 

(3) Whether the time and money of 

the Commission and/or the United 

States would be used for private 

purposes; 

(4) The extent to which the time of 

employees for conducting official 

business would be compromised; 

(5) Whether the public might 

misconstrue variances between personal 

opinions of employees and Commission 

policy; 

(6) Whether the request or demand 

demonstrates that the records or 

testimony sought are relevant and 

material to the underlying proceeding, 

unavailable from other sources, and 

whether the request is reasonable in its 

scope; 

(7) Whether, if the request or demand 

were granted, the number of similar 

requests would have a cumulative effect 

on the expenditure of Commission 

resources; 

(8) Whether the requestor has agreed 

to pay search and review fees as set 

forth in § 0.467 of this subpart; 

(9) Whether disclosure of the records 

or the testimony sought would 

otherwise be inappropriate under the 

circumstances; and 

(10) Any other factor that is 

appropriate. 

(e) Among those demands and 

requests in response to which 

compliance will not ordinarily be 

authorized are those with respect to 

which any of the following factors exist: 

(1) Disclosure of the records or the 

testimony would violate a statute, 

Executive Order, rule, or regulation; 

(2) The integrity of the administrative 

and deliberative processes of the 

Commission would be compromised; 

(3) Disclosure of the records or the 

testimony would not be appropriate 

under the rules of procedure governing 

the case or matter in which the demand 

arose; 

(4) Disclosure of the records, 

including release in camera, or the 

testimony, is not appropriate or required 

under the relevant substantive law 

concerning privilege; 

(5) Disclosure of the records, except 

when in camera and necessary to assert 

a claim of privilege, or of the testimony, 

would reveal information properly 

classified or other matters exempt from 

unrestricted disclosure; or 

(6) Disclosure of the records or the 

testimony could interfere with ongoing 

Commission enforcement proceedings 

or other legal or administrative 

proceedings, compromise constitutional 

rights, reveal the identity of an 

intelligence source or confidential 

informant, or disclose trade secrets or 

similarly confidential commercial or 

financial information. 

(f) The General Counsel, following 

consultation with the Managing Director 

and any relevant Commission Bureau or 

Office, is authorized to approve nonprivileged testimony by a present or 

former employee of the Commission or 

the production of non-privileged 

records in response to a valid demand 

issued by competent legal authority, or 

a request for records or testimony 

received under this section, and to 

assert governmental privileges on behalf 

of the Commission in litigation that may 

be associated with any such demand or 

request. 

(g) Any employee or former employee 

of the Commission who receives a 

demand for records of the Commission 

or testimony regarding the records or 

activities of the Commission shall 

promptly notify the General Counsel so 

that the General Counsel may take 

appropriate steps to protect the 

Commission’s rights. 

(Secs. 4(i), 303(r), Communications 

Act of 1934, as amended, 47 U.S.C. 

154(i) and 303(r); 5 U.S.C. 301; 47 CFR 

0.231(d)) 

§ 0.465 Request for copies of materials 

which are available, or made available, for 

public inspection. 

(a) The Commission awards a contract 

to a commercial duplication firm to 

make copies of Commission records and 

offer them for sale to the public. In 

addition to the charge for copying, the 

contractor may charge a search fee for 

locating and retrieving the requested 

documents from the Commission’s files. 

Note to paragraph (a): The name, address, 

telephone number, and schedule of fees for 

the current copy contractor are published at 

the time of contract award of renewal in a 

public notice and periodically thereafter. 

Current information is available at http:// 

www.fcc.gov/foia and http://www.fcc.gov/ 

cgb. Questions regarding this information 

should be directed to the Reference 

Information Center of the Consumer and 

Governmental Affairs Bureau at 202–418– 

0270. 

(b) Audio or video recordings or 

transcripts of Commission proceedings 

are available to the public through the 

Commission’s current copy contractor. 

In some cases, only some of these 

formats may be available. 

(c)(1) Contractual arrangements which 

have been entered into with commercial 

firms, as described in this section, do 

not in any way limit the right of the 

public to inspect Commission records or 

to retrieve whatever information may be 

desired. Coin-operated and debit card 

copy machines are available for use by 

the public. 

(2) The Commission has reserved the 

right to make copies of its records for its 


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own use or for the use of other agencies 

of the U.S. Government. When it serves 

the regulatory or financial interests of 

the U.S. Government, the Commission 

will make and furnish copies of its 

records free of charge. In other 

circumstances, however, if it should be 

necessary for the Commission to make 

and furnish copies of its records for the 

use of others, the fee for this service 

shall be ten cents ($0.10) per page or $5 

per computer disk in addition to charges 

for staff time as provided in § 0.467. For 

copies prepared with other media, such 

as computer tapes, microfiche, 

videotape, the charge will be the actual 

direct cost including operator time. 

Requests for copying should be 

accompanied by a statement specifying 

the maximum copying fee the person 

making the request is prepared to pay. 

If the Commission estimates that 

copying charges are likely to exceed the 

greater of $25 or the amount which the 

requester has indicated that he/she is 

prepared to pay, then it shall notify the 

requester of the estimated amount of 

fees. Such a notice shall offer the 

requester the opportunity to confer with 

Commission personnel with the object 

of revising or clarifying the request. 

Note to paragraph (c)(2): The criterion 

considered in acting on a waiver request is 

whether ‘‘waiver or reduction of the fee is in 

the public interest because furnishing the 

information can be considered as primarily 

benefiting the general public.’’ 5 U.S.C. 

552(a)(4)(A). A request for a waiver or 

reduction of fees will be decided by the 

General Counsel as set forth in § 0.470(e). 

(3) Certified Documents. Copies of 

documents which are available or made 

available, for inspection under § 0.451 

through § 0.465, will be prepared and 

certified, under seal, by the Secretary or 

his or her designee. Requests shall be in 

writing, specifying the exact documents, 

the number of copies desired, and the 

date on which they will be required. 

The request shall allow a reasonable 

time for the preparation and 

certification of copies. The fee for 

preparing copies shall be the same as 

that charged by the Commission as 

described in § 0.465(c)(2). The fee for 

certification shall be $10 for each 

document. 

(d)(1) Computer maintained databases 

produced by the Commission and 

available to the public may be obtained 

from the FCC’s Web site at http:// 

www.fcc.gov or if unavailable on the 

Commission’s Web site, from the copy 

contractor. 

Note to paragraph (d)(1): The Commission 

awards a contract to provide the public with 

access to FCC databases from the copy 

contractor. See note to paragraph (a) of this 

section. 

(2) Copies of computer generated data 

stored as paper printouts or electronic 

media and available to the public may 

also be obtained from the Commission’s 

copy contractor (see paragraph (a) of 

this section). 

(3) Copies of computer source 

programs and associated documentation 

produced by the Commission and 

available to the public may be obtained 

from the Office of the Managing 

Director. 

(e) This section does not apply to 

records available on the Commission’s 

Web site, http://www.fcc.gov, or printed 

publications which may be purchased 

from the Superintendent of Documents 

or private firms (see § 0.411 through 

§ 0.420), nor does it apply to application 

forms or information bulletins, which 

are prepared for the use and information 

of the public and are available upon 

request (see § 0.421 and § 0.423) or on 

the Commission’s Web site, http:// 

www.fcc.gov/formpage.html. 

(f) Anyone requesting copies of 

documents pursuant to this section may 

either come in person to the 

Commission (see § 0.461) or request that 

the copy contractor fulfill the request. If 

a request goes directly to the contractor, 

the requester will be charged by the 

contractor pursuant to the price list set 

forth in the latest contract. 

§ 0.466 Definitions. 

(a) For the purpose of § 0.467 and 

§ 0.468, the following definitions shall 

apply: 

(1) The term direct costs means those 

expenditures which the Commission 

actually incurs in searching for and 

duplicating (and in case of commercial 

requesters, reviewing) documents to 

respond to a FOIA request. Direct costs 

include the salary of the employee 

performing the work (the basic rate of 

pay for the employee plus twenty 

percent of that rate to cover benefits), 

and the cost of operating duplicating 

machinery. Not included in direct costs 

are overhead expenses, such as costs of 

space, and heating or lighting the 

facility in which the records are stored. 

(2) The term search includes all time 

spent looking for material that is 

responsive to a request, including pageby-page or line-by-line identification of 

material contained within documents. 

Such activity should be distinguished, 

however, from ‘‘review’’ of material in 

order to determine whether the material 

is exempt from disclosure (see 

paragraph (a)(3) of this section). 

(3) The term review refers to the 

process of examining documents located 

in response to a commercial use request 

(see paragraph (a)(4) of this section) to 

determine whether any portion of a 

document located is exempt from 

disclosure. It also includes processing 

any documents for disclosure, e.g., 

performing such functions that are 

necessary to excise them or otherwise 

prepare them for release. Review does 

not include time spent resolving general 

legal or policy issues regarding the 

application of FOIA exemptions. 

(4) The term commercial use request 

refers to a request from or on behalf of 

one who seeks information for a use or 

purpose that furthers the commercial 

interests of the requester. In determining 

whether a requester properly falls 

within this category, the Commission 

shall determine the use to which a 

requester will put the documents 

requested. Where the Commission has 

reasonable cause to question the use to 

which a requester will put the 

documents sought, or where that use is 

not clear from the request itself, the 

Commission shall seek additional 

clarification before assigning the request 

to a specific category. The 

dissemination of records by a 

representation of the news media (see 

§ 0.466(a)(7)) shall not be considered to 

be for a commercial use. 

(5) The term educational institution 

refers to a preschool, a public or private 

elementary or secondary school, an 

institution of graduate higher education, 

an institution of professional education 

and an institution of vocational 

education, which operates a program or 

programs of scholarly research. 

(6) The term non-commercial 

scientific institution refers to an 

institution that is not operated on a 

commercial basis as that term is 

referenced in paragraph (a)(4) of this 

section, 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. 

(7) The term representative of the 

news media refers to any person or 

entity that gathers information of 

potential interest to a segment of the 

public, uses its editorial skills to turn 

the raw materials into a distinct work, 

and distributes that work to an 

audience. In this clause, 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 are television or 

radio stations broadcasting to the public 

at large and publishers of periodicals 

(but only if such entities qualify as 

disseminators of news) who make their 

products available for purchase or 

subscription by, or free distribution to, 

the general public. These examples are 

not all-inclusive. Moreover, as methods 

of news delivery evolve (for example, 


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14090 Federal Register / Vol. 74, No. 59 / Monday, March 30, 2009 / Rules and Regulations 

the adoption of electronic dissemination 

of newspapers through 

telecommunications services), such 

alternative media shall be considered to 

be news-media entities. A freelance 

journalist shall be regarded as working 

for a news-media entity if the journalist 

can demonstrate a solid basis for 

expecting publication through that 

entity, whether or not the journalist is 

actually employed by the entity. A 

publication contract would present a 

solid basis for such an expectation; the 

Commission may also consider the past 

publication record of the requester in 

making such a determination. See 5 

U.S.C. 552(a)(4)(A)(ii). 

(8) The term all other requester refers 

to any person not within the definitions 

in paragraphs (a)(4) through (a)(7) of this 

paragraph. 

(b) [Reserved] 

§ 0.467 Search and review fees. 

(a)(1) Subject to the provisions of this 

section, an hourly fee shall be charged 

for recovery of the full, allowable direct 

costs of searching for and reviewing 

records requested under § 0.460 or 

§ 0.461, unless such fees are reduced or 

waived pursuant to § 0.470. The fee is 

based on the pay grade level of the 

FCC’s employee(s) who conduct(s) the 

search or review, or the actual hourly 

rate of FCC contractors or other nonFCC personnel who conduct a search. 

Note to paragraph (a)(1): The fees for FCC 

employees will be modified periodically to 

correspond with modifications in the rate of 

pay approved by Congress and any such 

modifications will be announced by public 

notice and will be posted on the 

Commission’s Web site, http://www.fcc.gov/ 

foia/#feeschedule. 

(2) The fees specified in paragraph 

(a)(1) of this section are computed at 

Step 5 of each grade level based on the 

General Schedule and include twenty 

percent for personnel benefits. Search 

and review fees will be assessed in 1⁄4

hour increments. 

(b) Search fees may be assessed for 

time spent searching, even if the 

Commission fails to locate responsive 

records or if any records located are 

determined to be exempt from 

disclosure. 

(c) The Commission shall charge only 

for the initial review, i.e., the review 

undertaken initially when the 

Commission analyzes the applicability 

of a specific exemption to a particular 

record. The Commission shall not 

charge for review at the appeal level of 

an exemption already applied. However, 

records or portions of records withheld 

in full under an exemption that is 

subsequently determined not to apply 

may be reviewed again to determine the 

applicability of other exemptions not 

previously considered. The costs of 

such a subsequent review, under these 

circumstances, are properly assessable. 

(d) The fee charged will not exceed an 

amount based on the time typically 

required to locate records of the kind 

requested. 

(e)(1) If the Commission estimates that 

search charges are likely to exceed the 

greater of $25 or the amount which the 

requester indicated he/she is prepared 

to pay, then it shall notify the requester 

of the estimated amount of fees. Such a 

notice shall offer the requester the 

opportunity to confer with Commission 

personnel with the object of revising or 

clarifying the request. See § 0.465(c)(2) 

and § 470(d). 

(2) The time for processing a request 

for inspection shall be tolled while 

conferring with the requester about his 

or her willingness to pay the fees 

required to process the request. See 

§ 0.461(e). 

(f) When the search has been 

completed, the custodian of the records 

will give notice of the charges incurred 

to the person who made the request. 

(g) The fee shall be paid to the 

Financial Management Division, Office 

of Managing Director, or as otherwise 

directed by the Commission. 

(h) Records shall be inspected within 

seven days after notice is given that they 

have been located and are available for 

inspection. See § 0.461(n). After that 

period, they will be returned to storage, 

and additional charges may be imposed 

for again producing them. 

§ 0.468 Interest. 

Interest shall be charged those 

requesters who fail to pay the fees 

charged. The agency will begin 

assessing interest charges on the amount 

billed starting on the 31st day following 

the day on which the billing was sent. 

The date on which the payment is 

received by the agency will determine 

whether and how much interest is due. 

The interest shall be set at the rate 

prescribed in 31 U.S.C. 3717. 

§ 0.469 Advance payments. 

(a) The Commission may not require 

advance payment of estimated FOIA 

fees except as provided in paragraph (b) 

or where the Commission estimates or 

determines that allowable charges that a 

requester may be required to pay are 

likely to exceed $250.00 and the 

requester has no history of payment. 

Where allowable charges are likely to 

exceed $250.00 and the requester has a 

history of prompt payment of FOIA fees 

the Commission may notify the 

requester of the estimated cost and 

obtain satisfactory assurance of full 

payment. Notification that fees may 

exceed $250.00 is not, however, a 

prerequisite for collecting fees above 

that amount. 

(b) Where a requester has previously 

failed to pay a fee charged in a timely 

fashion (i.e., within 30 days of the date 

of the billing), the Commission may 

require the requester to pay the full 

amount owed plus any applicable 

interest as provided in § 0.468, and to 

make an advance payment of the full 

amount of the estimated fee before the 

Commission begins to process a new 

request or a pending request from that 

requester. 

(c) When the Commission acts under 

paragraph (a) of this section, the 

administrative time limits prescribed in 

§§ 0.461(g) and (k) (i.e., twenty business 

days from receipt of initial requests and 

twenty business days from receipt of 

appeals from initial denials, plus 

permissible extensions of these time 

limits (see § 0.461(g)(1)(i) through (iii) 

and § 0.461(k)(1)(i) through (iii)) will 

begin only after the agency has received 

the fee payments described in this 

section. See § 0.461(e)(2)(ii) and 

§ 0.467(e)(2). 

§ 0.470 Assessment of fees. 

(a)(1) Commercial use requesters. (i) 

When the Commission receives a 

request for documents for commercial 

use, it will assess charges that recover 

the full direct cost of searching for, 

reviewing and duplicating the records 

sought pursuant to § 0.466 and § 0.467, 

above. 

(ii) Commercial use requesters shall 

not be assessed search fees if the 

Commission fails to comply with the 

time limits under § 0.461(g)(1), if no 

unusual or exceptional circumstances 

(§ 0.461(g)(1)(i) through (iii)) apply to 

the processing of the request. 

(2) Educational and non-commercial 

scientific institution requesters and 

requesters who are representatives of 

the news media. (i) The Commission 

shall provide documents to requesters 

in these categories for the cost of 

reproduction only, pursuant to § 0.465 

above, excluding reproduction charges 

for the first 100 pages, provided 

however, that requesters who are 

representatives of the news media shall 

be entitled to a reduced assessment of 

charges only when the request is for the 

purpose of distributing information. 

(ii) Educational requesters or 

requesters who are representatives of 

the news media shall not be assessed 

fees for the cost of reproduction if the 

Commission fails to comply with the 

time limits under § 0.461(g)(1), if no 

unusual or exceptional circumstances 


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Federal Register / Vol. 74, No. 59 / Monday, March 30, 2009 / Rules and Regulations 14091 

(§ 0.461(g)(1)(i) through (iii)) apply to 

the processing of the request. 

(3) All other requesters. (i) The 

Commission shall charge requesters 

who do not fit into any of the categories 

above fees which cover the full, 

reasonable direct cost of searching for 

and reproducing records that are 

responsive to the request, pursuant to 

§ 0.465 and § 0.467, except that the first 

100 pages of reproduction and the first 

two hours of search time shall be 

furnished without charge. 

(ii) All other requesters shall not be 

assessed search fees if the Commission 

fails to comply with the time limits 

under § 0.461(g)(1), if no unusual or 

exceptional circumstances 

(§ 0.461(g)(1)(i) through (iii)) apply to 

the processing of the request. 

(b)(1) The 100 page restriction on 

assessment of reproduction fees in 

paragraphs (a)(2) and (a)(3) of this 

section refers to 100 paper copies of a 

standard size, which will normally be 

‘‘81⁄2 x 11’’ or ‘‘11 x 14,’’ or microfiche 

containing the equivalent of 100 pages 

or 100 pages of computer printout. 

(2) When the agency reasonably 

believes that a requester or group of 

requesters is attempting to segregate a 

request into a series of separate 

individual requests for the purpose of 

evading the assessment of fees, the 

agency will aggregate any such requests 

and assess charges accordingly. 

(c) When a requester believes he or 

she is entitled to a reduced fee 

assessment pursuant to paragraphs (a)(2) 

and (a)(3) of this section, or a waiver 

pursuant to paragraph (e) of this section, 

the requester must include, in his or her 

original FOIA request, a statement 

explaining with specificity, the reasons 

demonstrating that he or she qualifies 

for a reduced fee or a fee waiver. 

Included in this statement should be a 

certification that the information will 

not be used to further the commercial 

interests of the requester. 

Note to paragraph (c): Anyone requesting 

a reduced fee or a fee waiver must submit the 

request directly to the Commission and not 

to the contractor who will provide 

documents only at the contract price. 

(d) If the Commission reasonably 

believes that a commercial interest 

exists, based on the information 

provided pursuant to paragraph (c) of 

this section, the requester shall be so 

notified and given an additional ten 

business days to provide further 

information to justify receiving a 

reduced fee. See § 0.467(e)(2). During 

this time period, the materials will be 

available for inspection to the extent 

that the time period exceeds the time 

period for responding to FOIA requests, 

as appropriate. 

(e)(1) Copying, search and review 

charges shall be waived or reduced by 

the General Counsel when ‘‘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 

government and is not primarily in the 

commercial interest of the requester.’’ 5 

U.S.C. 552(a)(4)(A)(iii). Simply 

repeating the fee waiver language of 

section 552(a)(4)(A)(iii) is not a 

sufficient basis to obtain a fee waiver. 

(2) The criteria used to determine 

whether disclosure is in the public 

interest because it is likely to contribute 

significantly to public understanding of 

the operations or activities of the 

government include: 

(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; and 

(iii) Whether disclosure of the 

requested information will contribute to 

public understanding as opposed to the 

individual understanding of the 

requester or a narrow segment of 

interested persons. 

(3) The criteria used to determine 

whether disclosure is primarily in the 

commercial interest of the requester 

include: 

(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. 

(5) If no fees or de minimis fees would 

result from processing a FOIA request 

and a fee waiver or reduction has been 

sought, the General Counsel will not 

reach a determination on the waiver or 

reduction request. 

(f) Whenever the total fee calculated 

under this section is $15 or less, no fee 

will be charged. 

(g) Review of initial fee 

determinations under § 0.467 through 

§ 0.470 and initial fee reduction or 

waiver determinations under § 0.470(e) 

may be sought under § 0.461(j). 

[FR Doc. E9–7033 Filed 3–27–09; 8:45 am] 

BILLING CODE 6712–01–P 

DEPARTMENT OF TRANSPORTATION 

Federal Railroad Administration 

49 CFR Part 225 

Railroad Accidents/Incidents: Reports 

Classification, and Investigations 

AGENCY: Federal Railroad 

Administration (FRA), Department of 

Transportation. 

ACTION: Notice of interpretation. 

SUMMARY: FRA is issuing this notice of 

interpretation to inform interested 

parties of its application and 

enforcement of the harassment or 

intimidation provisions contained in 49 

CFR part 225, specifically relating to 

situations in which a supervisor or other 

railroad official accompanies an injured 

employee into an examination room. 

This notice of interpretation informs the 

regulated community as to when such 

behavior constitutes harassment or 

intimidation calculated to discourage or 

prevent the reporting of an accident, 

incident, injury or illness. This 

document is not intended to address or 

impact statutory provisions related to 

providing ‘‘prompt medical attention,’’ 

as enforcement of those provisions fall 

within the jurisdiction of the U.S. 

Department of Labor. 

FOR FURTHER INFORMATION CONTACT: 

Douglas H. Taylor, Staff Director, 

Operating Practices Division, Office of 

Safety Assurance and Compliance, FRA, 

1200 New Jersey Avenue, SE., RRS–11, 

Mail Stop 25, Washington, DC 20590 

(telephone 202–493–6255); or Zeb 

Schorr, Trial Attorney, Office of Chief 

Counsel, FRA, 1200 New Jersey Avenue 

SE., RCC–11, Mail Stop 10, Washington, 

DC 20590 (telephone 202–493–6072). 

SUPPLEMENTARY INFORMATION: 

I. Background 

Section 225.33(a) of Title 49 of the 

Code of Federal Regulations requires 

each railroad to ‘‘adopt and comply 

with a written Internal Control Plan’’ 

addressing the railroad’s policies and 

procedures regarding accident/incident 

reporting. This section further requires 

that such Internal Control Plans include, 

at a minimum, a ‘‘policy statement 

declaring the railroad’s commitment 

* * * to the principle, in absolute 

terms, that harassment or intimidation 

of any person that is calculated to 

discourage or prevent such person from 

receiving proper medical treatment or 

from reporting such accident, incident, 

injury or illness will not be permitted or 

tolerated * * *.’’ The FRA Guide for 

Preparing Accident/Incident Reports 

also notes that ‘‘many railroad 


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