[Federal Register: October 28, 1997 (Volume 62, Number 208)]
[Rules and Regulations]               
[Page 55740-55742]


Copyright Office

37 CFR Part 203

[Docket No. 97-7]

Implementation of the Electronic Freedom of Information Act 
Amendments of 1996

AGENCY: Copyright Office, Library of Congress.

ACTION: Interim regulations with request for comments.


SUMMARY: The Copyright Office is issuing interim regulations regarding 
the Freedom of Information Act to comply with changes mandated by the 
Electronic Freedom of Information Act Amendments of 1996. The effect of 
the interim regulations is to permit public access to Office records 
that were created on or after October 1, 1996, in electronic format. 
The Office seeks comment on these interim regulations.

EFFECTIVE DATE: This interim regulation is effective November 1, 1997. 
Written comments should be received on or before November 28, 1997.

ADDRESSES: By mail: Ten copies of written comments should be addressed 
to David O. Carson, General Counsel, Copyright GC/I&R, P.O. Box 70400, 
Southwest Station, Washington, D.C. 20024. By hand: Ten copies of 

[[Page 55741]]

comments should be delivered to the Office of the General Counsel, U.S. 
Copyright Office, James Madison Memorial Building, Room 403, First and 
Independence Avenue, S.E., Washington, D.C.

FOR FURTHER INFORMATION CONTACT: Marilyn J. Kretsinger, Assistant 
General Counsel, or Patricia L. Sinn, Senior Attorney, Copyright GC/
I&R, P.O. Box 70400, Southwest Station, Washington, D.C. 20024. 
Telephone: (202)707-8380. Fax: (202)707-8366.


I. Background

    The Copyright Office is adopting interim regulations to Part 203 of 
its regulations to implement the Electronic Freedom of Information Act 
Amendments of 1996 (EFOIA), Pub. L. No. 104-231, 110 Stat. 3048 (1996), 
which amends the Administrative Procedure Act (APA), title 5, United 
States Code. The Office is subject to the Freedom of Information Act 
(FOIA), which is part of the APA, under 17 U.S.C. 701(d). Section 
701(d) provides that ``[e]xcept as provided by section 706(b) and the 
regulations issued thereunder, all actions taken by the Register of 
Copyrights under this title are subject to the provisions of the 
Administrative Procedure Act of June 11, 1946, as amended * * *'' 
Copyright Office regulations describe records and documents available 
for public inspection under the Copyright Act and under the FOIA. See 
37 CFR 201.2, 203. The Copyright Office is part of the Library of 
Congress, a legislative agency, and is an office of public record 
governed in its record-keeping activities by sections of the copyright 
statute that designate which records are available for public 
inspection and search. See 17 U.S.C. 705, 706. Copyright Office records 
include deposits, registrations, indexes, recordations, and other 
actions taken under title 17. 17 U.S.C. 705(a). Public records 
maintained by the Office are the subject of most requests for 
information received; thus, the Office receives few actual FOIA 
requests that must be answered outside the realm of its normal public 
information services.
    The FOIA, which establishes a right of access to certain federal 
agency records, was enacted 30 years ago, before the extensive use of 
computers to create and retain records in electronic formats. With the 
advent and widespread acceptance of new information technologies, 
questions arose about how electronic records should be handled under 
the FOIA. The EFOIA, signed into law on October 2, 1996, contains 
amendments that address methods required to make agency records 
available to the public by electronic means and in electronic formats. 
This interim regulation revises several provisions of the Office's FOIA 
regulations under 37 CFR 203 to comply with provisions of the EFOIA.

II. Interim Amendments

A. Form or Format Requests

    A significant change enacted in the EFOIA is the requirement that 
agencies honor requests to provide records created after October 1, 
1996, in specific formats, including electronic formats, so long as the 
records are ``readily reproducible by the agency in that form or 
format'' by use of reasonable efforts. EFOIA sec. 5 (codified as 5 
U.S.C. 552(a)(3)(B). The Office will consider the particular set of 
circumstances involved with each individual FOIA request to determine 
whether it can reasonably comply with a request to provide a record in 
a particular format. Prior to this amendment, the FOIA did not place 
agencies under an obligation to accommodate a FOIA requester's 
preferences as to format. The Office is amending Sec. 203.4(a) of its 
regulations to reflect EFOIA requirements by adding language to reflect 
that the Office will produce agency records in response to a FOIA 
request in either traditional paper form or, if possible, in electronic 

B. Fees

    Fees currently set forth in 37 CFR 203.6 apply to the costs of 
duplication, review of documents, and copying of paper pages. Under 37 
CFR 203.6(b)(2), the current charge of $0.45 per page for copies of 
Office records will be assessed for paper pages of computer printouts 
generated by the Office, matching the current per-page charge for 
copies beyond the first 15 pages, for which seven dollars is charged. 
These fees will be modified if the Office adjusts its fees to cover the 
costs of providing services. The Office will charge a requester the 
actual cost for provision of computer discs containing requested 
information. For security reasons, the Office will not use discs or 
other electronic storage media supplied by requesters for purposes of 
downloading requested information.
    In addition to EFOIA adjustment, the Office is adjusting fees in 37 
CFR 203.6(b)(6) regarding fees for services rendered. The time charged 
for an employee's computer search of records remains the actual cost of 
the search including the cost of operating equipment for the time 
directly attributable to searching for records responsive to a request, 
but modifies the cost of the operator/programmer's time involved in 
conducting a search from $10.00 per hour or fraction thereof to $20.00 
per hour or fraction thereof. The Office's authority to raise 
discretionary fees is found in 17 U.S.C. 708(a)(10).

C. Time for Processing Initial FOIA Requests

    The EFOIA provides that effective October 2, 1997, agencies will 
have twenty working days, rather than the current ten working days, to 
respond to initial FOIA requests. EFOIA sec. 8(b)(codified as 5 U.S.C. 
552(a)(6)(A)(i)). The Office proposes to amend Sec. 203.4(f) of its 
FOIA regulations to implement this aspect of the EFOIA.
    The EFOIA recognizes that in ``unusual circumstances'' agencies may 
need more than twenty working days to process FOIA requests. EFOIA sec. 
7(b) (codified as 5 U.S.C. 552(a)(6)(B). If an extension of more than 
ten working days is sought, the EFOIA amendments require that an agency 
provide requesters with the opportunity to limit the scope of their 
requests to enable processing within the ten day statutory time limit 
for extensions, or to negotiate an alternate time frame for processing 
requests. Id. The Office proposes to amend its FOIA regulations to 
reflect these changes.

D. Expedited Processing

    The EFOIA requires agencies to promulgate through a notice and 
comment rulemaking regulations to consider requests for ``expedited 
processing'' of initial FOIA requests. EFOIA sec. 8(a) (codified as 5 
U.S.C. 552(a)(6)(E)). Such requests must be granted whenever a 
``compelling need'' is demonstrated by the requesting party. 
``Compelling need'' is defined in the EFOIA as: (1) involving ``an 
imminent threat to the life or physical safety of an individual,'' or 
(2) in the case of a request made by ``a person primarily engaged in 
disseminating information, urgency to inform the public concerning 
actual or alleged Federal Government activity.'' EFOIA sec. 8(a) 
(codified as 5 U.S.C. 552(a)(6)(E)(v)). When a request for expedited 
processing is made, an agency must notify the requester of its decision 
whether or not to grant the expedited request within ten (10) calendar 
days. If expedited processing is granted, an agency must process the 
request as soon as practicable. If the request is denied, an agency 
must consider an appeal of such a denial. To implement the expedited 
processing requirements of the EFOIA amendments, the Office proposes to 
amend section 203.4 of our regulations

[[Page 55742]]

by adding that the Office will process requests granted expedited 
processing status ``as soon as is practicable.'' EFOIA sec. 8(a) 
(codified as 5 U.S.C. 552(a)(6)(E)(iii)).

E. Electronic Reading Room

    The FOIA requires agencies to make available for inspection and 
copying statements of policy and interpretations not published in the 
Federal Register, and administrative staff manuals and instructions to 
staff that affect the public. 5 U.S.C. 552(a)(2). The Office maintains 
these materials in paper form in its Public Information Office. See 37 
CFR 203.4. The EFOIA requires agencies to make available by ``computer 
telecommunications or * * * by other electronic means'' all reading 
room materials that are created on or after October 1, 1996. EFOIA sec. 
4 (codified at 5 U.S.C. 552(a)(2). The statute envisions that agencies 
will develop both a traditional reading room and an electronic reading 
room. The Office proposes an interim regulation stating which materials 
are available on-line or in an accessible electronic format.

List of Subjects in 37 CFR Part 203

    Freedom of Information Act, Policies and procedures.

Interim Regulations

    In consideration of the foregoing, the Copyright Office is amending 
part 203 of 37 CFR, chapter II, in the manner set forth below:


    1. The authority citation for part 203 is amended to read as 

    Authority: 17 U.S.C. 702; and 5 U.S.C. 552, as amended.

    2. Section 203.3 is amended by revising paragraph (i) to read as 

Sec. 203.3  Organization.

* * * * *
    (i) The Copyright Office maintains an ``electronic reading room'' 
by making available certain documents and records on its World Wide Web 
page and by providing access to documents that affect the public in 
electronic format pursuant to 5 USC 552(a)(2). Copyright Office records 
in machine-readable form cataloged from January 1, 1978, to the 
present, including registration information and recorded documents, are 
available on the Internet. Frequently requested Copyright Office 
circulars, announcements, and recently proposed as well as final 
regulations are available on-line. The address for the Copyright 
Office's home page is: http://www.loc.gov/copyright; information may 
also be accessed by connecting to the Library of Congress' home page on 
the World Wide Web. The address is: http://www.loc.gov. Other
Office documents may be provided on disk when so requested.
    3. Section 203.4 is amended by revising paragraph (f) and adding a 
new paragraph (i) to read as follows:

Sec. 203.4  Methods of operation.

* * * * *
    (f) The Office will respond to all properly marked mailed requests 
and all personally delivered written requests for records within twenty 
(20) working days of receipt by the Supervisory Copyright Information 
Specialist. Inquiries should be mailed to: Copyright Office, GC/I&R, 
P.O. Box 70400 Southwest Station, Washington, D.C. 20024. If hand 
delivered, materials should go to: Copyright Public Information Office, 
LM 401, James Madison Memorial Building, Library of Congress, 101 
Independence Avenue, S.E., Washington, D.C. Office hours are from 8:30 
a.m. to 5:00 p.m., Monday through Friday, excluding holidays. If it is 
determined that an extension of time greater than ten (10) working days 
is necessary to respond to a request due to unusual circumstances, as 
defined in paragraph (i) of this section, the Supervisory Copyright 
Information Specialist shall so notify the requester and give the 
requester the opportunity to:
    (1) Limit the scope of the request so that it may be processed 
within twenty (20) working days, or
    (2) Arrange with the Office an alternative time frame for 
processing the request or a modified request. If a request is denied, 
the written notification will include the basis for the denial, names 
of all individuals who participated in the determination, and 
procedures available to appeal the determination.
* * * * *
    (i) The Supervisory Copyright Information Specialist will consider 
requests for expedited processing of requests in cases where the 
requester demonstrates a compelling need for such processing. The term 
``compelling need'' means:
    (1) That a failure to obtain requested records on an expedited 
basis could reasonably be expected to pose an imminent threat to the 
life or physical safety of an individual; or
    (2) With respect to a request made by a person primarily engaged in 
disseminating information, urgency to inform the public concerning 
actual or alleged Federal Government activity. Requesters for expedited 
processing must include in their requests a statement setting forth the 
basis for the claim that a ``compelling need'' exists for the requested 
information, certified by the requester to be true and correct to the 
best of his or her knowledge and belief. The Office will determine 
whether to grant a request for expedited processing and will notify the 
requester of such determination within ten (10) days of receipt of the 
request. If a request for expedited processing is approved, documents 
responsive to the request will be processed as soon as is practicable. 
Denials of requests for expedited processing may be appealed to the 
Office of the General Counsel, who will expeditiously determine any 
such appeal.

Sec. 203.6  [Amended]

    5. Section 203.6(b)(6) is amended by revising the parenthetical at 
the end of the sentence to read ``(at no less than $20.00 per hour or 
fraction thereof).''

    Dated: October 21, 1997.
Marybeth Peters,
Register of Copyrights.