[Federal Register Volume 64, Number 212 (Wednesday, November 3, 1999)]
[Proposed Rules]
[Pages 59697-59700]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-28678]
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FEDERAL MEDIATION AND CONCILIATION SERVICE
29 CFR Part 1401
RIN 3076-AA06
Freedom of Information Act Regulations
AGENCY: Federal Mediation and Conciliation Service.
ACTION: Proposed rule.
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SUMMARY: The Federal Mediation and Conciliation Service (FMCS) proposes
to amend its rules under the Freedom of Information Act (FOIA)
primarily to effectuate various provisions under the 1996 Electronic
FOIA Amendments. The proposed revisions include the new response time
for FOIA requests, procedures for requesting expedited processing, the
availability of certain public information on FMCS's web site, and
express inclusion of electronic records and automated searches along
with paper records and manual searches. In addition, FMCS's proposed
amendments would update its fee schedule. FMCS is also updating the
names and addresses of the various offices within the agency
responsible for FOIA related activities. This rulemaking only deals
with such matters at FMCS; it is not an executive branchwide
regulation.
DATES: Written comments must be submitted to the office listed in the
addresses section below on or before January 3, 2000.
ADDRESSES: Send comments to Jane Lorber, General Counsel, Federal
Mediation and Conciliation Service, 2100 K Street, NW, Washington, DC
20427.
FOR FURTHER INFORMATION CONTACT: Jane Lorber, (202) 606-5444.
SUPPLEMENTARY INFORMATION: In this rulemaking, FMCS proposes to amend
its regulations at 29 CFR part 1401, Subpart B under FOIA, 5 U.S.C.
552. The primary focus of these proposed amendments is to effectuate
for this Agency various provisions under the 1996 Electronic FOIA
Amendments, Public Law 104-231. New provisions implementing the
amendments are found at Sec. 1401.21(c) (electronic reading room),
Secs. 1401.34(b), (c), (e), (f) (timing of responses), Sec. 1401.22
(deletion marking), Sec. 1401.34(d) (volume estimation),
Sec. 1401.36(a)(3) (format of disclosure) and Sec. 1401.36(a)(2)
(electronic searches).
Proposed revisions to the Service's fee schedule can be found at
Secs. 1401.36(b)(1), (3)(v). The duplication charge will remain the
same at twenty cents per page, while document search and review charges
will increase to $4.00 and $10.00 for clerical and professional time,
respectively. The amount at or below which the Service will not charge
a fee will decrease from $50.00 to $14.00.
Sections 1401.22(d), 1401.31(a),(b) and 1401.32(b) are being
revised to reflect organizational name changes within FMCS. Sections
1401.24 and 1401.37 are being removed because they are neither required
by law nor necessary to interpret the law.
Regulatory Flexibility Act
The Director, in accordance with the Regulatory Flexibility Act (5
U.S.C. 606(b)), has reviewed this regulation and by approving it
certifies that this regulation will not have a significant economic
impact on a substantial number of small entities. Under FOIA, agencies
may recover only the direct costs of searching for, reviewing, and
duplicating the records processed for requesters. Thus, fees assessed
by FMCS are nominal. Further, the ``small entities'' that make FOIA
requests, as compared with individual requesters and other requesters,
are relatively few in number .
Executive Order 12866
This regulation has been reviewed in accordance with Executive
Order 12866. It is not classified as significant because it does not
meet the criteria for significant regulatory action established by the
Executive Order.
Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by State, local, and
tribal governments, in the aggregate, or by the private sector, of
$100,000,000 or more in any one year, and it will not significantly or
uniquely affect small Governments. Therefore, no actions were deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
1995.
Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule as defined by section 804 of the
Small Business Regulatory Enforcement Fairness Act of 1996. This rule
will not result in an annual effect on the economy of $100,000,000 or
more; a major increase in costs or prices; or significant adverse
effects on competition, employment, investment, productivity,
innovation, or on the ability of United States-based companies to
compete with Foreign-based companies in domestic and export markets.
List of Subjects in 29 CFR Part 1401
Administrative practice and procedure, Freedom of Information.
For the reasons set forth in the preamble, FMCS proposes to amend
29 CFR part 1401 as follows:
PART 1401--PUBLIC INFORMATION
1. The authority citation for part 1401 is revised to read as
follows:
Authority: 5 U.S.C. 552.
2. Subpart B of part 1401 is revised to read as follows:
Subpart B--Production or Disclosure of Information
Sec.
1401.20 Purpose and scope.
1401.21 Information policy.
1401.22 Partial disclosure of records.
1401.23 Preparation of new records.
1401.30 Applicability of procedures.
1401.31 Filing a request for records.
1401.32 Logging of written requests.
1401.33 Description of information requested.
1401.34 Time for processing requests.
1401.35 Appeals from denials of request.
1401.36 Freedom of Information Act fee schedules.
Subpart B--Production or Disclosure of Information
Sec. 1401.20 Purpose and scope.
This subpart contains the regulations of the Federal Mediation and
Conciliation Service providing for public access to information from
records of the Service. These regulations implement the Freedom of
Information Act, 5 U.S.C. 552, and the policy of the FMCS to
disseminate information on matters of interest to the public and to
disclose on request information contained in agency records insofar as
is compatible with the discharge of its responsibilities and the
principle of confidentiality and neutrality of dispute resolution by
third party neutrals.
[[Page 59698]]
Sec. 1401.21 Information policy.
(a) Except for matters specifically excluded by subsection 552(b)
of title 5, United States Code, matters covered by the Privacy Act, or
other applicable statutes, all documents and records maintained by this
agency or in its custody shall be available to the public upon request
filed in accordance with these regulations. To the extent permitted by
other laws, the Service also will make available records which it is
authorized to withhold under 5 U.S.C. 552(b) whenever it determines
that such disclosure is in the public interest.
(b) Any document released for inspection under the provisions of
this part may be manually copied by the requesting party. The Service
shall provide facilities for copying such documents at reasonable times
during normal working hours so long as it does not interfere with the
efficient operation of the agency.
(c) The Service maintains a public reading room that contains the
records that the FOIA requires to be made regularly available for
public inspection and copying. FMCS shall maintain and make available
for public inspection and copying a current subject-matter index of its
reading room records. Each index shall be updated regularly, at least
quarterly, with respect to newly included records. FMCS shall also make
reading room records created by the Service on or after November 1,
1996, available electronically through FMCS's World Wide Web Site
(which can be found at http://www.fmcs.gov)
(d) Records or documents prepared by the Service for routine public
distribution, e.g., pamphlets and brochures, will be furnished upon
request to Office of the Director, Federal Mediation and Conciliation
Service, 2100 K Street, NW, Washington, DC 20427, as long as the supply
lasts. The provisions of Sec. 1401.36 (fees) is not applicable to such
requests expect when the supply of such material is exhausted and it is
necessary to reproduce individual copies upon specific request.
(e) All existing FMCS records are subject to routine destruction
according to standard record retention schedules.
Sec. 1401.22 Partial disclosure of records.
(a) If a record contains both disclosable and nondisclosable
information, the nondisclosable information will be deleted and the
remaining record will be disclosed unless the two are so inextricably
intertwined that it is not feasible to separate them or release of the
disclosable information would compromise or impinge upon the
nondisclosable portion of the record.
(b) Records disclosed in part shall be marked or annotated to show
both the amount and the location of the information deleted wherever
practicable.
Sec. 1401.23 Preparation of new records.
(a) The Freedom of Information Act and the provisions of this part
apply only to existing records that are reasonably described in a
request filed with the Federal Mediation and Conciliation Service
pursuant to the procedures established in Secs. 1401.31-1401.36.
(b) The Director may, in his or her discretion, prepare new records
in order to respond to a request for information when he or she
concludes that it is in the public interest and promotes the objectives
of the Labor-Management Relations Act, 1947, as amended.
Sec. 1401.30 Applicability of procedures.
Requests for inspection or copying of information from records in
the custody of the FMCS which are reasonably identifiable and available
under the provisions of this part shall be made and acted upon as
provided in the following sections of this subpart. The prescribed
procedure shall be followed in all cases where access is sought to
official records pursuant to the provisions of the Freedom of
Information Act, except with respect to records for which a less formal
disclosure procedure is provided specifically in this part.
Sec. 1401.31 Filing a request for records.
(a) Any person who desires to inspect or copy any record covered by
this part shall submit a written request to that effect to the Office
of the General Counsel, Federal Mediation and Conciliation Service,
2100 K Street, NW, Washington, DC 20427.
(b) The Office of the General Counsel will determine what office or
division within FMCS is custodian of the records. The Office will then
send the request to the appropriate FMCS office or division as provided
in Sec. 1401.32(b) of this part.
Sec. 1401.32 Logging of written request.
(a) All requests for records should by clearly and prominently
identified as a request for information under the Freedom of
Information Act, and if submitted by mail or otherwise submitted in an
envelope or other cover, should be clearly and prominently identified
as such on the envelope or other cover.
(b) Upon receipt of a request for records from the Office of the
General Counsel, the FMCS office or division responding to the request
shall enter it in a public log. The log shall state the date and time
received, the name and address of person making the request, the nature
of the records requested, the action taken on the request, the date of
the determination letter sent pursuant to Sec. 1401.34(b) and (d), the
date(s) any records are subsequently furnished, the number of staff
hours and grade levels of persons who spent time responding to the
request, and the payment requested and received.
Sec. 1401.33 Description of information requested.
(a) Each request should reasonably describe the records being
sought, in a way that they can be identified and located. A request
should include all pertinent details that will help identify the
records sought.
(b) If the description is insufficient, the officer processing the
request will so notify the person making the request and indicate the
additional information needed. Every reasonable effort shall be made to
assist in the identification and location of the records sought.
Sec. 1401.34 Time for processing requests.
(a) All time limitations established pursuant to this section shall
begin as of the time at which a request for records is logged in by the
officer or employee processing the request pursuant to Sec. 1401.32(b).
An oral request for records shall not begin any time requirement. A
written request for records sent to an office or division of FMCS other
than the one having authority to grant or deny access to the records
shall be redirected to the appropriate office for processing, and the
time shall begin upon its being logged in there in accordance with
Sec. 1401.32(b).
(b) The officer or employee passing upon the request for records
shall, within twenty (20) working days following receipt of the
request, respond in writing to the requester, determining whether, or
the extent to which, the Agency shall comply with the request.
(1) If all of the records requested have been located and a final
determination has been made with respect to disclosure of all the
records requested, the response shall so state.
(2) If all of the records have not been located or a final
determination has not been made with respect to disclosure of all
records requested, the response shall state the extent to which the
records involved will be disclosed pursuant to the rules established in
this part.
(3) If the request is expected to involve an assessed fee in excess
of $50.00, the response shall specify or
[[Page 59699]]
estimate the fee involved and shall require prepayment before the
records are made available.
(4) Whenever possible, the response relating to a request for
records that involves a fee of less than $50.00, shall be accompanied
by the requested records. Where this is not possible, the records shall
be forwarded as soon as possible thereafter, consistent with other
obligations of the Agency.
(c) Where the time limits for processing a request cannot be met
because of unusual circumstances and FMCS determines to extend the time
limit on that basis, FMCS will, as soon as practicable, notify the
requester in writing of the unusual circumstances and of the date by
which the processing can be expected to be completed. Where the
extension is for more than 10 working days, FMCS will provide the
requester with an opportunity either to modify the request so that it
may be processed within the time limits or to arrange an alternative
time period for processing the request or a modified request. If FMCS
reasonably believes that multiple requests submitted by a requester, or
by a group of requesters acting in concert, constitute a single request
that would otherwise involve unusual circumstances, and the requests
involve clearly related matters, they may be aggregated.
(d) If any request for records is denied in whole or in part, the
response required by paragraph (b) of this section shall notify the
requester of the denial. Such denial shall specify the reason therefor
and also advise that the denial may be appealed to the Office of Deputy
Director of the Agency as specified in Sec. 1401.35. In addition, such
denial shall include an estimate of the volume of records or
information withheld, in numbers of pages or in some other reasonable
form of estimation. This estimate does not need to be provided if the
volume is otherwise indicated through deletions on records disclosed in
part, or if providing an estimate would harm an interest protected by
an applicable estimation.
(e) FMCS offices may use two or more processing tracks by
distinguishing between simple and more complex requests based on the
amount of work and or time needed to process the request. A person
making a request that does not qualify for the fastest multitrack
processing should be given an opportunity to limit the scope of the
request in order to qualify for faster processing.
(f) Requests and appeals will be taken out of order and given
expedited processing in cases where the requester demonstrates a
compelling need.
(1) The term ``compelling need'' means:
(i) Circumstances in which failure to obtain copies of the
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) An urgency to inform the public about an actual or alleged
Federal Government activity, if the request is made by a person
primarily engaged in disseminating information.
(2) A requester seeking expedited processing should so indicate in
the initial request, and should state all the facts supporting the need
to obtain the requested records quickly. The requester must also
certify in writing that these facts are true and correct to the best of
the requester's knowledge and belief.
(3) Within 10 calendar days of its receipt of a request for
expedited processing, FMCS will notify the requester of its decision.
If a request for expedited treatment is granted, the request shall be
given priority and shall be processed as soon as practicable. If a
request for expedited processing is denied, any appeal of that decision
will be acted on expeditiously.
Sec. 1401.35 Appeals from denials of request.
(a) Whenever any request for records is denied, a written appeal
may be filed with the Deputy Director, Federal Mediation and
Conciliation Service, 2100 K Street, NW, Washington, DC 20427, within
30 days after the requester receives notification that the request has
been denied or after the requester receives any records being made
available, in the event of partial denial. The appeal shall state the
grounds for appeal, including any supporting statements or arguments.
(b) Final action on the appeal shall be taken within 20 working
days from the time of receipt of the appeal. Where novel and
complicated questions have been raised or unusual difficulties have
been encountered, the Deputy Director may extend the time for final
action up to an additional 10 days, depending upon whether there had
been an extension pursuant to Sec. 1401.34(c) at the initial stage. In
such cases, the applicant shall be notified in writing of the reasons
for the extension of time and the approximate date on which a final
response will be forthcoming.
(c) If on appeal the denial of the request for records is upheld in
whole or in part, the Deputy Director shall notify the applicant of the
reasons therefor, and shall advise the requester of the provisions for
judicial review under 5 U.S.C. 552(a)(4) and (6).
Sec. 1401.36 Freedom of Information Act fee schedules.
(a) Definitions. For purpose of Sec. 1401.36, the following
definitions apply:
(1) Direct costs means those expenditures which are actually
incurred in searching for and duplicating and, in the case of
commercial use requesters, reviewing to respond to a FOIA request.
(2) Search means the process of looking for and retrieving records
or information responsive to a request. It includes page-by-page or
line-by-line identification of information within records and also
includes reasonable efforts to locate and retrieve information from
records maintained in electronic form or format.
(3) Duplication refers to the process of making a copy of a
document necessary to respond to a FOIA request. Copies may be in
various forms including machine readable documentation (e.g. magnetic
tape or disk) among others. A requester's specified preference of form
or format of disclosure will be honored if the record is readily
reproducible with reasonable efforts in the requested form or format.
(4) Review refers to the process of examining documents located in
response to a request that is for commercial use, to determine whether
a document or any portion of any document located is permitted to be
withheld. It includes processing any documents for disclosure to the
requester, e.g., doing all that is necessary to excise them or
otherwise prepare them for release.
(5) 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 trade or profit interest of the requester or the person on
whose behalf the request is made.
(6) Educational institution refers to a preschool, a public or
private elementary or secondary school, an institution of undergraduate
higher education, an institution of graduate or professional education
or an institution vocational education, which operates a program of
programs of scholarly research.
(7) Representative of the news media refers to any person actively
gathering news for an entity that is organized and operated to publish
or broadcast news to the public. The term ``news'' means information
that is about current events or that would be of current interest to
the public. In the case of ``freelance'' journalists, they may be
regarded as working for a news organization if they can demonstrate a
reasonable
[[Page 59700]]
expectation of publication through the organization, even though not
actually employed by it.
(8) Non-commercial scientific institution refers to an institution
that is not operated on a commercial basis as defined under
``commercial use request'' in paragraph (a)(5) 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.
(b) Fee schedules and waivers. Requests submitted shall be subject
to direct costs, including search, duplication and review, in
accordance with the following schedules, procedures and conditions.
(1) Schedule of charges.--(i) Clerical time. For each one-quarter
hour or portion thereof of clerical time, $4.00.
(ii) Professional time. For each one-quarter hour or portion
thereof of professional time, $10.00.
(iii) Duplication. For each sheet of duplication (not to exceed
8\1/2\ by 14 inches) of requested records, $.20.
(iv) Computer time. For computer time, $3.00 per minute of time
expended for production programming, searching and production of any
record. Computer time expressed in fractions of minutes will be rounded
to the next whole minute.
(v) Certification or authorization of records. The fee per
certification or authentication is $2.00.
(vi) Forwarding material to destination. No charge will be assessed
for ordinary packaging and mailing costs. The FMCS may assess a charge
if compliance with the request requires special handing procedures such
as express mail or other unusual procedures. Such charges will be made
on the basis of actual costs.
(vii) Other costs. All other direct costs of preparing a response
to a request shall be charged to requester in the same amount as
incurred by FMCS. Charges may also be assessed for searches even if the
records requested are not found, or the records are determined to be
exempted from disclosure.
(2) Rules of construction. (i) In providing the foregoing the
schedules pursuant to the provisions of 5 U.S.C. 552(a)(4)(A), it is
the intent of FMCS to apply 29 CFR part 70 and the user charge statute,
31 U.S.C. 9701, to cover those situations in which the Agency is
performing for a requester services which are not required under the
Freedom of Information Act.
(ii) For those matters coming within the scope of this regulation,
the FMCS will look to the provisions of the guidance published by the
Office of Management and Budget (52 FR 10012, March 27, 1987) and the
Department of Justice (Attorney General's, memorandum on the 1986
Amendments to the Freedom of Information Act, December 1987) for making
such interpretations as may be necessary.
(3) Fee categories. Fees shall be determined in accordance with the
following categories of requesters.
(i) Commercial use requesters will be assessed charges to recover
the full direct cost of searching for, reviewing for release, and
duplicating the records sought. This includes the full direct costs of
computer production programming, searching and production of records.
Commercial use requesters are not entitled to 2 hours of free search
time nor 100 free pages of reproduction of documents, as described
below.
(ii) Educational and non-commercial scientific institution
requesters will be assessed charges for the cost of duplication alone,
excluding charges for the first 100 pages. To be eligible for inclusion
in this category, requesters must show that the request is being made
under the auspices of a qualifying institution pursuant to the criteria
in paragraphs (a)(6) and (a)(8) of this section, and that the records
are not sought for commercial use, but are sought in furtherance of
scholarly or scientific research.
(iii) Requesters who are representatives of the news media will be
assessed charges for the cost of duplication alone, excluding charges
for the first 100 pages. To be eligible for inclusion in this category,
a requester must meet the criteria in paragraph (a)(7) of this section,
and the request must not be made for a commercial use. A request for
records supporting the news dissemination function of the requester
shall not be considered to be a request that is for commercial use.
(iv) All other requesters will be assessed charges to recover the
full reasonable direct costs of searching for and reproducing records
that are responsive to the request, including costs of computer
production programming, searching and production, except that the first
100 pages of reproduction, and the first 2 hours of search time shall
be furnished without charge.
(v) In no event shall fees be charged when the total charges are
less than $14.00, which is the Agency cost of collecting and processing
the fee itself.
(4) Waiver or reduction of charge. Documents are to be furnished
without charge or at reduced levels if disclosure of the information is
in the public interest; that is, 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.
(c) Fee payments. (1) Payments shall be made by check or money
order payable to ``Federal Mediation and Conciliation Service'' and
shall be sent to: Director, Financial Management Staff, Federal
Mediation and Conciliation Service, 2100 K Street NW, Washington, DC
20427.
(2) If a requester fails to pay chargeable fees that were incurred
as a result of this Agency's processing of the information request, the
Agency beginning on the 31st day following the date on which the
notification of charges was sent, may assess interest charges against
the requester in the manner prescribed in 31 U.S.C. 3717.
(3) The Agency may use the provisions of the Debt Collection Act of
1982, (Pub. L. 97-365, 29 CFR part 1450) including disclosure to
consumer reporting agencies, for the purpose of obtaining payment.
(d) Advance payments. FMCS may require a requester to make an
advance payment of anticipated fees under the following circumstances:
(1) If the anticipated charges are likely to exceed $250.00, FMCS
may notify the requestor of the likely cost and obtain satisfactory
assurance of full payment when the requester has a history of prompt
payment of FOIA fees, or require an advance payment of an amount up to
the full estimated charges in the case of requesters with no history of
payments.
(2) If a requester has previously failed to pay fees that have been
charged in processing a request, within 30 days of the date when the
notification of fees was sent, the requester may be required to:
(i) Pay the entire amount of fees that are owed, plus any
applicable interest as provided for in paragraph (c)(2) of this
section, and
(ii) To make an advance payment of the full amount of the estimated
fee before the Agency will process the new pending request.
Dated: October 28, 1999.
Vella M. Traynham,
Deputy Director.
[FR Doc. 99-28678 Filed 11-2-99; 8:45 am]
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