[Federal Register Volume 72, Number 149 (Friday, August 3, 2007)]
[Proposed Rules]
[Pages 43209-43211]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-14818]


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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: Notice of proposed rulemaking.

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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. Previously, FMCS had issued a proposed rule on 
November 3, 1999. 64 FR 59697, Nov. 3, 1999. FMCS received no comments 
when the proposed rule was published in 1999. FMCS is now withdrawing 
that proposed rule and issuing a new revised proposed rule. The 
proposed revisions include a 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.

DATES: Written comments must be submitted to the office listed in the 
addresses section below on or before October 2, 2007.

ADDRESSES: Send comments to Michael J. Bartlett, Office of the General 
Counsel, Federal Mediation and Conciliation Service, 2100 K Street, 
NW., Washington, DC 20427.

FOR FURTHER INFORMATION CONTACT: Michael J. Bartlett, (202) 606-3737.

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 No. 104-231. Significant new provisions 
implementing the amendments are found at Sec.  1401.21(a) (electronic 
reading room), (d) (pamphlets distribution), (e) (records disposition), 
Sec.  1401.22 (deletion marking), Sec.  1401.34(a), (b), (c), (d) 
(timing of responses), Sec.  1401.34(d) (volume estimation), Sec.  
1401.36 (a) (definitions), (b) (fee schedules, lack of fees, fee 
waivers).
    Proposed revisions to the FMCS fee schedule can be found at Sec.  
1401.36(b)(1) (i), (ii), (iv), (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 per each quarter hour or portion 
thereof for clerical time and $10.00 per each quarter hour or portion 
thereof for professional time. The amount at or below which the Service 
will not charge a fee will decrease from $50.00 to $14.00.
    Sections such as Sec.  1401.32, Sec.  1401.34(d), Sec.  1401.35, 
Sec.  1401.36(b)(2)(ii) are being revised to reflect minor language or 
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.

List of Subjects in 29 CFR Part 1401, Subpart B

    Administrative practice and procedure, Freedom of information.

    For the reasons stated in the preamble, FMCS proposes to amend 29 
CFR part 1401, Subpart B as follows:

PART 1401--PUBLIC INFORMATION

    1. The authority citation for part 1401, Subpart B continues to 
read as follows:

    Authority: Sec. 202, 61 Stat. 136, as amended; 5 U.S.C. 552.

    2. Revise Sec.  1401.20 to read as follows:


Sec.  1401.20  Purpose and scope.

    This subpart contains the regulations of the Federal Mediation and 
Conciliation Service providing for public access to information under 
the Freedom of Information Act, 5 U.S.C. 552. It is the policy of the 
FMCS to disseminate information on matters of interest to the public 
and to disclose upon request information contained in

[[Page 43210]]

agency records insofar as such disclosure is compatible with the 
discharge of its responsibilities and the principle of confidentiality 
and neutrality of dispute resolution by third party neutrals.
    3. Amend Sec.  1401.21 by revising paragraphs (c), (d) and (e) to 
read as follows:


Sec.  1401.21  Information policy.

* * * * *
    (c) FMCS maintains a public reading room that contains the records 
required by the FOIA to be made readily 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 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 FMCS for routine public 
distribution, e.g., pamphlets and brochures, will be furnished upon 
request to Office of the Director of Public Affairs, 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) are 
not applicable to such requests except 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 disposition according 
to agency record retention schedules and General Records Schedules 
promulgated by the National Archives and Records Administration.
    4. Revise Sec.  1401.22 to read as follows:


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 possible to separate them.
    (b) Records disclosed in part shall be marked or annotated to show 
both the amount and the location of the information deleted and the 
applicable exemption.


Sec.  1401.24  [Removed]

    5. Remove Sec.  1401.24
    6. Revise Sec.  1401.31 as follows:


Sec.  1401.31  Filing a request for records.

    (a) Any person who desires to inspect or copy an Agency record 
should submit a written request to the Office of the General Counsel, 
Federal Mediation and Conciliation Service, 2100 K Street, NW., 
Washington, DC 20427. The envelope [or cover sheet] should be marked 
``Freedom of Information Act request.'' Electronic mail requests should 
be sent to [email protected].
    (b) Each request should reasonably describe the records being 
sought, so that the records requested may be located and identified. If 
the description is insufficient to locate the requested records, the 
officer processing the request will notify the requester and ask for 
additional information.


Sec.  1401.32  [Amended]

    7. Amend Sec.  1401.32 by removing the words ``Legal Services 
Office'' in paragraphs (a) and (b) and by adding in their place the 
words ``Office of the General Counsel.''
    8. Amend Sec.  1401.34 as follows:
    A. Revise paragraph (a) and paragraph (b) introductory text.
    B. Remove paragraphs (b)(3) and (4).
    C. Revise paragraph (c).
    D. Remove the paragraph designation (b) in the last paragraph of 
the section and redesignate that paragraph as paragraph (d).
    E. Amend newly redesignated paragraph (d) by Removing the term 
``Deputy Director'' and adding the term ``Chief of Staff'' in its 
place.
    F. Add paragraphs (e) and (f) to read as follows:


Sec.  1401.34  Time for processing requests.

    (a) All time limitations established pursuant to this section shall 
begin as of the time a request for records is received by the Office of 
the General Counsel.
    (b) The officer or employee responsible for responding to the 
request 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) * * *
    (2) * * *
    (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 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 and also 
advise that the denial may be appealed to the Office of the Chief of 
Staff 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) 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

[[Page 43211]]

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  [Amended].

    9. Amend Sec.  1401.35 by removing the term ``Deputy Director'' 
wherever it appears in paragraphs (a), (b), and (c) and by adding the 
term ``Chief of Staff'' in its place.
    10. Amend Sec.  1401.36 as follows:
    A. Remove the word ``the'' between ``forgoing'' and ``scheduling'' 
and add the words ``other than those related to arbitration'' between 
``services'' and ``which'' in Sec.  1401.36(b)(2)(i).
    B. Revise paragraphs (a)(2), (3) and (4), (b)(1)(i), (ii), (iv), 
(b)(2)(ii), (b)(3)(v) and (b)(4) as follows:


Sec.  1401.36  Freedom of Information Act fee schedules.

    (a) * * *
    (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. It does not include time spent 
resolving general legal or policy issues regarding the applicability of 
particular exemptions or reviewing on appeal exemptions that are 
applied. However, records or portions 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 for such a subsequent review is assessable.
* * * * *
    (b) Fee schedules and waivers.
* * * * *
    (1) * * *
    (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 profession time, $10.00.
    (iii) * * *
    (iv) Computer time. For computer searches of records, requestors 
will be charged the direct costs of conducting the search (as provided 
in paragraph (b)(3)(i)), although certain requestors will be charged no 
search fee (as provided in paragraph (b)(3)(ii) and (iii)), and certain 
other requestors will be entitled to the cost equivalent of two hours 
of manual search time without charge (as provided in paragraph 
(b)(3)(iv)). These direct costs will include the cost of operating a 
central processing unit for that portion of operating time that is 
directly attributable to the searching for responsive records, as well 
as the costs of operator/programmer salary attributable to the search. 
Computer time expressed in fractions of minutes will be rounded to the 
next whole minute.
* * * * *
    (2) * * *
    (ii) For those matters coming within the scope of this regulation, 
the FMCS will look to the provisions of the guidance published by in 
the Office of Management and Budget's Uniform Fee Schedule and 
Guidelines (available at http://www.whitehouse.gov/omb/inforeg/infopoltech.html) and the Department of Justice Attorney General's 
Memorandum on the 1986 Amendments to the Freedom of Information Act 
(available at http://www.usdoj.gov/04foia/04_7.html) for making such 
interpretations as necessary.
    (3) * * *
    (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. If the request is expected to involve an assessed fee 
in excess of $14.00, the response shall specify or estimate the fee 
involved before the records are made available.
    (4) Waiver or reduction of charge. A fee waiver must be requested 
at the same time that a request for records is made. The requester 
should provide an explanation of why the waiver is appropriate. If the 
request for a waiver or reduction is denied, the denial may be appealed 
to FMCS' Chief of Staff. In the appeal letter, the requester should 
discuss whatever reasons are given in the denial letter. Documents may 
be furnished without charge or at reduced levels if FMCS determines 
that 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.
* * * * *


Sec.  1401.37  [Removed]

    11. Remove Sec.  1401.37.

    Dated: July 26, 2007.
Michael J. Bartlett,
Deputy General Counsel.
[FR Doc. E7-14818 Filed 8-2-07; 8:45 am]
BILLING CODE 6732-01-P