[Federal Register Volume 72, Number 233 (Wednesday, December 5, 2007)]
[Rules and Regulations]
[Pages 68502-68503]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-23521]


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NATIONAL LABOR RELATIONS BOARD

29 CFR Part 102


Revisions of Regulations Concerning Procedures for Filing Appeals 
to Denial in Whole or Part of Initial FOIA Requests

AGENCY: National Labor Relations Board (NLRB).

ACTION: Final Rule.

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SUMMARY: The National Labor Relations Board (NLRB) is amending 
regulations concerning the procedures for filing an appeal to adverse 
FOIA determinations. The revisions require that appeals be filed within 
28 calendar days of the service of the notification of the adverse 
determination.

EFFECTIVE DATE: December 5, 2007.

FOR FURTHER INFORMATION CONTACT: Lester A. Heltzer, Executive 
Secretary, National Labor Relations Board, Room 11600, 1099 14th Street 
NW., Washington, DC 20570-0001, Telephone (202) 273-1067, e-mail 
address [email protected].

SUPPLEMENTARY INFORMATION: 

I. Current regulation

    Section 102.117(c)(2)(v) provides in part that ``An appeal from an 
adverse determination made pursuant to paragraph (c)(2)(iii) of this 
section must be filed within 20 working days of the receipt by the 
person making the request of the notification of the adverse 
determination where the request is denied in its entirety; or, in the 
case of a partial denial, within 20 working days of the receipt of any 
records being made available pursuant to the request.''

II. Proposed revision

    Since the Agency does not send such determinations on initial 
requests by certified mail, it has no objective means of determining 
when a requestor receives an adverse determination. Therefore, it is 
impossible to know from which date to compute time periods from adverse 
FOIA determinations.
    Other agencies' practices support using the date of service rather 
than date of receipt as the appropriate date for computing timeliness 
of FOIA appeals. Under 28 CFR Ch. 1, Sec. 16.9, appeals from adverse 
Department of Justice FOIA determinations must be filed ``within 60 
days of the date of the letter denying'' the request. See also, Center 
for Biological Diversity v. Gutierrez, 451 F. Supp.2d 57 (D.D.C. 
2006)(Department of Commerce regulations provide that appeals from 
adverse determinations must be received by 5 p.m. EST on the

[[Page 68503]]

``thirtieth day after issuance of initial FOIA determination * * *'' 15 
CFR Sec. 410(a)); Wilbur v.Central Intelligence Agency, 355 F.3rd 675 
(DC. Cir. 2004) (The CIA's FOIA regulations require that any 
administrative appeal ``be received within 45 days of the agency's 
initial decision.'' 32 CFR Sec. 1900.42.)

III. Administrative Procedures Act

    Because the change involves rules of agency organization, procedure 
or practice, the Agency is not required to publish it for comment under 
Section 553 of the Administrative Procedure Act (5 U.S.C. 553).

IV. Regulatory Flexibility Act

    Because no notice of proposed rulemaking is required for procedural 
rules, the requirements of the Regulatory Flexibility Act (5 U.S.C. 601 
et seq.) pertaining to regulatory flexibility analysis do not apply to 
these rules. However, even if the Regulatory Flexibility Act were to 
apply, the NLRB certifies that these changes will not have a 
significant economic impact on small business entities since the 
changes merely codify the actual practice under the existing rules.

V. Small Business Regulatory Enforcement Fairness Act

    Because the rule relates to Agency procedure and practice and 
merely modifies the agency's existing filing procedures, the Board has 
determined that the Congressional review provisions of the Small 
Business Regulatory Enforcement Fairness Act (5 U.S.C. 801) do not 
apply.

VI. Paperwork Reduction Act

    This revision does not impose any reporting or record keeping 
requirements under the Paperwork Reduction Act of 1995.

Lists of Subjects in 29 CFR Part 102

    Administrative practice and procedure, Labor Management relations.

0
For the reasons set forth above, the NLRB proposes to amend 29 CFR part 
102 as follows:

PART 102--RULES AND REGULATIONS

0
1. The authority citation for 29 CFR part 102 continues to read as 
follows:

    Authority: Section 6, National Labor Relations Act, as amended 
((29 U.S.C. 151, 156). Section 102.117(c) also issued under Section 
552(a)(4)(A) of the Freedom of Information Act, as amended (5 U.S.C. 
552(a)(4)(A)). Sections 102.143 through 102.155 also issued under 
Section 504(c)(1) of the Equal Access to Justice Act, as amended (5 
U.S.C. 504(c)(1)).

0
2. Section 102.117(c)(2)(v) is revised to read as follows:


Sec.  102.117  Freedom of Information Act Regulations: Board materials 
and formal documents available for public inspection and copying; 
requests for described records; time limit for response; appeal from 
denial of request; fees for document search and duplication; files and 
records not subject to inspection.

* * * * *
    (c) * * *
    (2) * * *
    (v) An appeal from an adverse determination made pursuant to 
paragraph (c)(2)(iii) of this section must be filed within 28 calendar 
days of the service of the notification of the adverse determination, 
in whole or in part. If the adverse determination was made in a 
Regional Office, a Subregional Office, or by the Freedom of Information 
Officer, Office of the General Counsel, the appeal shall be filed with 
the General Counsel in Washington, DC. If the adverse determination was 
made by the Executive Secretary of the Board or the Inspector General, 
the appeal shall be filed with the Chairman of the Board in Washington, 
DC. Within 20 working days after receipt of an appeal the General 
Counsel or the Chairman of the Board, as the case may be, shall make a 
determination with respect to such appeal and shall notify the person 
making the request in writing. If the determination is to comply with 
the request, the record shall be made promptly available to the person 
making the request upon receipt of payment of any charges due in 
accordance with the provisions of paragraph (d)(2) of this section. If 
on appeal the denial of the request for records is upheld in whole or 
in part, the person making the request shall be notified of the reasons 
for the determination, the name and title or position of each person 
responsible for the denial, and the provisions for judicial review of 
that determination under the provisions of 5 U.S.C. 552(4)(B). Even 
though no appeal is filed from a denial in whole or in part of a 
request for records by the person making the request, the General 
Counsel or the Chairman of the Board may, without regard to the time 
limit for filing of an appeal, sua sponte initiate consideration of an 
adverse determination under this appeal procedure by written 
notification to the person making the request. In such event the time 
limit for making the determination shall commence with the issuance of 
such notification. An adverse determination by the General Counsel or 
the Chairman of the Board, as the case may be, will be the final action 
of the Agency. If the requester wishes to seek review by a court of any 
adverse determination, the requester must first appeal it under this 
section.
* * * * *

    Dated: Washington, DC, November 29, 2007.

    By Direction of the Board.
Lester A. Heltzer,
Executive Secretary.
[FR Doc. E7-23521 Filed 12-4-07; 8:45 am]
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