[Federal Register Volume 77, Number 20 (Tuesday, January 31, 2012)]
[Rules and Regulations]
[Pages 4661-4663]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-2059]


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NATIONAL LABOR RELATIONS BOARD

29 CFR Part 102


Revisions of Regulations Concerning Procedures for Filing Initial 
FOIA Requests

AGENCY: National Labor Relations Board.

ACTION: Final rule.

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SUMMARY: The National Labor Relations Board (NLRB or Board) is amending 
regulations concerning the procedures for filing initial Freedom of 
Information Act (FOIA) requests. The revisions require that all FOIA 
requests for records located in Washington, DC, be made to the NLRB 
FOIA Officer in Washington, DC.

DATES: Effective date: January 31, 2012.

FOR FURTHER INFORMATION CONTACT: Lester A. Heltzer, Executive 
Secretary, National Labor Relations Board, Room 1600, 1099 14th Street 
NW., Washington, DC 20570-00001, Telephone (202) 273-1067 (this is not 
a toll-free number), 1-866-315-6572 (TTY/TDD), email address 
[email protected].

SUPPLEMENTARY INFORMATION: 

I. Current Regulation

    Section 102.117(c)(1) provides in part that ``If the request is 
made for records in a Regional or Subregional Office of the Agency, it 
should be made to that Regional or Subregional Office; if for records 
in the Office of the General Counsel and located in Washington, DC, it 
should be made to the Freedom of Information Officer, Office of the 
General Counsel, Washington, DC; if for records in the offices of the 
Board or the Inspector General in Washington, DC, to the Executive 
Secretary of the Board, Washington, DC.''

II. Revision

    FOIA requesters seeking records that are located in Washington, DC 
may not know whether the requested records are in the Office of the 
General Counsel, the Offices of the Board, or the Office of the 
Inspector General, and, accordingly, may misdirect the request. 
Currently, when a request is misdirected, the receiving office forwards 
it to the appropriate office and notifies the requester that it has 
done so. This requires a response by both the receiving and the 
appropriate offices, and delays the final response to the FOIA 
requester. By requiring that all requests for records located in 
Washington, DC be made to the NLRB FOIA Officer, a newly-created 
position, requesters need not know in which office the records they 
seek are located, and their requests will be processed more efficiently 
and expeditiously.

III. Administrative Procedure 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 make it easier for all FOIA requesters to file their requests.

[[Page 4662]]

V. Small Business Regulatory Enforcement Fairness Act

    Because the rules relate to Agency procedure and practice and 
merely modify the Agency's existing 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.

List of Subjects in 29 CFR Part 102

    Administrative practice and procedure, Labor management relations.

    For the reasons set forth above, the NLRB amends 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. Amend Sec.  102.117 by revising paragraphs (c)(1) and (c)(2)(iii) 
and (v) 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)(1) Requests for the inspection and copying of records other 
than those specified in paragraphs (a) and (b) of this section must be 
in writing and must reasonably describe the record in a manner to 
permit its identification and location. The envelope and the letter, or 
the cover sheet of any fax transmittal, should be clearly marked to 
indicate that it contains a request for records under the Freedom of 
Information Act (FOIA). The request must contain a specific statement 
assuming financial liability in accordance with paragraph (d)(2) of 
this section for the direct costs of responding to the request. If the 
request is made for records in a Regional or Subregional Office of the 
Agency, it should be made to that Regional or Subregional Office. If 
the request is for records located in Washington, DC (in the Office of 
the General Counsel, the Offices of the Board, or the Office of the 
Inspector General), it should be made to the NLRB FOIA Officer, 
Washington, DC. Requests made to other than the appropriate office will 
be forwarded to that office by the receiving office, but in that event 
the applicable time limit for response set forth in (c)(2)(i) of this 
section shall be calculated from the date of receipt by the appropriate 
office. FOIA requests made to an office other than to the office where 
the records were generated may be referred to the generating office for 
response. In the case of records generated by the Inspector General in 
the possession of another office, or in the possession of the Inspector 
General but generated by another office of the Agency, the request will 
be referred to the appropriate FOIA officer for the generating office 
for decision. If the Agency determines that a request does not 
reasonably describe records, it may contact the requester to inform the 
requester either what additional information is needed or why the 
request is insufficient. Requesters may be given an opportunity to 
discuss their request so that requests may be modified to meet the 
requirements of this section.
    (2) * * *
    (iii) Within 20 working days after receipt of a request by the 
appropriate office of the Agency, a determination shall be made whether 
to comply with such request, and the person making the request shall be 
notified in writing of that determination. In the case of requests made 
for Inspector General records, that determination shall be made by the 
Inspector General. In the case of all other requests, that 
determination shall be made by the NLRB FOIA Officer, or the Regional 
or Subregional Office, as the case may be. If the determination is to 
comply with the request, the records shall be made promptly available 
to the person making the request and, at the same time, a statement of 
any charges due in accordance with the provisions of paragraph (d)(2) 
of this section will be provided. If the determination is to deny the 
request in any respect, the requester shall be notified in writing of 
that determination. Adverse determinations, or denials of requests, 
consist of: A determination to withhold any requested record in whole 
or in part; a determination that a requested record does not exist or 
cannot be located; a determination that what has been requested is not 
a record subject to the FOIA; a determination on any disputed fee 
matter, including a denial of a request for a fee waiver or reduction 
or placement in a particular fee category; and a denial of a request 
for expedited treatment. For a determination to deny a request in any 
respect, the notification shall set forth the reasons therefor and the 
name and title or position of each person responsible for the denial, 
shall provide an estimate of the volume of records or information 
withheld, in number 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 exemption), and shall notify the person making the request 
of the right to appeal the adverse determination under provisions of 
paragraph (c)(2)(v) of this section.
* * * * *
    (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 adverse determination, in whole or in part. 
If the adverse determination was made by the NLRB FOIA Officer 
concerning records located in the Office of the General Counsel, 
Washington, DC, or by a Regional Office or a Subregional Office 
concerning records located there, the appeal shall be filed with the 
General Counsel in Washington, DC. If the adverse determination was 
made by the NLRB FOIA Officer concerning records in the Offices of the 
Board, or by the Inspector General concerning records generated by that 
office, the appeal shall be filed with the Chairman of the Board in 
Washington, DC. As provided in paragraph (c)(2)(iii) of this section, 
an adverse determination will notify the requester of the right to 
appeal the adverse determination and will specify where such appeal 
shall be filed. 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

[[Page 4663]]

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 if 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.
* * * * *

    Signed in Washington, DC, January 25, 2012.
Mark Gaston Pearce,
Chairman.
[FR Doc. 2012-2059 Filed 1-30-12; 8:45 am]
BILLING CODE 7545-01-P