[Federal Register Volume 81, Number 219 (Monday, November 14, 2016)]
[Proposed Rules]
[Pages 79400-79407]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-26986]


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NATIONAL MEDIATION BOARD

29 CFR Part 1208

[Docket No. C-7156]
RIN 3140-AA00


Access to Information

AGENCY: National Mediation Board.

ACTION: Proposed rule with request for comments; notice of hearing.

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SUMMARY: The National Mediation Board (NMB or Board) proposes to revise 
its Freedom of Information Act (FOIA) regulations in order to implement 
the FOIA Improvement Act of 2016 and to amend its regulations regarding 
responding to subpoenas. The NMB also proposes to update these 
regulations where needed in accordance with Department of Justice 
guidance, Executive Order 12,600, and changes in Agency practice and 
procedure.

DATES: Submit comments on or before January 13, 2017. The NMB will hold 
a public hearing on Thursday, December 8, 2016. Submit requests to 
speak at the hearing until 4 p.m. EST on Thursday, December 1, 2016.

ADDRESSES: You may submit comments by any of the methods listed below. 
Please submit requests to speak and materials for the public hearing 
only to the NMB's physical or email address. Clearly identify all 
submissions by Docket Number C-7156.
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.

[[Page 79401]]

     Agency Web site: www.nmb.gov. Follow the instructions for 
submitting comments.
     Email: [email protected]. Include docket number in the subject 
line of the message.
     Fax: (202) 692-5085.
     Mail and Hand Delivery: National Mediation Board, 1301 K 
Street NW., Suite 250E, Washington, DC, 20005.
    See SUPPLEMENTARY INFORMATION for other information about 
electronic submission.

FOR FURTHER INFORMATION CONTACT: Mary Johnson, General Counsel, 
National Mediation Board, 202-692-5050, [email protected].

SUPPLEMENTARY INFORMATION: 

I. Introduction
II. Section-by-Section Analysis
III. Public Hearing Under Railway Labor Act
IV. Procedural Requirements

I. Introduction

    The NMB proposes revisions to all seven sections of part 1208 
entitled ``Availability of Information.'' Most of these revisions 
implement the FOIA Improvement Act of 2016 (Pub. L. 114-185). In 
addition, section 1208.7 proposes ``Touhy'' regulations to address the 
NMB's response to subpoenas and other formal requests for information. 
Other proposed changes reflect current NMB practice and procedures. In 
drafting proposed changes, the NMB consulted Guidance for Agency FOIA 
Regulations issued by the Department of Justice's Office for 
Information Policy (OIP).
    The Board invites commenters to address any matters they consider 
relevant to the changes in the regulations. The NMB may incorporate any 
comments in a Final Rule. All submissions must include the agency name 
and docket number. All comments received will be posted without change 
to www.nmb.gov, including any personal information provided. For access 
to the docket or to read background documents or comments received, go 
to www.nmb.gov.

II. Section-by-Section Analysis

1208.1 General Provisions

    Current sections 1208.1 ``Purpose'' and 1208.3 ``General Policy'' 
have been combined into this proposed section. Proposed section 
1208.1(c) includes the requirement in the FOIA Improvement Act of 2016 
that an agency must release information unless it ``reasonably foresees 
that disclosure would harm an interest protected by an exemption.'' 
Proposed section 1208.1(d) has been added to specify that the NMB will 
preserve all correspondence related to FOIA requests until destruction 
or other disposition is authorized pursuant to Title 44 of the United 
States Code or under General Records Schedule 14 of the National 
Archives and Records Administration.

1208.2 Requests for Records or Information Under the Freedom of 
Information Act

    Proposed section 1208.2(a) generally updates procedures for 
requesting documents under the FOIA, including providing updated Agency 
contact information. Several existing paragraphs will be renumbered to 
accommodate new provisions described here.
    Proposed section 1208.2(a)(2) provides requesters with the option 
to contact the NMB's FOIA Public Liaison for assistance in formulating 
a request.
    Proposed section 1208.2(b) generally updates procedures related to 
the NMB's processing of FOIA requests. The FOIA allows agencies to toll 
the 20-day response period one time to request information from the 
requester or to clarify a fee issue. 5 U.S.C. 552(a)(6)(A). This 
procedure has been expressly added to proposed section 1208.2(b)(1).
    The FOIA Improvement Act of 2016 requires agencies to notify 
requesters of their right to engage in dispute resolution services from 
the Office of Government Information Services. Proposed section 
1208.2(b)(2) requires the NMB to notify a requester of this right 
whenever the NMB requests an extension of longer than 10 days to 
respond to a request. Proposed section 1208.2(b)(6)(iii) includes the 
requirement that the NMB notify the requester of this right whenever a 
FOIA request is not granted in full.
    Proposed section 1208.2(b)(4) includes procedures that the NMB 
follows when it receives a request for records that originated at 
another agency or contain information of interest to another agency, in 
accordance with prior guidance from the OIP. The NMB currently follows 
these procedures, but they are not included in current regulations.
    Proposed section 1208.2(b)(5) relates to requests for confidential 
business information provided to the NMB that may be protected from 
disclosure under Exemption 4 of the FOIA, 5 U.S.C. 552(b)(4). Executive 
Order 12,600 requires agencies to notify submitters of confidential 
business information when such information is the subject of a FOIA 
request. Proposed sections 1208.2(b)(5)(i) through (ii) describe the 
procedure for notifying submitters of the request and allowing an 
opportunity to object to disclosure. Proposed section 1208.2(b)(5)(iv) 
requires submitters of confidential business information to use a good 
faith effort to designate information they consider protected by 
Exemption 4.
    Proposed section 1208.2(c) extends the time to appeal from 30 days 
to 90 days when a request for records has been denied in whole or part. 
This change is required by the FOIA Improvement Act of 2016.

1208.3 Proactive Disclosure of Information

    The NMB proposes to replace current section 1208.3 with provisions 
related to the proactive disclosure of information as required by the 
FOIA Improvement Act of 2016. Among the provisions related to proactive 
disclosure is the ``rule of three'' requirement. This proposed section 
requires the NMB to post on its Web site any materials released in 
response to a FOIA request and for which the NMB has received at least 
three requests or which the NMB determines are likely to become the 
subject of subsequent requests.

1208.4 Material Relating to Representation Function

    Proposed section 1208.4(b) discusses which materials related to the 
NMB's representation function are generally available and which remain 
confidential and not available for release. Proposed section 1208.4(b) 
clarifies that evidence submitted in connection with the showing of 
interest in a representation dispute will be treated as confidential.

1208.5 Material Relating to Mediation Function

    Proposed section 1208.5 describes which material related to the 
NMB's mediation function is confidential, clarifying and updating 
language in the current section 1208.5.

1208.6 Fees Under the Freedom of Information Act

    Proposed section 1208.6 has been redrafted based on Guidance for 
Agency FOIA Regulations issued by the OIP. Most provisions remain the 
same while the language has been streamlined and updated.
    Proposed section 1208.6(d)(2) would prohibit the NMB from charging 
fees when it has failed to comply with the FOIA's time limits for 
responding to requests, except in limited circumstances. This change is 
required by the FOIA Improvement Act of 2016.

[[Page 79402]]

1208.7 Subpoenas and Other Requests for Testimony and Production of 
Documents in Legal Proceedings Where the NMB Is Not a Party

    The NMB has on occasion received formal demands or subpoenas to 
produce records, information, or testimony in judicial, legislative, or 
administrative proceedings in which it or the United States is not a 
party. Many federal agencies have issued regulations to address these 
requests and provide a process for evaluating and responding to such 
requests. The United States Supreme Court has upheld this type of 
regulation in United States ex rel. Touhy v. Ragen, 340 U.S. 462 
(1951). The NMB has never before issued a regulation governing the 
submission, evaluation, and processing of subpoenas and other similar 
demands for information. Proposed section 1208.7 would replace current 
rule 1208.7 addressing compliance with subpoenas. This proposed rule 
would prohibit NMB employees from producing records, information, or 
testimony in response to demands, unless those demands are submitted in 
accordance with the provisions in proposed section 1208.7(a) and 
release has been authorized by the NMB's General Counsel. Proposed 
section 1208.7(c) describes the factors the General Counsel will 
consider in determining whether to release information.

III. Public Hearing

    Pursuant to provisions in the Railway Labor Act, the NMB will hold 
an open public hearing on Thursday, December 8, 2016 from 10 a.m. until 
12 p.m. The public hearing will be held in the Agency's offices at 1301 
K Street NW., Suite 250E, Washington, DC, 20005. The purpose of the 
hearing will be to solicit views of interested persons concerning the 
proposed rule changes.
    Individuals desiring to attend the meeting must notify the NMB at 
the above listed physical or email address by the deadline posted. If 
the individual desires to make a presentation to the Board at the 
meeting, he or she is required to submit a brief outline of the 
presentation when making the request. In addition, a full written 
statement must be submitted no later than 4 p.m. on Monday, December 5, 
2016. In lieu of making an oral presentation, individuals may submit a 
written statement for the record. To attend the meeting, all potential 
attendees must include in their request: (1) Their full name and (2) 
organizational affiliation (if any). Attendees are reminded to bring a 
photo identification card with them to the public meeting in order to 
gain admittance to the building.

IV. Procedural Requirements

Paperwork Reduction Act

    This rule does not contain information collection requirements that 
require approval by the Office of Management and Budget under the 
Paperwork Reduction Act (44 U.S.C. 3507 et seq.).

Regulatory Flexibility Act

    The NMB certifies that this rule will not have a significant impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.). The proposed rule imposes no 
requirements upon carriers or derivative carriers subject to the RLA. 
The proposed rule would not directly affect any entities that are small 
businesses under the Regulatory Flexibility Act. Accordingly, the 
National Mediation Board certifies that it will not have a significant 
impact on a substantial number of small entities.

National Environmental Policy Act

    This proposal will not have any significant impact on the quality 
of the human environment under the National Environmental Policy Act 
(42 U.S.C. 4321 et seq.).

List of Subjects in 29 CFR Part 1208

    Information, Confidential business information, Freedom of 
information.

    For the reasons stated in the preamble, the National Mediation 
Board proposes to revise 29 CFR part 1208 to read as follows:

PART 1208--AVAILABILITY OF INFORMATION

Sec.
1208.1 General provisions.
1208.2 Requests for records or information under the Freedom of 
Information Act.
1208.3 Proactive disclosure of information.
1208.4 Material relating to representation function.
1208.5 Material relating to mediation function.
1208.6 Fees under the Freedom of Information Act.
1208.7 Subpoenas and other requests for testimony and production of 
documents in legal proceedings where the NMB is not a party.

    Authority:  44 Stat. 577, as amended; 45 U.S.C. 151-163.


Sec.  1208.1  General provisions.

    (a) The purpose of this part is to set forth the regulations of the 
NMB regarding the availability and disclosure of information in its 
possession and to implement the Freedom of Information Act (FOIA). 
These regulations establish procedures for requesting access to records 
maintained by the NMB and should be read together with the FOIA, the 
1987 Office of Management and Budget Guidelines for FOIA Fees, 
Executive Order 12,600, and the NMB's other rules and regulations.
    (b) Public policy and the successful effectuation of the NMB's 
mission require that Board members and the employees of the NMB 
maintain a reputation for impartiality and integrity. Labor and 
management and other interested parties participating in mediation 
efforts must have assurance, as must labor organizations, carriers, and 
individuals involved in questions of representation, that confidential 
information disclosed to Board members and employees of the NMB will 
not be divulged, voluntarily or by compulsion.
    (c) Notwithstanding this general policy, the Board will under all 
circumstances endeavor to make public as much information as can be 
allowed. The Board will withhold information under the FOIA only if it 
reasonably foresees that disclosure would harm an interest protected by 
one of the exemptions described in the FOIA or when disclosure is 
prohibited by law. When full disclosure is not possible, the NMB will 
consider whether partial disclosure of information is possible and will 
take necessary steps to segregate and release nonexempt information.
    (d) The NMB will preserve all correspondence pertaining to requests 
it receives under the FOIA, as well as copies of all requested records, 
until disposition or destruction is authorized pursuant to Title 44 of 
the United States Code or the General Records Schedule 14 of the 
National Archives and Records Administration. The NMB will not dispose 
of or destroy records while they are the subject of a pending request, 
appeal, or lawsuit under the FOIA.


Sec.  1208.2  Requests for records or information under the Freedom of 
Information Act.

    (a) Requests for records. (1) All requests for NMB records shall be 
filed in writing by emailing [email protected] or mailing the request to the 
Chief FOIA Officer, National Mediation Board, 1301 K Street NW., Suite 
250E, Washington, DC, 20005. Additional information about submitting 
requests is available at www.nmb.gov. Requesters must provide contact 
information, such as their phone number, email address, and/or mailing 
address, to assist in communications about the request.
    (2) The request shall reasonably describe the records being sought 
in a

[[Page 79403]]

manner which permits identification and location of the records. To the 
extent possible, requesters should include specific information that 
may help the NMB identify the requested records, such as the date, 
title or name, author, recipient, subject matter, case or file number, 
or reference number. Before submitting a request, a requester may 
contact the NMB's FOIA Public Liaison to discuss the records sought or 
to receive assistance in describing the records.
    (3) The request shall include any request for waiver of fees, 
clearly outlining the reasons for any such request.
    (4) Requests may specify the preferred form or format (including 
electronic formats) for the records sought. The NMB will accommodate 
such requests if the record is readily reproducible in that form or 
format.
    (5) Upon receipt of a request for the records, the Chief FOIA 
Officer shall assign the request a FOIA tracking number and record the 
date and time received, the name and address of the requester, and the 
nature of the records requested. If the request will take more than 10 
working days to process, the Chief FOIA Officer will acknowledge the 
request in writing, providing the requester with an individualized 
tracking number and a brief description of records sought.
    (6) All time limitations established pursuant to this section with 
respect to processing initial requests and appeals shall commence at 
the time a written request for records is received at the Board's 
offices in Washington, DC or via email.
    (b) Processing the request. (1) Time limits. Within 20 working days 
after a request for records is received, the Chief FOIA Officer shall 
determine whether to comply with the request and immediately notify the 
requester, unless an extension is taken under paragraph (b)(2) of this 
section. The NMB may make one request for additional information from 
the requester or clarify a fee issue with the requester and may toll 
the 20-day period while awaiting receipt of the additional information.
    (2) Extension of time. In unusual circumstances as specified in 
this paragraph, the Chief FOIA Officer may extend the time for initial 
determination on requests up to a total of 10 days (excluding 
Saturdays, Sundays, and legal public holidays). Extensions shall be 
made by written notice to the requester within 20 working days of 
receipt of the request and shall set forth the reason for the 
extension, provide the date on which a determination is expected to be 
dispatched, and make available the NMB's Public Liaison to assist with 
any disputes between the requester and the NMB. Where the extension 
exceeds 10 working days, the Chief FOIA Officer will notify the 
requester of the right to seek dispute resolution services from the 
Office of Government Information Services. As used in this paragraph 
``unusual circumstances'' means, but only to the extent necessary to 
the proper processing of the request:
    (i) The need to search for, collect, and appropriately examine a 
voluminous amount of separate and distinct records which are demanded 
in a single request; or
    (ii) The need for consultation, according to the procedures set 
forth in paragraph (b)(4), with another agency having substantial 
interest in the determination of the request.
    (3) Expedited processing. The Chief FOIA Officer shall process a 
request on an expedited basis whenever a requester demonstrates a 
compelling need. A request for expedited processing may be made at any 
time.
    (i) For purposes of this section, ``compelling need'' means that a 
failure to obtain 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, 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.
    (ii) The Chief FOIA Officer shall make a determination of whether 
to provide expedited processing, and notice of the determination shall 
be provided to the person making the request, within 10 days after the 
date of the request.
    (4) Consultations and referrals.
    (i) When the NMB receives a request for a record (or a portion 
thereof) in its possession that originated with another federal agency, 
the Chief FOIA Officer shall refer the request and record to that 
agency for direct response to the requester. The Chief FOIA Officer 
will notify the requester of any referral and provide the requester 
with the name and FOIA contact information of the agency to which the 
request was referred.
    (ii) In instances where a record is requested that originated with 
the NMB and another federal agency has a significant interest in the 
record (or a portion thereof), the NMB shall consult with that federal 
agency before responding to a requester.
    (iii) All consultations and referrals received by the NMB will 
receive a tracking number and be processed according to the date that 
the first agency received the request.
    (5) Requests for business information provided to the NMB. Business 
information is financial or commercial information obtained by the NMB 
from a submitter that may be protected from disclosure under Exemption 
4 of the FOIA, 5 U.S.C. 552(b)(4).
    (i) When the NMB has reason to believe that requested information 
may fall under Exemption 4, it will promptly provide written notice to 
the submitter. The notice will either describe the requested business 
information or include a copy of the requested records. The NMB shall 
provide the submitter with seven days (excepting Saturdays, Sunday, and 
legal public holidays) to provide a statement of any objection to 
disclosure.
    (ii) The NMB will consider the submitter's objections in deciding 
whether to disclose business information. If the NMB decides to 
disclose business information over such objection, it shall provide 
written notice to the submitter of its reasons for not sustaining the 
objections, a description of information to be disclosed, and the 
disclosure date.
    (iii) Whenever the NMB provides a submitter with notice and the 
opportunity to object under paragraph (b)(5)(ii) of this section, it 
shall also inform the requestor that the request is being processed 
according to these provisions and there may be a subsequent delay in 
processing.
    (iv) A submitter of confidential business information must use good 
faith efforts to designate any portion of its submission that it 
considers to be protected from disclosure under Exemption 4. These 
designations expire 10 years after the date of the submission unless 
the submitter requests and provides justification for a longer 
designation period.
    (6) Response to requests. Within 20 days (excepting Saturdays, 
Sunday, and legal public holidays) after the receipt of a request, the 
requester shall be notified of the determination and the right to seek 
assistance from the NMB's FOIA Public Liaison. If the request for 
records is not granted in full, the final response letter shall also 
include:
    (i) A reference to the specific exemption or exemptions under the 
FOIA authorizing the withholding of the record or parts of the record 
and a brief explanation of how the exemption applies to the record 
withheld.
    (ii) A statement that the denial may be appealed within 90 days by 
writing to the Chairman, by emailing [email protected], or by writing to 
National Mediation Board, 1301 K Street NW., Suite 250E, Washington, DC 
20005, and that judicial review will thereafter be

[[Page 79404]]

available in the district in which the requester resides, or has his 
principal place of business, or the district in which Agency records 
are situated, or the District of Columbia.
    (iii) A notification of the right to seek dispute resolution 
services from the Office of Government Information Services.
    (7) Treatment of delay as a denial. If no determination has been 
dispatched at the end of the 20-day period, or the last extension 
thereof, the requester may deem the request denied, and exercise a 
right of appeal, in accordance with paragraph (c) of this section. When 
no determination can be dispatched within the applicable time limit, 
the Chief FOIA Officer shall continue to process the request and shall 
inform the requester of the reason for the delay, the date on which a 
determination may be expected to be dispatched, and of the right to 
treat the delay as a denial and to appeal to the Chairman of the Board 
in accordance with paragraph (c) of this section.
    (c) Appeals to the Chairman of the Board. (1) When a request for 
records has been denied in whole or in part by the Chief FOIA Officer 
or other person authorized to deny requests, the requester may, within 
90 days of its receipt, appeal the denial to the Chairman of the Board. 
Appeals to the Chairman shall be in writing, addressed to the Chairman, 
National Mediation Board, Washington, DC 20005 or emailed to 
[email protected].
    (2) The Chairman of the Board will act upon the appeal within 20 
working days (excluding Saturdays, Sundays and legal public holidays) 
of its receipt unless an extension is made under paragraph (c)(3) of 
this section.
    (3) In unusual circumstances as defined in paragraph (b)(2) of this 
section, the time for action on an appeal may be extended up to 10 days 
(excluding Saturdays, Sundays and legal public holidays). Written 
notice of such extension shall be made prior to the expiration of the 
20-day response period, setting forth the reason for the extension and 
the date on which a determination is expected to be dispatched.
    (4) If no determination on the appeal has been dispatched at the 
end of the 20-day period or the last extension thereof, the requester 
is deemed to have exhausted administrative remedies, giving rise to a 
right of review in a district court of the United States, as specified 
in 5 U.S.C. 552(a)(4). When no determination can be dispatched within 
the applicable time limit, the appeal will nevertheless continue to be 
processed; on expiration of the time limit the requester shall be 
informed of the reason for the delay, of the date on which a 
determination may be expected to be dispatched, and of a right to seek 
judicial review in the United States district court in the district in 
which they reside or have their principal place of business, the 
district in which the Board records are situated or the District of 
Columbia. The requester may be asked to forego judicial review until 
determination of the appeal.


Sec.  1208.3  Proactive disclosure of information.

    The NMB shall, in conformance with 5 U.S.C. 552(a)(2), maintain and 
make available for public inspection, by posting on its Web site 
(unless the Board determines by order published in the Federal Register 
that such publication would be unnecessary or impracticable) the 
following information: Final opinions, including concurring and 
dissenting opinions made in representation cases; statements of policy 
and interpretation made by the NMB but not published in the Federal 
Register; administrative staff materials, such as the Representation 
Manual; frequently requested materials, defined as those released in 
response to a FOIA request and for which the Agency has received at 
least three requests or those records that because of the nature of 
their subject matter the Agency determines are likely to become the 
subject of subsequent requests; and a general index of records 
available under this section.


Sec.  1208.4  Material relating to representation function.

    (a) The documents constituting the record of a case, such as the 
notices of hearing, motions, rulings, findings upon investigation, 
determinations of craft or class, dismissals, withdrawals, and 
certifications, are matters of official record and shall be made 
available on the NMB's Web site.
    (b) This part notwithstanding, the NMB will treat as confidential 
evidence submitted in connection with the showing of interest in a 
representation dispute, including authorization cards and signature 
samples, and other personally identifying information received during 
an investigation.


Sec.  1208.5  Material relating to mediation function.

    All files, reports, letters, memoranda, and documents relating to 
the mediation function of the NMB, with the exception of procedural or 
administrative materials, such as applications, docket letters, or 
public meeting notices, in the custody of the NMB or its employees 
relating to or acquired in their mediatory capacity under the Railway 
Labor Act are hereby declared to be confidential. No such confidential 
documents or the material contained therein shall be disclosed to any 
unauthorized person, or be taken or withdrawn, copied or removed from 
the custody of the NMB or its employees by any person or by any agent 
of such person or their representative without the explicit consent of 
the NMB.


Sec.  1208.6  Fees under the Freedom of Information Act.

    (a) In general. The NMB will charge for processing requests under 
the FOIA in accordance with the provisions of this section and with 
Office of Management and Budget Guidelines. For purposes of assessing 
fees, the FOIA establishes three categories of requesters: (1) 
Commercial use requesters, (2) non-commercial scientific or educational 
institutions or news media requesters, and (3) all other requesters. 
Different fees are assessed depending on the category. Requesters may 
seek a fee waiver. The NMB will consider requests for fee waivers in 
accordance with the requirements in paragraph (k) of this section. To 
resolve any fee issues that arise under this section, the NMB may 
contact a requester for additional information. The NMB ordinarily will 
collect all applicable fees before sending copies of records to a 
requester. Requesters must pay fees by check or money order made 
payable to the United States Treasury.
    (b) Definitions. For purposes of this section:
    Commercial use request is a request that asks for information for a 
use or a purpose that furthers a commercial, trade, or profit interest, 
which can include furthering those interests through litigation. An 
agency's decision to place a requester in the commercial use category 
will be made on a case-by-case basis based on the requester's intended 
use of the information. The NMB will notify requesters of their 
placement in this category.
    Direct costs are those expenses that an agency incurs in searching 
for and duplicating (and, in the case of commercial use requests, 
reviewing) records in order to respond to a FOIA request. For example, 
direct costs include the salary of the employee performing the work 
(i.e., the basic rate of pay for the employee, plus 16 percent of that 
rate to cover benefits) and the cost of operating computers and other 
electronic equipment, such as photocopiers and scanners. Direct costs 
do not include overhead expenses such

[[Page 79405]]

as the costs of space, and of heating or lighting a facility.
    Duplication is reproducing a copy of a record, or of the 
information contained in it, necessary to respond to a FOIA request. 
Copies can take the form of paper, audiovisual materials, or electronic 
records, among others.
    Educational institution is any school that operates a program of 
scholarly research. A requester in this fee category must show that the 
request is made in connection with his or her role at the educational 
institution. Agencies may seek verification from the requester that the 
request is in furtherance of scholarly research, and agencies will 
advise requesters of their placement in this category.
    Noncommercial scientific institution is an institution that is not 
operated on a ``commercial'' basis, as defined in this paragraph (b) 
and that is operated solely for the purpose of conducting scientific 
research the results of which are not intended to promote any 
particular product or industry. A requester in this category must show 
that the request is authorized by and is made under the auspices of a 
qualifying institution and that the records are sought to further 
scientific research and are not for a commercial use. The NMB will 
advise requesters of their placement in this category.
    Representative of the news media is any person or entity that 
gathers information of potential interest to a segment of the public, 
uses its editorial skills to turn the raw materials into a distinct 
work, and distributes that work to an audience. The term ``news'' means 
information that is about current events or that would be of current 
interest to the public. Examples of news media entities include 
television or radio stations that broadcast ``news'' to the public at 
large and publishers of periodicals that disseminate ``news'' and make 
their products available through a variety of means to the general 
public, including news organizations that disseminate solely on the 
Internet. A request for records supporting the news-dissemination 
function of the requester will not be considered to be for a commercial 
use. ``Freelance'' journalists who demonstrate a solid basis for 
expecting publication through a news media entity will be considered as 
a representative of the news media. A publishing contract would provide 
the clearest evidence that publication is expected; however, agencies 
can also consider a requester's past publication record in making this 
determination. The NMB will advise requesters of their placement in 
this category.
    Review is the examination of a record located in response to a 
request in order to determine whether any portion of it is exempt from 
disclosure. Review time includes processing any record for disclosure, 
such as doing all that is necessary to prepare the record for 
disclosure, including the process of redacting the record and marking 
the appropriate exemptions. Review costs are properly charged even if a 
record ultimately is not disclosed. Review time also includes time 
spent both obtaining and considering any formal objection to disclosure 
made by a confidential business information submitter under section 
1208.2(b)(5), but it does not include time spent resolving general 
legal or policy issues regarding the application of exemptions.
    Search is the process of looking for and retrieving records or 
information responsive to a request. Search time includes page-by-page 
or line-by-line identification of information within records and the 
reasonable efforts expended to locate and retrieve information from 
electronic records.
    (c) Charging fees. In responding to FOIA requests, the NMB will 
charge the following fees unless a waiver or reduction of fees has been 
granted under paragraph (k) of this section. Because the fee amounts 
provided below already account for the direct costs associated with a 
given fee type, the NMB will not add any additional costs to charges 
calculated under this section. (1) Search.
    (i) Requests made by educational institutions, noncommercial 
scientific institutions, or representatives of the news media are not 
subject to search fees. The NMB will charge search fees for all other 
requesters, subject to the restrictions of paragraph (d) of this 
section. The NMB may properly charge for time spent searching even if 
it does not locate any responsive records or determines that the 
records are entirely exempt from disclosure.
    (ii) For each quarter hour spent by personnel searching for 
requested records, including electronic searches that do not require 
new programming, direct costs will be charged.
    (iii) The NMB will also charge direct costs associated with 
conducting any search that requires the creation of a new computer 
program to locate the requested records. The NMB will notify the 
requester of the costs associated with creating such a program, and the 
requester must agree to pay the associated costs before the costs may 
be incurred.
    (2) Duplication. The NMB will charge duplication fees to all 
requesters, subject to the restrictions of paragraph (d) of this 
section. The NMB will honor a requester's preference for receiving a 
record in a particular form or format where it can readily reproduce it 
in the form or format requested. Where photocopies are supplied, the 
NMB will provide one copy per request at the cost of 15 cents per page. 
For copies of records produced on tapes, disks, or other media, the NMB 
will charge the direct costs of producing the copy, including operator 
time. Where paper documents must be scanned in order to comply with a 
requester's preference to receive the records in an electronic format, 
the requester must also pay the direct costs associated with scanning 
those materials. For other forms of duplication, the NMB will charge 
the direct costs.
    (3) Review. The NMB will charge review fees to requesters who make 
commercial use requests. Review fees will be assessed in connection 
with the initial review of the record, i.e., the review conducted by 
the NMB to determine whether an exemption applies to a particular 
record or portion of a record. No charge will be made for review at the 
administrative appeal stage of exemptions applied at the initial review 
stage. However, if a particular exemption is deemed to no longer apply, 
any costs associated with the re-review of the records in order to 
consider the use of other exemptions may be assessed as review fees. 
Review fees will be charged at the same rates as those charged for a 
search under paragraph (c)(1)(ii) of this section.
    (d) Restrictions on charging fees. (1) When the NMB determines that 
a requester is an educational institution, non-commercial scientific 
institution, or representative of the news media, and the records are 
not sought for commercial use, it will not charge search fees.
    (2)(i) If the NMB fails to comply with the time limits described in 
section 1208.2(b)(1) in which to respond to a request, it may not 
charge search fees, or, in the instances of requests from requesters 
described in paragraph (d)(1) of this section, may not charge 
duplication fees, except as described in paragraph (d)(2)(ii) through 
(iv) of this section.
    (ii) If the NMB has determined that unusual circumstances as 
defined in section 1208.2(b)(2) apply and the NMB provided timely 
written notice to the requester in accordance with that section, a 
failure to comply with the time limit shall be excused for an 
additional 10 days.
    (iii) If the NMB has determined that unusual circumstances apply 
and more than 5,000 pages are necessary to

[[Page 79406]]

respond to the request, the NMB may charge search fees, or, in the case 
of requesters described in paragraph (d)(1) of this section, may charge 
duplication fees, if the following steps are taken. The NMB must have 
provided timely written notice of unusual circumstances to the 
requester in accordance with the FOIA and must have discussed with the 
requester via written mail, email, or telephone (or made not less than 
three good-faith attempts to do so) how the requester could effectively 
limit the scope of the request in accordance with 5 U.S.C. 
552(a)(6)(B)(ii). If this exception is satisfied, the NMB may charge 
all applicable fees incurred in the processing of the request.
    (iv) If a court has determined that exceptional circumstances 
exist, as defined by the FOIA, a failure to comply with the time limits 
shall be excused for the length of time provided by the court order.
    (3) No search or review fees will be charged for a quarter-hour 
period unless more than half of that period is required for search or 
review.
    (4) Except for requesters seeking records for a commercial use, the 
NMB will provide without charge:
    (i) The first 100 pages of duplication (or the cost equivalent for 
other media); and
    (ii) The first two hours of search.
    (5) No fee will be charged when the total fee, after deducting the 
100 free pages (or its cost equivalent) and the first two hours of 
search, is equal to or less than $25.
    (e) Notice of anticipated fees in excess of $25.00. (1) When the 
NMB determines or estimates that the fees to be assessed in accordance 
with this section will exceed $25.00, the Agency must notify the 
requester of the actual or estimated amount of the fees, including a 
breakdown of the fees for search, review or duplication, unless the 
requester has indicated a willingness to pay fees as high as those 
anticipated. If only a portion of the fee can be estimated readily, the 
NMB will advise the requester accordingly. If the request is not for 
noncommercial use, the notice will specify that the requester is 
entitled to the statutory entitlements of 100 pages of duplication at 
no charge and, if the requester is charged search fees, two hours of 
search time at no charge, and will advise the requester whether those 
entitlements have been provided.
    (2) If the NMB notifies the requester that the actual or estimated 
fees are in excess of $25.00, the request will not be considered 
received and further work will not be completed until the requester 
commits in writing to pay the actual or estimated total fee, or 
designates some amount of fees the requester is willing to pay, or in 
the case of a noncommercial use requester who has not yet been provided 
with the requester's statutory entitlements, designates that the 
requester seeks only that which can be provided by the statutory 
entitlements. The requester must provide the commitment or designation 
in writing, and must, when applicable, designate an exact dollar amount 
the requester is willing to pay. The NMB is not required to accept 
payments in installments.
    (3) If the requester has indicated a willingness to pay some 
designated amount of fees, but the NMB estimates that the total fee 
will exceed that amount, it will toll the processing of the request 
when it notifies the requester of the estimated fees in excess of the 
amount the requester has indicated a willingness to pay. The NMB will 
inquire whether the requester wishes to revise the amount of fees the 
requester is willing to pay or modify the request. Once the requester 
responds, the time to respond will resume from where it was at the date 
of the notification.
    (4) The NMB will make available its FOIA Public Liaison or other 
FOIA professional to assist any requester in reformulating a request to 
meet the requester's needs at a lower cost.
    (f) Charges for other services. Although not required to provide 
special services, if the NMB chooses to do so as a matter of 
administrative discretion, the direct costs of providing the service 
will be charged. Examples of such services include certifying that 
records are true copies, providing multiple copies of the same 
document, or sending records by means other than first class mail.
    (g) Charging interest. The NMB may charge interest on any unpaid 
bill starting on the 31st day following the date of billing the 
requester. Interest charges will be assessed at the rate provided in 31 
U.S.C. 3717 and will accrue from the billing date until payment is 
received by the Agency. The NMB will follow the provisions of the Debt 
Collection Act of 1982 (Public Law 97-365, 96 Stat. 1749), as amended, 
and its administrative procedures, including the use of consumer 
reporting agencies, collection agencies, and offset.
    (h) Aggregating requests. When the NMB reasonably believes that a 
requester or a group of requesters acting in concert is attempting to 
divide a single request into a series of requests for the purpose of 
avoiding fees, it may aggregate those requests and charge accordingly. 
The NMB may presume that multiple requests of this type made within a 
30-day period have been made in order to avoid fees. For requests 
separated by a longer period, the NMB will aggregate them only where 
there is a reasonable basis for determining that aggregation is 
warranted in view of all the circumstances involved. Multiple requests 
involving unrelated matters cannot be aggregated.
    (i) Advance payments. (1) For requests other than those described 
in paragraphs (i)(2) or (i)(3) of this section, the NMB will not 
require the requester to make an advance payment before work is 
commenced or continued on a request. Payment owed for work already 
completed (i.e., payment before copies are sent to a requester) is not 
an advance payment.
    (2) When the NMB determines or estimates that a total fee to be 
charged under this section will exceed $250.00, it may require that the 
requester make an advance payment up to the amount of the entire 
anticipated fee before beginning to process the request. The NMB may 
elect to process the request prior to collecting fees when it receives 
a satisfactory assurance of full payment from a requester with a 
history of prompt payment.
    (3) Where a requester has previously failed to pay a properly 
charged FOIA fee within 30 calendar days of the billing date, the NMB 
may require that the requester pay the full amount due, plus any 
applicable interest on that prior request, and it may require that the 
requester make an advance payment of the full amount of any anticipated 
fee before beginning to process a new request or continuing to process 
a pending request or any pending appeal. Where the NMB has a reasonable 
basis to believe that a requester has misrepresented the requester's 
identity in order to avoid paying outstanding fees, it may require that 
the requester provide proof of identity.
    (4) In cases in which the NMB requires advance payment, the request 
will not be considered received and further work will not be completed 
until the required payment is received. If the requester does not pay 
the advance payment within 30 calendar days after the date of the fee 
determination, the request will be closed.
    (j) Other statutes specifically providing for fees. The fee 
schedule of this section does not apply to fees charged under any 
statute that specifically requires the NMB to set and collect fees for 
particular types of records. In instances where records responsive to a 
request are subject to a statutorily-based fee schedule program, the 
NMB must inform the requester of the contact information for that 
program.

[[Page 79407]]

    (k) Requirements for waiver or reduction of fees. (1) Requesters 
may seek a waiver of fees by submitting a written application 
demonstrating how disclosure of the requested information is in the 
public interest 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.
    (2) The NMB will furnish records responsive to a request without 
charge or at a reduced rate when it determines, based on all available 
information, that the factors described in paragraphs (k)(2)(i) through 
(iii) of this section are satisfied:
    (i) Disclosure of the requested information would shed light on the 
operations or activities of the government. The subject of the request 
must concern identifiable operations or activities of the Federal 
Government with a connection that is direct and clear, not remote or 
attenuated.
    (ii) Disclosure of the requested information is likely to 
contribute significantly to public understanding of those operations or 
activities. This factor is satisfied when the following criteria are 
met:
    (A) Disclosure of the requested records must be meaningfully 
informative about government operations or activities. The disclosure 
of information that already is in the public domain, in either the same 
or a substantially identical form, would not be meaningfully 
informative if nothing new would be added to the public's 
understanding.
    (B) The disclosure must contribute to the understanding of a 
reasonably broad audience of persons interested in the subject, as 
opposed to the individual understanding of the requester. A requester's 
expertise in the subject area as well as the requester's ability and 
intention to effectively convey information to the public must be 
considered. Agencies will presume that a representative of the news 
media will satisfy this consideration.
    (iii) The disclosure must not be primarily in the commercial 
interest of the requester. To determine whether disclosure of the 
requested information is primarily in the commercial interest of the 
requester, agencies will consider the following criteria:
    (A) The NMB will identify whether the requester has any commercial 
interest that would be furthered by the requested disclosure. A 
commercial interest includes any commercial, trade, or profit interest. 
Requesters must be given an opportunity to provide explanatory 
information regarding this consideration.
    (B) If there is an identified commercial interest, the NMB must 
determine whether that is the primary interest furthered by the 
request. A waiver or reduction of fees is justified when the 
requirements of paragraphs (k)(2)(i) and (ii) of this section are 
satisfied and any commercial interest is not the primary interest 
furthered by the request. The NMB will presume that when a news media 
requester has satisfied the factors in paragraphs (k)(2)(i) and (ii) of 
this section, the request is not primarily in the commercial interest 
of the requester. Disclosure to data brokers or others who merely 
compile and market government information for direct economic return 
will not be presumed to primarily serve the public interest.
    (3) Where only some of the records to be released satisfy the 
requirements for a waiver of fees, a waiver will be granted for those 
records.
    (4) Requests for a waiver or reduction of fees should be made when 
the request is first submitted and should address the criteria 
referenced above. A requester may submit a fee waiver request at a 
later time so long as the underlying record request is pending or on 
administrative appeal. When a requester who has committed to pay fees 
subsequently asks for a waiver of those fees and that waiver is denied, 
the requester must pay any costs incurred up to the date the fee waiver 
request was received.


Sec.  1208.7  Subpoenas and other requests for testimony and production 
of documents in legal proceedings where the NMB is not a party.

    (a) In legal proceedings between private litigants, a subpoena or 
other demand for the production of records held by the Agency or for 
oral or written testimony of a current or former NMB employee should be 
addressed to the General Counsel, National Mediation Board, 1301 K 
Street NW., Suite 250E, Washington, DC 20005. No other official or 
employee of the NMB is authorized to accept service of a demand or 
subpoena on behalf of the Agency.
    (b) No current or former employee may produce official records or 
information or provide testimony in response to a demand or subpoena 
unless authorized by the General Counsel.
    (c) The General Counsel may grant an employee permission to testify 
or produce official records or information in response to a demand or 
subpoena. In making this determination, the General Counsel shall 
consider whether:
    (1) Release of the requested records or testimony is prohibited 
under Sec.  1208.5;
    (2) The disclosure is appropriate under the rules of procedure 
governing the case or matter;
    (3) The requested testimony or records are privileged under the 
relevant substantive law concerning privilege;
    (4) Disclosure would violate a statute or regulation;
    (5) Disclosure would reveal trade secrets without the owner's 
consent; and
    (6) Allowing testimony or production of records would be in the 
best interest of the NMB or the United States.

    Dated: November 3, 2016.
Mary Johnson,
General Counsel, National Mediation Board.
[FR Doc. 2016-26986 Filed 11-10-16; 8:45 am]
 BILLING CODE 7550-01-P