[Federal Register: December 5, 2007 (Volume 72, Number 233)]
[Rules and Regulations]
[Page 68502-68503]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr05de07-8]
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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 Lester.Heltzer@nlrb.gov.
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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