[Federal Register: November 5, 2007 (Volume 72, Number 213)]
[Proposed Rules]
[Page 62417-62419]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr05no07-11]
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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). FMCS received no comments when the
proposed rule was published in 1999. FMCS is 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 December 5, 2007.
ADDRESSES: Submit written comments by mail to the Office of Information
and Regulatory Affairs, Human Resources and Housing Branch, Office of
Management and Budget, New Executive Office Building, Room 10235,
Washington, DC 20503.
FOR FURTHER INFORMATION CONTACT: Michael J. Bartlett, Office of the
General Counsel, Federal Mediation and Conciliation Service, 2100 K
Street,
[[Page 62418]]
NW., Washington, DC 20427. Telephone: (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
Administrative practice and procedure, Freedom of information.
For the reasons stated in the preamble, FMCS proposes to amend 29
CFR part 1401 as follows:
PART 1401--PUBLIC INFORMATION
1. The authority citation for part 1401 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 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 to read 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 foia@fmcs.gov.
(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 paragraph (b) and by adding in their place ``Office of the
General Counsel.''
8. Amend Sec. 1401.34 as follows:
A. Revise paragraph (a) and (b) introductory text.
B. Remove paragraph (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 (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.
* * * * *
(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
[[Page 62419]]
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.
* * * * *
(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 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 of ``Chief of Staff'' in its place.
10. Amend Sec. 1401.36 as follows:
A. Remove the word ``the'' between ``foregoing'' and ``schedules''
and add the words ``other than those related to arbitration'' between
``services'' and ``which'' in paragraph (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) * * *
(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.
* * * * *
(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) of this section), 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 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: October 30, 2007.
Michael J. Bartlett,
Deputy General Counsel.
[FR Doc. E7-21629 Filed 11-2-07; 8:45 am]
BILLING CODE 6732-01-P