[Federal Register Volume 77, Number 215 (Tuesday, November 6, 2012)]
[Rules and Regulations]
[Pages 66539-66541]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-26585]



29 CFR Part 1401

RIN 3076-AA06

Freedom of Information Act Regulations

AGENCY: Federal Mediation and Conciliation Service.

ACTION: Final rule.


SUMMARY: This final rule amends the Federal Mediation and Conciliation 
Service (FMCS) rules relating to the Freedom of Information Act (FOIA). 
The final rule 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 final rule updates its fee 
schedule. FMCS is also updating the names and addresses of the various 
offices within the agency responsible for FOIA related activities.

DATES: This final rule is effective December 6, 2012.

FOR FURTHER INFORMATION CONTACT: Jeannette Walters-Marquez, Attorney-
Advisor, Office of the General Counsel, Federal Mediation and 
Conciliation Service, 2100 K Street NW., Washington, DC 20427. 
Telephone: (202) 606-5488.

SUPPLEMENTARY INFORMATION: FMCS amends its regulations at 29 CFR Part 
1401, Subpart B under FOIA, 5 U.S.C. 552. The primary focus of these 
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(c) (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).
    Revisions to the FMCS fee schedule can be found at Sec.  
1401.36(b)(1)(i), (ii), (iv), and (b)(3)(v). The duplication charge 
remains 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 1401.24 and 1401.37 are being removed because they are 
neither required by law nor necessary to interpret the law.


    On August 3, 2007, FMCS published a Notice of Proposed Rulemaking 
(NPRM) proposing changes to its rule relating to FOIA procedures and 
updating its fee schedule. FMCS did not receive any comments relating 
to the NPRM.
    FMCS is adopting the final rule with two significant changes from 
that which was proposed. The final rule withdraws its proposed revision 
to Sec.  1401.35 which would have transferred some of the FOIA 
responsibilities from the FMCS Deputy Director to the Chief of Staff. 
It was determined that the current structure in which the FMCS Deputy 
Director is the FOIA Appeals Officer is appropriate for the Agency. The 
final rule also revises the language in Sec.  1401.36(b)(4) of the 
proposed rule to reflect that waiver appeals should be filed with the 
FMCS Deputy Director instead of the Chief of Staff, as proposed by the 

List of Subjects in 29 CFR Part 1401

    Administrative practice and procedure, Freedom of information.

    For the reasons stated in the preamble, FMCS amends 29 CFR Part 
1401 as follows:


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

[[Page 66540]]

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 the first sentence of paragraph (b) and adding in their place 
``Office of the General Counsel''.
8. Amend Sec.  1401.34 as follows:
A. Revise paragraphs (a) and (b) introductory text;
B. Remove paragraphs (b)(3) and (4);
C. Revise paragraph (c);
D. Revise the paragraph designation of the second paragraph ``(b)'' to 
read ``(d)'' and revise correctly redesignated paragraph (d); and
E. Add paragraphs (e) and (f).
    The revisions and additions 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 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.
    (d) If any request for records is denied in whole or in part, the 
response required by paragraph (b) of this section shall notify the 
requester of the denial. Such denial shall specify the reason and also 
advise that the denial may be appealed to the Office of the FMCS Deputy 
Director as specified in Sec.  1401.35. In addition, such denial shall 
include an estimate of the volume of records or information withheld, 
in numbers 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 
    (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.

9. Amend Sec.  1401.36 as follows:
A. Revise paragraphs (a)(2) through (4), (b)(1)(i), (ii), and (iv), 
(b)(2)(ii), (b)(3)(v), and (b)(4) ; and
B. Remove the word ``the'' between ``forgoing'' and ``scheduling'' and 
add the words ``other than those related to arbitration'' between 
``services'' and ``which'' in paragraph (b)(2)(i).
    The revisions read 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 

[[Page 66541]]

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 paragraphs (b)(3)(ii) and 
(iii) of this section), 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) of this section). 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 
* * * * *
    (2) * * *
    (ii) For those matters coming within the scope of this regulation, 
the FMCS will look to the provisions of the guidance published by in 
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 Deputy Director. 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]

10. Remove Sec.  1401.37.

    Dated: October 24, 2012
Jeannette Walters-Marquez,
[FR Doc. 2012-26585 Filed 11-5-12; 8:45 am]