Production or Disclosure of Information
| Published date | 28 September 2021 |
| Citation | 86 FR 53542 |
| Record Number | 2021-19906 |
| Section | Rules and Regulations |
| Court | Federal Mediation And Conciliation Service |
Federal Register, Volume 86 Issue 185 (Tuesday, September 28, 2021)
[Federal Register Volume 86, Number 185 (Tuesday, September 28, 2021)]
[Rules and Regulations]
[Pages 53542-53550]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-19906]
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FEDERAL MEDIATION AND CONCILIATION SERVICE
29 CFR Part 1401
RIN 3076-AA13
Production or Disclosure of Information
AGENCY: Federal Mediation and Conciliation Service.
ACTION: Final rule.
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SUMMARY: The Federal Mediation and Conciliation Service (FMCS) issues a
final rule amending its existing regulations under the Freedom of
Information Act (``FOIA'') to reflect amendments to the FOIA by the
Freedom of Information Improvement Act of 2016 (the ``FOIA Improvement
Act'').
DATES: This final rule is effective September 28, 2021.
FOR FURTHER INFORMATION CONTACT: Alisa Silverman, Attorney-Advisor,
Office of General Counsel, Federal Mediation and Conciliation Service,
250 E St. SW, Washington, DC 20427; Office/Fax/Mobile 202-606-5488;
[email protected].
SUPPLEMENTARY INFORMATION:
I. Background
The FOIA was enacted to give the public a right to access records
held by the executive branch that, although not classified, were not
otherwise available to them. Since its enactment in 1966, the FOIA has
been amended on a number of occasions to adapt to the times and
changing priorities. On June 30, 2016, President Obama signed the
Freedom of Information (``FOIA'') Improvement Act of 2016 (the ``FOIA
Improvement Act''). Among other things, the FOIA Improvement Act
requires that agencies (i) make records that have been both released
previously and requested three or more times available to the public in
electronic format, (ii) establish a minimum of ninety days for
requestors to appeal an adverse determination, and (iii) provide, or
direct requestors to, dispute resolution services at various times
throughout the FIOA process. The FOIA Improvement Act also updates how
agencies may charge search duplication and review fees. After
undertaking a review of its FOIA regulations in accordance with the
FOIA Improvement Act, FMCS is revising its FOIA regulations, 29 CFR
part 1401, subpart B, to incorporate the statutory mandates.
II. Discussion of Amendments Section by Section
The following paragraphs describe the specific changes adopted by
this rulemaking.
In Sec. 1401.20, FMCS removes the current language to add language
that ensures this section is read with the text of the FOIA and the
Uniform Freedom of Information Act Fee Schedule and Guidelines
published by the Office of Management and Budget (``OMB Guidelines'').
The added language will also align with the Privacy Act of 1974, 5
U.S.C. 552a, for requests made by individuals.
In Sec. 1401.21, FMCS removes the current language in paragraph
(a) to add language to include requirements that will make requests
available for public inspection on its website if the information has
been requested for 3 or
[[Page 53543]]
more times and to make the public aware that FMCS has a FOIA Public
Liaison that will locate records for a request. FMCS removes language
in paragraph (b) to add language to account for the foreseeable harm
threshold standard that gives FMCS the ability to withhold information
if FMCS ``reasonably foresees'' the information would harm interest
protected by an exemption or otherwise allowed by law. FMCS removes
language in paragraph (c) to add language regarding partial
disclosures, full disclosures, and inextricably intertwined records.
FMCS removes paragraphs (d) and (e) becomes the new paragraph (d).
In Sec. 1401.22, FMCS removes the current language to add the
section titled Requirements for Making Requests. It adds paragraphs
(a)(1), (2), and (3), (b), (c), and (d) to include FMCS' contact
information for making requests, requester requirements, requests from
requesters seeking information pertaining to another individual, what
information should be included in a request and the preferred format,
and requester providing contact information for requests.
In Sec. 1401.23, FMCS removes the current language to add the
section titled Responsibility for Responding to Requests. It adds
paragraphs (a), (b), (c) introductory text, (c)(1), (2), and (3), (d),
and (e) to include information regarding FMCS' responsibilities in
responding to requests.
FMCS adds the following sections in accordance with the 2016 FOIA
Improvement Act:
Sec. 1401.24 Timing of responses to requests.
Sec. 1401.25 Responses to requests.
Sec. 1401.26 Confidential commercial information
(``CCI'').
Sec. 1401.27 Appeals.
Sec. 1401.28 Preservation of records.
Sec. 1401.29 Fees.
In Sec. 1401.30, FMCS removes the current language to add language
that doesn't entitle any person to service or disclosure of any records
which a person isn't entitled to under the FOIA.
FMCS removes Sec. Sec. 1401.31, 1401.32, 1401.33, 1401.34,
1401.35, and 1401.36 because the information in these sections was
consolidated into other sections in revised subpart B.
III. Rulemaking Procedure
Under the Administrative Procedures Act (5 U.S.C. 553(b)), an
agency may waive the normal notice and comment requirements if it
finds, for good cause, that they are impracticable, unnecessary, or
contrary to the public interest. As authorized by 5 U.S.C.
553(b)(3)(B), FMCS finds good cause the waive notice and opportunity
for comment on the amendments. Notice and opportunity for comment are
unnecessary, because the FMCS is issuing this final rule for the
limited purpose of complying with specific direction in the Act
requiring agencies to update their FOIA regulations in accordance with
the Act, and the final rule updates FMCS regulations only as necessary
to bring them into compliance with the Act.
IV. Plain Writing
The Plain Writing Act of 2010 (Pub. L. 111-274) requires Federal
agencies to write documents in a clear, concise, and well-organized
manner. FMCS has written this document to be consistent with the Plain
Writing Act as well as the Presidential Memorandum, ``Plain language in
Government Writing,'' published June 10, 1998 (62 FR 31883).
V. National Environmental Policy Act
FMCS has determined that this final rule is the type of action
described in categorical exclusion 10 CFR 51.22(c)(1). Therefore,
neither an environmental impact statement nor an environmental
assessment has been prepared for this final rule.
VI. Paperwork Reduction Act
This final rule does not contain a collection of information as
defined in the Paperwork Reduction Act of 1995 (44 U.S.C. 33501 et
seq.) and, therefore, is not subject to the requirements of the
Paperwork Reduction Act of 1995.
VII. Congressional Review Act
This final rule is a rule defined in the Congressional Review Act
(5 U.S.C. 801-808). However, the Office of Management and Budget has
not found it to be a major rule as defined in the Congressional Review
Act.
List of Subjects in 29 CFR Part 1401
Administrative practice and procedure, Fees, Freedom of
information, Privacy.
For the reasons discussed in the preamble, and under the authority
29 U.S.C. 172 of the Taft Harley Act of 1947 and the FOIA Improvement
Act, FMCS amends 29 CFR part 1401 as follows:
PART 1401--PUBLIC INFORMATION
0
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.
0
2. Revise subpart B to read as follows:
Subpart B--Production or Disclosure of Information
Sec.
1401.20 Purpose and scope.
1401.21 Proactive disclosures and other disclosure requirements.
1401.22 Requirements for making requests.
1401.23 Responsibility for responding to requests.
1401.24 Timing of responses to requests.
1401.25 Responses to requests.
1401.26 Confidential commercial information (``CCI'').
1401.27 Appeals.
1401.28 Preservation of records.
1401.29 Fees.
1401.30 Other rights and services.
Sec. 1401.20 Purpose and scope.
This subpart contains the rules that the Federal Mediation and
Conciliation Service (``FMCS'' or ``the Agency'') follows in processing
requests for records under the Freedom of Information Act (``FOIA''), 5
U.S.C. 552. The regulations in this subpart should be read in
conjunction with the text of the FOIA and the Uniform Freedom of
Information Act Fee Schedule and Guidelines published by the Office of
Management and Budget (``OMB Guidelines''). Requests made by
individuals for records about themselves under the Privacy Act of 1974,
5 U.S.C. 552a, are processed in accordance with Privacy Act criteria as
well as under this subpart.
Sec. 1401.21 Proactive disclosures and other disclosure requirements.
(a) The FMCS will make available for public inspection in an
electronic format on the Agency's website any record that has been
requested 3 or more times. The Agency has a FOIA Public Liaison who can
assist individuals in locating records particular to an agency. The
FMCS FOIA Public Liaison's contact information is available on the FMCS
FOIA web page (www.fmcs.gov/foia).
(b) The FMCS will withhold information under FOIA only if the
Agency ``reasonably foresees'' that disclosure would harm an interest
protected by an exemption or as otherwise allowed by law.
(c) Partial disclosures are appropriate for use by the FMCS when
full disclosure is inappropriate or impossible. If a record contains
both disclosable and exempt information, the exempt information will be
redacted and the remaining record will be disclosed unless the two are
so inextricably intertwined that it is not possible to separate them.
Records disclosed in part shall be marked or annotated to show both the
amount and
[[Page 53544]]
the location of the information redacted and the applicable exemption.
(d) All existing FMCS records are subject to disposition according
to Agency record retention schedules and the General Records Schedules
promulgated by the National Archives and Records Administration.
Sec. 1401.22 Requirements for making requests.
(a) General information. (1) A requester can submit requests
through one of the following ways: Submitting a request through the
public portal on the FMCS FOIA website; sending an electronic request
to the Office of General Counsel, [email protected]; or writing directly to
the FMCS FOIA office at 250 E Street SW, Washington, DC 20427. Any
additional requirements for submitting a request to the Agency are
listed in paragraphs (a)(2) and (3) of this section and in the
submitted form available by selecting ``FOIA'' at the bottom of the
FMCS website www.fmcs.gov/foia.
(2) A requester who is making a request for records about the
requester must comply with the verification of identity requirements as
determined by the FMCS to include providing documentation and
completing a verification of identity form.
(3) Where a request for records pertains to another individual, a
requester may receive greater access by submitting either a notarized
authorization signed by that individual or a declaration made in
compliance with the requirements set forth in 28 U.S.C. 1746 by that
individual authorizing disclosure of the records to the requester, or
by submitting proof that the individual is deceased (e.g., a copy of a
death certificate or an obituary). As an exercise of administrative
discretion, the Agency can require a requester to supply additional
information, if necessary, to verify that a particular individual has
consented to disclosure.
(b) Description of records sought. Requesters must describe the
records sought in sufficient detail to enable agency personnel to
locate them with a reasonable amount of effort. To the extent possible,
requesters should include specific information that may help the Agency
identify the requested records, such as the date, title or name,
author, recipient, subject matter of the record, case number, file
designation, or reference number. Before submitting requests,
requesters may contact the Agency's FOIA Public Liaison, as identified
at www.fmcs.gov/foia, to discuss the records they seek and to receive
assistance in describing the records. If after receiving a request the
FMCS determines that it does not reasonably describe the records
sought, the FMCS will inform the requester what additional information
is needed or why the request is otherwise insufficient. If a request
does not reasonably describe the records sought, the FMCS's response to
the request may be delayed.
(c) Format for requests. Requests may specify the preferred form or
format (including electronic formats) for the records. The FMCS will
accommodate the request if the record is readily reproducible in that
form or format.
(d) Content of requests. Requesters must provide contact
information, such as their full name, organization, phone number, email
address, and/or mailing address, to assist the Agency in communicating
with them and providing released records.
Sec. 1401.23 Responsibility for responding to requests.
(a) In general. Where the FMCS first receives a request for a
record and maintains that record, it is responsible for responding to
the request. In determining which records are responsive to a request,
the Agency ordinarily will include only records in its possession as of
the date that it begins its search. If any other date is used, the
Agency must inform the requester of that date. If the FMCS uses any
other date due to needing to clarify the request or obtain a fee
agreement, it must inform the requester of that date. A record that is
excluded from the requirements of the FOIA, pursuant to 5 U.S.C.
552(c), is not considered responsive to a request.
(b) Authority to grant or deny requests. The Director of FMCS or
designee is authorized to grant or to deny any requests for records
that are maintained by the Agency.
(c) Consultation, referral, and coordination. When reviewing
records in response to a request, the Agency will determine whether
another agency of the Federal Government is better able to determine
whether the record is exempt from disclosure under the FOIA. As to any
such record, the Agency must proceed in one of the following ways:
(1) Consultation. When records originated with the agency
processing the request but contain information of interest to another
agency or other Federal Government office, the FMCS will generally
consult with that other entity prior to making a release determination.
(2) Referral. (i) Ordinarily, when the FMCS is the originating
agency, it is presumed to be in the best position to make the
disclosure determination. When the FMCS believes that a different
agency is best able to determine whether to disclose the record, the
FMCS typically will request the other agency make the final response to
the requester.
(ii) Whenever the FMCS refers any part of the responsibility for
responding to a request to another agency, it will document the
referral, maintain a copy of the record that it refers, and notify the
requester of the referral, informing the requester of the name(s) of
the agency to which the record was referred, including that agency's
FOIA contact information.
(3) Coordination. The standard referral procedure in paragraph
(c)(2) of this section will not be followed where disclosure of the
identity of the agency to which the referral would be made could harm
an interest protected by an applicable exemption, such as the
exemptions that protect personal privacy or national security
interests. In such instances, FMCS would coordinate with the
originating agency to seek its views on whether the records should be
exempt from disclosure. FMCS will issue the final response to the
requester.
(d) Classified information. On receipt of any request involving
classified information, the FMCS will determine whether the information
is currently and properly classified in accordance with applicable
classification rules. Whenever a request involves a record containing
information that has been classified or may be appropriate for
classification by another agency under any applicable executive order
concerning the classification of records, FMCS must refer the
responsibility for responding to the request regarding that information
to the agency that classified the information, or that should consider
the information for classification. Whenever the FMCS's record contains
information that has been derivatively classified (for example, when it
contains information classified by another agency), the FMCS must refer
the responsibility for responding to that portion of the request to the
agency that classified the underlying information.
(e) Timing of responses to consultations and referrals. All
consultations and referrals received by the FMCS will be handled
according to the date that the first agency received the perfected FOIA
request.
Sec. 1401.24 Timing of responses to requests.
(a) In general. The FMCS ordinarily will respond to requests
according to their order of receipt. A request may be made directly to
the FMCS by referring to procedures described on
[[Page 53545]]
www.fmcs.gov or by email to [email protected].
(b) Timing of response. The obligation to respond to a request for
records arises on the first business day when the request is received
by the Office of General Counsel.
(c) Multi-track processing. FMCS designates a specific track for
requests that are granted expedited processing, in accordance with the
standards set forth in paragraph (e) of this section. FMCS may also
designate additional processing tracks that distinguish between simple
and more complex requests based on the estimated amount of work or time
needed to process the request. Among the factors an agency may consider
are the number of records requested, the number of pages involved in
processing the request, and the need for consultations or referrals.
FMCS must advise requesters of the track into which their request falls
and, when appropriate, should offer the requesters an opportunity to
narrow or modify their request so that it can be placed in a different
processing track.
(d) Unusual circumstances. Whenever the FMCS cannot meet the
statutory time limit for processing a request because of ``unusual
circumstances,'' as defined in the FOIA, and the FMCS extends the time
limit on that basis, the FMCS must, before expiration of the 20-day
response period, notify the requester in writing of the unusual
circumstances involved and of the date by which the Agency estimates it
will complete processing of the request. Where the extension exceeds 10
working days, the FMCS will provide the requester with an opportunity
to modify the request or arrange an alternative time period for
processing the original or modified request. The FMCS will make
available its designated FOIA contact or its FOIA Public Liaison for
this purpose. The name and contact information for the FMCS's FOIA
Public Liaison is available at www.fmcs.gov by selecting FOIA at the
bottom of the screen. FMCS will also alert requesters to the
availability of the Office of Government Information Services to
provide dispute resolution services. Whenever the FMCS extends the time
limits by more than ten additional working days, the FMCS must notify
the requester of the right to seek dispute resolution services from the
Office of the Government Information Services (OGIS).
(e) Aggregating requests. To satisfy unusual circumstances under
the FOIA, agencies may aggregate requests in cases where it reasonably
appears that multiple requests, submitted either by a requester or by a
group of requesters acting in concert, constitute a single request that
would otherwise involve unusual circumstances. Agencies cannot
aggregate multiple requests that involve unrelated matters.
(f) Expedited processing. (1) The Agency will process requests and
appeals on an expedited basis whenever it is determined that they
involve:
(i) Circumstances in which the lack of expedited processing 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 made by a person who is primarily
engaged in disseminating information.
(2) A request for expedited processing may be made at any time.
When making a request for expedited processing of an administrative
appeal, the request should be submitted to the FMCS's Office of the
Director via [email protected] or through the online portal located at
www.fmcs.gov/foia.
(3) A requester who seeks expedited processing must submit a
statement, certified to be true and correct, explaining in detail the
basis for making the request for expedited processing. For example,
under paragraph (c) of this section, a requester who is not a full-time
member of the news media must establish that the requester is a person
whose primary professional activity or occupation is information
dissemination, though it need not be the requester's sole occupation.
Such a requester also must establish a particular urgency to inform the
public about the government activity involved in the request--one that
extends beyond the public's right to know about government activity
generally. The existence of numerous articles published on a given
subject can be helpful in establishing the requirement that there be an
``urgency to inform'' the public on the topic. As a matter of
administrative discretion, the FMCS may waive the formal certification
requirement in this paragraph (f)(3).
(4) The FMCS must notify the requester within 10 calendar days of
the receipt of a request for expedited processing of its decision
whether to grant or deny expedited processing. If expedited processing
is granted, the request must be given priority, placed in the
processing track for expedited requests, and must be processed as soon
as practicable. If a request for expedited processing is denied, the
FMCS must act on any appeal of that decision expeditiously.
Sec. 1401.25 Responses to requests.
(a) In general. To the extent practicable, the FMCS will
communicate electronically with requesters.
(b) Acknowledgments of requests. The FMCS will acknowledge a
request in writing and assign it an individualized tracking number if
it will take longer than 10 working days to process.
(c) Estimated dates of completion and interim responses. Upon
request, the Agency will provide an estimated date by which it expects
to provide a response to the requester. If a request involves a
voluminous amount of material, or searches in multiple locations, the
FMCS may provide interim responses, releasing the records on a rolling
basis.
(d) Grants of requests (fees). Once the Agency determines it will
grant a request in full or in part, it will notify the requester in
writing. The Agency will also inform the requester of any fees charged
under Sec. 1401.30 and will disclose the requested records to the
requester promptly upon payment of any applicable fees. The Agency will
inform the requester of the availability of its FOIA Public Liaison to
offer assistance.
(e) Adverse determinations of requests. If the Agency makes an
adverse determination denying a request in any respect, it must notify
the requester of that determination in writing. Adverse determinations,
or denials of requests, include decisions that: The requested record is
exempt, in whole or in part; the request does not reasonably describe
the records sought; the information requested is not a record subject
to the FOIA; the requested record does not exist, cannot be located, or
has been destroyed; or the requested record is not readily reproducible
in the form or format sought by the requester. Adverse determinations
also include denials involving fees or fee waiver matters or denials of
requests for expedited processing.
(f) Content of denial. The denial must be signed by the head of the
Agency or designee and must include:
(1) The name and title or position of the person responsible for
the denial;
(2) A brief statement of the reasons for the denial, including any
FOIA exemption applied by the Agency in denying the request;
(3) An estimate of the volume of any records or information
withheld, such as the number of pages or some other reasonable form of
estimation, although such an estimate is not required if the volume is
otherwise indicated by deletions marked on records that are
[[Page 53546]]
disclosed in part or if providing an estimate would harm an interest
protected by an applicable exemption;
(4) A statement that the denial may be appealed under Sec.
1401.27, and a description of the appeal requirements; and
(5) A statement notifying the requester of the assistance available
from the Agency's FOIA Public Liaison, and the dispute resolution
services offered by Office of Government Information Services.
(g) Markings on released documents. Records disclosed in part must
be marked clearly to show the amount of information redacted and the
exemption under which the redaction was made unless doing so would harm
an interest protected by an applicable exemption. The location of the
information redacted must also be indicated on the record, if
technically feasible.
(h) Use of record exclusions. (1) In the event the FMCS identifies
records that may be subject to exclusion from the requirements of the
FOIA pursuant to 5 U.S.C. 552(c), the Agency will confer with
Department of Justice, Office of Information Policy (OIP), to obtain
approval to apply the exclusion.
(2) In the event the FMCS applies an exclusion, it will maintain an
administrative record of the process of invocation and approval of the
exclusion by OIP.
Sec. 1401.26 Confidential commercial information (``CCI'').
(a) Definitions. For purposes of this section:
Confidential commercial information means information obtained by
the FMCS from a submitter that may be protected from disclosure under
Exemption 4 of the FOIA, 5 U.S.C. 552(b)(4).
Submitter means any person or entity, including a corporation,
State, or foreign government, but not including another Federal
Government entity, that provides confidential commercial information,
either directly or indirectly to the Federal Government.
(b) Designation of confidential commercial information. A submitter
of confidential commercial information must use good faith efforts to
designate by appropriate markings, at the time of submission, 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.
(c) When notice to submitters is required. (1) The FMCS will
promptly notify the submitter in writing whenever such confidential
commercial information is requested under the FOIA and the Agency
determines that it may be required to disclose the information,
provided:
(i) The requested information has been designated in good faith by
the submitter as information considered protected from disclosure under
Exemption 4; or
(ii) The FMCS has a reason to believe that the requested
information may be protected from disclosure under Exemption 4, but has
not yet made that determination.
(2) The notice must either describe the commercial information
requested or include a copy of the requested records or portions of
records containing the information. In cases involving a voluminous
number of submitters, the Agency may post or publish a notice in a
place or manner reasonably likely to inform the submitters of the
proposed disclosure, instead of sending individual notifications.
(d) Exceptions to submitter notice requirements. The notice
requirements of this section do not apply if:
(1) The Agency determines that the information is exempt under the
FOIA, or the information has been lawfully published or has been
officially made available to the public;
(2) Disclosure of the information is required by a statute other
than the FOIA or by a regulation issued in accordance with the
requirements of Executive Order 12600 of June 23, 1987; or
(3) The designation made by the submitter appears obviously
frivolous.
(e) Opportunity to object to disclosure. (1) The FMCS must specify
a reasonable time period within which the submitter must respond to the
notice referenced in paragraph (c) of this section.
(2) If a submitter has any objections to disclosure, it should
provide the Agency a detailed written statement that specifies all
grounds for withholding the particular information under any exemption
of the FOIA. In order to rely on Exemption 4 as the basis for
nondisclosure, the submitter must explain why the information
constitutes a trade secret or commercial or financial information that
is privileged or confidential.
(3) A submitter who fails to respond within the time period
specified in the notice will be considered to have no objection to
disclosure of the information. The FMCS is not required to consider any
information received after the date of any disclosure decision. Any
information provided by a submitter under this subpart may itself be
subject to disclosure under the FOIA.
(f) Analysis of objections. The Agency must consider a submitter's
objections and specific grounds for nondisclosure in deciding whether
to disclose the requested information.
(g) Notice of intent to disclose. Whenever the FMCS decides to
disclose information over the objection of a submitter, it must provide
the submitter written notice, which must include:
(1) A statement of the reasons why each of the submitter's
disclosure objections was not sustained;
(2) A description of the information to be disclosed or copies of
the records as the Agency intends to release them; and
(3) A specified disclosure date, which must be within a reasonable
time after the notice.
(h) Notice of FOIA lawsuit. Whenever a requester files a lawsuit
seeking to compel the disclosure of confidential commercial
information, the Agency must promptly notify the submitter.
(i) Requester notification. The Agency must notify the requester
whenever it provides the submitter with notice and an opportunity to
object to disclosure; whenever it notifies the submitter of its intent
to disclose the requested information; and whenever a submitter files a
lawsuit to prevent the disclosure of the information.
Sec. 1401.27 Appeals.
(a) Requirements for making an appeal. A requester may appeal any
adverse determinations to the Agency's Deputy Director, FOIA Appeal,
Federal Mediation and Conciliation Service, 250 E Street SW,
Washington, DC 20427; [email protected]. Requesters can submit appeals by
mail, email, or via the online portal at www.fmcs.gov/foia. The
requester must make the appeal in writing, clearly identifying the
grounds therefore and providing any supporting documentation. To be
considered timely it must be postmarked or, in the case of electronic
submissions, transmitted within 90 calendar days after the date of the
response. The appeal should clearly identify the determination that is
being appealed and the assigned request number, if known. To facilitate
handling, the requester should mark both the appeal letter and
envelope, or subject line of the electronic transmission, ``Freedom of
Information Act Appeal.''
(b) Adjudication of appeals. An appeal ordinarily will not be
adjudicated if the request becomes a matter of FOIA litigation.
(c) Decisions on appeals. The Deputy Director of the FMCS or
designee will provide a decision on an appeal. A
[[Page 53547]]
decision that upholds the FMCS's determination in whole or in part must
contain a statement that identifies the reasons for the affirmance,
including any FOIA exemptions applied. The decision must provide the
requester with notification of the statutory right to file a lawsuit
and will inform the requester of the dispute resolution services
offered by the OGIS as a non-exclusive alternative to litigation. If
the decision is remanded or modified on appeal, the Deputy Director
will notify the requester of that determination in writing. The Office
of General Counsel will then further process the request in accordance
with that appeal determination and will respond directly to the
requester. Alternatively, the Deputy Director may decide to modify the
decision and decide the appeal on its merits in a single step.
(d) Engaging in dispute resolution services provided by OGIS.
Dispute resolution is a voluntary process. If the Agency agrees to
participate in the dispute resolution services provided by OGIS, the
Deputy Director or designee will participate on behalf of the FMCS.
(e) When appeal is required. Before seeking review by a court of
the Agency's adverse determination, a requester generally must first
submit a timely administrative appeal.
Sec. 1401.28 Preservation of records.
The FMCS must preserve all correspondence pertaining to the
requests that it receives under this subpart, as well as copies of all
requested records, until final disposition of the ``request'' case: No
sooner than 91 days after the final response is sent to the requester
to allow for a timely appeal. The Agency must not dispose of or destroy
records while they are the subject of a pending request, appeal, or
lawsuit under the FOIA.
Sec. 1401.29 Fees.
(a) In general. (1) The FMCS will charge for processing requests
under the FOIA in accordance with the provisions of this section and
with the OMB Guidelines. For purposes of assessing fees, the FOIA
establishes three categories of requesters:
(i) Commercial use requesters;
(ii) Non-commercial scientific or educational institutions or news
media requesters; and
(iii) All other requesters.
(2) Different fees are assessed depending on the category.
Requesters may seek a fee waiver. The Agency will consider requests for
fee waivers in accordance with the requirements in subsection (k) of
the FOIA. To resolve any fee issues that arise under this section, the
FMCS may contact a requester for additional information. The Agency is
to conduct searches, review, and duplication in an efficient and cost-
effective manner. The FMCS 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 Treasury of the United
States, or by another method as determined by the Agency.
(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. The
FMCS'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 Agency 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 electronic equipment,
such as photocopiers and scanners. Direct costs do not include overhead
expenses such 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 the requester's role at the
educational institution. The FMCS may seek verification from the
requester that the request is in furtherance of scholarly research and
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 FMCS 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, the Agency can also
consider a requester's past publication record in making this
determination. The Agency 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 commercial information submitter under Sec.
1401.26, 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 Agency will
charge
[[Page 53548]]
the following fees unless a waiver or reduction of fees has been
granted under paragraph (k) of this section. Because the fee amounts
provided in paragraphs (c)(1) through (3) of this section already
account for the direct costs associated with a given fee type, the FMCS
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 FMCS will charge search fees
for all other requesters, subject to the restrictions of paragraph (d)
of this section. The Agency may properly charge for time spent
searching even if it does not locate any responsive records or if the
Agency 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, the fees will be charged as follows:
(A) The Agency will charge the direct costs associated with
conducting any search that requires the creation of a new computer
program to locate the requested records. The Agency 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.
(B) For requests that require the retrieval of records stored by
the Agency at a Federal records center operated by the National
Archives and Records Administration (NARA), the Agency will charge
additional costs in accordance with the Transactional Billing Rate
Schedule established by NARA.
(2) Duplication. The FMCS will charge duplication fees to all
requesters, subject to the restrictions of paragraph (d) of this
section. The Agency must honor a requester's preference for receiving a
record in a particular form or format where the Agency can readily
reproduce it in the form or format requested. Where photocopies are
supplied, the Agency will provide one copy per request at cost ($0.05
per page). For copies of records produced on tapes, disks, or other
media, the FMCS 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 Agency will charge the direct costs.
(3) Review. The Agency 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 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 Agency's 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 FMCS 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) FMCS cannot charge fees:
(i) If the Agency fails to comply with the FOIA's time limits 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
paragraphs (d)(2)(ii) through (iv) of this section.
(ii) If the Agency has determined that unusual circumstances as
defined by the FOIA apply and the Agency provided timely written notice
to the requester in accordance with the FOIA, a failure to comply with
the time limit shall be excused for an additional 10 days.
(iii) If the Agency has determined that unusual circumstances, as
defined by the FOIA, apply and more than 5,000 pages are necessary to
respond to the request, the Agency 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 Agency
must have provided timely written notice of unusual circumstances to
the requester in accordance with the FOIA, and the Agency 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 the exception in this
paragraph (d)(2)(iii) is satisfied, the Agency 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
FMCS 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 $25.00.
(e) Notice of anticipated fees in excess of $25.00. (1) When the
FMCS 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
Agency will advise the requester accordingly. If the request is 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 the notice will advise the requester
whether those entitlements have been provided.
(2) If the Agency 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 FMCS is not required to accept
payments in installments.
[[Page 53549]]
(3) If the requester has indicated a willingness to pay some
designated amount of fees, but the Agency estimates that the total fee
will exceed that amount, the Agency 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
Agency 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 FMCS 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 Agency 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 Agency 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 Agency will follow the provisions of the
Debt Collection Act of 1982 (Pub. L. 97-365, 96 Stat. 1749), as
amended, and its administrative procedures, including the use of
consumer reporting agencies, collection agencies, and offset (see 29
CFR part 1450).
(h) Aggregating requests. When the FMCS 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, the Agency may aggregate those requests and charge
accordingly. The Agency 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 Agency 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 paragraph (i)(2) or (3) of this section, the Agency cannot require
the requester to make an advance payment before work on a request
starts or continues. Payment owed for work already completed (i.e.,
payment before copies are sent to a requester) is not an advance
payment.
(2) When the Agency 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 Agency 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 to the Agency within 30 calendar days of the billing
date, the Agency may require that the requester pay the full amount
due, plus any applicable interest on that prior request, and the Agency
may require that the requester make an advance payment of the full
amount of any anticipated fee before the Agency begins to process a new
request or continues to process a pending request or any pending
appeal. Where the Agency 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 Agency 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 Agency's 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 an agency 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 Agency must inform the requester of the contact information for
that program.
(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 Agency must 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. The FMCS 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, the Agency will consider the following criteria:
(A) The FMCS must 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 Agency 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
[[Page 53550]]
not the primary interest furthered by the request. The Agency
ordinarily will presume that when a news media requester has satisfied
paragraphs (k)(2)(i) and (ii), 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 must be granted for those
records.
(4) Requests for a waiver or reduction of fees should be made when
the request is first submitted to the Agency and should address the
criteria referenced in paragraphs (k)(1) and (2) of this section. 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. 1401.30 Other rights and services.
Nothing in this subpart shall be construed to entitle any person,
as of right, to any service or to the disclosure of any record to which
such person is not entitled under the FOIA.
Dated: September 10, 2021.
Sarah Cudahy,
General Counsel.
[FR Doc. 2021-19906 Filed 9-27-21; 8:45 am]
BILLING CODE 6732-01-P
