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  • News: DOL Publishes Final Rule On Revision of FOIA Regulations

    [Federal Register Volume 82, Number 13 (Monday, January 23, 2017)]
    [Rules and Regulations]
    [Pages 7666-7680]
    From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
    [FR Doc No: 2017-00453]

    =======================================================================
    -----------------------------------------------------------------------

    DEPARTMENT OF LABOR

    Office of the Secretary

    29 CFR Part 70

    RIN 1290-AA30

    Revision of FOIA Regulations

    AGENCY: Office of the Secretary, Department of Labor.

    ACTION: Final rule.

    -----------------------------------------------------------------------

    SUMMARY: This final rule amends the Department of Labor's regulations
    under the Freedom of Information Act (``FOIA''). The regulations have
    been revised to update and streamline the language of several
    procedural provisions and to incorporate changes brought about by the
    amendments to the FOIA under the OPEN Government Act of 2007 and the
    FOIA Improvement Act of 2016. Additionally, the regulations have been
    updated to incorporate changes in the agency's administrative
    structure.

    DATES: This final rule is effective January 23, 2017.

    FOR FURTHER INFORMATION CONTACT: Ramona Branch Oliver, Director, Office
    of Information Services, 202-693-5391 (this is not a toll free number)
    or 1-877-889-5627 (TTY). Individuals with hearing or speech impairments
    may access the telephone number above via TTY by calling the toll-free
    Federal Information Relay Service at (800) 877-8839.

    SUPPLEMENTARY INFORMATION: On August 17, 2016, the Department of Labor
    published a Notice of Proposed Rule Making (NPRM) to revise its
    existing regulations under the FOIA found at 29 CFR part 70, to update
    and streamline the language of several procedural provisions and to
    incorporate changes brought about by the amendments to the FOIA under
    the OPEN Government Act of 2007, Public Law 110-175, 121 Stat. 2524,
    and the FOIA Improvement Act of 2016, Public Law 114-185, 130 Stat. 538
    (enacted June 30, 2016). The Department invited comments through
    October 17, 2016.
    Discussion of Comments: Preparation of the NPRM and this
    finalization of the

    [[Page 7667]]

    Department's updated FOIA regulation satisfied the requirement in
    Section 3 of the FOIA Improvement Act of 2016 that each agency review
    and revise its FOIA regulation to be consistent with the statutory
    requirements.
    Interested persons were afforded the opportunity to participate in
    the rulemaking process through submission of written comments to the
    proposed rule during the open comment period. In total, the Department
    received six submissions in response to its proposed rule, including
    comments from two Federal agencies, as well as internal comments from a
    component of the Department. Due consideration has been given to each
    of the comments received and, in response, the Department has made
    several modifications to the rule. These modifications include
    clarifying, revising, or expanding various provisions, withdrawing a
    provision, retaining existing language for certain other provisions,
    and making technical edits, such as correcting Web site links.
    Discussion of each of the comments, and the Departments response
    follows:

    Section 70.2 Definitions

    One commenter expressed concern that the use of the phrase ``or
    financial'' is superfluous in the first clause of subsection Sec.
    [thinsp]70.2(j) (defining submitter), because that phrase is already
    included in the definition of ``confidential commercial information''
    in subsection (b). The Department has determined that including ``or
    financial'' is helpful in identifying different types of information.
    As such, DOL declines to make the requested change.
    One commenter suggested that the definition of ``unusual
    circumstances'' in Sec. [thinsp]70.2(k)(3) should state that
    consultation could occur ``. . . with another agency or among two or
    more components of the Department having a substantial interest in the
    determination of the request.'' The Department agrees that the proposed
    change will enhance the rule's clarity, and so the revised final rule
    adopts this proposed language.

    Section 70.3 Policy

    One commenter suggested changing the title of Sec. [thinsp]70.3
    from ``Policy'' to ``Presumption of Openness,'' because, following the
    June 2016 statutory amendments to FOIA, this section addresses not a
    matter of policy, but of law. The Department agrees with this comment.
    The final rule modifies this section to be titled, ``Presumption of
    Openness.''
    One commenter suggested that the regulation does not include the
    use of exclusions and that if DOL would have any opportunity to use an
    exclusion, they should be addressed. The Department agrees with this
    comment and has incorporated by reference the law enforcement
    exclusions in subsection (c) of the FOIA at Sec. Sec. 70.3 and
    70.20(b).

    Section 70.4 Proactive Disclosure of Departmental Records

    One commenter noted that the Department makes many (a)(2) proactive
    disclosures by posting materials on DOL Web sites other than the
    Department's specific FOIA Web site pages, for which a URL was included
    in this section of the NPRM. Accordingly, the commenter suggested
    removing a specific link to the Department's FOIA Web page and instead
    stating more generally that records may be accessed through the
    Department's Web site. The Department agrees with the comment, and the
    final rule has been revised to remove the specific URL.

    Section 70.19 Requirements for Making a Request

    Three commenters expressed concern regarding DOL's decision to
    continue to have a single central email box for the receipt of FOIA
    requests, and raised a number of points regarding whether this creates
    inefficiencies in DOL's FOIA processing. Specifically, Sec. 70.19(a)
    of the NPRM states, consistent with the Department's existing FOIA
    regulation at 29 CFR 70.19(b), that any FOIA request submitted
    electronically, by email, must be submitted to a single email address.
    One commenter requested that DOL clarify that even though DOL's
    FOIA program is decentralized, DOL will receive all electronic
    submission to one inbox and that each request will then be sent to the
    appropriate component for processing. That same commenter expressed
    concern that the NPRM language regarding a central email inbox may be
    in conflict with the NPRM at Sec. 70.19(b), which states that
    requesters should submit their request directly to the component that
    maintains the records sought. The same commenter suggested that if DOL
    has a single email address for electronic submissions, it should make
    clear that the requester must designate the component to which the
    request is directed. One of the commenters sought to confirm that
    requests submitted electronically are not automatically subject to the
    ``routing'' provision, under which the time processing clock does not
    begin until a request is received in the proper component or until ten
    days after receipt anywhere in the Department. This same commenter
    flagged that Sec. 70.19(b)(2) of the NPRM provides that requesters who
    do not know where to submit their request can email it to the same
    central email address indicated for all requests submitted
    electronically in (a), and that ``routing'' procedures might then
    apply. The same commenter asked how DOL will know which requests need
    to be ``routed'' vs. those that are just being submitted electronically
    to a particular component. The commenter also stated that when
    requesters indicate the component (or components if they are submitting
    to more than one), it does not seem appropriate for DOL to ``route''
    these requests because this is the only way they may be submitted
    electronically. The commenter asked whether DOL considered establishing
    email addresses to receive electronic submissions for all components.
    The commenter noted that this approach would seem to allow requests to
    get where they need to go more efficiently.
    DOL has considered these comments and--for the reasons explained
    below--has determined that DOL's FOIA program can be administered most
    effectively with a single central email inbox for receipt of FOIA
    requests, but that some clarification to the regulatory text of Sec.
    70.19 can be made to explain DOL's process and address the commenters'
    concerns. DOL has established an effective method to receive and assign
    incoming FOIA requests received by email. DOL has established a single
    centralized FOIA mailbox, which is actively monitored by staff within
    the Department's central FOIA office, the Office of Information
    Services. Staff who monitor the FOIA mailbox are responsible for
    ensuring that FOIA requests are appropriately directed to the agency
    component(s) identified by the requester or to the appropriate
    component(s) in instances where the requester has failed to identify a
    component or has identified the wrong component. Receipt in the central
    FOIA email inbox does not automatically add 10 additional days for
    ``routing,'' rather, the Department has established an operational
    performance measure that tracks whether requests are routed to the
    agency component(s) likely to maintain responsive records within two
    business days of receipt. By having a centralized FOIA email inbox
    monitored by FOIA staff, the Department has ensured that FOIA requests
    are not received at email addresses that are not regularly monitored,
    or sent to DOL staff who are not involved in FOIA processing and may
    not know what to do with an incoming FOIA request.
    For these reasons, the Department has determined to retain the
    concept of a

    [[Page 7668]]

    central incoming FOIA email inbox. However, DOL has modified the
    language of Sec. 70.19(a) in several ways to increase public clarity
    and promote efficient logging and assignment of incoming FOIA requests.
    The final text adds language to Sec. 70.19(a) and (b) further
    explaining the Department's process, and indicating that requesters
    should, when emailing in requests, identify the component or components
    to which they are submitting their FOIA request in order to facilitate
    the timely assignment and processing of their request. The final rule
    also seeks to clarify the circumstances under which the time to respond
    begins to run, by moving the last clause of Sec. 70.19(b)(2) from the
    NPRM into a separate provision at Sec. 70.19(b)(3), and clarifying
    that if a requester submits a FOIA request to the incorrect DOL FOIA
    component, or sends a request to the Department's central FOIA office
    or mailbox without identifying the component(s) to which the request is
    submitted, the time to respond begins to run when the request is
    received by the proper component, but no later than 10 working days
    after receipt in any component identified in Appendix A or in the
    Office of Information Services.
    One commenter raised a concern that the language in the NPRM at
    Sec. 70.19(d)(3) is overly broad regarding when the processing of a
    FOIA request can be tolled. The commenter suggested that the rule track
    the language of the statute more closely to indicate a request can be
    tolled only once if the agency is seeking clarification from the
    requester about their request. The Department concurs, and in response
    to this comment, the final rule has been modified to read, ``While an
    agency component awaits a requester's modified FOIA request, the
    processing time limits described in Sec. 70.25(a)(1) will be tolled
    (that is, the processing time clock will be stopped on one occasion
    only) until clarification is received from the requester.''

    Section 70.20 Responsibility for Responding to Requests

    One commenter raised concerns with the provision at Sec.
    [thinsp]70.20(a) providing that the Department's Office of Information
    Services may coordinate responses when ``it is determined that records
    responsive to a request may be located in multiple components of the
    Department.'' The commenter suggested that this provision might add an
    obligation beyond the requirements of the FOIA, for example, requiring
    one component to conduct searches at those other components and process
    those records.
    The Department disagrees that this provision, which is not a
    procedural change from the existing regulation, creates new or
    additional responsibilities. This provision does not mandate that OIS
    coordinate responses, or that one component undertake searches of other
    components' records. Rather this provision recognizes that there may be
    circumstances where similar or the same documents are maintained by
    multiple components of the Department, and it is appropriate to
    coordinate search, review and response, for example, through use of
    coordinated search terms. Although DOL's FOIA program is decentralized,
    it remains one agency and seeks to speak in one voice on matters of
    disclosure of documents that may be duplicative or have overlapping
    equities across the agency. In addition, this comment raises a policy
    question related to how DOL structures its FOIA operation, and the
    Department has determined that it will continue its present program
    administration and flexibility in the operation of the Department's
    FOIA program. Accordingly, the final rule adopts the provision as
    proposed.
    Regarding the provisions at Sec. [thinsp]70.20(d) related to
    consultations and referrals, one commenter suggested that the first
    sentence should be edited to clarify that consults and referrals are
    only appropriate when a component has actually located records. The
    Department agrees that the language could more clearly identify when
    consultations and referrals are appropriate and, therefore, the
    Department is making the following change in the final rule:
    ``Consultations and referrals. When a component is reviewing records in
    response to a request, it will determine if another component of the
    Department, or of the Federal Government, is better able to determine
    whether the record can be disclosed or is exempt from disclosure under
    the FOIA.''
    Also, in reference to Sec. [thinsp]70.20(d), one commenter
    suggested that the language be altered because, as written, it does not
    authorize the Department to consult with the Office of White House
    Counsel, which is neither an ``agency'' nor a Department component. The
    Department does not believe a revision is necessary because the
    regulatory language recognizes that consultation or referral may occur
    with ``another component . . . of the Federal Government.'' The
    Department believes that this adequately covers instances where DOL
    might need to consult with the Office of White House Counsel.
    One commenter suggested that Sec. 70.20 should include language on
    ``coordination'' to cover situations where referring records may not be
    appropriate, and gave as an example instances where a referral would
    reveal classified information. The Department does not believe this
    change is necessary, as the Department does not have original
    classification authority pursuant to the prevailing executive order on
    national security classification and, likewise, does not have the
    authority to downgrade or declassify documents.

    Section 70.21 Responses to Requests

    One commenter suggested that Sec. 70.21(b) should require the
    Department's acknowledgement letter to indicate the date of receipt of
    the request. The Department declines to make this change as it is
    beyond the scope of the current statutory requirement. It is also
    unnecessary to DOL's FOIA program because Departmental policy is that
    acknowledgment letters should provide requesters with a link to the
    public FOIA portal, which provides the requester with the date of
    receipt. The final rule adopts the provision as proposed.
    One commenter suggested that Sec. 70.21(c) should be revised to
    add that written communications notifying a requester of the grant of a
    request will include notice of the availability of the FOIA Public
    Liaison, as required by the FOIA Improvement Act of 2016. The
    Department concurs and has modified this provision in the final rule to
    read, ``The component must notify the requester of the right to seek
    assistance from the Department's FOIA Public Liaison.''
    One commenter suggested that the wording of Sec. 70.21(e)(5) of
    the NPRM, regarding the ``Content of the denial,'' incorrectly implies
    that ``adverse determination'' and ``denial'' are different in kind,
    and suggested combining the subparts of (5) into (e). The commenter
    stated that any denial is an adverse determination and must include
    notification of appeal rights as well as the availability of OGIS and
    the FOIA Public Liaison. The Department concurs that the language of
    Sec. 70.21(e)(5) in the NPRM potentially led to confusion. In response
    to this comment, the Department has combined subsections (4) and (5) of
    this provision in the final rule.
    The Final Rule includes a new provision of Section 70.21(e)(5) that
    states ``Engaging in dispute resolution services provided by OGIS is a
    voluntary process. If the Department agrees to participate in the
    mediation services provided by OGIS, it will

    [[Page 7669]]

    actively engage as a partner to the process in an attempt to resolve
    the dispute.'' This change is in response to a comment received on
    Section 70.22.

    Section 70.22 Appeals From Denials of Requests

    The NPRM at Sec. 70.22(a) identified as one circumstance in which a
    FOIA requester could file an appeal ``a component's failure to respond
    to the request within the time limits.'' One commenter objected to this
    language on grounds that there is no response to appeal when the DOL
    component to which a FOIA request was submitted has not provided a
    timely response, and that a requester does not need to administratively
    appeal in order to exhaust administrative remedies. The Department
    declines to remove the reference to ``a component's failure to respond
    to the request within the time limits'' as an example of a circumstance
    that may prompt an administrative appeal because many requesters are
    not inclined to seek judicial review on the basis of a delayed response
    to a pending FOIA request and would rather seek to obtain disclosure of
    information through the administrative appeals process. Although a
    requester does not have to exhaust his or her administrative remedies
    on timeliness issues where no initial response has been provided, the
    Department believes that the better practice under FOIA is to continue
    to make an administrative appeal available to requesters, and that
    eliminating this option may result in requesters believing that
    litigation is necessary when an administrative process may more quickly
    and cost effectively address the requester's concern.
    One commenter raised a concern with the wording of Sec. 70.22(a)
    in that it does not identify the ability of a requester to appeal from
    a failure of the Department to respond in a timely manner to a request
    for expedited processing, or to appeal in the event that the Department
    refuses to provide responsive records in a requested format. As Sec.
    70.21 provides, a FOIA requester may file an administrative appeal in
    response to any denial or adverse determination. Section 70.22(a)
    provides examples of when a requester may seek a de novo review through
    the Department's FOIA administrative appeal process, but the list is
    not intended to be an exhaustive identification of the bases for
    appeal. To assist the public, the Department has revised this provision
    in the final rule to make clear that it provides examples rather than
    an exhaustive list.
    One commenter suggested that using the word ``must'' in the second
    sentence of Sec. 70.22(b) regarding items to be provided along with a
    FOIA appeal creates an administrative hurdle that is counter to the
    spirit of FOIA. The Department agrees with this comment and has
    modified the language in the final rule to replace the word ``must''
    with ``should.''
    One commenter suggested adding language about engaging with OGIS
    somewhere in Sec. 70.22 or its own section to satisfy the requirement
    of the FOIA Improvement Act that agency FOIA regulations include
    procedures for engaging with OGIS. The commenter suggested including
    the following language in the Final Rule: ``Engaging in dispute
    resolution services provided by OGIS. Mediation is a voluntary process.
    If an agency agrees to participate in the mediation services provided
    by OGIS, it will actively engage as a partner to the process in an
    attempt to resolve the dispute.'' In response to this comment, the
    Department has included language in Section 70.21(e)(5), which it
    believes is a more appropriate place for this language. The new
    provision of Section 70.21(e)(5) states ``Engaging in dispute
    resolution services provided by OGIS is a voluntary process. If the
    Department agrees to participate in the mediation services provided by
    OGIS, it will actively engage as a partner to the process in an attempt
    to resolve the dispute.''

    Section 70.24 Form and Content of Action on Appeals

    One commenter suggested that in the third sentence, ``Consistent
    with the statute'' should be removed, noting that the Freedom of
    Information Act, as amended, does not require notification about
    services provided by OGIS in appeals letters, but rather that any such
    inclusion is based on guidance from the Office of Information Policy.
    In response to this comment, the Department has modified the language
    in the final rule and removed the phrase ``consistent with the
    statute'' from this provision.

    Section 70.25 Time Limits and Order in Which Requests and Appeals Must
    Be Processed

    One commenter suggested that Sec. 70.25(a) should note that the
    routing of requests may impact timing. The commenter recommended adding
    the following language, ``In instances involving misdirected requests
    that are re-routed pursuant to Sec. 70.20(c) of this subpart, the
    response time will commence on the date that the request is received by
    the proper component's office that is designated to receive requests,
    but in any event not later than 10 working days after the request is
    first received by any component's office that is designated by these
    regulations to receive requests.'' The Department agrees with this
    comment and has added the suggested language to the final rule.
    One commenter suggested removing the clause ``unless there are
    exceptional circumstances within the meaning of 5 U.S.C. 552(a)(6)(C)''
    from Sec. 70.25(a) and noted that only a court can make a
    determination that there are exceptional circumstances. The Department
    agrees with this comment, and has removed this provision from the final
    rule.
    In relation to Sec. 70.25(c)(1), one commenter suggested that, as
    a practical matter and looking at agency response times, agencies tend
    to need more than ten additional days when there are unusual
    circumstances requiring extension of processing times. The commenter
    suggested that the language stating ``this extension should not
    ordinarily exceed ten business days'' be removed. The Department agrees
    with this comment, and has removed this phrase from the final rule.
    One commenter suggested that the Department was creating an
    unnecessary administrative burden by requiring in Sec. 70.25(e)(3)
    that a person seeking expedited processing as a member of the media
    establish that ``he or she is a person whose main professional activity
    or occupation is information dissemination . . .'' Consistent with
    administrative guidance, the Department believes that to meet the
    standard for expedited processing under the FOIA statute (see 5 U.S.C.
    552(a)(6)(E)(v)(II)) a requester who is not a full-time member of the
    news media must establish that he or she is a person whose primary
    professional activity or occupation is information dissemination,
    though it need not be the requester's sole occupation. DOL does not
    believe that requiring the requester to meet the statutory standard is
    unnecessarily burdensome. Therefore, the final rule adopts the
    provision as proposed in the NPRM.

    Section 70.26 Confidential Commercial Information

    One commenter recommended that Executive Order 12,600 be cited
    consistently in Sec. Sec. 70.26(a) and (g)(3). The Department agrees
    with this comment and has edited these sections for consistency in the
    final rule.
    One commenter suggested that Sec. 70.26(e) and (f)(3) should be
    modified to provide that the ``reasonable period'' that a submitter has
    to object to the agency's proposed treatment of the submitter's
    material will be at least five business days from the date that the

    [[Page 7670]]

    submitter receives the agency's notice. The Department declines to make
    this change. The NPRM provision at Sec. 70.26(e) indicates that a
    submitter will be provided with a ``reasonable time to respond'' to a
    notice from the agency, but also notes that the response date will be
    specified in the submitter's notice provided in accordance with
    Executive Order 12,600. Furthermore, the time provided to a submitter
    for responding is based upon the volume and complexity of the materials
    requested. Section 70.26(f)(3) does not discuss response time periods.
    The final rule adopts both provisions as proposed.

    Section 70.38 Definitions Related to Costs

    One commenter suggested a change to Sec. 70.38(a), which states
    that ``request'' in the costs subpart includes any request and any
    appeal. The commenter suggested removing the reference to the FOIA
    appeal stage on grounds that no fees are assessed on appeal, noting
    that while a request may be remanded on appeal for further processing,
    any subsequent fees apply to the underlying request, not the appeal.
    The Department agrees with this comment, and the final rule removes
    references to FOIA appeals.
    Regarding Sec. 70.38(c), one commenter suggested using the term
    ``duplication'' throughout instead of ``reproduction'' in order to be
    consistent with the FOIA statute, which states that fees shall be
    limited to search, duplication, and review, and OMB guidelines. The
    Department agrees with this comment and has modified the final rule to
    use the term ``duplication.''
    Three commenters made suggestions related to the definition of
    educational institutions for cost purposes in the NPRM at Sec.
    70.38(g)(2). The commenters suggested that this provision should
    reflect and adopt the holding of Sack v. Department of Defense, 823
    F.3d 687 (D.C. Cir. 2016), which found that students may qualify as
    educational institution requesters in some circumstances. In response
    to these comments and to retain flexibility to determine a student's
    eligibility for a fee waiver based on any future judicial
    interpretations or guidance issued by Department of Justice, the
    Department has removed the following sentence from the final rule, ``A
    request from a student enrolled in an individual course of study at an
    education institution would not qualify as a request from the
    institution.''
    Regarding the definition of ``representative of the news media'' in
    the NPRM at Sec. 70.38(i)(3), one commenter asked that DOL remove two
    uses of the word ``qualifying'' from the phrase ``qualifying news media
    entity'' because inclusion of the word ``qualifying'' gives the
    impression that a news media entity must meet some separate or
    additional qualification standard. The commenter suggested that the
    phrase ``news media entity'' is sufficient. The Department agrees with
    this comment. The final rule removes the word ``qualifying'' from this
    provision.

    70.40 Charges Assessed for the Production of Records

    Two commenters noted that, in Sec. 70.40(c) and (d), DOL has
    identified four types of requesters for fee purposes, and suggested
    that these groups could be combined into three. The Department has
    determined that identifying four types of requesters is helpful to
    distinguish between different types of requesters that communicate with
    the Department. As such, the Department declines to make the change
    requested, and the final rule adopts the provision as proposed.
    One commenter noted that Sec. 70.40(e)(1)(iii) of the NPRM states
    that if a search requires transportation of the searcher to the
    location of the records, or of the records to the searcher, all
    transportation costs in excess of $5 may be added to search costs. The
    commenter raised questions about this provision and whether it was an
    appropriate cost to pass on to the requester. In response to the
    comments received, the Department is removing this provision from the
    final rule as unnecessary. The Department notes that this provision has
    been in effect since 2006 when the DOL last published its FOIA
    regulations (see 71 FR 30762), but is not aware of any instance in
    which such costs have been assessed.
    One commenter noted that Sec. 70.40(e)(2) of the NPRM states that
    a FOIA component may require the requester to provide any medium
    requested other than paper. The commenter raised questions about this
    provision and whether it was an appropriate burden to pass on to the
    requester. In response, the Department is removing this provision from
    the final rule as unnecessary. The Department notes that this provision
    has been in effect since 2006 when DOL last published its FOIA
    regulations (see 71 FR 30762), but is not aware of any instances where
    this provision was applied.
    One commenter asked if DOL has evaluated the actual cost of
    reproducing paper copies identified in Sec. 70.40(e)(2) (FOIA
    requests) and 70.53(c) (requests for documents from the Office of
    Labor-Management Standards). The commenter suggested that, with the use
    of commercial vendors, actual costs are likely close to 5 or 10 cents
    per page, rather than the 15 cent per page costs included in the NPRM.
    DOL notes that it does not typically use commercial vendors to help
    fulfill requests for paper-based records in response to FOIA requests,
    and therefore that comparison may not be applicable here. Furthermore,
    as the NPRM states, reproduction cost also reflects the time associated
    with reproducing the documents being provided. Accordingly, DOL
    declines to make a change to the cost of the duplication of paper-based
    records. The final rule adopts the provision as proposed.
    Regarding the NPRM provisions regarding limitations on fee charges,
    one commenter suggested that Sec. 70.40(e)(4)(i) should use language
    that more closely matches the statutory language. The commenter
    suggested that section (4) should note what the ``certain fees'' are,
    and suggested, that, as written, this provision does not account for
    the possibility of the exception in Sec. 70.40(e)(4)(ii).
    Additionally, the commenter suggested that Sec. 70.40(e)(4)(ii) should
    be edited to state ``and more than 5,000 pages are necessary to respond
    to the request,'' noting that ``deemed to be responsive'' is
    potentially more restrictive. The Department agrees that this comment
    has identified some potentially confusing language, and has accordingly
    modified Sec. 70.40(e)(4) to incorporate the recommended change.
    In addition to the changes made as a result of specific comments
    and Departmental feedback, this final rule includes changes already
    identified in the NRPM (see 81 FR 54770) to include changes in language
    and structure of the existing regulation and to codify changes based on
    the FOIA Improvement Act of 2016. As an additional administrative
    update, the Department is also making a change to Sec. [thinsp]70.27
    (Preservation of records) to update the National Archives and Records
    Administration's General Records Schedule which governs the disposition
    of FOIA case files and related records from GRS 14 to GRS 4.2:
    Information Access and Protection Records.
    Regulatory Flexibility Act: The Secretary of Labor, in accordance
    with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed
    this regulation and by approving it certifies that this regulation will
    not have a significant economic impact on a substantial number of small
    entities. Under the FOIA, agencies may recover only the

    [[Page 7671]]

    direct costs of searching for, reviewing, and duplicating the records
    processed for requesters, and only for certain classes of requester and
    when particular conditions are satisfied. Thus, fees assessed by the
    Department are nominal. Further, the ``small entities'' that make FOIA
    requests, as compared with individual requesters and other requesters,
    are relatively few in number.
    Executive Order 12,866: This regulation has been drafted and
    reviewed in accordance with Executive Order 12,866, Sec. 1(b),
    Principles of Regulation. The Office of Management and Budget has
    determined that this rule is not a ``significant regulatory action''
    under Executive Order 12,866, Sec. 3(f), Regulatory Planning and
    Review, and accordingly this rule has not been reviewed by OMB.
    Unfunded Mandates Reform Act of 1995: This rule will not result in
    the expenditure by State, local, and Tribal governments, in the
    aggregate, or by the private sector, of $100,000,000 or more in any one
    year, and it will not significantly or uniquely affect small
    governments. Therefore, no actions were deemed necessary under the
    provisions of the Unfunded Mandates Reform Act of 1995.
    Small Business Regulatory Enforcement Fairness Act of 1995: This
    rule is not a major rule as defined by section 251 of the Small
    Business Regulatory Enforcement Fairness Act of 1996 (as amended), 5
    U.S.C. 804. This rule will not result in an annual effect on the
    economy of $100,000,000 or more; a major increase in costs or prices;
    or significant adverse effects on competition, employment, investment,
    productivity, innovation, or on the ability of United States-based
    companies to compete with foreign-based companies in domestic and
    export markets.

    List of Subjects in 29 CFR Part 70

    Administrative Practice and Procedure; Freedom of Information Act;
    Privacy.

    0
    For the reasons stated in the preamble, the Department of Labor revises
    29 CFR part 70 to read as follows:

    PART 70--PRODUCTION OR DISCLOSURE OF INFORMATION OR MATERIALS

    Subpart A--General
    Sec.
    70.1 General provisions.
    70.2 Definitions.
    70.3 Presumption of openness.
    70.4 Proactive disclosure of Departmental records.
    70.5 Compilation of new records.
    70.6 Disclosure of originals.
    70.7-70.18 [Reserved]
    Subpart B--Procedures for Disclosure of Records Under the Freedom of
    Information Act
    70.19 Requirements for making a request.
    70.20 Responsibility for responding to requests.
    70.21 Responses to requests.
    70.22 Appeals from denial of requests.
    70.23 Action on appeals.
    70.24 Form and content of action on appeals.
    70.25 Time limits and order in which requests and appeals must be
    processed.
    70.26 Confidential commercial information.
    70.27 Preservation of records.
    70.28-70.37 [Reserved]
    Subpart C--Costs for Production of Records
    70.38 Definitions related to costs.
    70.39 Statutes specifically providing for setting of fees.
    70.40 Charges assessed for the production of records.
    70.41 Waiver or reduction of fees.
    70.42 Consent to pay fees.
    70.43 Payment of fees.
    70.44 Other rights and services.
    70.45-70.52 [Reserved]
    Subpart D--Public Records and Filings
    70.53 Office of Labor-Management Standards.
    70.54 Employee Benefits Security Administration.
    Appendix A to Part 70--FOIA Components
    Appendix B to Part 70--[Reserved]

    Authority: 5 U.S.C. 301; 29 U.S.C. 551 et seq.; 5 U.S.C. 552, as
    amended; Reorganization Plan No. 6 of 1950, 5 U.S.C. Appendix, 29
    U.S.C. 1026 (106), 5 U.S.C. app. 11., Executive Order. 12,600, 52 FR
    23781, 3 CFR, 1988 Comp., p. 235. This part also implements the
    public information provisions of the Labor-Management Reporting and
    Disclosure Act (LMRDA), 29 U.S.C. 435, see Sec. 70.53 below; the
    Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C.
    1026 (106), see Sec. 70.54 below; and the Federal Advisory
    Committee Act (FACA), 5 U.S.C. app. 11, see Sec. 70.40(i) below.

    Subpart A--General

    Sec. 70.1 General provisions.

    (a) This part is organized as follows: Subpart A contains general
    information about Department of Labor policies and procedures; subpart
    B sets forth the procedures for obtaining access to records of the
    Department; subpart C contains the Department's regulations on fees;
    and subpart D sets forth the procedures for obtaining access to certain
    public records. Appendix A contains a list of all Department of Labor
    FOIA components from which records may be obtained.
    (b) This part contains the rules that the Department of Labor
    follows in processing requests for records under the Freedom of
    Information Act (FOIA), as amended, 5 U.S.C. 552. The rules in this
    part should be read together with the text of the FOIA, which provides
    additional information about access to records maintained by the
    Department. Additionally, the Department's ``Guide to Submitting
    Requests under the FOIA'' and related documents contain helpful
    information about the specific procedures particular to the Department
    with respect to making FOIA requests, and descriptions of the types of
    records maintained by different components of the Department. These
    references are available at http://www.dol.gov/dol/foia/guide6.html.
    (c) Requests made by individuals for records about themselves under
    the Privacy Act of 1974, 5 U.S.C. 552a, are processed under 29 CFR part
    71 as well as under this part. Information routinely provided to the
    public as part of a regular Department activity (for example, press
    releases issued by the Office of Public Affairs (OPA)) may be provided
    to the public without following this subpart.
    (d) As set forth in Sec. 70.3 of this part, the Department
    operates its FOIA program with a presumption of openness and withholds
    records or information under the FOIA only when the Department
    reasonably foresees that disclosure would harm an interest protected by
    a FOIA exemption or when disclosure is prohibited by law.
    (e) The Department has a decentralized system for processing
    requests, with each component handling requests for its own records.
    Each component has a FOIA Customer Service Center that can assist
    individuals in locating records and address questions regarding pending
    FOIA requests. A list of the Department's Customer Service Centers is
    available at http://www.dol.gov/dol/foia/RequestorServiceCenters.htm.
    (f) The Secretary has designated a Chief FOIA Officer for the
    Department. Contact information for the Chief FOIA Officer is available
    on the Department's FOIA Web site, http://www.dol.gov/dol/foia/. The
    Office of Information Services (OIS), which is located within the
    Office of the Solicitor, provides Department level guidance and
    oversight for the Department's FOIA program and supports the
    statutorily-based responsibilities of the DOL Chief FOIA Officer.
    (g) The Department has a designated FOIA Public Liaison who can
    assist individuals in locating records of a particular component and
    with resolving issues relating to the processing of a pending FOIA
    request. Information concerning the DOL FOIA

    [[Page 7672]]

    Public Liaison is available at http://www.dol.gov/sol/foia/liaison.htm.
    The DOL FOIA Public Liaison is responsible for assisting in reducing
    delays in FOIA processing, increasing transparency and understanding,
    providing information concerning the status of requests, and assisting
    in the resolution of disputes.

    Sec. 70.2 Definitions.

    As used in this part:
    (a) The terms agency, person, party, rule, order, and adjudication
    have the meaning attributed to these terms by the definitions in 5
    U.S.C. 551.
    (b) Confidential commercial information means commercial or
    financial information received or obtained by the Department from a
    submitter, directly or indirectly, that arguably may be protected from
    disclosure under Exemption 4 of the FOIA.
    (c) The Department means the Department of Labor.
    (d) FOIA Component means an official component of the Department
    that has authority to disclose or withhold records under the FOIA and
    to which requests to inspect or copy records in its custody should be
    addressed. Department of Labor components are listed in Appendix A to
    this part.
    (e) Record means any information that would be an agency record
    subject to the requirements of this part when maintained by an agency
    in any format, including an electronic format, and any information
    described under this part that is maintained for an agency by an entity
    under Government contract, for the purposes of records management.
    (f) Request means any written request for records made pursuant to
    5 U.S.C. 552(a)(3) and which meets the requirements of this part.
    (g) Requester means any person who makes a request.
    (h) Search means to look for, manually or by automated means,
    Department records for the purpose of locating them in response to a
    pending request.
    (i) The Secretary means the Secretary of Labor.
    (j) Submitter means any person or entity from whom the Department
    receives or obtains confidential commercial or financial information,
    directly or indirectly. The term submitter includes, but is not limited
    to, corporations, labor organizations, non-profit organizations, and
    local, state, and tribal and foreign governments.
    (k) Unusual circumstances means, to the extent reasonably necessary
    for the proper processing of a FOIA request:
    (1) The need to search for and collect the requested records from
    physically separate facilities;
    (2) The need to search for, collect, and appropriately examine a
    voluminous amount of separate and distinct records that are demanded in
    a single request; or
    (3) The need for consultation, which will be conducted with all
    practicable speed, with another agency or among two or more components
    of the Department having a substantial interest in the determination of
    the request.

    Sec. 70.3 Presumption of openness.

    All agency records, except those exempt from mandatory disclosure
    by one or more provisions of 5 U.S.C. 552(b) or the law enforcement
    exclusions in 5 U.S.C. 552(c), will be made promptly available to any
    person submitting a written request in accordance with the procedures
    of this part. The Department will withhold records under the FOIA only
    when the Department reasonably foresees that disclosure would harm an
    interest protected by a FOIA exemption or is prohibited by law.
    Whenever the Department determines that full disclosure of a requested
    record is not possible, the Department will consider whether partial
    disclosure is possible and will take reasonable steps to segregate and
    release nonexempt material. As set forth in Sec. 70.4, the Department
    proactively identifies and discloses records of interest to the public.

    Sec. 70.4 Proactive disclosure of Departmental records.

    Records that are required by the FOIA, 5 U.S.C. 552(a)(2), to be
    made available for public inspection in an electronic format may be
    accessed through the Department's Web site. Each component is
    responsible for determining which of its records are required to be
    made publicly available, as well as identifying additional records of
    interest to the public that are appropriate for public disclosure, and
    for posting and indexing such records. Each component must review and
    update its Web site of posted records and indices on an ongoing basis.

    Sec. 70.5 Compilation of new records.

    Nothing in 5 U.S.C. 552 or this part requires that any agency or
    component create a new record in order to respond to a request for
    records. A component must, however, make reasonable efforts to search
    for records that already exist in electronic form or format, except
    when such efforts would significantly interfere with the operation of
    the component's automated information systems. The component will
    determine what constitutes a reasonable effort on a case-by-case basis.

    Sec. 70.6 Disclosure of originals.

    (a) No original record or file in the custody of the Department of
    Labor, or of any component or official thereof, will on any occasion be
    given to any agent, attorney, or other person not officially connected
    with the Department without the written consent of the Secretary, the
    Solicitor of Labor or the Inspector General.
    (b) The individual authorizing the release of the original record
    or file must ensure that a copy of the document or file is retained in
    the component that had custody and/or control when an original document
    or file is released pursuant to this subpart.

    Sec. Sec. 70.7-70.18 [Reserved]

    Subpart B--Procedures for Disclosure of Records Under the Freedom
    of Information Act

    Sec. 70.19 Requirements for making a request.

    (a) General information. The Department of Labor has a
    decentralized system for responding to requests submitted under the
    FOIA, as explained in Sec. 70.1 of this part. In addition to
    processing requests for its own records, each agency component has the
    ability to receive FOIA requests in writing by mail, delivery service/
    courier or facsimile at its designated mailing address. However, to
    enable proper handling, any FOIA request submitted electronically, by
    email, must be submitted to the Department's central FOIA mailbox at
    foiarequests@dol.gov. FOIA requests sent electronically to any other
    email address will not be accepted. A FOIA request submitted via email
    should designate the component or components to which the requester is
    submitting his/her request. The Department's central FOIA mailbox is
    regularly monitored, and requests will be assigned to the appropriate
    DOL FOIA component.
    (b) Request for records. To make a request for records of the
    Department, whenever possible, a requester should write directly to the
    FOIA office of the component that maintains the records sought or, if
    emailing a request to the DOL central FOIA mailbox, should identify the
    component(s) to which the request is directed. Submitting the request
    directly to the FOIA office of the component that maintains the records
    sought, or identifying that component when sending a FOIA request via
    email, will facilitate the quickest response. The

    [[Page 7673]]

    requester must provide a mailing address to receive correspondence, and
    it may facilitate processing if telephone and email contact information
    are provided.
    (1) The Department's components for the purposes of the FOIA are
    listed in Appendix A to this part. The function and mailing address of
    each Department of Labor component is available on the Department's
    FOIA Web site at http://www.dol.gov/dol.foia. This page also provides
    other information that is helpful in determining where to make a
    request.
    (2) Requesters who cannot determine the proper FOIA office
    component or who are requesting records from multiple components may
    also send requests to the Office of the Solicitor, Office of
    Information Services, 200 Constitution Avenue NW., Room N-2420,
    Washington, DC 20210 or by email to foiarequests@dol.gov.
    (3) Pursuant to Sec. 70.25(a), if a requester submits a FOIA
    request to the incorrect DOL FOIA component, or sends a request to the
    Department's central FOIA office or mailbox without identifying the
    component(s) to which the request is submitted, the time to respond
    begins to run when the request is received by the proper component, but
    no later than 10 working days after receipt in any component identified
    in Appendix A or in the Office of Information Services.
    (c) Description of records sought. Requesters must describe the
    record or records sought in sufficient detail to enable Department
    personnel to locate them with a reasonable amount of effort. To the
    extent possible, the request should provide enough identifying
    information to help the component identify the requested records, such
    as the subject of the record, the date or approximate date when the
    record was created, the record's title or name, case or file number,
    reference number, the person or office or the office location that
    created it, and any other pertinent identifying details. Prior to
    submitting the request, a requester may wish to consult the references
    provided in Sec. 70.1 of this part, the relevant FOIA Requester
    Service Center or the FOIA Public Liaison to discuss the records they
    are seeking and to receive assistance on how to describe the records.
    (d) Deficient descriptions and revised requests. If the description
    is insufficient, so that a knowledgeable employee who is familiar with
    the subject area of the request cannot identify the record with a
    reasonable amount of effort, the component processing the request will
    notify the requester and describe what additional information is needed
    to process the request.
    (1) Requesters who are attempting to modify or reformulate their
    requests may discuss their requests with the component's designated
    FOIA contact, the FOIA Public Liaison, or a representative of OIS, each
    of whom is available to assist the requester in reasonably describing
    the records sought. Every reasonable effort will be made to assist a
    requester in the identification and location of the records sought. If
    the requester fails to reasonably describe the records sought, the
    agency's response to the request may be delayed.
    (2) Any amended request must be confirmed in writing and meet the
    requirements for a request under this part.
    (3) While an agency component awaits a requester's modified FOIA
    request, the processing time limits described in Sec. 70.25(a)(1) will
    be tolled (that is, the processing time clock will be stopped on one
    occasion only) until clarification is received from the requester.

    Sec. 70.20 Responsibility for responding to requests.

    (a) In general. Except in the instances stated in paragraph (d) of
    this section, the component that first receives a request for a record
    and maintains that record is the component responsible for responding
    to the request. In determining which records are responsive to a
    request, a component ordinarily will include only records in its
    possession as of the date that the component begins the search; if any
    other date is used, the component will 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.
    When it is determined that records responsive to a request may be
    located in multiple components of the Department, the Office of
    Information Services may coordinate the Department's response. If the
    Office of Information Services deems a consolidated response
    appropriate, it will issue such a response on behalf of the Department.
    (b) Authority to grant or deny requests. Pursuant to relevant
    exemptions under 5 U.S.C. 552(b) or an exclusion under 5 U.S.C. 552(c),
    the head of a component, or designee, is authorized to grant or to deny
    any requests for records that are maintained by that component.
    (c) Re-routing of misdirected requests. Where a component's FOIA
    office determines that a request was misdirected within the Department,
    the receiving component's FOIA office will work with OIS to facilitate
    the routing of the request to the FOIA office of the proper
    component(s).
    (d) Consultations and referrals. When a component is reviewing
    records in response to a request, it will determine if another
    component of the Department, or of the Federal Government, is better
    able to determine whether the record can be disclosed or is exempt from
    disclosure under the FOIA. If the receiving component determines that
    it is not best able to process the record, then the receiving component
    will either:
    (1) Respond to the request after consulting with the component or
    agency best able to determine whether to disclose the record and with
    any other component or agency that has a substantial interest in the
    record; or
    (2) Refer the responsibility for responding to the request
    regarding that record to the component best able to determine whether
    to disclose it, or to another agency that originated the record (but
    only if that entity is subject to the FOIA). Ordinarily, the component
    or agency that originated the record will be presumed to be best able
    to determine whether to disclose it.
    (e) Notice of referral. Whenever a component refers all or any part
    of the responsibility for responding to a request to another component
    or agency, the component will notify the requester of the referral and
    inform the requester of the name of each component or agency to which
    the request has been referred and provide contact information for that
    component or agency.
    (f) Classified records. Any request for classified records which
    are in the custody of the Department of Labor will be referred to the
    classifying agency under paragraphs (d) and (e) of this section.

    Sec. 70.21 Responses to requests.

    (a) In general. Components should, to the extent practicable,
    communicate with requesters using the method that is most likely to
    increase the speed and efficiency of the communication, including by
    electronic means, such as by email.
    (b) Acknowledgements of requests. A component will acknowledge each
    new request and assign it an individualized tracking number. Components
    will include in the acknowledgment a brief description of the records
    sought to allow the requesters to more easily keep track of their
    requests.
    (c) Granting a request. After a component makes a determination to

    [[Page 7674]]

    grant a request in full or in part, the component will notify the
    requester in writing. The component will provide the record in the form
    or format requested if the record is readily reproducible in that form
    or format, provided the requester has agreed to pay and/or has paid any
    fees required by subpart C of this part. The component will determine
    on a case-by-case basis what constitutes a readily reproducible format.
    Each component should make reasonable efforts to maintain its records
    in commonly reproducible forms or formats. The component must notify
    the requester of the right to seek assistance from the Department's
    FOIA Public Liaison.
    (d) Adverse determinations of requests. A component making an
    adverse determination denying a request in any respect must notify the
    requester in writing. Adverse determinations, or denials of requests,
    include decisions that: The requested record is exempt, in whole or in
    part, from release pursuant to one or more exemptions under the FOIA, 5
    U.S.C. 552; 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 producible in the
    form or format sought by the requester. Adverse determinations also
    include denials involving fees or fee waiver matters or denials for
    requests for expedited processing.
    (e) Content of the denial. The denial notice must be signed by the
    component agency head or a designee and will include:
    (1) The name and title or position of the person responsible for
    the denial;
    (2) A brief statement of the reason or reasons for the denial,
    including any FOIA exemption or exemptions applied or procedural
    reasons relied upon by the component in denying the request;
    (3) An estimate of the volume of records or information withheld,
    in number 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 the exemption
    under which the deletion was made;
    (4) A statement that the denial may be appealed as described under
    Sec. 70.22; and
    (5) A statement notifying the requester of the right to seek
    dispute resolution services from the Department's FOIA Public Liaison
    or the Office of Government Information Services (within the National
    Archives and Records Administration). Engaging in dispute resolution
    services provided by OGIS is a voluntary process. If the Department
    agrees to participate in the mediation services provided by OGIS, it
    will actively engage as a partner to the process in an attempt to
    resolve the dispute.
    (f) Markings on released documents. Markings on released documents
    must be clearly visible to the requester. Records disclosed in part
    shall be marked to show the amount of information deleted and the
    exemption(s) under which the deletion was made unless doing so would
    harm an interest protected by an applicable exemption. The location of
    the information deleted shall also be indicated on the records, if
    technically feasible.

    Sec. 70.22 Appeals from denial of requests.

    (a) A requester may appeal to the Solicitor of Labor from any
    adverse determination, including but not limited to when one or more of
    the following has occurred: A request for access to records has been
    denied in whole or in part; a requester disputes a determination that
    records cannot be located or have been destroyed; a requester disputes
    a determination by a component concerning the assessment or waiver of
    fees; a requester disputes the denial of a request for expedited
    processing; or a component fails to respond to a request within the
    time limits set forth in the FOIA and referenced in 70.25(a). The
    appeal must be filed within 90 days of the date of the action being
    appealed.
    (b) The appeal must state in writing the grounds for appeal, and it
    may include any supporting statements or arguments, but such statements
    are not required. In order to facilitate processing of the appeal, the
    appeal should include the assigned request number (if applicable),
    appellant's mailing address and daytime telephone number, as well as
    copies of the initial request and the component's response. If mailed,
    the envelope and the letter of appeal should be clearly marked:
    ``Freedom of Information Act Appeal.'' Any amendment to the appeal must
    be in writing and received prior to a decision on the appeal.
    (c) The appeal should be addressed to the Solicitor of Labor,
    Office of the Solicitor, FOIA Appeals Unit, Division of Management and
    Administrative Legal Services, U.S. Department of Labor, 200
    Constitution Avenue NW., Room N-2420, Washington, DC 20210. Appeals
    also may be submitted by fax to 202-693-5538 or by email to
    foiaappeal@dol.gov. Appeals submitted to any other email address will
    not be accepted.

    Sec. 70.23 Action on appeals.

    The Solicitor of Labor, or designee, will review the appellant's
    appeal and make a determination de novo whether the action of the
    component was proper and in accordance with the applicable law.

    Sec. 70.24 Form and content of action on appeals.

    The disposition of an appeal will be issued by the Solicitor of
    Labor or designee in writing. A decision affirming, in whole or in
    part, the decision below will include a brief statement of the reason
    or reasons for the affirmance, including the FOIA exemption or
    exemptions relied upon, and its relation to each record withheld. The
    appeal determination will advise the requester of the availability of
    the mediation services of the Office of Government Information Services
    (OGIS) as a non-exclusive alternative to litigation. The appeal will
    also notify the requester of the statutory right to judicial review of
    the denial by the United States District Court for the judicial
    district in which the requester resides or maintains his or her
    principal place of business, the judicial district in which the
    requested records are located, or the District of Columbia. If it is
    determined on appeal that a record should be disclosed, the record will
    be provided in accordance with the decision on appeal. If it is
    determined that records should be denied in whole or in part, the
    appeal determination will include an estimate of the volume of records
    or information withheld, in number 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 exemption.

    Sec. 70.25 Time limits and order in which requests and appeals must
    be processed.

    (a) Time limits. The FOIA establishes a 20 business day deadline
    for regular requests and appeals, and a 10 calendar day time limit for
    making determinations regarding expedited processing. Components of the
    Department of Labor will comply with the time limits required by the
    FOIA for responding to and processing requests and appeals. In
    instances involving misdirected requests that are re-routed pursuant to
    Sec. 70.20(c) of this subpart,

    [[Page 7675]]

    the response time will commence on the date that the request is
    received by the proper component's office that is designated to receive
    requests, but in any event not later than 10 working days after the
    request is first received by any component's office that is designated
    by these regulations to receive requests. A component or the designated
    appeal authority will notify a requester whenever they are unable to
    respond to or process the request or appeal within the time limits
    established by the FOIA.
    (b) Multitrack processing. All components must designate a specific
    track for requests that are granted expedited processing, in accordance
    with the standards set forth in paragraph (d) of this section. A
    component may also designate additional processing tracks that
    distinguish between simple and complex requests based on the estimated
    amount of work and/or time needed to process the request, including
    based on the number of pages involved and the need for consultations or
    referrals. Components shall advise the requesters of the track into
    which their request falls and, when appropriate, shall offer the
    requester an opportunity to limit the scope of their requests in order
    to qualify for faster processing within the specified limits of the
    component's faster track.
    (c) Unusual circumstances. (1) Where the statutory time limits for
    processing a request cannot be met because of ``unusual
    circumstances,'' as set forth in the FOIA at 5 U.S.C. 552(a)(6)(B)(i)-
    (iii), and the component determines to extend the time limits on that
    basis, the component shall, before the expiration of the 20 working day
    deadline to respond, notify the requester in writing of the unusual
    circumstances and of the date by which processing of the request can be
    expected to be completed. If the component intends to extend the
    deadline to respond by more than ten working days, the component must:
    (i) 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 with the component for processing
    the request or a modified request;
    (ii) Make available to the requester the contact information for
    the designated FOIA contact and the FOIA Public Liaison to assist the
    requester; and
    (iii) Notify the requester of the right to seek dispute resolution
    services from the Office of Government Information Services (OGIS).
    (d) Aggregating requests. Where a component 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. Components shall not
    aggregate multiple requests involving unrelated matters.
    (e) Expedited processing. (1) Requests and appeals will be taken
    out of order and given expedited treatment whenever it is determined
    that they involve:
    (i) Circumstances in which the lack of expedited treatment could
    reasonably be expected to pose an imminent threat to the life or
    physical safety of an individual;
    (ii) An urgency to inform the public about an actual or alleged
    federal government activity, if made by a person primarily engaged in
    disseminating information;
    (iii) The loss of substantial due process rights; or
    (iv) A matter of widespread and exceptional media interest in which
    there exists possible questions about the government's integrity which
    affect public confidence.
    (2) A request for expedited processing may be made at the time of
    the initial request for records or at any later time. For a prompt
    determination, a request for expedited processing must be received by
    the proper component. Requests based on paragraphs (e)(1)(i) through
    (iv) of this section must be submitted to the component that maintains
    the records requested.
    (3) A requester who seeks expedited processing must submit a
    statement, certified to be true and correct to the best of that
    person's knowledge and belief, explaining in detail the basis for
    requesting expedited processing. For example, a requester within the
    category in paragraph (e)(1)(ii) of this section, if not a full-time
    member of the news media, must establish that he or she is a person
    whose main professional activity or occupation is information
    dissemination, though it need not be his or her 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 goes
    beyond the public's general right to know about government activity.
    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 a topic. As a matter of administrative
    discretion, a component may waive the formality of certification.
    (4) Within ten calendar days of its receipt of a request for
    expedited processing, the proper component will decide whether to grant
    the request and will notify the requester of the decision. If a request
    for expedited treatment is granted, the request will be given priority
    and will 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. 70.26 Confidential commercial information.

    (a) In general. Confidential commercial information will be
    disclosed under the FOIA only in accordance with this section and
    Executive Order 12,600, ``Predisclosure Notification Procedures for
    Confidential Commercial Information'' (3 CFR 1988 Comp., p.235).
    (b) Designation of confidential commercial information. A submitter
    of confidential commercial information will use good-faith efforts to
    designate, by appropriate markings, either at the time of submission or
    at a reasonable time thereafter, any portions of its submission that it
    considers to be protected from disclosure under Exemption 4. These
    designations will expire ten years after the date of the submission
    unless the submitter requests, and provides justification for, a longer
    designation period.
    (c) Notice to submitters. A component will provide a submitter with
    prompt written notice of a FOIA request that seeks its confidential
    commercial information whenever required under paragraph (d) of this
    section, except as provided in paragraph (g) of this section, in order
    to give the submitter an opportunity to object in writing to disclosure
    of any specified portion of that information under paragraph (e) of
    this section. The notice will either describe the confidential
    commercial information requested or include copies of the requested
    records or record portions containing the information. When
    notification to a voluminous number of submitters is required,
    notification may be made by posting or publishing notice reasonably
    likely to accomplish such notification.
    (d) When notice is required. Notice will be given to a submitter
    whenever:
    (1) The information requested under the FOIA has been designated in
    good faith by the submitter as information considered protected from
    disclosure under Exemption 4; or
    (2) A component has reason to believe that the information
    requested under the FOIA may be protected from disclosure under
    Exemption 4, but has not yet determined whether the information is

    [[Page 7676]]

    protected from disclosure under that exemption or any other applicable
    exemption.
    (e) Opportunity to object to disclosure. A component will allow a
    submitter a reasonable time to respond to the notice described in
    paragraph (c) of this section taking into account the amount of
    material the submitter has to review and the deadlines imposed by the
    FOIA or agreed to with the requester. If a submitter has any objection
    to disclosure, it is required to submit a detailed written statement.
    The statement must show why the information is a trade secret or
    commercial or financial information that is privileged or confidential.
    In the event that a submitter fails to respond to the notice within the
    time specified, the submitter will be considered to have no objection
    to disclosure of the information. Information provided by a submitter
    under this paragraph may itself be subject to disclosure under the
    FOIA.
    (f) Notice of intent to disclose. A component will consider a
    submitter's timely objections and specific grounds for non-disclosure
    in deciding whether to disclose confidential commercial information.
    Whenever a component decides to disclose confidential commercial
    information over the objection of a submitter, the component will give
    the submitter written notice, which will include:
    (1) A statement of the reason(s) why each of the submitter's
    disclosure objections were not sustained;
    (2) A description of the confidential commercial information to be
    disclosed; and
    (3) A specified disclosure date, which will be a reasonable time
    subsequent to the notice.
    (g) Exceptions to notice requirements. The notice requirements of
    paragraphs (c) and (f) of this section will not apply if:
    (1) The component determines that the information should not be
    disclosed;
    (2) The information lawfully has been published or has been
    officially made available to the public;
    (3) Disclosure of the information is required by statute (other
    than the FOIA) or by a regulation issued in accordance with the
    requirements of Executive Order 12,600; or
    (4) The designation made by the submitter under paragraph (b) of
    this section appears obviously frivolous or such a designation would be
    unsupportable--except that, in such a case, the component will, within
    a reasonable time prior to a specified disclosure date, give the
    submitter written notice of any final decision to disclose the
    information.
    (h) Notice of a FOIA lawsuit. Whenever a requester files a lawsuit
    seeking to compel the disclosure of confidential commercial
    information, the component will promptly notify the submitter.
    (i) Corresponding notice to requesters. Whenever a component
    provides a submitter with notice and an opportunity to object to
    disclosure under paragraphs (d) and (e) of this section, the component
    will also notify the requester(s). Whenever a component notifies a
    submitter of its intent to disclose requested information under
    paragraph (f) of this section, the component will also notify the
    requester(s). Whenever a submitter files a lawsuit seeking to prevent
    the disclosure of confidential commercial information, the component
    will notify the requester(s).
    (j) Notice requirements. The component will fulfill the notice
    requirements of this section by addressing the notice to the
    confidential commercial submitter or its legal successor at the address
    indicated on the records, or the last known address. If the notice is
    returned, the component will make a reasonable effort to locate the
    confidential commercial submitter or its legal successor. Where
    notification of a voluminous number of submitters is required, such
    notification may be accomplished by posting and publishing the notice
    in a place reasonably calculated to accomplish notification.

    Sec. 70.27 Preservation of records.

    Each component will preserve all correspondence relating to the
    requests it receives under this part, and all records processed
    pursuant to such requests, until disposition or destruction of such
    correspondence and records is authorized by Title 44 of the United
    States Code or the National Archives and Records Administration's
    General Records Schedule 4.2. Records are not to be destroyed while
    they are the subject of a pending request, appeal, or lawsuit under the
    Act.

    Sec. Sec. 70.28-70.37 [Reserved]

    Subpart C--Costs for Production of Records

    Sec. 70.38 Definitions related to costs.

    The following definitions apply to this subpart:
    (a) Request, in this subpart, includes any request, as defined by
    Sec. 70.2(f) of this part.
    (b) Direct costs means those expenditures which a component
    actually incurs in searching for and duplicating (and in the case of
    commercial use requests, reviewing) records to respond to a FOIA
    request. Direct costs include, for example, the salary of the Federal
    employee performing work (the basic rate of pay for the Federal
    employee plus 16 percent of that rate to cover benefits) and the cost
    of operating duplication machinery. Not included in direct costs are
    overhead expenses such as costs of space, heating or lighting the
    facility in which the records are kept.
    (c) Duplication means the process of making a copy of a record
    necessary to respond to a request. Such copy can take the form of
    paper, microform, audio-visual materials or electronic records (such as
    a CD or other media).
    (d) Search means the process of looking for and retrieving records
    or information that are responsive to a FOIA 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. FOIA components
    will ensure that searches are done in the most efficient and least
    expensive manner reasonably possible. A search does not include the
    review of material, as defined in paragraph (e) of this section, which
    is performed to determine whether material is exempt from disclosure.
    (e) Review means the process of examining records, including audio-
    visual, electronic mail, etc., located in response to a request to
    determine whether any portion of the located record is exempt from
    disclosure, and accordingly may be withheld. It also includes the act
    of preparing materials for disclosure, i.e., doing all that is
    necessary to excise them and otherwise prepare them for release. Review
    time includes time spent contacting any submitter, and considering and
    responding to any objections to disclosure made by a submitter under
    Sec. 70.26, but does not include time spent resolving general legal or
    policy issues regarding the application of exemptions.
    (f) Commercial use request means a request from or on behalf of a
    person who seeks information for a use or purpose that furthers his or
    her commercial, trade or profit interests, which can include furthering
    those interests through litigation. When considering fee issues,
    components will determine, whenever reasonably possible, the use to
    which a requester will put the requested records. When it appears that
    the requester will put the records to a commercial use, either because
    of the nature of the request

    [[Page 7677]]

    itself or because a component has reasonable cause to doubt a
    requester's stated use, the component will provide the requester a
    reasonable opportunity to submit further clarification.
    (g) Educational institution means an institution which:
    (1) Is a preschool, public or private elementary or secondary
    school, an institution of undergraduate higher education, an
    institution of graduate higher education, an institution of
    professional education, or an institution of vocational education; or
    (2) Operates a program or programs of scholarly research. To
    qualify under this definition, the program of scholarly research in
    connection with which the information is sought must be carried out
    under the auspices of the academic institution itself as opposed to the
    individual scholarly pursuits of persons affiliated with an
    institution. For example, a request from a professor predicated upon
    research funding granted to the institution would meet its
    requirements. A request from a professor seeking information that will
    assist in the writing of a book, independent of his or her
    institutional responsibilities, would not qualify under this
    definition.
    (h) Non-commercial scientific institution means an institution that
    is not operated on a commercial basis 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.
    (i) Representative of the news media means 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. 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, as well as news organizations
    that operate solely on the internet. Alternative media may be
    considered to be news media entities. These examples are not all
    inclusive.
    (1) Factors indicating status as a news media representative
    include press accreditation, guild membership, a history of continuing
    publication, business registration, and/or Federal Communication
    Commission licensing, among others.
    (2) For purposes of this definition, news contemplates information
    that is about current events or that would be of current interest to
    the public.
    (3) A freelance journalist will be treated as a representative of
    the news media if the person can demonstrate a solid basis for
    expecting publication of matters related to the requested information
    through a news media entity. A publication contract with a news media
    entity satisfies this requirement. An individual's past publication
    record with such organizations is also relevant in making this
    determination.

    Sec. 70.39 Statutes specifically providing for setting of fees.

    This subpart will not apply to fees charged under any statute,
    other than the FOIA, that specifically requires an agency to set and
    collect fees for particular types of records.

    Sec. 70.40 Charges assessed for the production of records.

    (a) General. Components shall charge for processing requests under
    the FOIA in accordance with the provisions of this section and with the
    OMB Guidelines. In order to resolve any fee issues that arise under
    this section, a component may contact a requester for additional
    information. Components will ensure that searches, review, and
    duplication are conducted in the most efficient and least expensive
    manner. A component ordinarily will collect all applicable fees before
    sending copies of records to the requester.
    (b) Types of charges. There are three types of charges assessed in
    connection with the production of records in response to a request,
    specifically, charges for costs associated with:
    (1) Searching for or locating responsive records (search costs),
    (2) Duplicating such records (duplication costs), and
    (3) Reviewing records to determine whether any materials are exempt
    (review costs).
    (c) Types of requesters. (1) There are four types of requesters:
    (i) Commercial use requesters,
    (ii) Educational and non-commercial scientific institutions,
    (iii) Representatives of the news media, and
    (iv) All other requesters.
    (2) Depending upon the type of requester, as set forth in paragraph
    (c)(1) of this section, the charges outlined in paragraph (d) of this
    section may be assessed.
    (d) Types of charges that will be assessed for each type of
    request--(1) Commercial use request. When a requester makes a
    commercial use request, search costs, duplication costs and review
    costs will be assessed in their entirety.
    (2) Educational or non-commercial scientific institution request.
    When an educational or non-commercial scientific institution makes a
    request, only duplication costs will be assessed, excluding charges for
    the first 100 pages.
    (3) Request by representative of news media. When a representative
    of the news media makes a request, only duplication costs will be
    assessed, excluding charges for the first 100 pages.
    (4) All other requesters. Requesters making a request which does
    not fall within paragraph (d)(1), (2), or (3) of this section will be
    charged search costs and duplication costs, except that the first 100
    pages of duplication and the first two hours of search time will be
    furnished without charge. Where computer searches are involved, the
    monetary equivalent of two hours of search time by a professional
    employee will be deducted from the total cost of computer processing
    time.
    (e) Charges for each type of activity--(1) Search costs. (i) When a
    search for records is performed by a clerical employee, a rate of $5.00
    per quarter hour will be applicable. When a search is performed by
    professional or supervisory personnel, a rate of $10.00 per quarter
    hour will be applicable. Components will charge for time spent
    searching even if they do not locate any responsive records or they
    withhold the records located as exempt from disclosure.
    (ii) For computer searches of records, requesters will be charged
    the direct costs of conducting the search, except as provided in
    paragraph (e)(4) of this section.
    (2) Duplication costs. The standard copying charge for records in
    black and white paper copy is $0.15 per page. This charge includes the
    operator's time to duplicate the record. When responsive information is
    provided in a format other than 8\1/2\ x 11 or 11 x 14 inch black and
    white paper copy, such as computer tapes, disks and color copies, the
    requester may be charged the direct costs of the tape, disk, audio-
    visual or whatever medium is used to produce the information, as well
    as the direct cost of duplication, including operator time.
    (3) Review costs. Costs associated with the review of records, as
    defined in Sec. 70.38(e), will be charged for work performed by a
    clerical employee at a rate of $5.00 per quarter hour when applicable.
    When professional or supervisory personnel perform work, a rate of
    $10.00 per quarter hour will be charged, when applicable. Except as
    noted in this paragraph, charges may

    [[Page 7678]]

    only be assessed for review the first time the records are analyzed to
    determine the applicability of specific exemptions to the particular
    record or portion of the record. Thus a requester would not be charged
    for review at the administrative appeal level with regard to the
    applicability of an exemption already applied at the initial level.
    When, however, a record has been withheld pursuant to an exemption
    which is subsequently determined not to apply and is reviewed again at
    the appellate level to determine the potential applicability of other
    exemptions, the costs attendant to such additional review will be
    assessed.
    (4) Limitations on charging fees. If a component fails to comply
    with the time limits in which to respond to a request, it shall not
    assess certain fees except:
    (i) If there are unusual circumstances (as that term is defined in
    Sec. 70.25(c)) and the component has provided timely written notice,
    the component is permitted ten additional days to respond to the
    request. After the expiration of the ten additional days, the component
    is no longer permitted to assess search fees or, in the instances of
    requests from requesters described in Sec. 70.38(h) and (i),
    duplication fees except as described in paragraph (e)(4)(ii) of this
    section.
    (ii) If there are unusual circumstances (as that term is defined in
    Sec. 70.25(c)), and more than 5,000 pages of documents are necessary
    to respond to the request, the component may continue to charge
    assessable fees for as long as it takes to process the request,
    provided that the component has provided timely written notice and
    discussed with the requester via telephone, email, or written mail (or
    made at least three good-faith attempts to do so) how the requester
    could effectively limit the scope of the pending request.
    (iii) If a court has determined that exceptional circumstances
    exist, as defined in the FOIA, 5 U.S.C. 552(a)(6)(C) the agency's
    failure to comply with any time limits of the FOIA are excused for the
    length of time provided by the court order.
    (5) Mailing cost. Where responses are sent by mail, no postage
    charge will be made for transmitting by regular mail a single copy of
    the requested record to the requester, or for mailing additional copies
    where the total postage cost does not exceed $5.00. However, where the
    volume of paper or other produced material or the requested method of
    transmittal requested is in excess of $5.00, the transmittal costs will
    be added.
    (f) Aggregating requests for purposes of assessing costs. (1) Where
    a component reasonably believes that a requester or a group of
    requesters acting together is attempting to divide a request into a
    series of requests for the purpose of avoiding fees, the disclosure
    officer may aggregate those requests and charge accordingly.
    (2) Components may presume that multiple requests of this type made
    within a 30-day period have been submitted in order to avoid fees.
    Where requests are separated by a longer period, disclosure officers
    will aggregate them only where a solid basis exists for determining
    that aggregation is warranted under all of the circumstances involved.
    Multiple requests involving unrelated matters will not be aggregated.
    (g) Interest charges. Components will assess interest on an 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 date of the billing until payment
    is received by the component. Components 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.
    (h) Authentication of copies--(1) Fees. The FOIA does not require
    certification or attestation under seal of copies of records provided
    in accordance with its provisions. Pursuant to provisions of the
    general user-charger statute, 31 U.S.C. 9701 and Subchapter II of title
    29 U.S.C., the following charges will be made when, upon request, such
    services are rendered by the agency in its discretion:
    (i) For certification of true copies, $10.00 each certification.
    (ii) For attestation under the seal of the Department, $10.00 each
    attestation under seal.
    (2) Authority and form for attestation under seal. Authority is
    hereby given to any officer or officers of the Department of Labor
    designated as authentication officer or officers of the Department to
    sign and issue attestations under the seal of the Department of Labor.
    (i) Transcripts. Fees for transcripts of an agency proceeding, as
    defined in the Administrative Procedure Act, 5 U.S.C. 5521(12) will be
    assessed in accordance with the provisions of this subpart.
    (j) Privacy Act requesters. A request from an individual or on
    behalf of an individual for a record maintained by that individual's
    name or other unique identifier which is contained within a component's
    system of records, will be treated under the fee provisions at 29 CFR
    71.6.

    Sec. 70.41 Waiver or reduction of fees.

    (a) Requirements for waiver or reduction of fees. (1) Records
    responsive to a request will be furnished without charge or at a charge
    reduced below that established under Sec. 70.40(e) of this subpart,
    where a component determines, based on all available information, that
    the requester has demonstrated that:
    (i) 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
    (ii) Disclosure of the information is not primarily in the
    commercial interest of the requester.
    (2) To determine whether the requirement of paragraph (a)(1)(i) of
    this section is met, components will consider the following factors:
    (i) The subject of the request: Whether the subject of the
    requested records concerns ``the operations or activities of the
    government.'' The subject of the requested records must concern
    identifiable operations or activities of the federal government, with a
    connection that is direct and clear, not remote or attenuated.
    (ii) The informative value of the information to be disclosed:
    Whether the disclosure is ``likely to contribute'' to an understanding
    of government operations or activities. The disclosable portions of the
    requested records must be meaningfully informative about government
    operations or activities in order to be ``likely to contribute'' to an
    increased public understanding of those operations or activities. The
    disclosure of information that already is in the public domain, in
    either a duplicative or a substantially identical form, would not be as
    likely to contribute to such understanding where nothing new would be
    added to the public's understanding.
    (iii) The contribution to an understanding of the subject by the
    public likely to result from disclosure: Whether disclosure of the
    requested information will contribute to ``public understanding.'' 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 and ability and intention to effectively convey
    information to the public will be considered. It will be presumed that
    a representative of the

    [[Page 7679]]

    news media will satisfy this consideration.
    (iv) The significance of the contribution to public understanding:
    Whether the disclosure is likely to contribute ``significantly'' to the
    public understanding of government operations or activities. The
    public's understanding of the subject in question must be enhanced by
    the disclosure to a significant extent.
    (3) To determine whether the requirement of paragraph (a)(1)(ii) of
    this section is met, components will consider the following factors:
    (i) The existence and magnitude of a commercial interest: Whether
    the requester has a commercial interest that would be furthered by the
    requested disclosure. The component will consider any commercial
    interest of the requester (with reference to the definition of
    ``commercial use request'' in Sec. 70.38(f) of this subpart), or of
    any person on whose behalf the requester may be acting, that would be
    furthered by the requested disclosure. Requesters will be given an
    opportunity in the administrative process to provide explanatory
    information regarding this consideration.
    (ii) The primary interest in disclosure: Whether any identified
    commercial interest of the requester is sufficiently large, in
    comparison with the public interest in disclosure, that disclosure is
    ``primarily in the commercial interest of the requester.'' A fee waiver
    or reduction is justified where the public interest standard is
    satisfied and that public interest is greater in magnitude than that of
    any identified commercial interest in disclosure. The component
    ordinarily will presume that where a news media requester has satisfied
    the public interest standard, the public interest will be the interest
    primarily served by disclosure to that 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.
    (4) Where only some of the records to be released satisfy the
    requirements for a waiver of fees, a waiver will be granted only for
    those records.
    (5) Requests for the waiver or reduction of fees should address the
    factors listed in paragraph (a) of this section, insofar as they apply
    to each request.
    (b) Submission. Requests for a waiver or reduction of fees should
    be made when the request is first submitted to the component and should
    address the criteria referenced above. A requester may submit a fee
    waiver request at a later time so long as the underlying record request
    is pending or on administrative appeal. When a requester who has
    committed to pay fees subsequently asks for a waiver of those fees and
    that waiver is denied, the requester will be required to pay any costs
    incurred up to the date the fee waiver request was received.
    (c) Appeal rights. Requesters dissatisfied with treatment of fee
    waiver or reduction requests may follow the procedures for appeal under
    Sections 70.22 and 70.23.

    Sec. 70.42 Consent to pay fees.

    (a) The Department will not assess or collect fees where the fee to
    be assessed, after deducting any free pages and/or search time, is less
    than $25.00. When making a request, a requester may specify a
    willingness to pay up to a certain amount, e.g., $50.00 or $200.
    (b) No request will be processed if a component reasonably believes
    that the fees are likely to exceed the amount to which the requester
    has originally consented, absent supplemental written consent by the
    requester to proceed after being notified of this determination.
    (c) When a component determines or estimates that the fees to be
    assessed in accordance with this section will exceed $25.00, the
    component shall 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 component must advise the requester accordingly.
    Such notice may invite the requester to reformulate the request to
    satisfy his or her needs at a lower cost.
    (d) Components must make available their FOIA contact to assist any
    requester in reformulating a request to meet the requester's needs at a
    lower cost.

    Sec. 70.43 Payment of fees.

    (a) De minimis costs. As noted in Sec. 70.42(a) of this subpart,
    the Department has determined it will not assess or collect fees below
    $25.00. In these cases, the cost of collecting and processing a fee
    equals or exceeds the amount of the fee which would otherwise be
    assessed. The Department will assess fees where the costs to be
    assessed, after deduction of any free pages and/or search time, is
    $25.00 or higher.
    (b) How payment will be made. Requesters will pay fees assessed by
    check or money order made payable to the Treasury of the United States,
    and sent to the component that is processing the request.
    (c) Advance payments and billing. (1) Prior to beginning to process
    a request, the component will make a preliminary assessment of the
    amount that can properly be charged to the requester for search and
    review time and copying costs. Where a component determines or
    estimates that a total fee to be charged under this section will be
    more than $250.00, the component will require the requester to make an
    advance payment of an amount up to the entire anticipated fee before
    beginning to process the request. The component may waive the advance
    payment where the component receives a satisfactory assurance of full
    payment from a requester who has a history of prompt payment of an
    amount similar to the one anticipated by the request.
    (2) Where a requester has previously failed to pay a properly
    charged FOIA fee to any component of the Department of Labor within 30
    days of the date of billing, a component will require the requester to
    pay the full amount due, plus any applicable interest as provided in
    Sec. 70.40(f) and to make an advance payment of the full amount of any
    anticipated fee, before the component begins to process a new request
    or appeal or continues to process a pending request or appeal from that
    requester.
    (3) For a request other than those described in paragraphs (c)(1)
    and (2) of this section, a component will not require the requester to
    make an advance payment before beginning to process a request. Payment
    owed for work already completed on a request pursuant to consent of the
    requester is not an advance payment and a component may require the
    requester to make a payment for such work prior to releasing any
    records to the requester.
    (d) Time limits to respond extended when advance payments are
    requested. When a component has requested an advance payment of fees in
    accordance with paragraph (c) of this section, the time limits
    prescribed in Sec. 70.25 will only begin to run after the component has
    received the advance payment.

    Sec. 70.44 Other rights and services.

    Nothing in this subpart will be construed to entitle any person, as
    of right, to any service or to the disclosure of any records to which
    such person is not entitled under the FOIA.

    [[Page 7680]]

    Sec. Sec. 70.45-70.52 [Reserved]

    Subpart D--Public Records and Filings

    Sec. 70.53 Office of Labor-Management Standards.

    (a) The following documents in the custody of the Office of Labor-
    Management Standards are public information available for inspection
    and/or purchase of copies in accordance with paragraphs (b) and (c) of
    this section.
    (1) Data and information contained in any report or other document
    filed pursuant to sections 201, 202, 203, 211, 301 of the Labor-
    Management Reporting and Disclosure Act of 1959 (73 Stat. 524-28, 530,
    79 Stat. 888, 73 Stat. 530, 29 U.S.C. 431-433, 441, 461).
    (2) Data and information contained in any report or other document
    filed pursuant to the reporting requirements of 29 CFR part 458, which
    are the regulations implementing the standards of conduct provisions of
    the Civil Service Reform Act of 1978, 5 U.S.C. 7120, and the Foreign
    Service Act of 1980, 22 U.S.C. 4117. The reporting requirements are
    found in 29 CFR 458.3.
    (3) Data and information contained in any report or other document
    filed pursuant to the Congressional Accountability Act of 1995, 2
    U.S.C. 1351, 109 Stat. 19.
    (b) The documents listed in paragraph (a) of this section are
    available from: U.S. Department of Labor, Office of Labor-Management
    Standards, Public Disclosure Room, N-1519, 200 Constitution Avenue NW.,
    Washington, DC 20210. Reports filed pursuant to section 201 of the
    Labor-Management Reporting and Disclosure Act of 1959 and pursuant to
    29 CFR 458.3 implementing the Civil Service Reform Act of 1978 and the
    Foreign Service Act of 1980 for the year 2000 and thereafter are also
    available at http://www.union-reports.dol.gov.
    (c) Pursuant to 29 U.S.C. 435(c) which provides that the Secretary
    will by regulation provide for the furnishing of copies of the
    documents listed in paragraph (a) of this section, upon payment of a
    charge based upon the cost of the service, these documents are
    available at a cost of $ .15 per page for record copies furnished.
    Authentication of copies is available in accordance with the fee
    schedule established in Sec. 70.40. In accordance with 5 U.S.C.
    552(a)(4)(A)(vi), the provisions for fees, fee waivers and fee
    reductions in subpart C of this part do not supersede these charges for
    these documents.
    (d) Upon request of the Governor of a State for copies of any
    reports or documents filed pursuant to sections 201, 202, 203, or 211
    of the Labor-Management Reporting and Disclosure Act of 1959 (73 Stat.
    524-528, 79 Stat. 888; 29 U.S.C. 431-433, 441), or for information
    contained therein, which have been filed by any person whose principal
    place of business or headquarters is in such State, the Office of
    Labor-Management Standards will:
    (1) Make available without payment of a charge to the State agency
    designated by law or by such Governor, such requested copies of
    information and data, or
    (2) Require the person who filed such reports and documents to
    furnish such copies or information and data directly to the State
    agency thus designated.

    Sec. 70.54 Employee Benefits Security Administration.

    (a) The annual financial reports (Form 5500) and attachments/
    schedules as filed by employee benefit plans under the Employee
    Retirement Income Security Act (ERISA) are in the custody of the
    Employee Benefits Security Administration (EBSA) at the address
    indicated in paragraph (b) of this section, and the right to inspect
    and copy such reports, as authorized under ERISA, at the fees set forth
    in this part, may be exercised at such office.
    (b) The mailing address for the documents described in this section
    is: U.S. Department of Labor, Employee Benefits Security
    Administration, Public Documents Room, 200 Constitution Avenue NW.,
    Washington, DC 20210.

    Appendix A to Part 70--FOIA Components

    The following list identifies the individual agency components
    of the Department of Labor for the purposes of the FOIA. Each
    component is responsible for making records in its custody available
    for inspection and copying, in accordance with the provisions of the
    FOIA and this part. Unless otherwise specified, the mailing
    addresses for the following national office components are listed
    below. Updated contact information for national and regional offices
    can be found on the DOL Web site at http://www.dol.gov/dol/foia.

    U.S. Department of Labor
    200 Constitution Avenue NW.
    Washington, DC 20210.
    1. Office of the Secretary (OSEC).
    2. Office of the Solicitor (SOL).
    3. Office of Administrative Law Judges (ALJ), 800 K Street NW.,
    Suite N-400, Washington, DC 20001-8002.
    4. Office of the Assistant Secretary for Administration and
    Management (OASAM).
    5. Office of the Assistant Secretary for Policy (OASP).
    6. Office of the Chief Financial Officer (OCFO).
    7. Office of Congressional and Intergovernmental Affairs (OCIA).
    8. Office of Disability Employment Policy (ODEP).
    9. Office of Federal Contract Compliance Programs (OFCCP).
    10. Office of the Inspector General (OIG).
    11. Office of Labor Management Standards (OLMS).
    12. Office of Public Affairs (OPA).
    13. Office of Workers' Compensation Programs (OWCP).
    14. Bureau of International Labor Affairs (ILAB).
    15. Bureau of Labor Statistics (BLS), Postal Square Building,
    Room 4040, 2 Massachusetts Avenue NE., Washington, DC 20212-0001.
    16. Employment and Training Administration (ETA). Job Corps
    (part of ETA).
    17. Mine Safety and Health Administration (MSHA), 201 12th
    Street, South, Arlington, Virginia 22202.
    18. Occupational Safety and Health Administration (OSHA).
    19. Employee Benefits Security Administration (EBSA).
    20. Veterans' Employment and Training Service (VETS).
    21. Employees' Compensation Appeals Board (ECAB).
    22. Administrative Review Board (ARB).
    23. Benefits Review Board (BRB).
    24. Wage and Hour Division (WHD).
    25. Women's Bureau (WB).

    Appendix B to Part 70--[Reserved]

    Thomas E. Perez,
    Secretary of Labor .
    [FR Doc. 2017-00453 Filed 1-19-17; 8:45 am]
    BILLING CODE P

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