Availability of Records, 95869-95879 [2016-31388]

Agencies

• Equal Employment Opportunity Commission

[Federal Register Volume 81, Number 250 (Thursday, December 29, 2016)]
[Rules and Regulations]
[Pages 95869-95879]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-31388]


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EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

29 CFR Part 1610

RIN 3046-AB05


Availability of Records

AGENCY: Equal Employment Opportunity Commission.

ACTION: Interim final rule.

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SUMMARY: The Equal Employment Opportunity Commission (EEOC or 
Commission) proposes to revise its Freedom of Information Act (FOIA) 
regulations in order to implement the substantive and procedural 
changes to the FOIA identified in the FOIA Improvement Act of 2016 and 
update two district offices addresses and the Office of Legal Counsel's 
fax number.

DATES: This interim final rule is effective on December 29, 2016. 
Comments must be received on or before January 30, 2017.

ADDRESSES: Written comments should be submitted to Executive 
Secretariat, Equal Employment Opportunity Commission, 131 M Street NE., 
Suite 6NE03F, Washington, DC 20507. As a convenience to commenters, the 
Executive Secretariat will accept comments by facsimile (``FAX'') 
machine. The telephone number of the FAX receiver is (202) 663-4114. 
(This is not a toll-free FAX number). Only comments of six or fewer 
pages will be accepted via FAX transmittal to ensure access to the 
equipment. Receipt of FAX transmittals will not be acknowledged, except 
that the sender may request confirmation of receipt by calling the 
Executive Secretariat staff at (202) 663-4070 (voice) or (202) 663-4074 
(TTY). (These are not toll-free telephone numbers.) You may also submit 
comments and attachments electronically at https://www.regulations.gov, 
which is the Federal eRulemaking Portal. Follow the instructions online 
for submitting comments. Copies of comments submitted by the public 
will be available for review by prior appointment at the Commission's 
Library, 131 M Street NE., Suite 4NW08R, Washington, DC 20507, or can 
be reviewed anytime at https://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Stephanie D. Garner, Assistant Legal 
Counsel (202) 663-4642 or Draga G. Anthony, Senior Attorney Advisor, 
Office of Legal Counsel (216) 522-7452(voice) or (202) 663-7026 (TTY). 
(These are not toll free numbers.) Requests for this document in an 
alternative format should be made to the Office of Communications and 
Legislative Affairs at (202) 663-4191 (voice) or (202) 663-4494 (TTY).

SUPPLEMENTARY INFORMATION:

Executive Summary

    The interim final rule, as directed by the FOIA Improvement Act of 
2016, Public Law 114-185, updates the Commission's FOIA regulations to 
reflect substantive and procedural changes to the FOIA and updates the 
addresses of two district offices and the Office of Legal Counsel's fax 
number.

Background

    On June 30, 2016, President Obama signed the FOIA Improvement Act 
of 2016 (``Act''). The Act requires agencies to update FOIA regulations 
to conform to the Act by:
     Requiring federal agencies to make available their 
disclosable records and documents for public inspection in an 
electronic format;
     making available for inspection in an electronic format 
records that have been requested three or more times (frequently 
requested records);
     requiring that the Annual FOIA data be downloadable;
     prohibiting agencies from charging a fee for providing 
records if the agency misses a deadline for complying with a FOIA 
request unless unusual circumstances apply and more than 5,000 pages 
are necessary to respond to the request;
     prohibiting agencies from withholding information 
requested under FOIA Exemption (b)(5) unless the agency reasonably 
foresees that disclosure would harm an interest

[[Page 95870]]

protected by a FOIA exemption or disclosure is prohibited by law;
     codifying the Administration's presumption of openness;
     requiring that agencies consider partial disclosures;
     requiring that agencies take steps to segregate and 
release nonexempt information;
     limiting the FOIA exemption for agency communications, 
(b)(5), to allow the disclosure of agency ``deliberative process'' 
records created 25 years or more before the date of a FOIA request;
     requiring the Office of Government Information Services 
(OGIS) to offer mediation services to resolve disputes between agencies 
and FOIA requesters;
     expanding the authority and duties of the Chief FOIA 
Officer of each agency to require officers to serve as the primary 
agency liaison with OGIS and the Office of Information Policy;
     establishing a Chief FOIA Officer Council to develop 
recommendations for increasing compliance and efficiency in responding 
to FOIA requests; disseminating information about agency experiences; 
identifying, developing, and coordinating initiatives to increase 
transparency and compliance; and promoting performance measures to 
ensure agency compliance with FOIA requirements; and
     requiring the Director of the Office of Management and 
Budget to ensure the operation of a consolidated online request portal 
that allows a member of the public to submit a request for records to 
any agency from a single Web site;

Summary of Changes

    In order to assist agencies and encourage consistency in FOIA 
practices across the government, the Department of Justice, Office of 
Information Policy (OIP), created a FOIA template for agencies to use 
as agencies publish and update their regulations. The template, which 
is located at https://www.justice.gov/oip/template-agency-foia-regulations, provides sample regulation language. The proposed language 
contained in these revised FOIA regulations utilizes the language 
provided in the Act or contained in OIP's template. In order to conform 
the Commission's FOIA regulations to the requirements of the Act, the 
proposed rule revises the following sections of 29 CFR part 1610:
     Sec.  1610.1 (Definitions section is revised to utilize 
OIP's FOIA template);
     Sec.  1610.2 (Statutory requirements section is revised to 
utilize OIP's template language);
     Sec.  1610.3 (Purpose and scope section is revised to 
utilize OIP's template language);
     Sec.  1610.4 (Public reference facilities and current 
index section is revised to utilize OIP's template language, reflect 
requirements of the Act, and update District Office addresses);
     Sec.  1610.5 (Request for records section is revised to 
utilize OIP's template language);
     Sec.  1610.6 (Records of other agencies section is 
deleted; the information is moved to another section and utilizes OIP's 
template language);
     Sec.  1610.7 (Where to make request: form section is 
revised to utilize OIP's template language);
     Sec.  1610.8 (Authority to determine section is revised to 
utilize OIP's template language);
     Sec.  1610.9 (Responses: timing section is revised to 
utilize OIP's template language);
     Sec.  1610.10 (Responses: form and content section is 
revised to utilize OIP's template language and as required by the Act);
     Sec.  1610.11 (Appeals to the Legal Counsel from initial 
denials section is revised to utilize OIP's template language and as 
required by the Act);
     Sec.  1610.13 (Maintenance of files section is revised to 
utilize OIP's template language);
     Sec.  1610.15 (Schedule of fees and method of payment for 
services section is revised to utilize OIP's template and as required 
by the Act);
     Sec.  1610.17 (Exemptions section is revised to utilize 
OIP's template language and as required by the Act);
     Sec.  1610.19 (Predisclosure notification procedures for 
confidential commercial information section is revised to utilize OIP's 
template language); and
     Sec.  1610.21 (Annual report section is revised to utilize 
OIP's template language and as required by the Act).

Comments

    The Commission invites comments. At the conclusion of the comment 
period, the Commission will review the comments received, and, if 
appropriate, will revise the regulation to ensure it aligns with the 
Act.

Regulatory Procedures

Executive Orders 13563 and 12866

    In promulgating this interim final rule, the Commission has adhered 
to the regulatory philosophy and applicable principles set forth in 
Executive Order 13563, 3 CFR 215 (2011). The proposed interim final 
rule has been drafted and reviewed in accordance with Executive Order 
12866, 3 CFR 638 (1993). The rule is not a ``significant regulatory 
action'' under section 3(f) of Executive Order 12866.

Paperwork Reduction Act

    The proposed rule contains no new information collection 
requirements subject to review by the Office of Management and Budget 
under the Paperwork Reduction Act (44 U.S.C. chapter 35).

Regulatory Flexibility Act

    The Commission certifies under 5 U.S.C. 605(b) that the proposed 
rule will not have a significant economic impact on a substantial 
number of small entities because the proposed revisions do not impose 
any burdens upon FOIA requesters, including those that might be small 
entities. Therefore, a regulatory flexibility analysis is not required 
by the Regulatory Flexibility Act.

Unfunded Mandates Reform Act of 1995

    The proposed rule will not result in the expenditure by State, 
local, or tribal governments in the aggregate, or by the private 
sector, of $100 million or more in any one year, and it will not 
significantly or uniquely affect small governments. Therefore, no 
actions are deemed necessary under the provisions of the Unfunded 
Mandates Reform Act of 1995 (2 U.S.C. 1501).

Congressional Review Act

    The proposed rule is not subject to the reporting requirement of 5 
U.S.C. 801 because it does not substantially affect the rights or 
obligations of non-agency parties and therefore is not a ``rule'' as 
that term is used by the Congressional Review Act (Subtitle E of the 
Small Business Regulatory Enforcement Fairness Act of 1998).

List of Subjects in 29 CFR Part 1610

    Freedom of information.


0
For the reasons set forth in the preamble, the Equal Employment 
Opportunity Commission amends 29 CFR part 1610 as follows:

PART 1610--PRODUCTION OR DISCLOSURE UNDER 5 U.S.C. 552

0
1. The authority citation for Part 1610 continues to read as follows:

    Authority:  42 U.S.C. 2000e-12(a), 5 U.S.C. 552 as amended by 
Pub. L. 93-502, Pub. L. 99-570 and Pub. L. 105-231; for Sec.  
1610.15, non-search or copy portions are issued under 31 U.S.C. 
9701.


Sec.  1610.1  [Amended]

0
2. In Sec.  1610.1, remove paragraphs (d), (e), (f), (g), (k), (l), 
(n), and (o) and redesignate paragraphs (h), (i), (j), and

[[Page 95871]]

(m) as paragraphs (d) through (g), respectively.

0
3. Revise Sec.  1610.2 to read as follows:


Sec.  1610.2  Statutory requirements.

    (a) This subpart contains the rules that the Commission will follow 
in processing requests for records under the Freedom of Information Act 
(``FOIA''), 5 U.S.C. 552. These rules should be read in conjunction 
with the text of the FOIA and the Uniform Freedom of Information Fee 
Schedule and Guidelines published by the Office of Management and 
Budget (``OMB Guidelines''). Requests made by individuals for records 
about themselves under the Privacy Act of 1974, 5 U.S.C. 552a, are 
processed in accordance with the Commission's Privacy Act regulations 
as well as under this subpart. The Commission should administer the 
FOIA with a presumption of openness. As a matter of policy, the 
Commission may make discretionary disclosures of records or information 
exempt from disclosure under the FOIA whenever disclosure would not 
foreseeably harm an interest protected by a FOIA exemption. This policy 
does not create any right enforceable in court.
    (b) As referenced in this subpart, ``component'' means each 
separate office within the Commission that is responsible for 
processing FOIA requests. The rules described in this regulation that 
apply to the Commission also apply to its components.

0
4. Revise Sec.  1610.3 to read as follows:


Sec.  1610.3  Purpose and scope.

    (a) This subpart contains the regulations of the Equal Employment 
Opportunity Commission implementing 5 U.S.C. 552. The regulations of 
this subpart provide information concerning the procedures by which 
records may be obtained from all organizational units within the 
Commission. Official records of the Commission made available pursuant 
to the requirements of 5 U.S.C. 552 shall be furnished to members of 
the public only as prescribed by this subpart. Officers and employees 
of the Commission may continue to furnish to the public, informally and 
without compliance with the procedures prescribed herein, information 
and records which prior to the enactment of 5 U.S.C. 552 were furnished 
customarily in the regular performance of their duties.
    (b) Nothing in this subpart shall be construed to entitle any 
person, as of right, to any service or to the disclosure of any record 
to which such person is not entitled under the FOIA.

0
5. In Sec.  1610.4, revise paragraphs (a), (b)(6) and (7), add 
paragraph (b)(8), and revise paragraph (c) to read as follows:


Sec.  1610.4  Public reference facilities and current index.

    (a) Records that the FOIA requires the Commission to make available 
for public inspection in an electronic format may be accessed through 
the Commission's Web site. The Commission is responsible for 
determining which of its records must be made publicly available, for 
identifying additional records of interest to the public that are 
appropriate for public disclosure, and for posting and indexing such 
records. The Commission must ensure that its Web site of posted records 
and indices is reviewed and updated on an ongoing basis. The Commission 
has a FOIA Requester Service Center or FOIA Public Liaison who can 
assist individuals in locating records particular to the Commission. 
Contact information is located at https://www.eeoc.gov/eeoc/foia/index.cfm. A list of agency FOIA Public Liaisons is available at https://www.foia.gov/report-makerequest.html.
    (b) * * *
    (6) ``CCH Equal Employment Opportunity Commission Decisions'' (1973 
and 1983);
    (7) Commission awarded contracts; and
    (8) Copies of all records, regardless of form or format, that 
because of the nature of their subject matter--
    (i) The Commission determines have become, or are likely to become, 
the subject of subsequent requests for substantially the same records; 
or
    (ii) That have been requested 3 or more times.
    (c) The Commission's District Offices with public reading areas 
are:
    Atlanta District Office, Sam Nunn Atlanta Federal Center, 100 
Alabama Street SW., Suite 4R30, Atlanta, GA 30303 (includes the 
Savannah Local Office).
    Birmingham District Office, Ridge Park Place, 1130 22nd Street 
South, Suite 2000, Birmingham, AL 35205-2397 (includes the Jackson Area 
Office and the Mobile Local Office).
    Charlotte District Office, 129 West Trade Street, Suite 400, 
Charlotte, NC 28202 (includes the Raleigh Area Office, the Greensboro 
Local Office, the Greenville Local Office, the Norfolk Local Office, 
and the Richmond Local Office).
    Chicago District Office, 500 West Madison Street, Suite 2000, 
Chicago, IL 60661 (includes the Milwaukee Area Office and the 
Minneapolis Area Office).
    Dallas District Office, 207 S. Houston Street, 3rd Floor, Dallas, 
TX 75202-4726 (includes the San Antonio Field Office and the El Paso 
Area Office).
    Houston District Office, Mickey Leland Building, 1919 Smith Street, 
6th Floor, Houston, TX 77002 (includes the New Orleans Field Office).
    Indianapolis District Office, 101 West Ohio Street, Suite 1900, 
Indianapolis, IN 46204-4203 (includes the Detroit Field Office, the 
Cincinnati Area Office, and the Louisville Area Office).
    Los Angeles District Office, Roybal Federal Building, 255 East 
Temple Street, 4th Floor, Los Angeles, CA 90012 (includes the Fresno 
Local Office, the Honolulu Local Office, the Las Vegas Local Office, 
and the San Diego Local Office).
    Memphis District Office, 1407 Union Avenue, 9th Floor, Memphis, TN 
38104 (includes the Little Rock Area Office, and the Nashville Area 
Office).
    Miami District Office, Miami Tower, 100 SE 2nd Street, Suite 1500, 
Miami, FL 33131 (includes the Tampa Field Office, and the San Juan 
Local Office).
    New York District Office, 33 Whitehall Street, 5th Floor, New York, 
NY 10004 (includes the Boston Area Office, the Newark Area Office, and 
the Buffalo Local Office).
    Philadelphia District Office, 801 Market Street, Suite 1300, 
Philadelphia, PA 19107-3127 (includes the Baltimore Field Office, the 
Cleveland Field Office, and the Pittsburgh Area Office).
    Phoenix District Office, 3300 N. Central Avenue, Suite 690, 
Phoenix, AZ 85012-2504 (includes the Denver Field Office, and the 
Albuquerque Area Office).
    San Francisco District Office, 450 Golden Gate Avenue, 5 West, P.O. 
Box 36025, San Francisco, CA 94102-3661 (includes the Seattle Field 
Office, the Oakland Local Office, and the San Jose Local Office).
    St. Louis District Office, Robert A. Young Federal Building, 1222 
Spruce Street, Room 8100, St. Louis, MO 63103 (includes the Kansas City 
Area Office, and the Oklahoma City Area Office).

0
6. Revise Sec.  1610.5 to read as follows:


Sec.  1610.5  Request for records.

    (a) General information. (1) To make a request for records, a 
requester should write directly to the Commission's FOIA office that 
maintains the records sought. A request will receive the quickest 
possible response if it is addressed to the Commission FOIA office that 
maintains the records sought. Information concerning the Commission's 
FOIA offices is listed at: https://www.eeoc.gov/eeoc/foia/index.cfm and 
any additional requirements for submitting a request to the agency are 
listed at paragraphs (b)

[[Page 95872]]

and (d) of this section. The Commission's Web site contains 
instructions for submitting FOIA requests and other resources to assist 
requesters in determining where to send their requests.
    (2) A requester who is making a request for records about himself 
or herself must comply with the verification of identity requirements 
as determined by the Commission.
    (3) Where a request for records pertains to another individual, a 
requester may receive greater access by submitting either a notarized 
authorization signed by that individual or a declaration made in 
compliance with the requirements set forth in 28 U.S.C. 1746 by that 
individual authorizing disclosure of the records to the requester, or 
by submitting proof that the individual is deceased (for example, a 
copy of a death certificate or an obituary). As an exercise of 
administrative discretion, the Commission can require a requester to 
supply additional information if necessary in order to verify that a 
particular individual has consented to disclosure.
    (b) Description of records sought. Requesters must describe the 
records sought in sufficient detail to enable Commission personnel to 
locate them with a reasonable amount of effort. To the extent possible, 
requesters should include specific information that may help the 
Commission identify the requested records, such as the date, title or 
name, author, recipient, subject matter of the record, case number, 
file designation, or reference number. Before submitting their 
requests, requesters may contact the Commission's District Office FOIA 
contact or FOIA Public Liaison to discuss the records they seek and to 
receive assistance in describing the records. If after receiving a 
request the Commission determines that it does not reasonably describe 
the records sought, the Commission must inform the requester what 
additional information is needed or why the request is otherwise 
insufficient. Requesters who are attempting to reformulate or modify 
such a request may discuss their request with the Commission's FOIA 
contact or FOIA Public Liaison. If a request does not reasonably 
describe the records sought, the agency's response to the request may 
be delayed.
    (1) A written request for inspection or copying of a record of the 
Commission may be presented in person, by mail, by fax, by email at 
FOIA@eeoc.gov, online at https://publicportalfoiapal.eeoc.gov/palMain.aspx, or through the Commission employee designated in Sec.  
1610.7.
    (2) A request must be clearly and prominently identified as a 
request for information under the ``Freedom of Information Act.'' If 
submitted by mail, or otherwise submitted under any cover, the envelope 
or other cover must be similarly identified.
    (3) A respondent must always provide a copy of the ``Filed'' 
stamped court complaint when requesting a copy of a charge file. The 
charging party must provide a copy of the ``Filed'' stamped court 
complaint when requesting a copy of the charge file if the Notice of 
Right to Sue has expired as of the date of the charging party's 
request.
    (4) Each request must contain information which reasonably 
describes the records sought and, when known, should contain date, 
title or name, author, recipient, subject matter of the record, case 
number, file designation, or reference number and location for the 
records requested in order to permit the records to be promptly 
located.
    (5) Where a request is not considered reasonably descriptive or 
requires the production of voluminous records, or necessitates the 
utilization of a considerable number of work hours to the detriment of 
the business of the Commission, the Commission may require the person 
making the request or such person's agent to confer with a Commission 
representative in order to attempt to verify the scope of the request 
and, if possible, narrow such request.
    (c) Format. Requests may specify the preferred form or format 
(including electronic formats) for the records the requester seeks. The 
Commission will accommodate the request if the records are readily 
reproducible in that form or format.
    (d) Requester information. Requesters must provide contact 
information, such as their phone number, email address, and/or mailing 
address, to assist the agency in communicating with them and providing 
released records.


Sec.  1610.6  [Removed and Reserved]

0
7. Remove and reserve Sec.  1610.6.

0
8. Revise Sec.  1610.7 to read as follows:


Sec.  1610.7  Where to make request; form.

    (a) In general. The Commission or component that first receives a 
request for a record and maintains that record is responsible for 
responding to the request. In determining which records are responsive 
to a request, the Commission ordinarily will include only records in 
its possession as of the date that it begins its search. If any other 
date is used, the Commission must inform the requester of that date. A 
record that is excluded from the requirements of the FOIA pursuant to 5 
U.S.C. 552(c), is not considered responsive to a request. Requests for 
the following types of records, however, should be submitted to the 
District Director for the pertinent district, field, area, or local 
office, at the district office address listed in Sec.  1610.4(c) or, in 
the case of the Washington Field Office, shall be submitted to the 
Field Office Director at 131 M Street NE., Fourth Floor, Washington, DC 
20507:
    (1) Information about current or former employees of an office;
    (2) Existing non-confidential statistical data related to the case 
processing of an office;
    (3) Agreements between the Commission and State or local fair 
employment agencies operating within the jurisdiction of an office; or
    (4) Materials in office investigative files related to charges 
under: Title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et 
seq.); the Equal Pay Act (29 U.S.C. 206(d)); the Age Discrimination in 
Employment Act of 1967 (29 U.S.C. 621 et seq.); the Americans with 
Disabilities Act of 1990 (42 U.S.C. 12101 et seq.); or the Genetic 
Information Nondiscrimination Act of 2008 (42 U.S.C. 2000ff et seq.).
    (b) Request for other records. A request for any record which does 
not fall within the ambit of paragraph (a) of this section, or a 
request for any record the location of which is unknown to the person 
making the request, shall be submitted in writing to the Assistant 
Legal Counsel, FOIA Programs, U.S. Equal Employment Opportunity 
Commission, by mail to 131 M Street NE., Suite 5NW02E, Washington, DC 
20507, by fax to (202) 653-6034, by email to FOIA@eeoc.gov, or by 
Internet to https://publicportalfoiapal.eeoc.gov/palMain.aspx.
    (c) Authority to grant or deny requests. The Commission has granted 
this authority to the Legal Counsel. The Legal Counsel is authorized to 
grant or to deny any requests for records that are maintained by the 
Commission.
    (d) Re-routing of misdirected requests. Where the Commission 
determines that a request was misdirected within the agency, the 
receiving component's FOIA office must route the request to the FOIA 
office of the proper component(s) within the Commission.
    (e) Consultation, referral, and coordination. When reviewing 
records located by the Commission in response to a request, the 
Commission will determine whether another agency of the Federal 
Government is better able to determine whether the record is exempt

[[Page 95873]]

from disclosure under the FOIA. As to any such record, the Commission 
must proceed in one of the following ways:
    (1) Consultation. When records originated with the Commission, but 
contain within them information of interest to another agency or other 
Federal Government office, the Commission will typically consult with 
that other entity prior to making a release determination.
    (2) Referral. (i) When the Commission believes that a different 
agency or component is best able to determine whether to disclose the 
record, the Commission typically will refer the responsibility for 
responding to the request regarding that record to that agency. 
Ordinarily, the agency that originated the record is presumed to be the 
best agency to make the disclosure determination. However, if the 
Commission is processing the request and the originating agency agrees 
that the Commission is in the best position to respond regarding the 
record, then the record may be handled as a consultation.
    (ii) Whenever the Commission refers any part of the responsibility 
for responding to a request to another agency, it must document the 
referral, maintain a copy of the record that it refers, and notify the 
requester of the referral, informing the requester of the name(s) of 
the agency to which the record was referred, including that agency's 
FOIA contact information.
    (3) Coordination. The standard referral procedure is not 
appropriate where disclosure of the identity of the agency to which the 
referral would be made could harm an interest protected by an 
applicable exemption, such as the exemptions that protect personal 
privacy or national security interests. For example, if a non-law 
enforcement agency responding to a request for records on a living 
third party locates within its files records originating with a law 
enforcement agency, and if the existence of that law enforcement 
interest in the third party was not publicly known, then to disclose 
that law enforcement interest could cause an unwarranted invasion of 
the personal privacy of the third party. Similarly, if the Commission 
locates within its files material originating with an Intelligence 
Community agency and the involvement of that agency in the matter is 
classified and not publicly acknowledged, then to disclose or give 
attribution to the involvement of that Intelligence Community agency 
could cause national security harms. In such instances, in order to 
avoid harm to an interest protected by an applicable exemption, the 
Commission will coordinate with the originating agency to seek its 
views on the disclosability of the record. The release determination 
for the record that is the subject of the coordination will then be 
conveyed to the requester by the Commission.
    (e) Classified information. On receipt of any request involving 
information that is marked classified, the Commission must determine 
whether the information is currently and properly classified in 
accordance with applicable classification rules. Whenever a request 
involves a record containing information that has been marked as 
classified or may be appropriate for classification by another agency 
under any applicable executive order concerning the classification of 
records, the Commission must refer the responsibility for responding to 
the request regarding that information to the agency that classified 
the information, or that should consider the information for 
classification. Whenever an agency's record contains information that 
has been derivatively classified (for example, when it contains 
information classified by another agency), the Commission must refer 
the responsibility for responding to that portion of the request to the 
agency that classified the underlying information.
    (f) Timing of responses to consultations and referrals. All 
consultations and referrals received by the Commission will be handled 
according to the date that the referring agency received the perfected 
FOIA request.
    (g) Agreements regarding consultations and referrals. The 
Commission may establish agreements with other agencies to eliminate 
the need for consultations or referrals with respect to particular 
types of records.

0
9. Revise Sec.  1610.9 to read as follows:


Sec.  1610.9  Responses: Timing.

    (a) In general. The Commission ordinarily will respond to requests 
according to their order of receipt. The various ways in which to 
submit a request to, or check on the status of a request with, EEOC are 
listed at: https://www.eeoc.gov/eeoc/foia/index.cfm. The information 
located at www.foia.gov/report-makerequest.html contains a list of all 
agencies and components that are designated to accept requests. In 
instances involving misdirected requests that are re-routed pursuant to 
Sec.  1610.7(d), the response time will commence on the date that the 
request is received by the proper component office that is designated 
to receive requests, but in any event not later than 10 working days 
after the request is first received by the component office that is 
designated by these regulations to receive requests.
    (b) Multitrack processing. The Commission designates a specific 
track for requests that are granted expedited processing, in accordance 
with the standards set forth in paragraph (f) of this section. The 
Commission also designates additional processing tracks that 
distinguish between simple and more complex requests based on the 
estimated amount of work or time needed to process the request. Among 
the factors considered are the number of records requested, the number 
of pages involved in processing the request and the need for 
consultations or referrals. The Commission must advise requesters of 
the track into which their request falls and, when appropriate, will 
offer the requesters an opportunity to narrow or modify their request 
so that it can be placed in a different processing track.
    (c) Acknowledgment. The Assistant Legal Counsel, FOIA Programs, the 
District Director, or the District Director's designee shall, within 10 
days from receipt of a request, notify the requester in writing of the 
date the Commission received the request, the expected date of issuance 
of the determination, the individualized FOIA tracking number assigned 
to the request, and the telephone number or Internet site where 
requesters may inquire about the status of their request.
    (d) Unusual circumstances. Whenever the Commission cannot meet the 
statutory time limit for processing a request because of ``unusual 
circumstances,'' as defined in the FOIA, and the Commission extends the 
time limit on that basis, the Commission must, before expiration of the 
20-day period to respond, notify the requester in writing of the 
unusual circumstances involved and of the date by which the agency 
estimates processing of the request will be completed. Where the 
extension exceeds 10 working days, the agency must, as described by the 
FOIA, provide the requester with an opportunity to modify the request 
or arrange an alternative time period for processing the original or 
modified request. The Commission must make available its designated 
FOIA contact or its FOIA Public Liaison for this purpose. The contact 
information for the EEOC FOIA Public Liaison is located at: https://www.eeoc.gov/eeoc/foia/index.cfm. A list of agency FOIA Public Liaisons 
is available at: https://www.foia.gov/report-makerequest.html. The 
Commission must also alert requesters to the availability of the Office 
of Government Information Services (OGIS) to provide dispute resolution 
services.

[[Page 95874]]

    (e) Aggregating requests. To satisfy unusual circumstances under 
the FOIA, the Commission may aggregate requests in cases where it 
reasonably appears that multiple requests, submitted either by a 
requester or by a group of requesters acting in concert, constitute a 
single request that would otherwise involve unusual circumstances. The 
Commission cannot aggregate multiple requests that involve unrelated 
matters.
    (f) Expedited processing. (1) The Commission must process requests 
and appeals on an expedited basis whenever it is determined that they 
involve:
    (i) Circumstances in which the lack of expedited processing could 
reasonably be expected to pose an imminent threat to the life or 
physical safety of an individual; or
    (ii) An urgency to inform the public about an actual or alleged 
Federal Government activity, if made by a person who is primarily 
engaged in disseminating information.
    (2) A request for expedited processing may be made at any time. 
Requests based on paragraphs (f)(1)(i) and (ii) of this section must be 
submitted to the Commission or component of the Commission that 
maintains the records requested. When making a request for expedited 
processing of an administrative appeal, the request should be submitted 
to the Commission's Office of Legal Counsel, the office that 
adjudicates appeals.
    (3) A requester who seeks expedited processing must submit a 
statement, certified to be true and correct, explaining in detail the 
basis for making the request for expedited processing. For example, 
under paragraph (f)(1)(ii) of this section, a requester who is not a 
full-time member of the news media must establish that the requester is 
a person whose primary professional activity or occupation is 
information dissemination, though it need not be the requester's sole 
occupation. Such a requester also must establish a particular urgency 
to inform the public about the government activity involved in the 
request--one that extends beyond the public's right to know about 
government activity generally. Depending on the circumstances, the 
existence of numerous recently published articles on a given subject 
may be helpful in establishing the requirement that there be an 
``urgency to inform'' the public on the topic. This factor is not 
dispositive. As a matter of administrative discretion, the Commission 
may waive the formal certification requirement.
    (4) The Commission must notify the requester within 10 calendar 
days of the receipt of a request for expedited processing of its 
decision whether to grant or deny expedited processing. If expedited 
processing is granted, the request must be given priority, placed in 
the processing track for expedited requests, and must be processed as 
soon as practicable. If a request for expedited processing is denied, 
the Commission must act on any appeal of that decision expeditiously.
    (g) Tolling. The Commission may toll the statutory time period to 
issue its determination on a FOIA request one time during the 
processing of the request to obtain clarification from the requester. 
The statutory time period to issue the determination on disclosure is 
tolled until EEOC receives the information reasonably requested from 
the requester. The agency may also toll the statutory time period to 
issue the determination to clarify with the requester issues regarding 
fees. There is no limit on the number of times the agency may request 
clarifying fee information from the requester.

0
10. Revise Sec.  1610.10 to read as follows:


Sec.  1610.10  Responses: Form and content.

    (a) In general. The Commission, to the extent practicable, will 
communicate with requesters having access to the Internet 
electronically, such as email or web portal.
    (b) Acknowledgments of requests. The Commission must acknowledge 
the request in writing and assign it an individualized tracking number 
if it will take longer than 10 working days to process. The Commission 
must include in the acknowledgment a brief description of the records 
sought to allow requesters to more easily keep track of their requests.
    (c) Estimated dates of completion and interim responses. Upon 
request, the Commission will provide an estimated date by which it 
expects to provide a response to the requester. If a request involves a 
voluminous amount of material, or searches in multiple locations, the 
Commission may provide interim responses, releasing the records on a 
rolling basis.
    (d) Grants of requests. Once the Commission determines it will 
grant a request in full or in part, it must notify the requester in 
writing. The agency must also inform the requester of any fees charged 
under Sec.  1610.15 of this part and must disclose the requested 
records to the requester promptly upon payment of any applicable fees. 
The Commission must inform the requester of the availability of its 
FOIA Public Liaison to offer assistance.
    (e) Adverse determinations of requests. If the Commission makes an 
adverse determination denying a request in any respect, it must notify 
the requester of that determination in writing. Adverse determinations, 
or denials of requests, include decisions that: The requested record is 
exempt, in whole or in part; the request does not reasonably describe 
the records sought; the information requested is not a record subject 
to the FOIA; the requested record does not exist, cannot be located, or 
has been destroyed; or the requested record is not readily reproducible 
in the form or format sought by the requester. Adverse determinations 
also include denials involving fees or fee waiver matters or denials of 
requests for expedited processing.
    (f) Content of denial. The denial must be signed by the head of the 
Commission or designee and must include:
    (1) The name and title or position of the person responsible for 
the denial;
    (2) A brief statement of the reasons for the denial, including any 
FOIA exemption applied by the Commission in denying the request;
    (3) An estimate of the volume of any records or information 
withheld, such as the number of pages or some other reasonable form of 
estimation (such an estimate is not required if the volume is otherwise 
indicated by deletions marked on records that are disclosed in part or 
if providing an estimate would harm an interest protected by an 
applicable exemption);
    (4) A statement that the denial may be appealed under paragraph 
1610.11 of this section, and a description of the appeal requirements; 
and
    (5) A statement notifying the requester of the assistance available 
from the Commission's FOIA Public Liaison and the dispute resolution 
services offered by OGIS.
    (g) Markings on released documents. Records disclosed in part must 
be marked clearly to show the amount of information deleted and the 
exemption under which the deletion was made unless doing so would harm 
an interest protected by an applicable exemption. The location of the 
information deleted must also be indicated on the record, if 
technically feasible.

0
11. Amend Sec.  1610.11 as follows:
0
a. Revise paragraphs (a) through (c);
0
b. Remove paragraph (g);
0
c. Redesignate paragraphs (d) through (f) as paragraphs (f) through 
(h); and
0
d. Add new paragraphs (d) and (e).
    The revisions and additions read as follows:

[[Page 95875]]

Sec.  1610.11  Appeals to the legal counsel from initial denials.

    (a) Requirements for making an appeal. A requester may appeal any 
adverse determination to the Legal Counsel, or the Assistant Legal 
Counsel, FOIA Programs. Any appeal of a determination issued by a 
District Director or the District Director's designee must include a 
copy of the District Director's or the District Director's designee's 
determination. If a FOIA appeal is misdirected to a District Office, 
the District Office shall forward the appeal to the Legal Counsel, or 
the Assistant Legal Counsel, FOIA Programs, as appropriate, within 10 
business days. Examples of adverse determinations are provided in Sec.  
1610.10(e). Requesters can submit appeals by mail, by fax to (202) 653-
6034, by email to FOIA@eeoc.gov, or online at https://publicportalfoiapal.eeoc.gov/palMain.aspx. The requester must make the 
appeal in writing and to be considered timely it must be postmarked, or 
in the case of electronic submissions, transmitted, within 90 calendar 
days after the date of the response. The appeal should clearly identify 
the Commission determination that is being appealed and the assigned 
request number. To facilitate handling, the requester should mark both 
the appeal letter and envelope, or subject line of the electronic 
transmission, ``Freedom of Information Act Appeal.''
    (b) Adjudication of appeals. (1) The Legal Counsel or designee, or 
the Assistant Legal Counsel, FOIA Programs, as appropriate, will decide 
all appeals under this section.
    (2) An appeal ordinarily will not be adjudicated if the request 
becomes a matter of FOIA litigation.
    (c) Decisions on appeals. The Commission must provide its decision 
on an appeal in writing. A decision that upholds the Commission's 
determination in whole or in part must contain a statement that 
identifies the reasons for the affirmance, including any FOIA 
exemptions applied. The decision must provide the requester with 
notification of the statutory right to file a lawsuit and will inform 
the requester of the mediation services offered by the Office of 
Government Information Services of the National Archives and Records 
Administration as a non-exclusive alternative to litigation. If the 
Commission's decision is remanded or modified on appeal, the Commission 
will notify the requester of that determination in writing. The 
Commission will then further process the request in accordance with 
that appeal determination and will respond directly to the requester.
    (d) Engaging in dispute resolution services provided by OGIS. 
Mediation is a voluntary process. If the Commission 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.
    (e) When appeal is required. Before seeking review by a court of 
the Commission's adverse determination, a requester generally must 
first submit a timely administrative appeal.
* * * * *

0
12. Revise Sec.  1610.13 to read as follows:


Sec.  1610.13  Maintenance of files.

    The Commission must preserve all correspondence pertaining to the 
requests that it receives under this subpart, as well as copies of all 
requested records, until disposition or destruction is authorized 
pursuant to Title 44 of the United States Code or the General Records 
Schedule 14 of the National Archives and Records Administration. The 
Commission must not dispose of or destroy records while they are the 
subject of a pending request, appeal, or lawsuit under the FOIA.

0
13. Revise Sec.  1610.15 to read as follows:


Sec.  1610.15  Schedule of fees and method of payment for services 
rendered.

    (a) In general. (1) The Commission will charge for processing 
requests under the FOIA in accordance with the provisions of this 
section and with the OMB Guidelines. For purposes of assessing fees, 
the FOIA establishes three categories of requesters:
    (i) Commercial use requesters;
    (ii) Non-commercial scientific or educational institutions or news 
media requesters; and
    (iii) All other requesters.
    (2) Different fees are assessed depending on the category. 
Requesters may seek a fee waiver. The Commission must consider requests 
for fee waiver in accordance with the requirements in paragraph (k) of 
this section. To resolve any fee issues that arise under this section, 
the Commission may contact a requester for additional information. The 
Commission must ensure that searches, review, and duplication are 
conducted in the most efficient and the least expensive manner. The 
Commission ordinarily will collect all applicable fees before sending 
copies of records to a requester. Requesters must pay fees by check or 
money order made payable to the Treasury of the United States, or 
through Pay.gov.
    (b) Definitions. For purposes of this section:
    (1) Commercial use request refers to a request that asks for 
information for a use or a purpose that furthers a commercial, trade, 
or profit interest, which can include furthering those interests 
through litigation. An agency's decision to place a requester in the 
commercial use category will be made on a case-by-case basis based on 
the requester's intended use of the information. The Commission will 
notify requesters of their placement in this category.
    (2) Direct costs refers to those expenses that the Commission 
incurs in searching for and duplicating (and, in the case of commercial 
use requests, reviewing) records in order to respond to a FOIA request. 
For example, direct costs include the salary of the employee performing 
the work (for example, the basic rate of pay for the employee, plus 16 
percent of that rate to cover benefits) and the cost of operating 
computers and other electronic equipment, such as photocopiers and 
scanners. Direct costs do not include overhead expenses such as the 
costs of space, and of heating or lighting a facility.
    (3) Duplication refers to reproducing a copy of a record, or of the 
information contained in it, necessary to respond to a FOIA request. 
Copies can take the form of paper, audiovisual materials, or electronic 
records, among others.
    (4) Educational institution refers to any school that operates a 
program of scholarly research. A requester in this fee category must 
show that the request is made in connection with his or her role at the 
educational institution. The Commission may seek verification from the 
requester that the request is in furtherance of scholarly research, and 
the Commission will advise requesters of their placement in this 
category.

    Example 1. A request from a professor of sociology at a 
university for records relating to women in the workplace, written 
on letterhead of the Department of Sociology, would be presumed to 
be from an educational institution.
    Example 2. A request from the same professor of sociology 
seeking candidate correspondence from the Commission in furtherance 
of a mystery book she is writing would not be presumed to be an 
institutional request, regardless of whether it was written on 
institutional stationery.
    Example 3. A student who makes a request in furtherance of her 
coursework or other school-sponsored activities and provides a copy 
of a course syllabus or other reasonable documentation to indicate 
the research purpose for the request, would qualify as part of this 
fee category.


[[Page 95876]]


    (5) Noncommercial scientific institution is an institution that is 
not operated on a ``commercial basis,'' as defined in paragraph (b)(1) 
of this section, and that is operated solely for the purpose of 
conducting scientific research the results of which are not intended to 
promote any particular product or industry. A requester in this 
category must show that the request is authorized by and is made under 
the auspices of a qualifying institution and that the records are 
sought to further scientific research and are not for a commercial use. 
The Commission will advise requesters of their placement in this 
category.
    (6) Representative of the news media is any person or entity that 
gathers information of potential interest to a segment of the public, 
uses its editorial skills to turn the raw materials into a distinct 
work, and distributes that work to an audience. The term ``news'' means 
information that is about current events or that would be of current 
interest to the public. Examples of news media entities include 
television or radio stations that broadcast ``news'' to the public at 
large and publishers of periodicals that disseminate ``news'' and make 
their products available through a variety of means to the general 
public, including news organizations that disseminate solely on the 
Internet. A request for records supporting the news-dissemination 
function of the requester will not be considered to be for a commercial 
use. ``Freelance journalists'' who demonstrate a solid basis for 
expecting publication through a news media entity will be considered 
representatives of the news media. A publishing contract would provide 
the clearest evidence that publication is expected; however, the 
Commission can also consider a requester's past publication record in 
making this determination. The Commission will advise requesters of 
their placement in this category.
    (7) Review is the examination of a record located in response to a 
request in order to determine whether any portion of it is exempt from 
disclosure. Review time includes processing any record for disclosure, 
such as doing all that is necessary to prepare the record for 
disclosure, including the process of redacting the record and marking 
the appropriate exemptions. Review costs are properly charged even if a 
record ultimately is not disclosed. Review time also includes time 
spent both obtaining and considering any formal objection to disclosure 
made by a confidential commercial information submitter under Sec.  
1610.19, but it does not include time spent resolving general legal or 
policy issues regarding the application of exemptions.
    (8) Search is the process of looking for and retrieving records or 
information responsive to a request. Search time includes page-by-page 
or line-by-line identification of information within records and the 
reasonable efforts expended to locate and retrieve information from 
electronic records.
    (c) Charging fees. In responding to FOIA requests, the Commission 
will charge the following fees unless a waiver or reduction of fees has 
been granted under paragraph (k) of this section. Because the fee 
amounts provided below already account for the direct costs associated 
with a given fee type, the Commission will not add any additional costs 
to charges calculated under this section.
    (1) Search. (i) Requests made by educational institutions, 
noncommercial scientific institutions, or representatives of the news 
media are not subject to search fees. The Commission will charge search 
fees for all other requesters, subject to the restrictions of paragraph 
(d) of this section. The Commission may properly charge for time spent 
searching even if it does not locate any responsive records or if it 
determines that the records are entirely exempt from disclosure.
    (ii) For each quarter hour spent by personnel searching for 
requested records, including electronic searches that do not require 
new programming, the fees will be charged as follows:
    (A) By clerical personnel--at the rate of $5.00 per quarter hour.
    (B) By paralegals--at the rate of $9.00 per quarter hour.
    (C) By professional personnel--at the rate of $10.00 per quarter 
hour.
    (D) By managers--at the rate of $17.50 per quarter hour.
    (E) By SES employees--at the rate of $20.00 per quarter hour.
    (iii) The Commission will charge the direct costs associated with 
conducting any search that requires the creation of a new computer 
program to locate the requested records. The Commission must notify the 
requester of the costs associated with creating such a program, and the 
requester must agree to pay the associated costs before the costs may 
be incurred.
    (iv) For requests that require the retrieval of records stored by 
the Commission at a Federal Records Center operated by the National 
Archives and Records Administration (NARA), the Commission will charge 
additional costs in accordance with the Transactional Billing Rate 
Schedule established by NARA: https://www.archives.gov/dc-metro/suitland/delivery-fees.html.
    (2) Duplication. The Commission will charge duplication fees to all 
requesters, subject to the restrictions of paragraph (d) of this 
section. The Commission must honor a requester's preference for 
receiving a record in a particular form or format where the Commission 
can readily reproduce it in the form or format requested. Where 
photocopies are supplied, the Commission will provide one copy per 
request at the cost of $.15/page. For copies of records produced on 
tapes, disks, or other media, agencies will charge the direct costs of 
producing the copy, including operator time. Where paper documents must 
be scanned in order to comply with a requester's preference to receive 
the records in an electronic format, the requester must also pay the 
direct costs associated with scanning those materials. For other forms 
of duplication, the Commission will charge the direct costs.
    (3) Review. The Commission will charge review fees to requesters 
who make commercial use requests. Review fees will be assessed in 
connection with the initial review of the record, for example, the 
review conducted by an agency to determine whether an exemption applies 
to a particular record or portion of a record. No charge will be made 
for review at the administrative appeal stage of exemptions applied at 
the initial review stage. However, if a particular exemption is deemed 
to no longer apply, any costs associated with an agency's re-review of 
the records in order to consider the use of other exemptions may be 
assessed as review fees. Review fees will be charged at the same rates 
as those charged for a search under paragraph (c)(1)(ii) of this 
section.
    (d) Restrictions on charging fees. (1) When the Commission 
determines that a requester is an educational institution, non-
commercial scientific institution, or representative of the news media, 
and the records are not sought for commercial use, it will not charge 
search fees.
    (2)(i) If the Commission fails to comply with the FOIA's time 
limits in which to respond to a request, it may not charge search fees, 
or, in instances of requests from requesters described in paragraph 
(d)(1) of this section, may not charge duplication fees, except as 
described in paragraphs (d)(2)(ii) through (iv) of this section.
    (ii) If the Commission has determined that unusual circumstances as 
defined by the FOIA apply and the Commission provided timely written 
notice to the requester in accordance with the FOIA, a failure to 
comply with the time limit shall be excused for an additional 10 days.

[[Page 95877]]

    (iii) If the Commission has determined that unusual circumstances, 
as defined by the FOIA, apply and more than 5,000 pages are necessary 
to respond to the request, the Commission may charge search fees, or, 
in the case of requesters described in paragraph (d)(1) of this 
section, may charge duplication fees, if the following steps are taken. 
The Commission must have provided timely written notice of unusual 
circumstances to the requester in accordance with the FOIA, and the 
Commission must have discussed with the requester via written mail, 
email or telephone (or not made less than three good-faith attempts to 
do so) how the requester could effectively limit the scope of the 
request in accordance with 5 U.S.C 552(a)(6)(B)(ii). If this exception 
is satisfied, the Commission may charge all applicable fees incurred in 
the processing of the request.
    (iv) If a court has determined that exceptional circumstances 
exist, as defined by the FOIA, a failure to comply with the time limits 
shall be excused for the length of time provided by the court order.
    (3) No search or review fees will be charged for a quarter-hour 
period unless more than half of that period is required for search or 
review.
    (4) Except for requesters seeking records for a commercial use, the 
Commission must provide without charge:
    (i) The first 100 pages of duplication (or the cost equivalent for 
other media); and
    (ii) The first two hours of search.
    (5) No fee will be charged when the total fee, after deducting the 
100 free pages (or its cost equivalent) and the first two hours of 
search, is equal to or less than $25.00.
    (e) Notice of anticipated fees in excess of $25.00. (1) When the 
Commission determines or estimates that the fees to be assessed in 
accordance with this section will exceed $25.00, the Commission must 
notify the requester of the actual or estimated amount of the fees, 
including a breakdown of the fees for search, review, or duplication, 
unless the requester has indicated a willingness to pay fees as high as 
those anticipated. If only a portion of the fee can be estimated 
readily, the Commission will advise the requester accordingly. If the 
request is not for noncommercial use, the notice will specify that the 
requester is entitled to the statutory entitlements of 100 pages of 
duplication at no charge and, if the requester is charged search fees, 
two hours of search time at no charge, and will advise the requester 
whether those entitlements have been provided.
    (2) If the agency notifies the requester that the actual or 
estimated fees are in excess of $25.00, the request will not be 
considered received and further work will not be completed until the 
requester commits in writing to pay the actual or estimated total fee, 
or designates some amount of fees the requester is willing to pay, or 
in the case of a noncommercial use requester who has not yet been 
provided with the requester's statutory entitlements, designates that 
the requester seeks only that which can be provided by the statutory 
entitlements. The requester must provide the commitment or designation 
in writing, and must, when applicable, designate an exact dollar amount 
the requester is willing to pay. The Commission is not required to 
accept payments in installments.
    (3) If the requester has indicated a willingness to pay some 
designated amount of fees, but the Commission estimates that the total 
fee will exceed that amount, the Commission will toll the processing of 
the request when it notifies the requester of the estimated fees in 
excess of the amount the requester has indicated a willingness to pay. 
The Commission will inquire whether the requester wishes to revise the 
amount of fees the requester is willing to pay or modify the request. 
Once the requester responds, the time to respond will resume from where 
it was at the date of the notification.
    (4) The Commission must make available its FOIA Public Liaison or 
other FOIA professional to assist any requester in reformulating a 
request to meet the requester's needs at a lower cost.
    (f) Charges for other services. Although not required to provide 
special services, if the Commission chooses to do so as a matter of 
administrative discretion, the direct costs of providing the service 
will be charged. Examples of such services include certifying that 
records are true copies, providing multiple copies of the same 
document, or sending records by means other than first class mail. The 
Commission charges for the following special services:
    (1) For attestation of documents--$25.00 per authenticating 
affidavit or declaration. Additionally, there may be search and review 
charges assessed in accordance with the rates listed in paragraph 
(c)(1) of this section.
    (2) For certification of document--$50.00 per authenticating 
affidavit or declaration. Additionally, there may be search and review 
charges assessed in accordance with the rates listed in paragraph 
(c)(1) of this section.
    (g) Charging interest. The Commission may charge interest on any 
unpaid bill starting on the 31st day following the date of billing the 
requester. Interest charges will be assessed at the rate provided in 31 
U.S.C. 3717 and will accrue from the billing date until payment is 
received by the agency. Agencies must follow the provisions of the Debt 
Collection Act of 1982, 5 U.S.C. 5514, as amended, and its 
administrative procedures, including the use of consumer reporting 
agencies, collection agencies, and offset.
    (h) Aggregating requests. When the Commission reasonably believes 
that a requester or a group of requesters acting in concert is 
attempting to divide a single request into a series of requests for the 
purpose of avoiding fees, the Commission may aggregate those requests 
and charge accordingly. The Commission may presume that multiple 
requests of this type made within a 30-day period have been made in 
order to avoid fees. For requests separated by a longer period, the 
Commission will aggregate them only where there is a reasonable basis 
for determining that aggregation is warranted in view of all the 
circumstances involved. Multiple requests involving unrelated matters 
cannot be aggregated.
    (i) Advance payments. (1) For requests other than those described 
in paragraph (i)(2) or (3) of this section, the Commission cannot 
require the requester to make an advance payment before work is 
commenced or continued on a request. Payment owed for work already 
completed (for example, payment before copies are sent to a requester) 
is not an advance payment.
    (2) When the Commission determines or estimates that a total fee to 
be charged under this section will exceed $250.00, it may require that 
the requester make an advance payment up to the amount of the entire 
anticipated fee before beginning to process the request. The Commission 
may elect to process the request prior to collecting fees when it 
receives a satisfactory assurance of full payment from a requester with 
a history of prompt payment.
    (3) Where a requester has previously failed to pay a properly 
charged FOIA fee to the Commission within 30 calendar days of the 
billing date, the Commission may require that the requester pay the 
full amount due, plus any applicable interest on that prior request, 
and the Commission may require that the requester make an advance 
payment of the full amount of any anticipated fee before the Commission 
begins to process a new request or continues to process a pending 
request or any pending appeal.

[[Page 95878]]

Where the Commission has a reasonable basis to believe that a requester 
has misrepresented the requester's identity in order to avoid paying 
outstanding fees, it may require that the requester provide proof of 
identity.
    (4) In cases in which the Commission requires advance payment, the 
request will not be considered received and further work will not be 
completed until the required payment is received. If the requester does 
not pay the advance payment within 30 calendar days after the date of 
the Commission's fee determination, the request will be closed.
    (j) Other statutes specifically providing for fees. The fee 
schedule of this section does not apply to fees charged under any 
statute that specifically requires an agency to set and collect fees 
for particular types of records. In instances where records responsive 
to a request are subject to a statutorily-based fee schedule program, 
the Commission must inform the requester of the contact information for 
that program.
    (k) Requirements for waiver or reduction of fees. (1) Requesters 
may seek a waiver of fees by submitting a written application 
demonstrating how disclosure of the requested information is in the 
public interest because it is likely to contribute significantly to 
public understanding of the operations or activities of the government 
and is not primarily in the commercial interest of the requester.
    (2) The Commission must furnish records responsive to a request 
without charge or at a reduced rate when it determines, based on all 
available information, that the factors described in paragraphs 
(k)(2)(i) through (iii) of this section are satisfied.
    (i) Disclosure of the requested information would shed light on the 
operations or activities of the government. The subject of the request 
must concern identifiable operations or activities of the Federal 
Government with a connection that is direct and clear, not remote or 
attenuated.
    (ii) Disclosure of the requested information would be likely to 
contribute significantly to public understanding of those operations or 
activities. This factor is satisfied when the following criteria are 
met:
    (A) Disclosure of the requested records must be meaningfully 
informative about government operations or activities. The disclosure 
of information that already is in the public domain, in either the same 
or a substantially identical form, would not be meaningfully 
informative if nothing new would be added to the public's 
understanding.
    (B) The disclosure must contribute to the understanding of a 
reasonably broad audience of persons interested in the subject, as 
opposed to the individual understanding of the requester. A requester's 
expertise in the subject area as well as the requester's ability and 
intention to effectively convey information to the public must be 
considered. The Commission will presume that a representative of the 
news media will satisfy this consideration.
    (iii) The disclosure must not be primarily in the commercial 
interest of the requester. To determine whether disclosure of the 
requested information is primarily in the commercial interest of the 
requester, the Commission will consider the following criteria:
    (A) The Commission must identify whether the requester has any 
commercial interest that would be furthered by the requested 
disclosure. A commercial interest includes any commercial, trade, or 
profit interest. Requesters must be given an opportunity to provide 
explanatory information regarding this consideration.
    (B) If there is an identified commercial interest, the Commission 
must determine whether that is the primary interest furthered by the 
request. A waiver or reduction of fees is justified when the 
requirements of paragraphs (k)(2)(i) and (ii) of this section are 
satisfied and any commercial interest is not the primary interest 
furthered by the request. The Commission ordinarily will presume that 
when a news media requester has satisfied factors set forth in 
paragraphs (k)(2)(i) and (ii) of this section, the request is not 
primarily in the commercial interest of the requester. Disclosure to 
data brokers or others who merely compile and market government 
information for direct economic return will not be presumed to 
primarily serve the public interest.
    (3) Where only some of the records to be released satisfy the 
requirements for a waiver of fees, a waiver must be granted for those 
records.
    (4) Requests for a waiver or reduction of fees should be made when 
the request is first submitted to the Commission 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 must pay any costs incurred up to the date the 
fee waiver request was received.


Sec.  1610.16  [Removed and Reserved]

0
14. Remove and reserve Sec.  1610.16.

0
15. In Sec.  1610.17, redesignate paragraphs (b) through (h) as 
paragraphs (e) through (k) and add new paragraphs (b) through (d) and 
paragraph (l) to read as follows:


Sec.  1610.17  Exemptions.

* * * * *
    (b) The Commission shall withhold information under the FOIA only 
if:
    (1) It reasonably foresees that disclosure would harm an interest 
protected by an exemption; or
    (2) Disclosure is prohibited by law.
    (c)(1) The Commission shall consider whether partial disclosure of 
information is possible whenever it determines that a full disclosure 
of a requested record is not possible; and
    (2) Take reasonable steps necessary to segregate and release 
nonexempt information.
    (d) Paragraph (c) of this section does not require disclosure of 
information that is otherwise prohibited from disclosure by law, or 
otherwise exempted from disclosure under Exemption 3.
* * * * *
    (l) The deliberative process privilege attached to Exemption 5 
shall not apply to records created 25 years or more before the date on 
which the records were requested.

0
16. Revise Sec.  1610.19 to read as follows:


Sec.  1610.19  Predisclosure notification procedures for confidential 
commercial information.

    (a) Definitions. (1) Confidential commercial information means 
commercial or financial information obtained by the agency from a 
submitter that may be protected from disclosure under Exemption 4 of 
the FOIA, 5 U.S.C. 552(b)(4).
    (2) Submitter means any person or entity, including a corporation, 
State, or foreign government, but not including another Federal 
Government entity, that provides confidential commercial information, 
either directly or indirectly to the Federal Government.
    (b) Designation of confidential commercial information. A submitter 
of confidential commercial information must use good faith efforts to 
designate by appropriate markings, at the time of submission, any 
portion of its submission that it considers to be protected from 
disclosure under Exemption 4. These designations expire 10 years after 
the date of the submission

[[Page 95879]]

unless the submitter requests and provides justification for a longer 
designation period.
    (c) When notice to submitters is required. (1) The Commission must 
promptly provide written notice to the submitter of confidential 
commercial information whenever records containing such information are 
requested under the FOIA if the Commission determines that it may be 
required to disclose the records, provided--
    (i) The requested information has been designated in good faith by 
the submitter as information considered protected from disclosure under 
Exemption 4; or
    (ii) The Commission has a reason to believe that the requested 
information may be protected from disclosure under Exemption 4, but has 
not yet determined whether the information is protected from 
disclosure.
    (2) The notice must either describe the commercial information 
requested or include a copy of the requested records or portions of 
records containing the information. In cases involving a voluminous 
number of submitters, the Commission may post or publish a notice in a 
place or manner reasonably likely to inform the submitters of the 
proposed disclosure, instead of sending individual notifications.
    (d) Exceptions to submitter notice requirements. The notice 
requirements of this section do not apply if:
    (1) The Commission determines that the information is exempt under 
the FOIA, and therefore will not be disclosed;
    (2) The information has been lawfully published or has been 
officially made available to the public;
    (3) Disclosure of the information is required by a statute other 
than the FOIA or by a regulation issued in accordance with the 
requirements of Executive Order 12600 of June 23, 1987; or
    (4) The designation made by the submitter under paragraph (b) of 
this section appears obviously frivolous. In such case, the Commission 
must give the submitter written notice of any final decision to 
disclose the information within 10 days prior to a specified disclosure 
date.
    (e) Opportunity to object to disclosure. (1) The Commission must 
specify a reasonable time period within which the submitter must 
respond to the notice referenced above.
    (2) If a submitter has any objections to disclosure, it should 
provide the agency a detailed written statement that specifies all 
grounds for withholding the particular information under any exemption 
of the FOIA. In order to rely on Exemption 4 as basis for 
nondisclosure, the submitter must explain why the information 
constitutes a trade secret or commercial or financial information that 
is confidential.
    (3) A submitter who fails to respond within the time period 
specified in the notice will be considered to have no objection to 
disclosure of the information. The Commission is not required to 
consider any information received after the date of any disclosure 
decision. Any information provided by a submitter under this subpart 
may itself be subject to disclosure under the FOIA.
    (f) Analysis of objections. The Commission must consider a 
submitter's objections and specific grounds for nondisclosure in 
deciding whether to disclose the requested information.
    (g) Notice of intent to disclose. Whenever the Commission decides 
to disclose information over the objection of a submitter, the 
Commission must provide the submitter written notice, which must 
include:
    (1) A statement of the reasons why each of the submitter's 
disclosure objections was not sustained;
    (2) A description of the information to be disclosed or copies of 
the records as the Commission intends to release them; and
    (3) A specified disclosure date, which must be 10 days after the 
notice.
    (h) Notice of FOIA lawsuit. Whenever a requester files a lawsuit 
seeking to compel the disclosure of confidential commercial 
information, the Commission must promptly notify the submitter.
    (i) Requester notification. The Commission must notify the 
requester whenever it provides the submitter with notice and an 
opportunity to object to disclosure; whenever it notifies the submitter 
of its intent to disclose the requested information; and whenever a 
submitter files a lawsuit to prevent the disclosure of the information.

0
17. Amend Sec.  1610.21 as follows:
0
a. Revise the first sentence of paragraph (a);
0
b. Redesignate paragraph (b) as paragraph (c); and
0
c. Add new paragraph (b).
    The revision and addition read as follows:


Sec.  1610.21  Annual report.

    (a) The Legal Counsel shall, on or before February 1, submit 
individual Freedom of Information Act reports for each principal agency 
FOIA component and one for the entire agency covering the preceding 
fiscal year to the Attorney General of the United States and to the 
director of the Office of Information Government Services. * * *
    (b) The Commission will make each such report available for public 
inspection in an electronic format. In addition, the Commission will 
make the raw statistical data used in each report available in a timely 
manner for public inspection in an electronic format, which will be 
available--
    (1) Without charge, license, or registration requirement;
    (2) In an aggregated, searchable format; and
    (3) In a format that may be downloaded in bulk.
* * * * *

    Dated: December 22, 2016.

    For the Commission.
Jenny R. Yang,
Chair.
[FR Doc. 2016-31388 Filed 12-28-16; 8:45 am]
BILLING CODE 6570-01-P