Revision of FOIA Regulations, 7666-7680 [2017-00453]

Agencies

• DEPARTMENT OF LABOR
• Office of the Secretary

[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]


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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.

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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 https://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 https://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, https://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 https://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 https://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 https://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 https://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]
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