### Subpart B-Production or Disclosure of Information

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  ![](media/image1.png){width="0.14583333333333334in"   [1401.20 Purpose and scope.](http://fmcs.gov/foia/#§1401.20 Purpose and scope.)
  height="0.14583333333333334in"}                       

  ![](media/image1.png){width="0.14583333333333334in"   [1401.21 Information policy.](http://fmcs.gov/foia/#§1401.21 Information policy.)
  height="0.14583333333333334in"}                       

  ![](media/image1.png){width="0.14583333333333334in"   [1401.22 Partial disclosure of
  height="0.14583333333333334in"}                       records.](http://fmcs.gov/foia/#§1401.22 Partial disclosure of records.)

  ![](media/image1.png){width="0.14583333333333334in"   [1401.23 Preparation of new
  height="0.14583333333333334in"}                       records.](http://fmcs.gov/foia/#§1401.23 Preparation of new records.)

  ![](media/image1.png){width="0.14583333333333334in"   [1401.24 Notices of dispute are
  height="0.14583333333333334in"}                       public.](http://fmcs.gov/foia/#§1401.24 Notices of dispute are public.)

  ![](media/image1.png){width="0.14583333333333334in"   [1401.30 Applicability of
  height="0.14583333333333334in"}                       procedures.](http://fmcs.gov/foia/#§1401.30 Applicability of procedures.)

  ![](media/image1.png){width="0.14583333333333334in"   [1401.31 Filing a request for
  height="0.14583333333333334in"}                       records.](http://fmcs.gov/foia/#§1401.31 Filing a request for records.)

  ![](media/image1.png){width="0.14583333333333334in"   [1401.32 Logging of written
  height="0.14583333333333334in"}                       requests.](http://fmcs.gov/foia/#§1401.32 Logging of written request.)

  ![](media/image1.png){width="0.14583333333333334in"   [1401.33 Description of Information
  height="0.14583333333333334in"}                       requested.](http://fmcs.gov/foia/#§1401.33 Description of information requested.)

  ![](media/image1.png){width="0.14583333333333334in"   [1401.34 Time for processing
  height="0.14583333333333334in"}                       requests.](http://fmcs.gov/foia/#§1401.34 Time for processing requests.)

  ![](media/image1.png){width="0.14583333333333334in"   [1401.35 Appeals from denials of
  height="0.14583333333333334in"}                       request.](http://fmcs.gov/foia/#§1401.35 Appeals from denials of request.)

  ![](media/image1.png){width="0.14583333333333334in"   [1401.36 Freedom of Information Act fee
  height="0.14583333333333334in"}                       schedules.](http://fmcs.gov/foia/#§1401.36 Freedom of Information Act fee schedules.)

  ![](media/image1.png){width="0.14583333333333334in"   [1401.37 Annual report](http://fmcs.gov/foia/#§1401.37 Annual report.)
  height="0.14583333333333334in"}                       
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AUTHORITY: Sec. 202, 61 Stat. 136, as amended; 5 U.S.C. 552.\
Source: 40 FR 8169, Feb. 26, 1975, unless otherwise noted.

Subpart B-Production or Disclosure of Information

Source: 50 FR 52917, Dec. 27, 1985, unless otherwise noted.

Source: 50 FR 52917, Dec. 27, 1985, unless otherwise noted.

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#### §1401.20 Purpose and scope.

This subpart contains the regulations of the Federal Mediation and
Conciliation Service providing for public access to information from
records of the Service. These regulations implement the Freedom of
Information Act, U.S.C. 552, and the policy of the FMCS to disseminate
information on matters of interest to the public and to disclose on
request information contained in agency records insofar as is compatible
with the discharge of its responsibilities and the principle of
confidentiality and neutrality of dispute resolution by third party
neutrals.

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#### §1401.21 Information policy.

a.  Except for matters specifically excluded by subsection 552(b) of
    title 5, United States Code, matters covered by the Privacy Act, or
    other applicable statutes, all documents and records maintained by
    this agency or in its custody shall be available to the public upon
    request filed in accordance with these regulations. To the extent
    permitted by other laws, the Service also will make available
    records which it is authorized to withhold under 5 U.S.C. 552(b)
    whenever it determines that such disclosure is in the public
    interest.

b.  Any document released for inspection under the provisions of this
    part may be manually copied by the requesting party. The Service
    shall provide facilities for copying such documents at reasonable
    times during normal working hours so long as it does not interfere
    with the efficient operation of the agency.

c.  The Service will also publish and maintain a current index, revised
    quarterly, providing identifying information for the public as to
    statements of policy and interpretation adopted by the agency and
    still in force but not published by the FEDERAL REGISTER, and
    administrative staff manuals and instructions to staff that affect
    the public. The Service will also maintain or file all material
    published in the Service in the FEDERAL REGISTER and currently in
    effect.

d.  Records or documents prepared by the Service for routine public
    distribution, e.g., pamphlets, speeches, and educational or training
    materials, will be furnished upon request to the Office of
    Information, Federal Mediation and Conciliation Service, 2100 K
    Street, NW., Washington, DC 20427, as long as the supply lasts. The
    provisions of §1401.36 (fees) is not applicable to such requests
    expect when the supply of such material is exhausted and it is
    necessary to reproduce individual copies upon specific request.

e.  All existing FMCS records are subject to routine destruction
    according to standard record retention schedules.

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#### §1401.22 Partial disclosure of records.

If a record contains both disclosable and nondisclosable information,
the nondisclosable information will be deleted and the remaining record
will be disclosed unless the two are so inextricably intertwined that it
is not feasible to separate them or release of the disclosable
information would compromise or impinge upon the nondisclosable portion
of the record.

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#### §1401.23 Preparation of new records.

a.  Freedom of Information Act and the provisions of this part apply
    only to existing records that are reasonably described in a request
    filed with the Federal Mediation and Conciliation Service pursuant
    to the procedures established in §§1401.31\--1401.36.

b.  The Director may, in his or her discretion, prepare new records in
    order to respond to a request for information when he or she
    concludes that it is in the public interest and promotes the
    objectives of the Labor-Management Relations Act, 1947, as amended.

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#### §1401.24 Notices of dispute are public.

Written notices of disputes received by the Service pursuant to sections
8(d)(3), 8(d)(A), 8(g) and 9(c)(1) of the Labor-Management Relations
Act, 1947, as amended, or pursuant to 29 CFR 1425.2, are not exempt from
disclosure. Parties at interest have the right to receive certified
copies of any such notice of dispute upon written request. Requests for
copies of notices should be submitted to FMCS, Notice Processing Unit,
2100 K Street, NW., Washington, DC 20427.

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#### §1401.30 Applicability of procedures.

Requests for inspection or copying of information from records in the
custody of the FMCS which are reasonably identifiable and available
under the provisions of this part shall be made and acted upon as
provided in the following sections of this subpart. The prescribed
procedure shall be followed in all cases where access is sought to
official records pursuant to the provisions of the Freedom of
Information Act, except with respect to records for which a less formal
disclosure procedure is provided specifically in this part.

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#### §1401.31 Filing a request for records.

a.  Any person who desires to inspect or copy any record covered by this
    part shall submit a written request to that effect to the Legal
    Services Office, FMCS, 2100 K Street, NW., Washington,
    DC 20427. (202) 653-5305.

b.  The Legal Services Office will determine what office or division
    within FMCS is custodian of the records. The Office will then send
    the request to the appropriate FMCS office or division as provided
    in §1401.32(b) of this part.

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#### §1401.32 Logging of written request.

a.  All requests for records should by clearly and prominently
    identified as a request for information under the Freedom of
    Information Act, and if submitted by mail or otherwise submitted in
    an envelope or other cover, should be clearly and prominently
    identified as such on the envelope or other cover.

b.  Upon receipt of a request for records from the FMCS Legal Services
    Office, the FMCS office or division responding to the request shall
    enter it in a public log. The log shall state the date and time
    received, the name and address of person making the request, the
    nature of the records requested, the action taken on the request,
    the date of the determination letter sent pursuant to §1401.34 (b)
    and (d), the date(s) any records are subsequently furnished, the
    number of staff hours and grade levels of persons who spent time
    responding to the request, and the payment requested and received.

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#### §1401.33 Description of information requested.

a.  Each request should reasonably describe the records being sought, in
    a way that they can be identified and located. A request should
    include all pertinent details that will help identify the records
    sought.

b.  If the description is insufficient, the officer processing the
    request will so notify the person making the request and indicate
    the additional information needed. Every reasonable effort shall be
    made to assist in the identification and location of the records
    sought.

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#### §1401.34 Time for processing requests.

a.  All time limitations established pursuant to this section shall
    begin as of the time at which a request for records is logged in by
    the officer or employee processing the request pursuant to
    §1401.32(b). An oral request for records shall not begin any time
    requirement. A written request for records sent to an office or
    division of FMCS other than the one having authority to grant or
    deny access to the records shall be redirected to the appropriate
    office for processing, and the time shall begin upon its being
    logged in there in accordance with §1401.32(b).

b.  The officer or employee passing upon the request for records shall,
    within ten (10) working days following receipt of the request,
    respond in writing to the requester, determining whether, or the
    extent to which, the Agency shall comply with the request.

    1.  If all of the records requested have been located and a final
        determination has been made with respect to disclosure of all
        the records requested, the response shall so state.

    2.  If all of the records have not been located or a final
        determination has not been made with respect to disclosure of
        all records requested, the response shall state the extent to
        which the records involved will be disclosed pursuant to the
        rules established in this part.

    3.  If the request is expected to involve an assessed fee in excess
        of \$50.00, the response shall specify or estimate the fee
        involved and shall require prepayment before the records are
        made available.

    4.  Whenever possible, the response relating to a request for
        records that involves a fee of less than \$50.00, shall be
        accompanied by the requested records. Where this is not
        possible, the records shall be forwarded as soon as possible
        thereafter, consistent with other obligations of the Agency.

c.  In the following circumstances, the time for passing upon the
    request may be extended for up to an additional 10 working days by
    written notice to the person making the request, setting forth the
    reasons for such extension and the time within which a determination
    is expected to be made:

    1.  The need to search for and collect the requested records from
        the field facilities or other establishments that are separate
        from the office processing the request;

    2.  The need to search for, collect and appropriately examine a
        voluminous amount of records which are demanded in a single
        request; or

    3.  The need for consultation, which shall be conducted with all
        practicable speed, with another agency having a substantial
        interest in the determination of the request or among two or
        more components of the Agency having substantial subject matter
        interest therein.

d.  If any request for records is denied in whole or in part, the
    response required by paragraph (b) of this section shall notify the
    requester of the denial. Such denial shall specify the reason
    therefor and also advise that the denial may be appealed to the
    Office of Deputy Director of the Agency as specified in §1401.35.

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#### §1401.35 Appeals from denials of request.

a.  Whenever any request for records is denied, a written appeal may be
    filed with the Deputy Director , FMCS, 2100 K Street, NW,.
    Washington, DC 20427, within 30 days after requester receives
    notification that the request has been denied or after the requester
    receives any records being made available, in the event of partial
    denial. The appeal shall state the grounds for appeal, including any
    supporting statements or arguments.

b.  Final action on the appeal shall be taken within 20 working days
    from the time of receipt of the appeal. Where novel and complicated
    questions have been raised or unusual difficulties have been
    encountered, the Deputy Director may extend the time for final
    action up to an additional 10 days, depending upon whether there had
    been an extension pursuant to §1401.34(c) at the initial stage. In
    such cases, the applicant shall be notified in writing of the
    reasons for the extension of time and the approximate date on which
    a final response will be forthcoming.

c.  If on appeal the denial of the request for records is upheld in
    whole or in part, the Deputy Director shall notify the applicant of
    the reasons therefor, and shall advise the requester of the
    provisions for judicial review under 5 U.S.C. 552(a)(4) and (6).

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#### §1401.36 Freedom of Information Act fee schedules.

a.  Definitions. For purpose of §1401.36, the following definitions
    apply:

    1.  Direct costs means those expenditures which are actually
        incurred in searching for and duplicating and, in the case of
        commercial use requesters, reviewing to respond to a FOIA
        request.

    2.  Search includes all time spent looking for material that is
        responsive to a request, including page-by-page and line-by-line
        identification of material within documents. Searches may be
        done manually or by computer.

    3.  Duplication refers to the process of making a copy of a document
        necessary to respond to a FOIA request. Copies may be in various
        forms including machine readable documentation (e.g. magnetic
        tape or disk) among others. The copy provided shall be in a form
        that is reasonably usable by the requester.

    4.  Review refers to the process of examining documents located in
        response to a request that is for commercial use, to determine
        whether a document or any portion of any document located is
        permitted to be withheld. It includes processing any documents
        for disclosure to the requester, e.g., doing all that is
        necessary to excise them or otherwise prepare them for release.

    5.  Commercial use request refers to a request from or on behalf of
        one who seeks information for a use or purpose that furthers the
        commercial trade or profit interest of the requester or the
        person on whose behalf the request is made.

    6.  Educational institution refers to a preschool, a public or
        private elementary or secondary school, an institution of
        undergraduate higher education, an institution of graduate or
        professional education or an institution vocational education,
        which operates a program of programs of scholarly research.

    7.  Representative of the news media refers to any person actively
        gathering news for an entity that is organized and operated to
        publish or broadcast news to the public. The term \"news\" means
        information that is about current events or that would be of
        current interest to the public. In the case of \"freelance\"
        journalists, they may be regarded as working for a news
        organization if they can demonstrate a reasonable expectation of
        publication through the organization, even though not actually
        employed by it.

    8.  Non-commercial scientific institution refers to an institution
        that is not operated on a commercial basis as defined under
        \"commercial use request\" in paragraph (a)(5) of this section,
        and which is operated solely for the purpose of conducting
        scientific research, the results of which are not intended to
        promote any particular product or industry.

b.  Fee schedules and waivers. Requests submitted shall be subject to
    direct costs, including search, duplication and review, in
    accordance with the following schedules, procedures and conditions.

    1.  Schedule of charges \--

        i.  Clerical time. For each one-quarter hour or portion thereof
            of clerical time, \$2.25.

        ii. Professional time. For each one-quarter hour or portion
            thereof of professional time, \$7.00.

        iii. Duplication. For each sheet of duplication (not to exceed 8
             1/2 by 14 inches) of requested records, \$.20.

        iv. Computer time. For computer time, \$3.00 per minute of time
            expended for production programming, searching and
            production of any record. Computer time expressed in
            fractions of minutes will be rounded to the next whole
            minute.

        v.  Certification or authorization of records. The fee per
            certification or authentication is \$2.00.

        vi. Forwarding material to destination. No charge will be
            assessed for ordinary packaging and mailing costs. The FMCS
            may assess a charge if compliance with the request requires
            special handing procedures such as express mail or other
            unusual procedures. Such charges will be made on the basis
            of actual costs.

        vii. Other costs. All other direct costs of preparing a response
             to a request shall be charged to requester in the same
             amount as incurred by FMCS. Charges may also be assessed
             for searches even if the records requested are not found,
             or the records are determined to be exempted from
             disclosure.

    2.  Rules of construction.

        i.  In providing the foregoing the schedules pursuant to the
            provisions of 5 U.S.C. 552(a)(4)(A), it is the intent of
            FMCS to apply 29 CFR part 70 and the user charge statute,
            31, U.S.C. 9701, to cover those situations in which the
            Agency is performing for a requester services which are not
            required under the Freedom of Information Act.

        ii. For those matters coming within the scope of this
            regulation, the FMCS will look to the provisions of the
            guidance published by the Office of Management and Budget
            (52 FR 10012, March 27, 1987) and the Department of Justice
            (Attorney General\'s, memorandum on the 1986 Amendments to
            the Freedom of Information Act, December 1987) for making
            such interpretations as may be necessary.

    3.  Fee categories. Fees shall be determined in accordance with the
        following categories of requesters.

        i.  Commercial use requesters will be assessed charges to
            recover the full direct cost of searching for, reviewing for
            release, and duplicating the records sought. This includes
            the full direct costs of computer production programming,
            searching and production of records. Commercial use
            requesters are not entitled to 2 hours of free search time
            nor 100 free pages of reproduction of documents, as
            described below.

        ii. Educational and non-commercial scientific institution
            requesters will be assessed charges for the cost of
            duplication alone, excluding charges for the first 100
            pages. To be eligible for inclusion in this category,
            requesters must show that the request is being made under
            the auspices of a qualifying institution pursuant to the
            criteria in paragraphs (a)(6) and (a)(8) of this section,
            and that the records are not sought for commercial use, but
            are sought in furtherance of scholarly or scientific
            research.

        iii. Requesters who are representatives of the news media will
             be assessed charges for the cost of duplication alone,
             excluding charges for the first 100 pages. To be eligible
             for inclusion in this category, a requester must meet the
             criteria in paragraph (a)(7) of this section, and the
             request must not be made for a commercial use. A request
             for records supporting the news dissemination function of
             the requester shall not be considered to be a request that
             is for commercial use.

        iv. All other requesters will be assessed charges to recover the
            full reasonable direct costs of searching for and
            reproducing records that are responsive to the request,
            including costs of computer production programming,
            searching and production, except that the first 100 pages of
            reproduction, and the first 2 hours of search time shall be
            furnished without charge.

        v.  In no event shall fees be charged when the total charges are
            less than \$50.00, which is the Agency cost of collecting
            and processing the fee itself.

    4.  Waiver or reduction of charge. Documents are to be furnished
        without charge or at reduced levels if disclosure of the
        information is in the public interest; that is, because it is
        likely to contribute significantly to public understanding of
        the operations or activities of the Government and is not
        primarily in the commercial interest of the requester.

c.  Fee payments.

    1.  Payments shall be made by check or money order payable to
        \"Federal Mediation and Conciliation Service\" and shall be sent
        to: Director, Financial Management Staff, Federal Mediation and
        Conciliation Service, 2100 K Street NW., Washington, DC 20427.

    2.  If a requester fails to pay chargeable fees that were incurred
        as a result of this Agency\'s processing of the information
        request, the Agency beginning on the 31st day following the date
        on which the notification of charges was sent, may assess
        interest charges against the requester in the manner prescribed
        in 31 U.S.C. 3717.

    3.  The Agency may use the provisions of the Debt Collection Act of
        1982, (Pub. L. 97-365, 29 CFR part 1450) including disclosure to
        consumer reporting agencies, for the purpose of obtaining
        payment.

d.  Advance payments. FMCS may require a requester to make an advance
    payment of anticipated fees under the following circumstances:

    1.  If the anticipated charges are likely to exceed \$250, FMCS may
        notify the requestor of the likely cost and obtain satisfactory
        assurance of full payment when the requester has a history of
        prompt payment of FOIA fees, or require an advance payment of an
        amount up to the full estimated charges in the case of
        requesters with no history of payments.

    2.  If a requester has previously failed to pay fees that have been
        charged in processing a request, within 30 days of the date when
        the notification of fees was sent, the requester may be required
        to:

        i.  Pay the entire amount of fees that are owed, plus any
            applicable interest as provided for in paragraph (c)(2) of
            this section, and

        ii. To make an advance payment of the full amount of the
            estimated fee before the Agency will process the new pending
            request.

\[55 FR 17602, Apr. 26, 1990\]

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#### §1401.37 Annual report.

The Office of the Director shall annually, within 60 days following the
close of each calendar year, prepare a report covering each of the
categories or records to be maintained in accordance with 5 U.S.C.
552(d) for such calendar year and shall forthwith submit the same to the
Speaker of the House of Representatives and the President of the Senate
for referral to the appropriate committees of the Congress.