53814 Federal Register / Vol. 77, No. 171 / Tuesday, September 4, 2012 / Proposed Rules 

principles and requirements of this 

section. 

(2) Risk-based analysis. The STAs (or 

other direct grantees) may employ a 

risk-based oversight process to provide 

reasonable assurance of consultant 

compliance with Federal cost principles 

on FAHP funded contracts administered 

by the grantee or its subgrantees. If 

employed, this risk-based oversight 

process shall be incorporated into STA 

(or other direct grantee) written policies 

and procedures (as specified in 

§ 172.5(c)). In addition to ensuring 

allowability of direct contract costs, the 

risk-based oversight process shall 

address the evaluation and acceptance 

of consultant and subconsultant indirect 

cost rates for application to contracts. A 

risk-based oversight process shall 

consist of the following: 

(i) Risk assessments. Conducting and 

documenting an annual assessment of 

risks of noncompliance with the Federal 

cost principles per consultant doing 

business with the agency, considering 

the following factors: 

(A) Consultant’s contract volume 

within the State; 

(B) Number of States in which the 

consultant operates; 

(C) Experience of consultant with 

FAHP contracts; 

(D) History and professional 

reputation of consultant; 

(E) Audit history of consultant; 

(F) Type and complexity of consultant 

accounting system; 

(G) Size (number of employees and/or 

annual revenues) of consultant; 

(H) Relevant experience of certified 

public accountant performing audit of 

consultant; 

(I) Assessment of consultant’s internal 

controls; 

(J) Changes in consultant 

organizational structure; and 

(K) Other factors as appropriate. 

(ii) Risk mitigation and evaluation 

procedures. Allocating resources, as 

considered necessary based on the 

results of the annual risk assessment, to 

provide reasonable assurance of 

compliance with the Federal cost 

principles through application of the 

following types of risk mitigation and 

evaluation procedures appropriate to 

the consultant and circumstances: 

(A) Audits performed in accordance 

with generally accepted government 

audit standards to test compliance with 

the requirements of the Federal cost 

principles; 

(B) Certified public accountant or 

other STA workpaper reviews; 

(C) Desk reviews; 

(D) Other analytical procedures; 

(E) Consultant cost certifications in 

accordance with subparagraph (c)(3) 

herein; and 

(F) Training on the Federal cost 

principles. 

(iii) Documentation. Maintaining 

adequate documentation of the riskbased analysis procedures performed to 

support the allowability and acceptance 

of consultant costs on FAHP funded 

contracts. 

(3) Consultant cost certification. (i) 

Indirect cost rate proposals for the 

consultant’s 1-year applicable 

accounting period shall not be accepted 

and no agreement shall be made by a 

contracting agency to establish final 

indirect cost rates, unless the costs have 

been certified by an official of the 

consultant as being allowable in 

accordance with the Federal cost 

principles. The certification 

requirement shall apply to all indirect 

cost rate proposals submitted by prime 

and subconsultants for acceptance by a 

STA (or other direct grantee). 

(ii) Consultant official shall be an 

individual executive or financial officer 

of the consultant’s organization at a 

level no lower than a Vice President or 

Chief Financial Officer, or equivalent, 

who has the authority to represent the 

financial information utilized to 

establish the indirect cost rate proposal 

submitted for acceptance. 

(iii) The certification of final indirect 

costs shall read as follows: 

Certificate of Final Indirect Costs 

This is to certify that I have reviewed 

this proposal to establish final indirect 

cost rates and to the best of my 

knowledge and belief: 

1. All costs included in this proposal 

(identify proposal and date) to establish 

final indirect cost rates for (identify 

period covered by rate) are allowable in 

accordance with the cost principles of 

the Federal Acquisition Regulation 

(FAR) of title 48, Code of Federal 

Regulations (CFR), part 31; and 

2. This proposal does not include any 

costs which are expressly unallowable 

under applicable cost principles of the 

FAR of 48 CFR part 31. 

Firm: lllllllllllllll

Signature: lllllllllllll

Name of Certifying Official: lllll

Title: lllllllllllllll

Date of Execution: llllllllll

(4) Sanctions and penalties. 

Contracting agency written policies, 

procedures, and contract documents (as 

specified in § 172.5(c) and § 172.9(c)) 

shall address the range of 

administrative, contractual, or legal 

remedies that may be assessed in 

accordance with Federal and State laws 

and regulations where consultants 

violate or breach contract terms and 

conditions. Where consultants 

knowingly charge unallowable costs to 

a FAHP funded contract: 

(i) Contracting agencies shall pursue 

administrative, contractual, or legal 

remedies and provide for such sanctions 

and penalties as may be appropriate; 

and 

(ii) Consultants are subject to 

suspension and debarment actions (as 

specified in 2 CFR part 180), potential 

cause of action under the False Claims 

Act (as specified in 32 U.S.C. 3729– 

3733), and prosecution for making a 

false statement (as specified in 18 U.S.C. 

1020). 

(d) Prenotification; confidentiality of 

data. The FHWA, grantees, and 

subgrantees of FAHP funds may share 

audit information in complying with the 

grantee’s or subgrantee’s acceptance of a 

consultant’s indirect cost rates pursuant 

to 23 U.S.C. 112 and this part provided 

that the consultant is given notice of 

each use and transfer. Audit information 

shall not be provided to other 

consultants or any other government 

agency not sharing the cost data, or to 

any firm or government agency for 

purposes other than complying with the 

grantee’s or subgrantee’s acceptance of a 

consultant’s indirect cost rates pursuant 

to 23 U.S.C. 112 and this part without 

the written permission of the affected 

consultants. If prohibited by law, such 

cost and rate data shall not be disclosed 

under any circumstance; however, 

should a release be required by law or 

court order, such release shall make 

note of the confidential nature of the 

data. 

[FR Doc. 2012–21520 Filed 8–31–12; 8:45 am] 

BILLING CODE 4910–22–P 

EQUAL EMPLOYMENT OPPORTUNITY 

COMMISSION 

29 CFR Part 1610 

RIN 3046–AA90 

Availability of Records 

AGENCY: Equal Employment 

Opportunity Commission 

ACTION: Notice of proposed rulemaking. 

SUMMARY: The Equal Employment 

Opportunity Commission (‘‘EEOC’’ or 

‘‘Commission’’) proposes to revise its 

Freedom of Information Act (FOIA) 

regulations in order to implement the 

Openness Promotes Effectiveness in our 

National Government Act of 2007 

(OPEN Government Act) and the 

Electronic FOIA Act of 1996 (E–FOIA 

Act); to reflect the reassignment of FOIA 

responsibilities in the Commission’s 

field offices from the Regional Attorneys 


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Federal Register / Vol. 77, No. 171 / Tuesday, September 4, 2012 / Proposed Rules 53815 

to the District Directors; and to 

consolidate Commission public reading 

areas in offices where there are adequate 

FOIA personnel to provide satisfactory 

service. 

DATES: Written comments must be 

received on or before November 5, 2012. 

ADDRESSES: Written comments should 

be submitted to Executive Secretariat, 

Equal Employment Opportunity 

Commission, 131 M Street NE., Suite 

6NE03F, Washington, DC 20507. As a 

convenience to commenters, the 

Executive Secretariat will accept 

comments by facsimile (‘‘FAX’’) 

machine. The telephone number of the 

FAX receiver is (202) 663–4114. (This is 

not a toll-free FAX number). Only 

comments of six or fewer pages will be 

accepted via FAX transmittal to ensure 

access to the equipment. Receipt of FAX 

transmittals will not be acknowledged, 

except that the sender may request 

confirmation of receipt by calling the 

Executive Secretariat staff at (202) 663– 

4070 (voice) or (202) 663–4074 (TTY). 

(These are not toll-free telephone 

numbers.) You may also submit 

comments and attachments 

electronically at http:// 

www.regulations.gov, which is the 

Federal eRulemaking Portal. Follow the 

instructions online for submitting 

comments. Copies of comments 

submitted by the public will be 

available for review at the Commission’s 

library, 131 M Street NE., Suite 

4NW08R, Washington, DC 20507, 

between the hours of 9:30 a.m. and 5:00 

p.m. or can be reviewed at http:// 

www.regulations.gov. 

FOR FURTHER INFORMATION CONTACT: 

Stephanie D. Garner, Assistant Legal 

Counsel, Gary J. Hozempa, Senior 

Attorney, or Draga G. Anthony, Attorney 

Advisor, Office of Legal Counsel, U.S. 

Equal Employment Opportunity 

Commission at (202) 663–4640 (voice) 

or (202) 663–7026 (TTY). These are not 

toll-free telephone numbers. This notice 

is also available in the following 

formats: large print, Braille, audiotape, 

and electronic file on computer disk. 

Requests for this document in an 

alternative format should be made to the 

Office of Communications and 

Legislative Affairs at (202) 663–4191 

(voice) or (202) 663–4494 (TTY), or to 

the Publications Information Center at 

1–800–669–3362. 

SUPPLEMENTARY INFORMATION: The 

proposed rule updates the 

Commission’s FOIA regulations to 

reflect current Commission practice in 

responding to FOIA requests as reflected 

in the OPEN Government Act and the 

E–FOIA Act, and the Commission’s 

transfer of FOIA responsibilities from its 

Regional Attorneys to its District 

Directors. The proposed rule also 

consolidates Commission public reading 

rooms in offices where there are 

adequate FOIA personnel and 

streamlines the Commission’s FOIA 

regulations by removing excess 

verbiage. 

The OPEN Government Act 

The OPEN Government Act, Public 

Law 110–175, 121 Stat. 2524, was 

enacted into law on December 31, 2007 

to make it easier for a requester to access 

agency records, and to require agencies 

to be more responsive, transparent, and 

accountable to the public in responding 

to FOIA requests. The Act addresses 

many aspects of agency FOIA 

administration, including: 

• Time limits for agencies to act on 

FOIA requests; 

• Recovery of attorney’s fees and 

litigation costs in FOIA-related lawsuits; 

• Disciplinary actions for arbitrary 

and capricious rejection of FOIA 

requests; 

• Use of individualized identification 

numbers to track FOIA requests; 

• Proper fee charges for FOIA 

requests from news media; 

• Enhanced requirements for 

agencies’ annual FOIA reports to 

Congress; 

• Appointment of a Chief FOIA 

Officer in an agency; 

• Appointment of a FOIA Public 

Liaison in an agency; 

• Disclosure of records maintained 

for an agency by a private entity 

pursuant to a records management 

contract; and 

• A new requirement that the amount 

of material deleted from a document 

produced pursuant to FOIA must be 

specifically identified at the site of the 

deletion, together with the exemption 

authorizing that deletion. 

To conform the Commission’s FOIA 

regulations to the requirements of the 

Act, the proposed rule revises the 

following sections of 29 CFR part 1610: 

—Section 1610.1 (adds definitions for 

‘‘agency record,’’ ‘‘news,’’ and 

‘‘representative of the news media’’ 

based on the Act); 

—Section 1610.5 (identifies the 

acceptable methods of submitting a 

FOIA request to the Commission [in 

person or via mail, email, Internet, or 

facsimile machine] including the 

required identification of the 

submission as a FOIA request and 

other content required for efficient 

processing); 

—Section 1610.6 (provides that FOIA 

requests which seek documents in the 

Commission’s custody, but that 

originated in another agency, will be 

referred to the originating agency for 

its decision, and that the requester 

will be informed of the referral); 

—Section 1610.7 (lists the proper 

Commission offices to receive FOIA 

requests); 

—Section 1610.9 (explains the 

prospective processing time for FOIA 

requests and the period for which the 

time schedule for responding to a 

FOIA request is delayed when the 

Commission requires clarification by 

the requester, and provides that 

requests misdirected to the wrong 

EEOC–FOIA office shall be forwarded 

to the correct EEOC–FOIA office 

within 10 business days); 

—Section 1610.10 (clarifies that the 

Commission will provide a written 

response to a FOIA request regardless 

of whether the request is granted or 

denied and regardless of whether 

there are documents responsive to the 

request); 

—Section 1610.11 (provides that FOIA 

appeals misdirected to Commission 

District Offices shall be forwarded 

from those offices to the Legal 

Counsel within 10 business days); 

—Section 1610.15 (states that the 

Commission will not charge search 

fees if the Commission’s response to 

the FOIA is untimely, absent unusual 

or exceptional circumstances); 

—Section 1610.18 (states that data 

underlying annual FOIA reports shall 

be available to the public); 

—Section 1610.21 (specifies the content 

of the Commission’s annual FOIA 

report to Congress). 

The E-FOIA ACT 

The Electronic FOIA Act of 1996 (EFOIA) specifies that, after November 

1996, information made available to the 

public for inspection and copying 

pursuant to FOIA must also be made 

available in electronic format. To 

coordinate the Commission’s FOIA 

regulations with the E-FOIA, the 

proposed rule revises §§ 1610.18 and 

1610.21 to state that the information 

identified therein shall be available in 

electronic as well as paper form. The EFOIA Act also allows an agency to adopt 

a multi-track system for processing 

FOIA requests. EEOC therefore proposes 

to revise § 1610.9(a) in order to 

implement a multi-track system. 

EEOC FOIA Transfer of Responsibility 

The Commission transferred FOIA 

responsibility from EEOC Regional 

Attorneys to EEOC District Directors in 

2007. To coordinate the Commission’s 

FOIA regulations with the EEOC’s 

current delegation of responsibility for 

FOIA processing as reflected in EEOC 

Order 150.001, the proposed rule revises 


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53816 Federal Register / Vol. 77, No. 171 / Tuesday, September 4, 2012 / Proposed Rules 

the following sections of 29 CFR part 

1610: 

—Sections 1610.7, 1610.8, 1610.9, 

1610.10, 1610.11, 1610.13 and 

1610.14 (revise all prior references to 

EEOC Regional Attorneys so that 

those references now are to EEOC 

District Directors). 

In order to consolidate the 

Commission’s public reading area 

functions in offices with adequate 

personnel to service the public, the 

proposed rule revises § 1610.04 by 

requiring the Commission’s 

Headquarters library and District Offices 

to maintain public reading areas. 

Editorial Revisions 

The Commission also wishes to 

update and clarify its FOIA regulations. 

To accomplish these goals, the proposed 

rule removes or revises the following 

sections of 29 CFR part 1610: 

—Section 1610.4 (updates the addresses 

of Commission offices, deletes 

references to materials no longer 

published, and deletes unnecessary 

verbiage); 

—Sections 1610.6, 1610.7, 1610.10, 

1610.13 and 1610.19 (delete 

unnecessary verbiage); 

—Section 1610.20 (removed because its 

language was duplicative of other 

Commission FOIA regulations). 

Regulatory Procedures 

Executive Order 12866 

The proposed rule has been drafted 

and reviewed in accordance with 

Executive Order 12866, 58 FR 51735 

(Sept. 30, 2003), section 1(b), Principles 

of Regulation, and Executive Order 

13563, 76 FR 3821 (January 1, 2011), 

Improving Regulation and Regulatory 

Review. The rule is not a ‘‘significant 

regulatory action’’ under section 3(f) of 

Executive Order 12866. 

Paperwork Reduction Act 

The proposed rule contains no new 

information collection requirements 

subject to review by the Office of 

Management and Budget under the 

Paperwork Reduction Act (44 U.S.C. 

Chapter 35). 

Regulatory Flexibility Act 

The Commission certifies under 5 

U.S.C. 605(b) that the proposed rule will 

not have a significant economic impact 

on a substantial number of small entities 

because the proposed revisions do not 

impose any burdens upon FOIA 

requestors, including those that might 

be small entities. Therefore, a regulatory 

flexibility analysis is not required by the 

Regulatory Flexibility Act. 

Unfunded Mandates Reform Act of 

1995 

The proposed rule will not result in 

the expenditure by State, local, or tribal 

governments in the aggregate, or by the 

private sector, of $100 million or more 

in any one year, and it will not 

significantly or uniquely affect small 

governments. Therefore, no actions are 

deemed necessary under the provisions 

of the Unfunded Mandates Reform Act 

of 1995. 

List of Subjects in 29 CFR Part 1610 

Freedom of information. 

Dated: August 23, 2012. 

For the Commission. 

Jacqueline A. Berrien, 

Chair. 

Accordingly, part 1610 is proposed to 

be amended as follows: 

PART 1610—AVAILABILITY OF 

RECORDS 

1. The authority citation for 29 CFR 

part 1610 continues to read as follows: 

Authority: 42 U.S.C. 2000e–12(a), 5 U.S.C. 

552 as amended by Pub. L. 93–502, Pub. L. 

99–570, and Pub. L. 105–231; for § 1610.15, 

non-search or copy portions are issued under 

31 U.S.C. 9701. 

2. Amend § 1610.1 by adding new 

paragraphs (j), (k), and (l) to read as 

follows: 

§ 1610.1 Definitions. 

* * * * * 

(j) Agency record includes any 

information maintained for an agency 

by an entity under Government contract, 

for the purposes of records management. 

(k) News refers to information about 

current events that would be of current 

interest to the public. 

(l) Representative of the news media 

refers to 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 are television or radio 

stations broadcasting to the public at 

large and publishers of periodicals (but 

only if such entities qualify as 

disseminators of ‘‘news’’) who make 

their products available for purchase by, 

subscription by, or free distribution to, 

the general public. As methods of news 

delivery evolve (for example, the 

implementation of electronic 

dissemination of newspapers through 

telecommunication services), such 

alternative media shall be considered to 

be news-media services. A freelance 

journalist shall be regarded as working 

for a news-media entity if the journalist 

can demonstrate a solid basis for 

expecting publication through that 

entity, whether or not the journalist is 

actually employed by the entity. A 

publication contract would present a 

solid basis for such an expectation; the 

Commission may also consider the past 

publication record of the requester in 

making such a determination. 

3. Revise § 1610.4 to read as follows: 

§ 1610.4 Public reference facilities and 

current index. 

(a) The Commission will maintain in 

a public reading area located in the 

Commission’s library at 131 M Street 

NE., Washington, DC 20507, the 

materials which are required by 5 U.S.C. 

552(a)(2) and 552(a)(5) to be made 

available for public inspection and 

copying. Any such materials created on 

or after November 1, 1996 may also be 

accessed through the Internet at http:// 

www.eeoc.gov. The Commission will 

maintain and make available for public 

inspection and copying in this public 

reading area a current index providing 

identifying information for the public as 

to any matter which is issued, adopted, 

or promulgated after July 4, 1967, and 

which is required to be indexed by 5 

U.S.C. 552(a)(2). The Commission in its 

discretion may, however, include 

precedential materials issued, adopted, 

or promulgated prior to July 4, 1967. 

The Commission will also maintain on 

file in this public reading area all 

material published by the Commission 

in the Federal Register and currently in 

effect. 

(b) The Commission offices 

designated in § 1610.4(c) shall maintain 

and make available for public 

inspection and copying a copy of: 

(1) The Commission’s notices and 

regulatory amendments which are not 

yet published in the Code of Federal 

Regulations; 

(2) The Commission’s annual reports; 

(3) The Commission’s Compliance 

Manual; 

(4) Blank forms relating to the 

Commission’s procedures as they affect 

the public; 

(5) The Commission’s Orders (agency 

directives); 

(6) ‘‘CCH Equal Employment 

Opportunity Commission Decisions’’ 

(1973 and 1983); and 

(7) Commission awarded contracts. 

(c) The Commission’s District Offices 

with public reading areas are: 

Atlanta District Office, 100 Alabama 

Street SW., Suite 4R30, Atlanta, GA 

30303 (includes the Savannah Local 

Office). 

Birmingham District Office, Ridge Park 

Place, 1130 22nd Street South, Suite 

2000, Birmingham, AL 35205–2397 


sroberts on DSK5SPTVN1PROD with PROPOSALS
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(includes the Jackson Area Office and 

the Mobile Local Office). 

Charlotte District Office, 129 West Trade 

Street, Suite 400, Charlotte, NC 28202 

(includes the Raleigh Area Office, the 

Greensboro Local Office, the 

Greenville Local Office, the Norfolk 

Local Office, and the Richmond Local 

Office). 

Chicago District Office, 500 West 

Madison Street, Suite 2000, Chicago, 

IL 60661 (includes the Milwaukee 

Area Office and the Minneapolis Area 

Office). 

Dallas District Office, 207 S. Houston 

Street, 3rd Floor, Dallas, TX 75202– 

4726 (includes the San Antonio Field 

Office and the El Paso Area Office). 

Houston District Office, 1201 Louisiana 

Street, 6th Floor, Houston, TX 77002 

(includes the New Orleans Field 

Office). 

Indianapolis District Office, 101 West 

Ohio Street, Suite 1900, Indianapolis, 

IN 46204–4203 (includes the Detroit 

Field Office, the Cincinnati Area 

Office, and the Louisville Area 

Office). 

Los Angeles District Office, 255 E. 

Temple Street, 4th Floor, Los Angeles, 

CA 90012 (includes the Fresno Local 

Office, the Honolulu Local Office, the 

Las Vegas Local Office, and the San 

Diego Local Office). 

Memphis District Office, 1407 Union 

Avenue, 9th Floor, Memphis, TN 

38104 (includes the Little Rock Area 

Office, and the Nashville Area Office). 

Miami District Office, Miami Tower, 

100 SE 2nd Street, Suite 1500, Miami, 

FL 33131 (includes the Tampa Field 

Office and the San Juan Local Office). 

New York District Office, 33 Whitehall 

Street, 5th Floor, New York, NY 

10004 (includes the Boston Area 

Office, the Newark Area Office, and 

the Buffalo Local Office). 

Philadelphia District Office, 801 Market 

Street, 13th Floor, Philadelphia, PA 

19107–3127 (includes the Baltimore 

Field Office, the Cleveland Field 

Office, and the Pittsburgh Area 

Office). 

Phoenix District Office, 3300 N. Central 

Avenue, Suite 690, Phoenix, AZ 

85012–2504 (includes the Denver 

Field Office, and the Albuquerque 

Area Office). 

San Francisco District Office, 350 

Embarcadero, Suite 500, San 

Francisco, CA 94105–1687 (includes 

the Seattle Field Office, the Oakland 

Local Office, and the San Jose Local 

Office). 

St. Louis District Office, Robert A. 

Young Building, 1222 Spruce Street, 

Room 8100, St. Louis, MO 63103 

(includes the Kansas City Area Office, 

and the Oklahoma City Area Office). 

4. Amend § 1610.5 by revising 

paragraph (a), redesignating paragraphs 

(b) and (c) as (d) and (e), and adding 

new paragraphs (b) and (c) to read as 

follows: 

§ 1610.5 Request for records. 

(a) A written request for inspection or 

copying of a record of the Commission 

may be presented in person, or by mail, 

or by fax, or by email, or through 

https://egov.eeoc.gov/foia/ to the 

Commission employee designated in 

§ 1610.7. Every request, regardless of 

format, must contain the requester’s 

name and may identify a non-electronic 

mailing address. In-person requests 

must be presented during business 

hours on any business day. 

(b) A request must be clearly and 

prominently identified as a request for 

information under the ‘‘Freedom of 

Information Act.’’ If submitted by mail, 

or otherwise submitted under any cover, 

the envelope or other cover must be 

similarly identified. 

(c) A respondent must always provide 

a copy of the ‘‘Filed’’ stamped court 

complaint when requesting a copy of a 

charge file. The charging party must 

provide a copy of the ‘‘Filed’’ stamped 

court complaint when requesting a copy 

of the charge file if the Notice of Right 

to Sue has expired. 

* * * * * 

5. Revise § 1610.6 to read as follows: 

§ 1610.6 Records of other agencies. 

Requests for records that originated in 

another Agency and are in the custody 

of the Commission will be referred to 

that Agency and the person submitting 

the request shall be so notified. The 

decision made by that Agency with 

respect to such records will be honored 

by the Commission. 

6. Amend § 1610.7 by revising the 

introductory sentence of paragraph (a), 

revising paragraphs (b) and (c), and 

removing paragraphs (d) and (e) to read 

as follows: 

§ 1610.7 Where to make request; form. 

(a) Requests for the following types of 

records shall be submitted to the District 

Director for the pertinent district, field, 

area, or local office, at the district office 

address listed in § 1610.4(c) or, in the 

case of the Washington Field Office, 

shall be submitted to the Field Office 

Director at 131 M Street NE., Fourth 

Floor, Washington, DC 20507. 

(1) * * * 

(b) A request for any record which 

does not fall within the ambit of 

subparagraph (a) of this section, or a 

request for any record the location of 

which is unknown to the person making 

the request, shall be submitted in 

writing to the Assistant Legal Counsel, 

FOIA Programs, U.S. Equal Employment 

Opportunity Commission, by mail to 

131 M Street NE., Suite 5NW02E, 

Washington, DC 20507, or by fax to 

(202) 663–4679, or by email to 

FOIA@eeoc.gov, or by Internet to 

https://egov.eeoc.gov/foia/. 

(c) Any Commission officer or 

employee who receives a written 

Freedom of Information Act request 

shall promptly forward it to the 

appropriate official specified in 

paragraph (a) or (b) of this section. Any 

Commission officer or employee who 

receives an oral request under the 

Freedom of Information Act shall 

inform the person making the request 

that it must be in writing and also 

inform such person of the provisions of 

this subpart. 

7. Revise § 1610.8 to read as follows: 

§ 1610.8 Authority to determine. 

The Assistant Legal Counsel, FOIA 

Programs, the District Director, or the 

District Director’s designee, when 

receiving a request pursuant to these 

regulations, shall grant or deny such 

request. That decision shall be final, 

subject only to administrative review as 

provided in § 1610.11 of this subpart. 

8. Amend § 1610.9 by redesignating 

paragraphs (a) through (c) as paragraphs 

(d) through (f), adding new paragraphs 

(a), (b), (c), and (g), and revising newly 

redesignated paragraphs (d) through (f) 

to read as follows: 

§ 1610.9 Responses: timing. 

(a) The EEOC utilizes a multi track 

system for responding to FOIA requests. 

After review, a FOIA request is placed 

on one of three tracks: the simple track, 

the complex track, or the expedited 

track. A FOIA request is assigned to the 

simple track if it will be processed in 

fewer than 10 business days. A FOIA 

request requiring more than 10 business 

days to process will be assigned to the 

complex track. A FOIA request which 

has been granted expedited processing 

will be assigned to the expedited track. 

(b) The Assistant Legal Counsel, FOIA 

Programs, the District Director, or the 

District Director’s designee shall, within 

10 days from receipt of a request, notify 

the requester in writing of the date 

EEOC received the request, the expected 

date of issuance of the determination, 

the individualized FOIA tracking 

number assigned to the request, and the 

telephone number or Internet site where 

requesters may inquire about the status 

of their request. 

(c) If a FOIA request is submitted to 

the incorrect EEOC–FOIA office, that 

office shall forward the misdirected 

request to the appropriate EEOC–FOIA 


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53818 Federal Register / Vol. 77, No. 171 / Tuesday, September 4, 2012 / Proposed Rules 

office within 10 business days. If a 

misdirected request is forwarded to the 

correct EEOC–FOIA office more than 10 

business days after its receipt by the 

EEOC, then, pursuant to 5 U.S.C. 

§ 552(a)(6)(A), the statutory 20 business 

days to respond to the request is 

reduced by the number of days in excess 

of 10 that it took the EEOC to forward 

the request to the correct EEOC–FOIA 

office. 

(d) Within 20 business days after 

receipt of the request, the Assistant 

Legal Counsel, FOIA Programs, the 

District Director, or the District 

Director’s designee shall either grant or 

deny the request for agency records, 

unless additional time is required for 

one of the following reasons: 

(1) It is necessary to search for and 

collect the requested records from field 

facilities or other establishments that are 

separate from the office processing the 

request; 

(2) It is necessary to search for, 

collect, and appropriately examine a 

voluminous number of separate and 

distinct records which are demanded in 

a single request; or 

(3) It is necessary to consult with 

another agency having a substantial 

interest in the determination of the 

request or among two or more 

components of the agency having 

substantial interest therein. 

(e) When additional time is required 

for one of the reasons stated in 

paragraph (d) of this Section, the 

Assistant Legal Counsel, FOIA 

Programs, District Director, or the 

District Director’s designee shall, within 

the statutory 20 business day period, 

issue to the requester a brief written 

statement of the reason for the delay and 

an indication of the date on which it is 

expected that a determination as to 

disclosure will be forthcoming. If more 

than 10 additional business days are 

needed, the requester shall be notified 

and provided an opportunity to limit 

the scope of the request or to arrange for 

an alternate time frame for processing 

the request. 

(f)(1) A request for records may be 

eligible for expedited processing if the 

requester demonstrates a compelling 

need. For the purposes of this section, 

compelling need means: 

(i) That the failure to obtain the 

records on an expedited basis could 

reasonably be expected to pose an 

imminent threat to the life or physical 

safety of an individual; or 

(ii) That the requester is a 

representative of the news media as 

described in § 1610.1(l) and there is an 

urgency to inform the public concerning 

actual or alleged Federal government 

activity. 

(2) 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. A 

determination on the request for 

expedited processing will be made and 

the requester notified within 10 

calendar days. The Legal Counsel or 

designee, or the Assistant Legal 

Counsel, FOIA Programs, as 

appropriate, shall promptly respond to 

any appeal of the denial of a request for 

expedited processing. 

(g) The Commission may toll the 

statutory time period to issue its 

determination on a FOIA request one 

time during the processing of the 

request to obtain clarification from the 

requester. The statutory time period to 

issue the determination on disclosure is 

tolled until EEOC receives the 

information reasonably requested from 

the requester. The agency may also toll 

the statutory time period to issue the 

determination to clarify with the 

requester issues regarding fees. There is 

no limit on the number of times the 

agency may request clarifying fee 

information from the requester. 

9. Amend § 1610.10 by revising 

paragraphs (b) and (c) to read as follows: 

§ 1610.10 Responses: form and content. 

* * * * * 

(b) A reply either granting or denying 

a written request for a record shall be in 

writing, signed by the Assistant Legal 

Counsel, FOIA Programs, the District 

Director, or the District Director’s 

designee, and shall include: 

(1) His or her name and title; 

(2) A reference to the specific 

exemption under the Freedom of 

Information Act authorizing the 

withholding of the record and a brief 

explanation of how the exemption 

applies to the record withheld, or a 

statement that, after diligent effort, the 

requested records have not been found 

or have not been adequately examined 

during the time allowed under § 1610.9 

(d), and that the denial will be 

reconsidered as soon as the search or 

examination is complete; and 

(3) A written statement that the denial 

may be appealed to the Legal Counsel, 

or Assistant Legal Counsel, FOIA 

Programs, as appropriate, within 30 

calendar days of receipt of the denial or 

partial denial. 

(c) When a request for records is 

denied, the Commission shall provide to 

the requester a written statement 

identifying the estimated volume of 

denied material unless providing such 

estimate would harm an interest 

protected by the exemptions in 5 U.S.C. 

522(b). When a reasonably segregable 

portion of a record is provided, the 

amount of information deleted from the 

released portion and, to the extent 

technically feasible, the place in the 

record where such deletion was made, 

and the exemption upon which the 

deletion was based, shall be indicated 

on the record provided to the requester. 

* * * * * 

10. Revise § 1610.11 to read as 

follows: 

§ 1610.11 Appeals to the Legal Counsel 

from initial denials. 

(a) When the Assistant Legal Counsel, 

FOIA Programs, the District Director, or 

the District Director’s designee has 

denied a request for records in whole or 

in part, the requester may appeal within 

30 calendar days of receipt of the 

determination letter. The appeal must 

be in writing addressed to the Legal 

Counsel, or the Assistant Legal Counsel, 

FOIA Programs, as appropriate, Equal 

Employment Opportunity Commission, 

131 M Street NE., Suite 5NW02E, 

Washington, DC 20507, and clearly 

labeled as a ‘‘Freedom of Information 

Act Appeal.’’ Any appeal of a 

determination issued by a District 

Director or the District Director’s 

designee must include a copy of the 

District Director’s or the District 

Director’s designee’s determination. If a 

FOIA appeal is misdirected to a District 

Office, the District Office shall forward 

the appeal to the Legal Counsel, or the 

Assistant Legal Counsel, FOIA 

Programs, as appropriate, within 10 

business days. 

(b) The Legal Counsel or designee, or 

the Assistant Legal Counsel, FOIA 

Programs, as appropriate, shall act upon 

the appeal within 20 business days of its 

receipt, and more rapidly if practicable. 

If the decision is in favor of the person 

making the request, the decision shall 

order that records be promptly made 

available to the person making the 

request. The Legal Counsel or designee, 

or the Assistant Legal Counsel, FOIA 

Programs, as appropriate, may extend 

the 20 business day period in which to 

render a decision on an appeal for that 

period of time which could have been 

claimed and used by the Assistant Legal 

Counsel, FOIA Programs, the District 

Director, or the District Director’s 

designee under § 1610.9, but which was 

not in fact used in making the original 

determination. 

(c) The decision on appeal shall be in 

writing and signed by the Legal Counsel 

or designee, or the Assistant Legal 

Counsel, FOIA Programs, as 

appropriate. A denial in whole or in 

part of a request on appeal shall set 

forth the exemption relied on, a brief 


sroberts on DSK5SPTVN1PROD with PROPOSALS
Federal Register / Vol. 77, No. 171 / Tuesday, September 4, 2012 / Proposed Rules 53819 

explanation of how the exemption 

applies to the records withheld, and the 

reasons for asserting it, if different from 

those described by the Assistant Legal 

Counsel, FOIA Programs, the District 

Director, or the District Director’s 

designee under § 1610.9. The decision 

on appeal shall indicate that the person 

making the request may, if dissatisfied 

with the decision, file a civil action in 

the United States District Court for the 

district in which the person resides or 

has his principal place of business, for 

the district where the records reside, or 

for the District of Columbia. 

(d) No personal appearance, oral 

argument or hearing will ordinarily be 

permitted in connection with an appeal 

to the Legal Counsel or the Assistant 

Legal Counsel, FOIA Programs. 

(e) On appeal, the Legal Counsel or 

designee, or the Assistant Legal 

Counsel, FOIA Programs, as 

appropriate, may reduce any fees 

previously assessed. 

(f) In the event that the Commission 

terminates its proceedings on a charge 

after the District Director or the District 

Director’s designee denies a request, in 

whole or in part, for the charge file but 

during consideration of the requester’s 

appeal from that denial, the request may 

be remanded for redetermination. The 

requester retains a right to appeal to the 

Assistant Legal Counsel, FOIA 

Programs, from the decision on remand. 

11. Revise § 1610.13 to read as 

follows: 

§ 1610.13 Maintenance of files. 

The Legal Counsel or designee, the 

Assistant Legal Counsel, FOIA 

Programs, and the District Directors or 

designees shall maintain files 

containing all material required to be 

retained by or furnished to them under 

this subpart. The material shall be filed 

by individual request. 

12. Amend § 1610.14 by revising 

paragraph (a) to read as follows: 

§ 1610.14 Waiver of user charges. 

(a) Except as provided in paragraph 

(b) of this section, the Legal Counsel or 

designee, the Assistant Legal Counsel, 

FOIA Programs, and the District 

Directors or designees shall assess fees 

where applicable in accordance with 

§ 1610.15 for search, review, and 

duplication of records requested. They 

shall also have authority to furnish 

documents without any charge or at a 

reduced charge if disclosure of the 

information is in the public interest 

because it is likely to contribute 

significantly to public understanding of 

the operations or activities of the 

government and is not primarily in the 

commercial interest of the requester. 

* * * * * 

13. Amend § 1610.15 by adding 

paragraph (g) to read as follows: 

§ 1610.15 Schedule of fees and method of 

payment for services rendered. 

* * * * * 

(g) A search fee will not be charged to 

requesters specified in paragraphs (a)(1) 

and (a)(3) of this section, and a 

duplication fee will not be charged to 

requesters specified in paragraph (a)(2) 

of this section, if the Commission issues 

an untimely determination and the 

untimeliness is not due to unusual or 

exceptional circumstances. 

14. Amend § 1610.18 by revising the 

introductory text and adding paragraph 

(h) to read as follows: 

§ 1610.18 Information to be disclosed. 

The Commission will provide the 

following information to the public. 

This information will also be made 

available electronically: 

* * * * * 

(h) Underlying annual FOIA report 

data. 

15. Amend § 1610.19 by removing 

paragraph (b)(2), redesignating 

paragraph (b)(3) as paragraph (b)(2), and 

removing the word ‘‘working’’ wherever 

it appears in paragraphs (d) and (e) and 

add in its place the word ‘‘business.’’ 

16. Remove and reserve § 1610.20. 

§ 1610.20 [Removed and Reserved] 

17. Revise § 1610.21 to read as 

follows: 

§ 1610.21 Annual report. 

The Legal Counsel shall, on or before 

February 1, submit individual Freedom 

of Information Act reports for each 

principal agency FOIA component and 

one for the entire agency covering the 

preceding fiscal year to the Attorney 

General of the United States. The 

reports shall include those matters 

required by 5 U.S.C. 552(e), and shall be 

made available electronically on the 

agency Web site. 

[FR Doc. 2012–21495 Filed 8–31–12; 8:45 am] 

BILLING CODE 6570–01–P 

DEPARTMENT OF EDUCATION 

34 CFR Subtitle A 

[DOCKET ID ED–2012–OII–0013] 

RIN 1855–AA08 

Proposed Priorities, Requirements, 

Definitions, and Selection Criteria— 

Supporting Effective Educator 

Development 

[CFDA Number: 84.367D.] 

AGENCY: Office of Innovation and 

Improvement, Department of Education. 

ACTION: Proposed priorities, 

requirements, definitions, and selection 

criteria. 

SUMMARY: The Assistant Deputy 

Secretary for Innovation and 

Improvement proposes priorities, 

requirements, definitions, and selection 

criteria under the Supporting Effective 

Educator Development (SEED) Grant 

program. We may use these priorities, 

requirements, definitions, and selection 

criteria for competitions of the SEED 

Grant program for fiscal year (FY) 2012 

and later years. We intend for the 

priorities, requirements, definitions, and 

selection criteria to help national notfor-profit organizations to build 

evidence on how best to recruit, train, 

and support effective teachers and 

school leaders; recruit and prepare 

effective science, technology, 

engineering, and mathematics teachers; 

and invest in efforts that enhance the 

teaching and school leadership 

professions. 

DATES: We must receive your comments 

on or before October 4, 2012. 

ADDRESSES: Submit your comments 

through the Federal eRulemaking Portal 

or via postal mail, commercial delivery, 

or hand delivery. We will not accept 

comments by fax or by email. To ensure 

that we do not receive duplicate copies, 

please submit your comments only 

once. In addition, please include the 

Docket ID and the phrase ‘‘Supporting 

Effective Educator Development’’ at the 

top of your comments. 

• Federal eRulemaking Portal: Go to 

www.regulations.gov to submit your 

comments electronically. Information 

on using Regulations.gov, including 

instructions for accessing agency 

documents, submitting comments, and 

viewing the docket, is available on the 

site under ‘‘How To Use This Site.’’ A 

direct link to the docket page is also 

available at www.ed.gov/programs/ 

innovation/index.html. 

• Postal Mail, Commercial Delivery, 

or Hand Delivery. If you mail or deliver 

your comments about these proposed 


sroberts on DSK5SPTVN1PROD with PROPOSALS