```

[Federal Register Volume 77, Number 171 (Tuesday, September 4, 2012)]
[Proposed Rules]
[Pages 53814-53819]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-21495]

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

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

[[Page 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 (E-FOIA) 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 Sec. Sec.  1610.18 and 1610.21 to state 
that the information identified therein shall be available in 
electronic as well as paper form. The E-FOIA Act also allows an agency 
to adopt a multi-track system for processing FOIA requests. EEOC 
therefore proposes to revise Sec.  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

[[Page 53816]]

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 Sec.  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 Sec.  
1610.15, non-search or copy portions are issued under 31 U.S.C. 
9701.

    2. Amend Sec.  1610.1 by adding new paragraphs (j), (k), and (l) to 
read as follows:

Sec.  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 Sec.  1610.4 to read as follows:

Sec.  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 Sec.  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

[[Page 53817]]

(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 Sec.  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:

Sec.  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 Sec.  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 Sec.  1610.6 to read as follows:

Sec.  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 Sec.  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:

Sec.  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 Sec.  1610.4(c) 
or, in the case of the Washington Field Office, shall be submitted to 
the Field Office Director at 131 M Street NE., Fourth Floor, 
Washington, DC 20507.
    (1) * * *
    (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 Sec.  1610.8 to read as follows:

Sec.  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 
Sec.  1610.11 of this subpart.
    8. Amend Sec.  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:

Sec.  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

[[Page 53818]]

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. Sec.  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 Sec.  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 Sec.  1610.10 by revising paragraphs (b) and (c) to read 
as follows:

Sec.  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 Sec.  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 Sec.  1610.11 to read as follows:

Sec.  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 Sec.  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

[[Page 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 Sec.  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 Sec.  1610.13 to read as follows:

Sec.  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 Sec.  1610.14 by revising paragraph (a) to read as 
follows:

Sec.  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 Sec.  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 Sec.  1610.15 by adding paragraph (g) to read as follows:

Sec.  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 Sec.  1610.18 by revising the introductory text and 
adding paragraph (h) to read as follows:

Sec.  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 Sec.  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 Sec.  1610.20.

Sec.  1610.20  [Removed and Reserved]

    17. Revise Sec.  1610.21 to read as follows:

Sec.  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
```