This section of the FEDERAL REGISTER

contains regulatory documents having general

applicability and legal effect, most of which

are keyed to and codified in the Code of

Federal Regulations, which is published under

50 titles pursuant to 44 U.S.C. 1510.

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Rules and Regulations Federal Register

36645 

Vol. 78, No. 118 

Wednesday, June 19, 2013 

EQUAL EMPLOYMENT OPPORTUNITY 

COMMISSION 

29 CFR Part 1610 

RIN 3046–AA90 

Availability of Records 

AGENCY: Equal Employment 

Opportunity Commission. 

ACTION: Final rule. 

SUMMARY: The Equal Employment 

Opportunity Commission (‘‘EEOC’’ or 

‘‘Commission’’) is issuing a final rule 

revising 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 

to the District Directors; and to 

consolidate Commission public reading 

areas in offices where there are adequate 

FOIA personnel to provide satisfactory 

service. 

DATES: Effective June 19, 2013. 

FOR FURTHER INFORMATION CONTACT: 

Stephanie D. Garner, Assistant Legal 

Counsel, FOIA Programs, 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 final rule also is available 

in the following formats: large print, 

Braille, audiotape, and electronic file on 

computer disk. Requests for this final 

rule in an alternative format should be 

made to EEOC’s Publications Center at 

1–800–669–3362 (voice) or 1–800–800– 

3302 (TTY). 

SUPPLEMENTARY INFORMATION: 

Introduction 

On September 4, 2012, EEOC 

published in the Federal Register a 

notice of proposed rulemaking 

(‘‘NPRM’’) setting forth revisions to 

EEOC’s FOIA regulations at 29 CFR part 

1610. 77 FR 53814 (2012). The purpose 

of the revisions contained in the final 

rule is to update the Commission’s 

FOIA regulations so that they are 

consistent with 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 

revisions also are intended to 

consolidate Commission public reading 

rooms in offices where there are 

adequate FOIA personnel, and 

streamline the Commission’s FOIA 

regulations by removing excess 

verbiage. The NPRM sought public 

comments which were due on or before 

November 5, 2012. 

EEOC received six comments in 

response to the NPRM. Three comments 

were submitted by individuals, and the 

remaining three were submitted by 

OMB Watch, the National Council of 

EEOC Locals No. 216 (hereinafter the 

‘‘Union), and the National Archives and 

Records Administration, Office of 

Government Information Services 

(hereinafter ‘‘OGIS’’). 

One individual commenter suggested 

that EEOC consider whether FOIA’s 

statutory exemptions remain ‘‘viable.’’ 

This comment pertains to the FOIA 

statute itself, is outside the scope of the 

NPRM, and will not be addressed 

further. A second individual 

commented that the Department of 

Defense and the Environmental 

Protection Agency should release 

certain medical records pertaining to the 

activities of the ‘‘Hanford Atomic 

Works’’ during the 1940’s and 1950’s. 

This comment also is outside the scope 

of the NPRM and will not be addressed 

further. 

The Commission has considered 

carefully the remaining comments and 

has made some changes to the final rule 

in response to the comments. The 

comments EEOC received, the changes 

made to the final rule, and EEOC’s 

reasons for not making other changes 

are discussed in more detail below. 

Section 1610.1—Definitions 

In the NPRM, EEOC proposed adding 

definitions for three terms: ‘‘agency 

record,’’ ‘‘news,’’ and ‘‘representative of 

the news media.’’ In its comments, OGIS 

recommends that EEOC define three 

additional terms: ‘‘FOIA Public 

Liaison,’’ ‘‘fee category,’’ and ‘‘fee 

waiver.’’ An individual also commented 

that EEOC’s proposed definition of 

‘‘representative of the news media’’ is 

vague and ambiguous. 

EEOC agrees with OGIS that adding 

its suggested definitions will be helpful, 

and the definitions have been added to 

the final rule. As for the proposed 

definition of ‘‘representative of the news 

media,’’ EEOC’s definition is taken 

verbatim from the FOIA statute, as 

amended. EEOC does not regard the 

definition as either vague or ambiguous. 

Moreover, the concern of the commenter 

appears to be that the definition will 

exclude requesters who work for, and 

contribute to, ‘‘electronic media 

outlets.’’ As the definition makes clear, 

however, what constitutes ‘‘news 

media’’ is a constantly evolving concept, 

and includes, but is not limited to, 

various ‘‘electronic . . . alternative 

media.’’ 

Section 1610.2—Statutory requirements 

The current rule at 29 CFR 1610.2 

states that, among other things, FOIA 

exempts ‘‘specified classes of records’’ 

from public disclosure. While the 

NPRM did not propose any changes to 

this section, OGIS suggests that EEOC 

provide examples ‘‘of the type of 

documents that fall into these 

categories’’ (that is, that EEOC delineate 

the various classes of records exempt 

from disclosure by FOIA). 

Given that EEOC did not propose 

amending § 1610.2, any comments 

regarding this section fall outside the 

scope of the NPRM and therefore do not 

require a response. Nevertheless, we 

note that EEOC’s FOIA regulation at 29 

CFR 1610.17 (Exemptions) gives 

examples of the type of documents that 

are exempt from disclosure under FOIA. 

Further, the FOIA section on EEOC’s 

public Web site contains a ‘‘Freedom of 

Information Act Reference Guide’’ 

(http://www.eeoc.gov/eeoc/foia/ 

handbook.cfm). The Reference Guide 

discusses and provides examples of 

information and documents that are 

exempt under FOIA. Repeating these 

examples in § 1610.2 is unnecessary. 


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Section 1610.4—Public reference 

facilities and current index 

In this section, EEOC proposed, 

among other things, to eliminate the 

current FOIA reading rooms in its Field, 

Local, and Area Offices. As proposed, 

reading rooms will be located only in 

Headquarters and District Offices. In its 

comments, the Union opposes this 

proposal and suggests either retaining 

all reading rooms or installing in the 

smaller offices dedicated computers 

which the public can use to access 

reading room materials. 

The proposal to reduce EEOC’s 

reading rooms from 51 to 16 is resource 

based. Only Headquarters and the 

District Offices have sufficient 

personnel to service those members of 

the public wanting access to EEOC’s 

public reading rooms and materials. The 

Union believes that reducing the 

number of reading rooms will reduce 

service to the public. However, if an 

office lacking available and 

knowledgeable personnel is unable to 

properly support, maintain, and 

administer a public reading room, the 

public will not be well served either. 

Furthermore, if smaller offices must 

assign personnel to manage reading 

rooms, this will adversely impact their 

ability to provide necessary services to 

individuals seeking to file charges of 

employment discrimination. 

Individuals who cannot visit reading 

rooms in District Offices or 

Headquarters still can access many 

reading room materials through other 

means. For example, all reading room 

materials created on or after November 

1, 1996, as well as some materials 

created before November 1, 1996, are 

accessible through EEOC’s public Web 

site. Members of the public also can 

contact the Headquarters Library or a 

District Office by mail, telephone, or 

email to obtain reading room materials. 

Equipping EEOC’s smaller field 

offices with dedicated computers 

presents problems similar to those of 

housing reading rooms. Personnel will 

be needed to maintain the computers, as 

well as to demonstrate to members of 

the public how to use them to access the 

information they seek. The smaller 

offices lack the personnel necessary to 

do these tasks without adversely 

affecting their ability to service the 

needs of charging parties. 

Therefore, for all of the above reasons, 

the Commission believes it is in the best 

interests of the public and EEOC to 

eliminate its reading rooms in its 

smaller field offices. 

Section 1610.5—Request for records 

This section, among others things, 

requires a person who files a FOIA 

request to ‘‘clearly and prominently 

identify[y]’’ the request as a ‘‘request for 

information under the ‘Freedom of 

Information Act.’’’ OGIS states that 

FOIA does not require a requester to 

identify a request as one filed pursuant 

to FOIA. OGIS suggests instead that the 

final rule state that a requester ‘‘should’’ 

identify the request as a FOIA request. 

In addition, while not referencing a 

particular revision proposed by EEOC 

pertaining to this section, OGIS suggests 

that EEOC add language ‘‘clarifying the 

intersection between FOIA and the 

Privacy Act, which some requesters find 

confusing.’’ 

While OGIS is correct that FOIA does 

not require that a request be labeled as 

a FOIA request, clear labeling is an 

important issue for the EEOC. 

Approximately 95 percent of the FOIA 

requests received by EEOC are requests 

for the charge files that are created when 

an employee or applicant files with 

EEOC an administrative charge of 

employment discrimination. In 

accordance with EEOC procedures, a 

request for a charge file can be made 

under Section 83 of Volume I of EEOC’s 

Compliance Manual, or pursuant to 

FOIA. A ‘‘Section 83’’ request provides 

EEOC with a more efficient way to 

disclose a charge file to the parties to 

the charge because, unlike a FOIA 

request, a Section 83 request does not 

have to be logged and tracked for 

reporting purposes, does not require 

EEOC to identify the site or amount of 

withheld information, and does not 

require EEOC to explain the FOIA 

exemption applicable to any 

information that is withheld. Because 

there are two methods by which a 

requester can request a charge file, and 

because EEOC is able to process Section 

83 requests more efficiently than FOIA 

requests, EEOC deems any request for a 

charge file that falls within Section 83’s 

parameters to be a Section 83 request 

unless the requester specifically 

mentions FOIA. Requiring a requester to 

designate his or her request for a charge 

file as a FOIA request therefore will 

ensure that EEOC processes the request 

under the procedure desired by the 

requester. 

As to OGIS’s suggestion that EEOC 

add language discussing the interaction 

between FOIA and the Privacy Act, we 

do not agree with the basis for the 

suggestion. Most agencies usually 

process first-party requests under both 

FOIA and the Privacy Act. EEOC charge 

files, however, are exempt from 

disclosure under the Privacy Act (see 29 

CFR 1611.13) (federal sector EEO 

complaint files also are exempt). 

Because requests for charge files are not 

processed under the Privacy Act, 

including language about the Privacy 

Act may lead requesters to believe there 

is a second disclosure option for charge 

files (or a third option, if one includes 

the Section 83 option). Since a Privacy 

Act option does not exist, mention of 

the Privacy Act will likely cause 

confusion for requesters. 

Section 1610.6—Records of other 

agencies 

The NPRM revised this section to 

state that a request for a record 

originating in another agency that is in 

the custody of EEOC will be referred to 

the other agency and EEOC will honor 

the other agency’s decision under FOIA. 

OGIS suggests that EEOC include in its 

final rule a provision that states that 

EEOC will provide the requester with 

contact information for the other agency 

when a referral is made. 

EEOC currently provides the contact 

information recommended by OGIS and 

refers the request to the other agency’s 

FOIA contact person at the address 

provided on the Department of Justice 

FOIA Web site. EEOC does not believe 

it is necessary to revise the final rule to 

reflect this practice. 

Section 1610.9—Responses: timing 

In the NPRM, EEOC proposed using a 

three-track system for responding to 

FOIA requests: a simple track, a 

complex track, and an expedited track. 

Simple requests would be processed in 

10 business days or less. Complex 

requests would be processed between 11 

and 20 business days. Expedited 

requests would be processed 

appropriately. EEOC also proposed 

assigning an individualized tracking 

number to each FOIA request and 

notifying the requester of this tracking 

number. 

The Union comments that the 

proposed three-track system is illadvised because EEOC will not be able 

to process simple requests in 10 

business days or less (thereby 

disappointing the expectations of the 

public), and that staff time would be 

better utilized sanitizing files. The 

Union also states that no study exists 

which demonstrates a need for a threetrack system, or establishes that 

implementing such a system will result 

in improved processing times or reduce 

EEOC’s FOIA backlog. The Union also 

believes that too many requests will 

meet the criteria for simple track 

processing, resulting in more missed 

deadlines. In this regard, the Union 

believes that the three-track process fails 

to account for the time required to 

categorize a request. The Union also is 

concerned that the proposed multitrack 

process ignores the possibility that the 


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Federal Register / Vol. 78, No. 118 / Wednesday, June 19, 2013 / Rules and Regulations 36647 

person making the tracking assessments 

will be the same person expected to 

process the requests, or that it will be 

someone outside of the disclosure unit, 

thus resulting in additional delays due 

to transferring files between units. 

Finally, the Union discusses the grade 

levels of staff within a disclosure unit 

and argues that the grade and staffing 

levels are not amenable to a multitrack 

FOIA processing system. 

In another comment, an individual 

states that it would be helpful if 

additional information was provided 

about how EEOC will assess each 

request for purposes of placing it in the 

appropriate track. OGIS suggests that 

EEOC’s acknowledgement letter, in 

addition to notifying a requester of his 

or her unique FOIA tracking number, 

also include ‘‘a brief description of the 

subject of the request.’’ 

The Commission does not believe that 

implementing a three-track process will 

jeopardize public expectations or cause 

internal processing difficulties. 

Currently, EEOC uses a two-track 

system: one for requests seeking 

expedited processing under 5 U.S.C. 

§ 552(a)(6)(E); and one for all other 

requests. Generally speaking, a requester 

must demonstrate a ‘‘compelling need’’ 

for expedited processing. See id. With 

respect to all other requests, EEOC has 

adopted the court-sanctioned practice of 

processing them on a ‘‘first-in, first-out 

basis.’’ See, e.g., Open America v. 

Watergate Special Prosecution Force, 

547 F.2d 605, 614–16 (DC Cir. 1976). 

Under the current system, therefore, 

each non-expedited request filed with 

EEOC goes to the back of the queue in 

the order in which it is received. A 

multitrack system, on the other hand, 

will enable EEOC to separate out the 

relatively more simple requests and 

process them more quickly. 

In this regard, the E–FOIA Act 

amendments to FOIA expressly permit 

an agency to ‘‘promulgate regulations 

. . . providing for multitrack processing 

of requests for records based on the 

amount of work or time (or both) 

involved in processing requests.’’ 5 

U.S.C. 552(a)(6)(D)(i). Additionally, the 

Department of Justice (DOJ) has 

encouraged agencies to adopt multitrack 

processing systems so that they may 

process simple requests more quickly. 

See, e.g., DOJ FOIA Update, Winter 

1997, at 6 (discussing multitrack 

processing for an agency with 

decentralized FOIA operations); FOIA 

Update, Fall 1996, at 10 (an agency that 

processes its ‘‘FOIA requests on a 

decentralized basis through separate 

agency components should allow 

multitrack processing systems to be 

maintained according to the individual 

circumstances of each component.’’). 

As noted earlier, ninety-five percent 

of the FOIA requests received by EEOC 

are requests for EEOC’s administrative 

charge files. Because these requests can 

be analyzed quickly, they are ideal 

candidates for a multitrack processing 

system. For example, the confidentiality 

provisions of Title VII of the Civil Rights 

Act of 1964, as amended (hereinafter 

‘‘Title VII’’), prohibit EEOC from 

disclosing a charge file to a person not 

a party to the charge. Title VII also 

prohibits EEOC from disclosing a charge 

file if the charging party’s right-to-sue 

has expired and no civil action has been 

filed. Further, under exemption 7(A) of 

FOIA, open charge files are exempt from 

disclosure. When a FOIA request for a 

charge file is received, FOIA personnel 

can reference EEOC’s charge file 

database and easily determine whether 

the request is being made by a third 

party, whether the requested charge file 

is still open and, if it is closed, whether 

the 90-day period for filing suit has 

expired. Requests which EEOC can 

quickly determine cannot be granted are 

the types of requests that can be placed 

on the simple track under the threetrack system. The three-track system 

will allow EEOC to process these 

requests out of order and therefore 

process them more quickly than under 

the current ‘‘first-in, first-out’’ system. 

The Commission also agrees with the 

Union, however, that the proposed time 

frame of 10 working days to process 

simple track requests should not be 

made a part of the regulation because it 

is not essential to ensure the success of 

the multitrack system. Thus, the final 

rule retains the three-track system but 

eliminates any shortened time limit for 

processing simple track requests. While 

the statutory 20-day time limit will 

apply to all requests, including those 

placed on the simple track, FOIA 

personnel will now be able to process 

the simple requests out of order. The 

Commission is confident that, with the 

proposed 10-day time limit eliminated, 

the three-track system will not cause 

additional missed deadlines or greater 

backlogs, and will not place an undue 

burden on FOIA staff. (As to the Union’s 

comments about grade and staff levels, 

these comments fall outside the scope of 

the NPRM and will not be addressed 

further). 

With respect to the suggestion that 

EEOC provide additional information as 

to how it will implement the three-track 

assessment process, such information 

properly belongs in an internal 

instruction manual, rather than as part 

of the final rule. 

Regarding OGIS’s suggestion that 

EEOC’s FOIA acknowledgement letters 

include a brief description of the 

requests, the Commission does not 

believe this is a sound idea. With 

respect to requests for charge files, 

EEOC’s acknowledgement letter 

currently references the applicable 

charge file caption and number (e.g., 

John Doe v. Widgets Incorporated, 

Charge No. 987–654–321) and contains 

a unique FOIA tracking number. These 

designations are the equivalent of 

identifying the subject matter of the 

request. Adding the task of describing 

the subject matter of the non-charge file 

requests would be, at most, superficial, 

since it safely can be presumed that the 

requester is aware of the nature of his 

or her request and will not be further 

aided by EEOC’s description. Finally, 

EEOC currently includes in its 

acknowledgement letter the contact 

information for the staff member 

assigned to process the FOIA request or 

appeal. Thus, a requester who files 

multiple requests around the same time 

can contact the staff member should he 

or she need clarification as to which 

EEOC tracking number pertains to 

which request. 

Section 1610.10—Responses: form and 

content 

The proposed revision to this section 

states that, among other things, when 

responding to a FOIA request, the 

person signing the decision will include 

his or her name and title. This section 

also states that, when a request is 

denied, EEOC ‘‘shall provide to the 

requester a written statement identifying 

the estimated volume of denied material 

. . . .’’ OGIS suggests that EEOC include 

in its final rule ‘‘complete contact 

information’’ for the person signing the 

decision, including a phone number and 

email address. OGIS objects to EEOC 

providing an estimated volume of 

denied material and recommends that 

the final rule state that EEOC will 

provide a ‘‘precise’’ volume. 

With respect to contact information, 

EEOC has decided to adopt the 

recommendation of OGIS. As a result, 

the final rule states that the person 

signing the decision will provide ‘‘his or 

her name and title, telephone number 

and email address.’’ 

Regarding OGIS’s comment about 

providing requesters with precise 

information as to the volume of 

information that is withheld, EEOC 

already provides this information with 

respect to requests that are partially 

granted and partially denied. When only 

some information is withheld, a 

requester is informed of the exact 

number of pages that is being withheld. 


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With respect to full denials, however, 

OGIS’s recommendation is not practical. 

A fair number of requests for charge 

files are denied in their entirety (e.g., a 

third party request for a charge file). 

Implementing OGIS’s suggestion will 

require staff to count every page in a 

withheld charge file. While some 

charges consist of a hundred pages or 

less, others fill boxes. Implementing 

OGIS’s suggestion therefore will be 

extremely labor intensive and will 

adversely affect EEOC’s movement to a 

three-track FOIA processing system. For 

example, a request that, on its face, 

indicates that it must be denied and 

therefore should be placed on the 

simple track will not be processed 

quickly if EEOC staff must count each 

page of the withheld charge file rather 

than providing an estimated number of 

pages contained in the file. 

Additionally, the Commission fails to 

see any benefit that will accrue to a 

requester if EEOC informs him or her of 

the actual number of pages contained in 

a complaint file that is exempt from 

disclosure. 

Section 1610.11—Appeals to the Legal 

Counsel from initial denials 

Among other things, this proposed 

section states that an appeal of an initial 

FOIA determination ‘‘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 . . . .’’ 

OMB Watch interprets the abovequoted language as requiring that 

appeals be filed only by mail. It points 

out that, under § 1610.7, EEOC accepts 

initial FOIA requests by mail, email, fax, 

or via EEOC’s Web site. Therefore, OMB 

Watch suggests that EEOC’s final rule 

allow electronic appeals. OMB Watch 

also recommends that EEOC enable 

requesters to communicate with EEOC 

electronically ‘‘throughout the FOIA 

process.’’ 

Although the NPRM does not address 

the issue, OMB Watch recommends that 

EEOC’s appeal determinations include 

information about the mediation 

services offered by OGIS. OGIS, in its 

comments, recommends that EEOC’s 

final rule include a subsection 

discussing OGIS’s role in mediating 

disputes between FOIA requesters and 

federal agencies. OMB Watch likewise 

suggests that EEOC’s final rule include 

information about OGIS. 

In drafting the language in § 1610.11, 

it was never EEOC’s intention to 

establish a requirement that FOIA 

appeals be filed only by mail. Currently, 

EEOC accepts appeals by mail, 

facsimile, email, and through its public 

Web site. While EEOC’s regulations 

require that a requester attach a copy of 

the District Director’s initial FOIA 

determination to his or her appeal, 

individuals who file electronic appeals 

can simultaneously mail, fax, or attach 

as a scanned document the District 

Director’s initial decision. To clarify 

EEOC’s intent that appeals can be filed 

by mail, fax, or electronically, EEOC has 

added to the final rule the applicable fax 

number, and email and Web site 

addresses. 

As to requesters being able to 

communicate with EEOC electronically, 

requesters currently can and do 

communicate with EEOC via EEOC’s 

FOIA email address, District Office 

email addresses, and the public Web 

site. In its appeal acknowledgement 

letter, EEOC currently informs the 

requester of the name and telephone 

number of the staff member assigned to 

process the appeal and, with the 

publication of this final rule, also will 

inform the requester of the staff 

member’s email address. As a result, 

requesters will be able to communicate 

electronically with EEOC during the 

pendency of their initial requests and 

appeals, as recommended by OMB 

Watch. 

EEOC also believes that the 

suggestions of OGIS and OMB Watch 

regarding adding information in the 

final rule about OGIS, have merit. 

Therefore, the final rule includes a new 

paragraph (g) to § 1610.11, which 

contains pertinent information about 

OGIS. EEOC currently includes in its 

appeal decisions information about 

OGIS’s mediation role. EEOC also 

includes OGIS’s address, telephone 

numbers, and email address should a 

requester wish to take advantage of 

OGIS’s services. 

Section 1610.13—Maintenance of files 

Section 1610.13(a) currently states 

that field offices and the Office of Legal 

Counsel will maintain files of their 

FOIA decisions. Current § 1610.13(b) 

states that the Legal Counsel will 

maintain a file of ‘‘copies of all grants 

or denial of appeals’’ that is ‘‘open to 

the public.’’ Proposed § 1610.13 

eliminates paragraph (b). OGIS 

recommends that EEOC retain 

§ 1610.13(b) in its final rule. 

EEOC’s Legal Counsel does not, and 

never has, made his or her FOIA appeal 

files available to the public. Thus, the 

NPRM proposes to eliminate paragraph 

(b) to conform to EEOC’s longstanding 

practice. The near impossibility of 

implementing paragraph (b) was not 

understood until after that provision 

was enacted. As previously noted, 95 

percent of FOIA requests filed with 

EEOC seek the disclosure of charge files. 

An even greater percentage of appeals 

involve decisions not to disclose charge 

files. As discussed earlier, the 

confidentially provisions applicable to 

charge files prohibit EEOC from making 

public charge file information. These 

confidentiality provisions equally apply 

when charge file information is 

contained in a FOIA appeal file. 

Therefore, eliminating § 1610.13(b) is 

necessary in order to ensure the 

confidentiality of EEOC’s charge files. 

Section 1610.14—Waiver of user 

charges 

The proposed rule states that the 

Legal Counsel and District Directors 

have the authority to reduce or waive 

search, review, and duplication fees ‘‘if 

disclosure of the information is in the 

public interest . . . and is not primarily 

in the commercial interest of the 

requester.’’ OGIS recommends that 

EEOC’s final rule allow the Legal 

Counsel and District Directors to reduce 

or waive applicable fees ‘‘at their 

discretion,’’ without regard to whether 

disclosure is in the public interest. OGIS 

believes that such authority will reduce 

fee disputes and reduce delays in the 

release of information. 

The types of requests EEOC receives 

rarely lead to fee disputes. As noted, 

most requests are for charge files and 

the field offices are adept at calculating 

fees based on the volume of documents 

in each file (when a request for a charge 

file is granted, field offices do an exact 

count of the pages in a file in order to 

calculate duplication fees). Rarely is a 

charge file fee contested. As to requests 

for other information, EEOC has not had 

difficulty calculating fees, and 

requesters rarely object to the fees that 

are charged. When a requester does 

make a fee waiver request, EEOC waives 

fees when statutorily required to do so. 

Moreover, FOIA does not require that 

an agency give its FOIA professionals 

the type of discretionary fee-waiver 

authority advocated by OGIS. Rather, 

FOIA is clear that fees must be waived 

only when the requester demonstrates 

that 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 the 

information will not be used for a 

commercial purpose. Further, it is not 

practical to give EEOC’s FOIA personnel 

discretionary authority to waive fees in 

circumstances not required by FOIA. 

Doing so would require EEOC to 

develop guidelines to ensure that 

discretionary fee waivers conform to 

certain standards. This, in turn, would 


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require EEOC to ensure that 15 District 

Directors, a Field Office Director, and 

the Assistant Legal Counsel/FOIA 

Programs, share a common 

understanding about how and when to 

exercise their discretionary fee-waiver 

authority. EEOC is concerned that, given 

the decentralization of its FOIA 

operations, such discretionary authority 

will not be uniformly applied which, in 

turn, could result in the exact 

circumstances OGIS wishes to avoid— 

an increase in fee disputes. 

Section 1610.15—Schedule of fees and 

method of payment for services 

rendered 

The proposed rule states that EEOC 

will not charge search and duplication 

fees ‘‘if the Commission issues an 

untimely determination and the 

untimeliness is not due to unusual or 

exceptional circumstances.’’ The Union 

is concerned that, by implementing a 

three-track system in which simple 

requests will be processed within 10 

business days, the potential exists that 

EEOC will be barred from charging fees 

in such cases, which in turn will place 

additional pressure on staff to timely 

process requests. OGIS suggests that 

EEOC add a paragraph to § 1610.15 

stating that, when EEOC estimates FOIA 

processing fees, it will provide the 

requester with ‘‘a breakdown of fees 

assessed for search, review and/or 

duplication.’’ 

The Union misconstrues the interplay 

regarding the timeframes applicable to 

the three-track process and the 

timeframes applicable to the waiver of 

fees. Under FOIA, a request generally 

must be processed within 20 business 

days (absent any applicable extensions). 

This 20 business day time limit, 

therefore, usually will constitute the 

benchmark for determining whether a 

request has been timely processed. In 

any event, given the Commission’s 

decision to eliminate from proposed 

§ 1610.9(a) a processing period less than 

the statutory deadline, the Union’s 

concerns are now moot. 

In estimating FOIA processing fees, 

EEOC currently provides the requester 

with a breakdown in costs as suggested 

by OGIS in its comments. EEOC informs 

the requester of the number of hours it 

anticipates will be necessary to search 

for the files requested, the number of 

hours it anticipates will be necessary to 

review (and redact, if applicable) the 

information requested, the personnel 

classification of the person performing 

the search or review, and the number of 

pages that will be duplicated and the 

cost of duplicating each page. EEOC 

does not believe it is necessary or 

desirable to incorporate this practice 

into the final rule. 

Section 1610.18—Information to be 

disclosed 

Current § 1610.18 sets forth a list of 

information that EEOC will provide to 

the public (e.g., tabulations of aggregate 

industry data, blank forms used by 

EEOC, administrative staff manuals). 

The proposed section states that the 

information ‘‘also [will] be made 

available electronically’’ and adds 

‘‘underlying annual FOIA report data’’ 

to this list. OGIS suggests that, in the 

final rule, EEOC add to the list the 

following: ‘‘travel records and calendars 

of high-level officials.’’ 

OMB Watch states that the proposed 

section fails to indicate whether EEOC 

will make the information contained in 

the list available ‘‘upon request’’ or 

‘‘proactively.’’ It urges that EEOC place 

on its public Web site all information 

which EEOC intends to make available 

to the public. OMB Watch also points 

out that FOIA requires an agency to post 

online information that has been 

released in response to a FOIA request 

and is ‘‘likely to become the subject of 

subsequent requests.’’ OMB Watch 

suggests that EEOC’s final rule add this 

type of information to the list in 

§ 1610.18. OMB Watch further 

recommends that EEOC post online all 

its responses to FOIA requests, post 

other information in advance of any 

public request, and establish a policy to 

determine categories of records and 

information of interest to the public that 

can be disclosed regularly online and 

added to the list in § 1610.18. 

EEOC receives FOIA requests seeking 

the travel records of Commissioners, the 

General Counsel, and SES employees on 

an infrequent basis. When it does, EEOC 

routinely grants the request (but may 

redact third party information when 

privacy issues prevail). EEOC rarely, if 

ever, receives requests for the calendars 

of its upper management officials. EEOC 

therefore does not believe that there is 

a significant public interest in such 

travel and calendar records. 

Additionally, gathering such records on 

a regular basis for proactive electronic 

posting will require resources which the 

Commission lacks. Therefore, the final 

rule does not include travel records and 

calendars to the list contained in 

§ 1610.18. 

Regarding the comments of OMB 

Watch, at present EEOC makes available 

electronically some of the information 

listed in § 1610.18. The intent of 

§ 1610.18 is to provide the public with 

a list of information that EEOC routinely 

will provide to the public upon receipt 

of a FOIA request. In this regard, some 

of the listed information can be made 

available only when we receive a 

specific request (e.g., specific aggregate 

industry tabulations derived from EEO– 

1 reports). Some of the other listed 

information is not, in our opinion, of 

general public interest (e.g., 

‘‘agreements between the Commission 

and State or local agencies charged with 

the administration of State or local fair 

employment practices laws’’) and 

therefore properly is made available 

only upon request. Finally, not all the 

information listed in § 1610.18 currently 

is in an electronic format. EEOC intends 

to review the listed information and 

determine whether certain categories 

should or can be made available on its 

Web site. Until that happens, however, 

EEOC cannot state in the final rule that 

this information is or will be 

electronically available. 

FOIA requires an agency to make 

available for public inspection and 

copying records which have been 

released to a person ‘‘and which, 

because of the nature of their subject 

matter, the agency determines have 

become or are likely to become the 

subject of subsequent requests for 

substantially the same records * * * .’’ 

5 U.S.C. 552(a)(2)(D). As noted 

previously, 95 percent of EEOC’s FOIA 

requests are for charge files. EEOC is 

prohibited from making public specific 

charge file information. Thus, EEOC 

cannot post online our responses to 

these requests without running afoul of 

the statutory confidentiality provisions. 

It also can be argued that EEOC charge 

files do not fall within the types of 

information contemplated by 

§ 552(a)(2)(D) because, while EEOC 

receives many requests for charge files 

and thus can anticipate additional 

charge file requests, the information 

requested is not ‘‘for substantially the 

same records,’’ but is, rather, for very 

different records unique to each 

requester. 

Additionally, EEOC already makes 

available on its public Web site 

information released under FOIA which 

is or is likely to become the subject of 

subsequent requests for substantially the 

same information. For example, EEOC 

posts on its public Web site its informal 

discussion letters, policy guidance 

documents, question and answer 

documents, press releases, and 

regulations. As suggested by OMB 

Watch, EEOC has established and will 

continue to establish categories of 

records and information of interest to 

the public that it will disclose regularly 

online. However, EEOC does not 

believe, as suggested by OMB Watch, 

that EEOC should specifically list in 

§ 1610.18 the ‘‘likely to become the 


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subject of subsequent requests’’ 

language since the intent of § 1610.18 is 

to list only that information which 

EEOC has already determined should be 

made available to the public. 

Section 1610.21—Annual report 

This section proposes that, on or 

before February 1 of each year, the Legal 

Counsel will submit to the U.S. 

Attorney General required FOIA reports. 

OGIS recommends that the final rule 

also state that EEOC will file Chief FOIA 

Officer reports. 

Pursuant to the OPEN Government 

Act, each agency must designate ‘‘a 

Chief FOIA Officer * * * .’’ An agency’s 

Chief FOIA Officer must ‘‘review and 

report to the Attorney General, through 

the head of the agency, at such times 

and in such formats as the Attorney 

General may direct, on the agency’s 

performance in implementing [its 

responsibilities under FOIA].’’ In order 

to implement OGIS’s recommendation, 

§ 1610.21 of the final rule has been 

divided into two paragraphs. Paragraph 

(a) contains the proposed language 

applicable to the annual FOIA report 

and paragraph (b) refers to the report of 

the Chief FOIA Officer. 

Regulatory Procedures 

Executive Order 12866 

This final 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 

This final 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 this final rule will not 

have a significant economic impact on 

a substantial number of small entities 

because the changes to the rule do not 

impose any burdens upon FOIA 

requesters, including those that might 

be small entities. Therefore, a regulatory 

flexibility analysis is not required by the 

Regulatory Flexibility Act. 

Unfunded Mandates Reform Act of 1995 

This final 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. 

For the Commission, 

Dated: June 12, 2013. 

Jacqueline A. Berrien, 

Chair. 

Accordingly, for the reasons set forth 

in the preamble, the Equal Employment 

Opportunity Commission hereby 

amends chapter X of title 29 of the Code 

of Federal Regulations 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 

paragraphs (j) through (o) 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) Fee category means one of the 

three categories that agencies place 

requesters in for the purpose of 

determining whether a requester will be 

charged fees for search, review and 

duplication, including commercial 

requesters, non-commercial scientific or 

educational institutions or news media 

requesters, and all other requesters. 

(l) Fee waiver means the waiver or 

reduction of processing fees if a 

requester can demonstrate that certain 

statutory standards are satisfied 

including that the information is in the 

public interest and is not requested for 

a commercial interest. 

(m) FOIA Public Liaison means an 

agency official who is responsible for 

assisting in reducing delays, increasing 

transparency and understanding of the 

status of requests, and assisting in the 

resolution of disputes. 

(n) News refers to information about 

current events that would be of current 

interest to the public. 

(o) 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; 


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(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, Sam Nunn 

Atlanta Federal Center, 100 Alabama 

Street, SW., Suite 4R30, Atlanta, GA 

30303 (includes the Savannah Local 

Office). 

Birmingham District Office, Ridge Park 

Place, 1130 22nd Street South, Suite 

2000, Birmingham, AL 35205–2397 

(includes the Jackson Area Office and 

the Mobile Local Office). 

Charlotte District Office, 129 West Trade 

Street, Suite 400, Charlotte, NC 28202 

(includes the Raleigh Area Office, the 

Greensboro Local Office, the 

Greenville Local Office, the Norfolk 

Local Office, and the Richmond Local 

Office). 

Chicago District Office, 500 West 

Madison Street, Suite 2000, Chicago, 

IL 60661 (includes the Milwaukee 

Area Office and the Minneapolis Area 

Office). 

Dallas District Office, 207 S. Houston 

Street, 3rd Floor, Dallas, TX 75202– 

4726 (includes the San Antonio Field 

Office and the El Paso Area Office). 

Houston District Office, Total Plaza, 

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, Roybal 

Federal Building, 255 East Temple 

Street, 4th Floor, Los Angeles, CA 

90012 (includes the Fresno Local 

Office, the Honolulu Local Office, the 

Las Vegas Local Office, and the San 

Diego Local Office). 

Memphis District Office, 1407 Union 

Avenue, 9th Floor, Memphis, TN 

38104 (includes the Little Rock Area 

Office, and the Nashville Area Office). 

Miami District Office, Miami Tower, 

100 SE 2nd Street, Suite 1500, Miami, 

FL 33131 (includes the Tampa Field 

Office and the San Juan Local Office). 

New York District Office, 33 Whitehall 

Street, 5th Floor, New York, NY 

10004 (includes the Boston Area 

Office, the Newark Area Office, and 

the Buffalo Local Office). 

Philadelphia District Office, 801 Market 

Street, Suite 1300, Philadelphia, PA 

19107–3127 (includes the Baltimore 

Field Office, the Cleveland Field 

Office, and the Pittsburgh Area 

Office). 

Phoenix District Office, 3300 N. Central 

Avenue, Suite 690, Phoenix, AZ 

85012–2504 (includes the Denver 

Field Office, and the Albuquerque 

Area Office). 

San Francisco District Office, 350 The 

Embarcadero, Suite 500, San 

Francisco, CA 94105–1260 (includes 

the Seattle Field Office, the Oakland 

Local Office, and the San Jose Local 

Office). 

St. Louis District Office, Robert A. 

Young Federal Building, 1222 Spruce 

Street, Room 8100, St. Louis, MO 

63103 (includes the Kansas City Area 

Office, and the Oklahoma City Area 

Office). 

■ 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 

paragraph (a) introductory text, revising 

paragraphs (b) and (c), and removing 

paragraphs (d) and (e). 

The revisions 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. 

* * * * * 

(b) A request for any record which 

does not fall within the ambit of 

paragraph (a) of this section, or a request 

for any record the location of which is 

unknown to the person making the 

request, shall be submitted in writing to 

the Assistant Legal Counsel, FOIA 

Programs, U.S. Equal Employment 

Opportunity Commission, by mail to 

131 M Street, NE., Suite 5NW02E, 

Washington, DC 20507, 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. Revise § 1610.9 to read as follows: 

§ 1610.9 Responses: timing. 

(a) The EEOC utilizes a multitrack 

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. EEOC distinguishes between 

simple and complex track requests 

based on the amount of work and time 

needed to process the request. 

(b) The Assistant Legal Counsel, FOIA 

Programs, the District Director, or the 


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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 

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(o) 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, 

telephone number, and email address; 

(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, and 

submitted by mail to the Equal 

Employment Opportunity Commission, 

131 M Street, NE., Suite 5NW02E, 

Washington, DC 20507, by fax to (202) 

663–4679, by email to FOIA@eeoc.gov, 

or by Internet to https://egov.eeoc.gov/ 

foia/. Every appeal filed under this 

section must be 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 


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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 

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. 

(g) A response to an appeal will 

advise the requester that the 2007 

amendments to FOIA created the Office 

of Government Information Services 

(OGIS) to offer mediation services to 

resolve disputes between FOIA 

requesters and Federal agencies as a 

non-exclusive alternative to litigation. A 

requester may contact OGIS in any of 

the following ways: Office of 

Government Information Services, 

National Archives and Records 

Administration, 8601 Adelphi Road— 

OGIS, College Park, MD 20740; https:// 

ogis.archives.gov; email— 

ogis@nara.gov; telephone—202–741– 

5770; facsimile—202–741–5769; tollfree—1–877–684–6448. 

■ 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. 

§ 1610.19 [Amended] 

■ 15. Amend § 1610.19 by removing 

paragraph (b)(2), redesignating 

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

removing the word ‘‘working’’ in the 

first sentence of paragraph (d) and the 

third sentence of paragraph (e)(1) and 

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

§ 1610.20 [Removed and Reserved] 

■ 16. Remove and reserve § 1610.20. 

■ 17. Revise § 1610.21 to read as 

follows: 

§ 1610.21 Annual report. 

(a) The Legal Counsel shall, on or 

before February 1, submit individual 

Freedom of Information Act reports for 

each principal agency FOIA component 

and one for the entire agency covering 

the preceding fiscal year to the Attorney 

General of the United States. 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. 

(b) When and as directed by the 

Attorney General, the Chief FOIA 

Officer, through the Office of the Chair, 

shall review and report to the Attorney 

General on the agency’s performance in 

implementing its responsibilities under 

FOIA. 

[FR Doc. 2013–14489 Filed 6–18–13; 8:45 am] 

BILLING CODE 6570–01–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

33 CFR Part 117 

[Docket No. USCG–2013–0441] 

Drawbridge Operation Regulation; 

Tombigbee River, AL 

AGENCY: Coast Guard, DHS. 

ACTION: Notice of deviation from 

drawbridge regulation. 

SUMMARY: The Coast Guard has issued a 

temporary deviation from the regulation 

governing the operation of the Meridian 

Bigbee Railroad (MBRR) vertical lift 

bridge across the Tombigbee River, mile 

128.6, near Naheola, between Choctaw 

and Morengo Counties, Alabama. The 

deviation is necessary for emergency 

replacement of the uphaul and 

downhaul ropes. This deviation allows 

the bridge to remain closed to 

navigation for two 10-hour closures on 

two consecutive weekends. 

DATES: This deviation is effective from 

7 a.m. July 13, 2013 through 5 p.m. July 

21, 2013. 

ADDRESSES: The docket for this 

deviation, [USCG–2013–0441] is 

available at http://www.regulations.gov. 


tkelley on DSK3SPTVN1PROD with RULES