29 CFR 1401, Subpart B-Production or Disclosure of Information

1401.20 Purpose and scope.

1401.21 Information policy.

1401.22 Partial disclosure of records.

1401.23 Preparation of new records.

1401.24 Notices of dispute are public.

1401.30 Applicability of procedures.

1401.31 Filing a request for records.

1401.32 Logging of written requests.

1401.33 Description of information requested.

1401.34 Time for processing requests.

1401.35 Appeals from denials of request.

1401.36 Freedom of Information Act fee schedules.

AUTHORITY: Sec. 202, 61 Stat. 136, as amended; 5 U.S.C. 552.

Source: 40 FR 8169, Feb. 26, 1975.

Subpart B-Production or Disclosure of Information

Source: 50 FR 52917, Dec. 27, 1985.

Source: 77 FR 66539, Nov. 6, 2012.

§1401.20 Purpose and scope.

This subpart contains the regulations of the Federal Mediation and Conciliation Service 

providing for public access to information under the Freedom of Information Act, 5 

U.S.C. 552. It is the policy of the FMCS to disseminate information on matters of 

interest to the public and to disclose upon request information contained in Agency 

records insofar as such disclosure is compatible with the discharge of its responsibilities 

and the principles of confidentiality and neutrality of dispute resolution by third party 

neutrals.

§1401.21 Information policy.

(a) Except for matters specifically excluded by subsection 552(b) of title 5, United 

States Code, matters covered by the Privacy Act, or other applicable statutes, all 

documents and records maintained by this Agency or in its custody shall be 

available to the public upon request filed in accordance with these regulations. To 

the extent permitted by other laws, the Service also will make available records 

which it is authorized to withhold under 5 U.S.C. 552(b) whenever it determines 

that such disclosure is in the public interest. 

(b) Any document released for inspection under the provisions of this part may be 

manually copied by the requesting party. The Service shall provide facilities for 

copying such documents at reasonable times during normal working hours so long 

as it does not interfere with the efficient operation of the Agency. 
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(c) FMCS maintains a public reading room that contains the records required by the 

FOIA to be made readily available for public inspection and copying. FMCS shall 

maintain and make available for public inspection and copying a current subjectmatter index of its reading room records. Each index shall be updated regularly, at 

least quarterly, with respect to newly included records. FMCS shall also make 

reading room records created on or after November 1, 1996, available 

electronically through FMCS's World Wide Web Site (which can be found at 

http://www.fmcs.gov).

(d) Records or documents prepared by the Service for routine public distribution, e.g., 

pamphlets, and brochures, will be furnished upon request to the Office of the 

Director of Public Affairs, Federal Mediation and Conciliation Service, 2100 K 

Street, NW, Washington, DC 20427, as long as the supply lasts. The provisions of 

§1401.36 (fees) is not applicable to such requests expect when the supply of such 

material is exhausted and it is necessary to reproduce individual copies upon 

specific request. 

(e) All existing FMCS records are subject to disposition according to Agency record 

retention schedules and the General Records Schedules promulgated by the 

National Archives and Records Administration.

§1401.22 Partial disclosure of records.

(a) If a record contains both disclosable and nondisclosable information, the 

nondisclosable information will be deleted and the remaining record will be 

disclosed unless the two are so inextricably intertwined that it is not possible to 

separate them.

(b) Records disclosed in part shall be marked or annotated to show both the amount 

and the location of the information deleted and the applicable exemption.

§1401.23 Preparation of new records.

(a) Freedom of Information Act and the provisions of this part apply only to existing 

records that are reasonably described in a request filed with the Federal Mediation 

and Conciliation Service pursuant to the procedures established in §§1401.31--

1401.36. 

(b) The Director may, in his or her discretion, prepare new records in order to 

respond to a request for information when he or she concludes that it is in the 

public interest and promotes the objectives of the Labor-Management Relations 

Act of 1947, as amended. 

§1401.24 Notices of dispute are public.

Written notices of disputes received by the Service pursuant to Sections 8(d)(3), 8(d)(A), 

8(g) and 9(c)(1) of the Labor-Management Relations Act of 1947, as amended, or 

pursuant to 29 CFR 1425.2, are not exempt from disclosure. Parties at interest have the 

right to receive certified copies of any such notice of dispute upon written request. 

Requests for copies of notices should be submitted to the Federal Mediation and 
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Conciliation Service, Notice Processing Unit, 2100 K Street, NW, Washington, DC 

20427.

§1401.30 Applicability of procedures.

Requests for inspection or copying of information from records in the custody of the 

FMCS which are reasonably identifiable and available under the provisions of this Part 

shall be made and acted upon as provided in the following Sections of this Subpart. The 

prescribed procedure shall be followed in all cases where access is sought to official 

records pursuant to the provisions of the Freedom of Information Act, except with respect 

to records for which a less formal disclosure procedure is provided specifically in this 

Part.

§1401.31 Filing a request for records.

(a) Any person who desires to inspect or copy an Agency record should submit a 

written request to the Office of the General Counsel, Federal Mediation and 

Conciliation Service, 2100 K Street, NW, Washington, DC 20427. The envelope 

[or coversheet] should be marked “Freedom of Information Act request.” 

Electronic mail requests should be sent to foia@fmcs.gov. 

(b) Each request should reasonably describe the records being sought, so that the 

records requested may be located and identified. If the description is insufficient 

to locate the requested records, the officer processing the request will notify the 

requester and ask for additional information.

§1401.32 Logging of written request.

(a) All requests for records should by clearly and prominently identified as a request 

for information under the Freedom of Information Act, and if submitted by mail 

or otherwise submitted in an envelope or other cover, should be clearly and 

prominently identified as such on the envelope or other cover. 

(b) Upon receipt of a request for records from the Office of the General Counsel, the 

FMCS office or division responding to the request shall enter it in a public log. 

The log shall state the date and time received, the name and address of the person 

making the request, the nature of the records requested, the action taken on the 

request, the date of the determination letter sent pursuant to §1401.34 (b) and (d), 

the date(s) any records are subsequently furnished, the number of staff hours and 

grade levels of persons who spent time responding to the request, and the payment 

requested and received. 

§1401.33 Description of information requested.

(a) Each request should reasonably describe the records being sought, in a way that 

they can be identified and located. A request should include all pertinent details 

that will help identify the records sought. 
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(b) If the description is insufficient, the officer processing the request will so notify 

the person making the request and indicate the additional information needed. 

Every reasonable effort shall be made to assist in the identification and location of 

the records sought. 

§1401.34 Time for processing requests.

(a) All time limitations established pursuant to this section shall begin as of the time a 

request for records is received by the Office of the General Counsel. 

(b) The officer or employee passing upon the request for records shall, within twenty 

(20) working days following receipt of the request, respond in writing to the 

requester, determining whether, or the extent to which, the Agency shall comply 

with the request. 

1. If all of the records requested have been located and a final determination 

has been made with respect to disclosure of all the records requested, the 

response shall so state. 

2. If all of the records have not been located or a final determination has not 

been made with respect to disclosure of all records requested, the response 

shall state the extent to which the records involved will be disclosed 

pursuant to the rules established in this Part.

(c) Where the time limits for processing a request cannot be met because of unusual 

circumstances and FMCS determines to extend the time limit on that basis, FMCS 

will, as soon as practicable, notify the requester in writing of the unusual 

circumstances and the date by which the processing can be expected to be 

completed. Where the extension is for more than 10 working days, FMCS will 

provide the requester with an opportunity either to modify the request so that it 

may be processed within the time limits or to arrange an alternative time period 

for processing the request or a modified request. If FMCS reasonably believes 

that multiple requests submitted by a requester, or by a group of requesters acting 

in concert, constitute a single request that would otherwise involve unusual 

circumstances, and the requests involve clearly related matters, they may be 

aggregated.

(d) If any request for records is denied in whole or in part, the response required by 

paragraph (b) of this section shall notify the requester of the denial. Such denial 

shall specify the reason and also advise that the denial may be appealed to the 

Office of the FMCS Deputy Director as specified in § 1401.35. In addition, such 

denial shall include an estimate of the volume of records or information withheld, 

in numbers of pages or in some other reasonable form of estimation. This estimate 

does not need to be provided if the volume is otherwise indicated through 

deletions on records disclosed in part, or if providing an estimate would harm an 

interest protected by an applicable estimation.

(e) FMCS offices may use two or more processing tracks by distinguishing between 

simple and more complex requests based on the amount of work and or time 

needed to process the request. A person making a request that does not qualify for 
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the fastest multitrack processing should be given an opportunity to limit the scope 

of the request in order to qualify for faster processing.

(f) Requests and appeals will be taken out of order and given expedited processing in 

cases where the requester demonstrates a compelling need.

1. Compelling need means:

(i) Circumstances in which failure to obtain copies of the requested 

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) An urgency to inform the public about an actual or alleged Federal 

Government activity, if the request is made by a person primarily 

engaged in disseminating information.

2. A requester seeking expedited processing should so indicate in the initial 

request, and should state all the facts supporting the need to obtain the 

requested records quickly. The requester must also certify in writing that 

these facts are true and correct to the best of the requester's knowledge and 

belief.

3. Within 10 calendar days of its receipt of a request for expedited 

processing, FMCS will notify the requester of its decision. If a request for 

expedited treatment is granted, the request shall be given priority and shall 

be processed as soon as practicable. If a request for expedited processing 

is denied, any appeal of that decision will be acted on expeditiously.

§1401.35 Appeals from denials of request.

(a) Whenever any request for records is denied, a written appeal may be filed with 

the Deputy Director, Federal Mediation and Conciliation Service, 2100 K Street, 

NW, Washington, DC 20427, within 30 days after requester receives notification 

that the request has been denied or after the requester receives any records being 

made available, in the event of partial denial. The appeal shall state the grounds 

for appeal, including any supporting statements or arguments. 

(b) Final action on the appeal shall be taken within 20 working days from the time of 

receipt of the appeal. Where novel and complicated questions have been raised or 

unusual difficulties have been encountered, the Deputy Director may extend the 

time for final action up to an additional 10 days, depending upon whether there 

had been an extension pursuant to §1401.34(c) at the initial stage. In such cases, 

the applicant shall be notified in writing of the reasons for the extension of time 

and the approximate date on which a final response will be forthcoming. 

(c) If on appeal the denial of the request for records is upheld in whole or in part, the 

Deputy Director shall notify the applicant of the reasons therefor, and shall advise 

the requester of the provisions for judicial review under 5 U.S.C. 552(a)(4) and 

(6). 
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§1401.36 Freedom of Information Act fee schedules.

(a) Definitions. For purposes of §1401.36, the following definitions apply: 

1. Direct costs means those expenditures which are actually incurred in 

searching for and duplicating and, in the case of commercial use 

requesters, reviewing to respond to a FOIA request.

2. Search includes all time spent looking for material that is responsive to a 

request, including page-by-page and line-by-line identification of material 

within documents. Searches may be done manually or by computer.

3. Duplication means the process of making a copy of a document necessary 

to respond to a FOIA request. Copies may be in various forms including 

machine readable documentation (e.g., magnetic tape or disk) among 

others. The requester’s specified preference of form or format of 

disclosure will be honored if the record is readily producible with 

reasonable efforts in the requested form or format.

4. Review refers to the process of examining documents located in response 

to a request that is for commercial use, to determine whether a document 

or any portion of any document located is permitted to be withheld. It 

includes processing any documents for disclosure to the requester, e.g., 

doing all that is necessary to excise them or otherwise prepare them for 

release. It does not include time spent resolving general legal or policy 

issues regarding the applicability of particular exemptions or reviewing on 

appeal exemptions that are applied. However, records or portions withheld 

in full under an exemption that is subsequently determined not to apply 

may be reviewed again to determine the applicability of other exemptions 

not previously considered. The cost for such a subsequent review is 

assessable.

5. Commercial use request refers to a request from or on behalf of one who 

seeks information for a use or purpose that furthers the commercial trade 

or profit interest of the requester or the person on whose behalf the request 

is made.

6. Educational institution refers to a preschool, a public or private elementary 

or secondary school, an institution of undergraduate higher education, an 

institution of graduate or professional education or an institution of 

vocational education, which operates a program of programs of scholarly 

research.

7. Representative of the news media refers to any person actively gathering 

news for an entity that is organized and operated to publish or broadcast 

news to the public. The term "news" means information that is about 

current events or that would be of current interest to the public. In the case 

of "freelance" journalists, they may be regarded as working for a news 

organization if they can demonstrate a reasonable expectation of 

publication through the organization, even though not actually employed 

by it.

8. Non-commercial scientific institution refers to an institution that is not 

operated on a commercial basis as defined under "commercial use request" 
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in paragraph (a)(5) of this section, and which is operated solely for the 

purpose of conducting scientific research, the results of which are not 

intended to promote any particular product or industry. 

(b) Fee schedules and waivers. Requests submitted shall be subject to direct costs, 

including search, duplication and review, in accordance with the following 

schedules, procedures and conditions. 

1. Schedule of charges --

(i) Clerical time. For each one-quarter hour or portion thereof of 

clerical time, $4.00. 

(ii) Professional time. For each one-quarter hour or portion thereof 

of professional time, $10.00. 

(iii) Duplication. For each sheet of duplication (not to exceed 8 1/2 

by 14 inches) of requested records, $20. 

(iv) Computer time. For computer searches of records, requestors 

will be charged the direct costs of conducting the search (as 

provided in paragraph (b)(3)(i) of this section), although 

certain requestors will be charged no search fee (as provided in 

paragraphs (b)(3)(ii) and (iii) of this section), and certain other 

requestors will be entitled to the cost equivalent of two hours 

of manual search time without charge (as provided in 

paragraph (b)(3)(iv) of this section). These direct costs will 

include the cost of operating a central processing unit for that 

portion of operating time that is directly attributable to the 

searching for responsive records, as well as the costs of 

operator/programmer salary attributable to the search. 

Computer time expressed in fractions of minutes will be

rounded to the next whole minute.

(v) Certification or authorization of records. The fee per 

certification or authentication is $2.00. 

(vi) Forwarding material to destination. No charge will be assessed 

for ordinary packaging and mailing costs. The FMCS may 

assess a charge if compliance with the request requires special 

handing procedures such as express mail or other unusual 

procedures. Such charges will be made on the basis of actual 

costs. 

(vii) Other costs. All other direct costs of preparing a response to a 

request shall be charged to requester in the same amount as 

incurred by FMCS. Charges may also be assessed for searches 

even if the records requested are not found, or the records are 

determined to be exempted from disclosure. 

2. Rules of construction. 

(i) In providing the foregoing schedules pursuant to the provisions 

of 5 U.S.C. 552(a)(4)(A), it is the intent of FMCS to apply 29 

CFR Part 70 and the user charge statute, 31 U.S.C. 9701, to 

cover those situations in which the Agency is performing for a 

requester services, other than those related to arbitration, which 
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are not required under the Freedom of Information Act. For 

those matters coming within the scope of this regulation, the 

FMCS will look to the provisions of the guidance 

published by the Office of Management and Budget’s 

Uniform Fee Schedule and Guidelines (available at 

http://www.whitehouse.gov/omb/inforeg/infopoltech.html) and 

the Department of Justice Attorney General's Memorandum on 

the 1986 Amendments to the Freedom of Information Act 

(available at http://www.usdoj.gov/04foia/047.html) for 

making such interpretations as may be necessary. 

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

following categories of requesters. 

(i) Commercial use requesters will be assessed charges to recover 

the full direct cost of searching for, reviewing for release, and 

duplicating the records sought. This includes the full direct cost 

of computer production programming, searching and 

production of records. Commercial use requesters are not 

entitled to 2 hours of free search time nor 100 free pages of 

reproduction of documents, as described below. 

(ii) Educational and non-commercial scientific institution 

requesters will be assessed charges for the cost of duplication 

alone, excluding charges for the first 100 pages. To be eligible 

for inclusion in this category, requesters must show that the 

request is being made under the auspices of a qualifying 

institution pursuant to the criteria in paragraphs (a)(6) and 

(a)(8) of this section, and that the records are not sought for 

commercial use, but are sought in furtherance of scholarly or 

scientific research. 

(iii) Requesters who are representatives of the news media will be 

assessed charges for the cost of duplication alone, excluding 

charges for the first 100 pages. To be eligible for inclusion in 

this category, a requester must meet the criteria in paragraph 

(a)(7) of this section, and the request must not be made for a 

commercial use. A request for records supporting the news 

dissemination function of the requester shall not be considered 

to be a request that is for commercial use. 

(iv) All other requesters will be assessed charges to recover the full 

reasonable direct costs of searching for and reproducing 

records that are responsive to the request, including costs of 

computer production programming, searching and production, 

except that the first 100 pages of reproduction, and the first 2 

hours of search time shall be furnished without charge. 

(v) In no event shall fees be charged when the total charges are 

less than $14.00, which is the Agency cost of collecting and 

processing the fee itself. If the request is expected to involve 

an assessed fee in excess of $14.00, the response shall specify 
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or estimate the fee involved before the records are made 

available.

4. Waiver or reduction of charge. A fee waiver must be requested at the 

same time that a request for records is made. The requester should 

provide an explanation of why the waiver is appropriate. If the request 

for a waiver or reduction is denied, the denial may be appealed to FMCS 

Deputy Director. In the appeal letter the requester should discuss 

whatever reasons are given in the denial letter. Documents may be 

furnished without charge or at reduced levels if FMCS determines that 

disclosure of the information is in the public interest; that is, because it 

is likely to contribute significantly to public understanding of the 

operations or activities of the Government and is not primarily in the 

commercial interest of the requester.

(c) Fee payments. 

1. Payments shall be made by check or money order payable to "Federal 

Mediation and Conciliation Service" and shall be sent to: Chief 

Financial Officer, Federal Mediation and Conciliation Service, 2100 K 

Street, NW, Washington, DC 20427. 

2. If a requester fails to pay chargeable fees that were incurred as a result 

of this Agency's processing of the information request, the Agency 

beginning on the 31st day following the date on which the notification of 

charges was sent, may assess interest charges against the requester in the 

manner prescribed in 31 U.S.C. 3717. 

3. The Agency may use the provisions of the Debt Collection Act of 1982

and it’s implementing regulations, (Pub. L. 97-365, 29 CFR Part 1450) 

including disclosure to consumer reporting agencies, for the purpose of 

obtaining payment. 

(d) Advance payments. FMCS may require a requester to make an advance 

payment of anticipated fees under the following circumstances: 

1. If the anticipated charges are likely to exceed $250, FMCS may notify 

the requestor of the likely cost and obtain satisfactory assurance of full 

payment when the requester has a history of prompt payment of FOIA 

fees, or require an advance payment of an amount up to the full 

estimated charges in the case of requesters with no history of payments. 

2. If a requester has previously failed to pay fees that have been charged in 

processing a request, within 30 days of the date when the notification of 

fees was sent, the requester may be required to: 

(i) Pay the entire amount of fees that are owed, plus any applicable 

interest as provided for in paragraph (c)(2) of this section, and 

(ii) Make an advance payment of the full amount of the estimated fee 

before the Agency will process the new pending request. 

March 2015