Revision of Freedom of Information Act Regulations

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

29 CFR Part 1610

Revision of Freedom of Information Act Regulations

AGENCY: Equal Employment Opportunity Commission.

ACTION: Interim final rule.

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SUMMARY: The Equal Employment Opportunity Commission (EEOC) is revising

its Freedom of Information Act (FOIA) regulations on Availability of

Records to conform with the Electronic Freedom of Information Act

Amendments of 1996. EEOC is also implementing a delegation of the

Regional Attorney's FOIA responsibilities, updating office addresses,

and correcting some typographical errors.

DATES: This interim final rule is effective on January 9, 1998.

Comments must be submitted on or before March 10, 1998.

ADDRESSES: Written comments should be submitted to Frances M. Hart,

[[Page 1340]]

Executive Officer, Executive Secretariat, Equal Employment Opportunity

Commission, 1801 L Street, N.W., Washington, D.C. 20507.

As a convenience to commentators, the Executive Secretariat will

accept comments transmitted by facsimile (``FAX'') machine. The

telephone number of the FAX receiver is (202) 663-4114. (This is not a

toll free number.) Only comments of six or fewer pages will be accepted

via FAX transmittal. This limitation is necessary to assure access to

the equipment. Receipt of FAX transmittals will not be acknowledged,

except that the sender may request confirmation of receipt by calling

the Executive Secretariat staff at (202) 663-4078 (voice) or (202) 663-

4077 (TDD). (These are not toll free numbers.) Copies of comments

submitted by the public will be available for review at the

Commission's library, room 6502, 1801 L Street, N.W., Washington, D.C.

20507 between the hours of 9:30 a.m. and 5:00 p.m.

FOR FURTHER INFORMATION CONTACT: Thomas J. Schlageter, Assistant Legal

Counsel, or Emily Kim, Staff Attorney, at (202) 663-4669. Copies of

this interim final rule are available in the following alternate

formats: Large print, braille, electronic file on computer disk, and

audio-tape. Copies may be obtained from EEOC's Publication Center by

calling 1-800-669-3362 (voice) or 1-800-669-6820 (TDD).

SUPPLEMENTARY INFORMATION: The Commission is revising its regulations

under the Freedom of Information Act, 5 U.S.C. 552, to implement the

Electronic Freedom of Information Act Amendments of 1996 (Pub. L. 105-

231). The Electronic FOIA Amendments (``Amendments'') require several

changes in the regulations. The Commission is also revising the

regulation to reflect a delegation of FOIA responsibilities by the

Regional Attorneys, updating field office addresses, and correcting

some typographical errors.

A determination has been made by the Commission that compelling

reasons exist to promulgate this interim rule without prior opportunity

for public comment. This rule is necessary for effective implementation

of the Electronic Freedom of Information Act Amendments of 1996, which

require that this Act take effect on March 31, 1997, except for

sections 7 and 8, which take effect on October 2, 1997. Comments

received in response to the publication of this interim final rule will

be considered.

The Amendments now require that certain records be made available

electronically. The Commission has created an Internet web site at

which some of this information and much additional information about

the Commission can be accessed. Accordingly, the Commission is revising

Sec. 1610.4(a) of the regulations to identify the web site through

which the public may access information.

The Amendments increase the time limit for agency responses to FOIA

requests to 20 days. Accordingly, in paragraph (a) of the revised

Sec. 1610.9, the Commission will now have 20 days to respond to FOIA

requests, instead of 10.

The Amendments provide that FOIA requesters may, in circumstances

of ``compelling need,'' be eligible for expedited processing of their

information requests. The Commission, therefore, is adding a new

paragraph (c) to Sec. 1610.9 wherein requests for information may be

considered for expedited processing if the requester can show

``compelling need'' through a certified statement. Under the new

regulation, the Commission must notify the requester within 10 days

whether she or he will receive information on an expedited basis. The

requester can appeal the Commission's decision to deny a request for

expedited processing.

To the extent practicable and consistent with the interest

protected by the various exceptions, the Amendments require that

agencies indicate the amount of withheld information. Thus, when

withholding information, the revised Sec. 1610.10(c) requires the

Commission to indicate the estimated volume of information it is

withholding, provided that doing so will not harm an interest protected

by that statute. Also, when releasing only portions of documents, the

Commission must indicate the volume of the deleted materials, and to

the extent possible, the location of the deletion within the document.

Under the revised Sec. 1610.21, the Legal Counsel will now submit

the annual report to the Attorney General on a fiscal year basis,

instead of to Congress on a calendar year basis.

Other changes not required by the Amendments include revisions in

Secs. 1610.8 through 1610.11 and 1610.14 reflecting that Regional

Attorneys may delegate their responsibilities under these sections, and

revisions to Sec. 1610.4 reflecting field office changes of address.

Finally, some typographical errors have been corrected.

Regulatory Procedures

Regulatory Flexibility Act

The Commission, in accordance with the Regulatory Flexibility Act

(5 U.S.C. 606(b)), has reviewed this regulation and by approving it

certifies that this regulation will not have a significant economic

impact on a substantial number of small entities.

Executive Order 12866

This regulation has been reviewed in accordance with Executive

Order 12866. The Office of Management and Budget has determined that

this rule is not a ``significant regulatory action'' as defined in E.O.

12866 because the revisions contained in this interim final rule

incorporate only those changes required by the Electronic FOIA

Amendments of 1996, a provision allowing Regional Attorneys to delegate

their FOIA responsibilities, updated regional office addresses, and

corrections of typographical errors.

Unfunded Mandates Reform Act of 1995

This rule will not result in the expenditure by State, local, and

tribal governments, in the aggregate, or by the private sector, of

$100,000,000 or more in any one year, and it will not significantly or

uniquely affect small governments. Therefore, no actions were deemed

necessary under the provisions of the Unfunded Mandates Reform Act of

1995.

Small Business Regulatory Enforcement Fairness Act of 1996

This rule is not a major rule as defined by section 804 of the

Small Business Regulatory Enforcement Fairness Act of 1996. This rule

will not result in an annual effect on the economy of $100,000,000 or

more; a major increase in costs or prices; or significant adverse

effects on competition, employment, investment, productivity,

innovation, or on the ability of United States-based companies to

compete with foreign-based companies in domestic and export markets.

List of Subjects in 29 CFR Part 1610

Administrative practice and procedure, Freedom of Information,

records.

For the reasons stated in the preamble, 29 CFR Part 1610 is amended

as set forth below.

PART 1610--AVAILABILITY OF RECORDS

1. The authority citation for 29 CFR part 1610 is revised to read

as follows:

[[Page 1341]]

Authority: 42 U.S.C. 2000e-12(a), 5 U.S.C. 552 as amended by

Pub. L. 93-502, Pub. L. 99-570, and Pub. L. 105-231; for

Sec. 1610.15, nonsearch or copy portions are issued under 31 U.S.C.

9701.

2. Section 1610.4 is amended by adding a new sentence to paragraph

(a) after the first sentence, removing the word ``it'' and adding in

its place the word ``its'' in the fourth sentence, and revising

paragraph (c) to read as follows:

Sec. 1610.4 Public reference facilities and current index.

(a) * * * Any such materials created on or after November 1, 1996

may also be accessed through the Internet at EEOC's World Wide Web site

at http:www.eeoc.gov. * * *

* * * * *

(c) The Commission's field offices are:

Albuquerque Area Office (Phoenix District), 505 Marquette, NW, Suite

900, Albuquerque, NM 87102.

Atlanta District Office, 100 Alabama Street, SW, Suite 4R30, Atlanta,

GA 30303.

Baltimore District Office, City Crescent Building, 10 South Howard

Street, 3rd Floor, Baltimore, MD 21201.

Birmingham District Office, 1900 3rd Avenue, North, Suite 101,

Birmingham, AL 35203-2397.

Boston Area Office (New York District), 1 Congress Street, 10th Floor,

Room 1001, Boston, MA 02114.

Buffalo Local Office (New York District), 6 Fountain Plaza, Suite 350,

Buffalo, NY 14202.

Charlotte District Office, 129 West Trade Street, Suite 400, Charlotte,

NC 28202.

Chicago District Office, 500 West Madison Street, Suite 2800, Chicago,

IL 60661.

Cincinnati Area Office (Cleveland District), 525 Vine Street, Suite

810, Cincinnati, OH 45202-3122.

Cleveland District Office, 1660 West Second Street, Suite 850,

Cleveland, OH 44113-1454.

Dallas District Office, 207 S. Houston Street, 3rd Floor, Dallas, TX

75202-4726.

Denver District Office, 303 E. 17th Avenue, Suite 510, Denver, CO

80203.

Detroit District Office, 477 Michigan Avenue, Room 865, Detroit, MI

48226-9704.

El Paso Area Office (San Antonio District), The Commons, Building C,

Suite 100, 4171 N. Mesa Street, El Paso, TX 79902.

Fresno Local Office (San Francisco District), 1265 West Shaw Avenue,

Suite 103, Fresno, CA 93711.

Greensboro Local Office (Charlotte District), 801 Summit Avenue,

Greensboro, NC 27405-7813.

Greenville Local Office (Charlotte District), Wachovia Building, 15

South Main Street, Suite 530, Greenville, SC 29601.

Honolulu Local Office (San Francisco District), 300 Ala Moana

Boulevard, Room 7123-A, PO Box 50082, Honolulu, HI 96850-0051.

Houston District Office, 1919 Smith Street, 7th Floor, Houston, TX

77002.

Indianapolis District Office, 101 West Ohio Street, Suite 1900,

Indianapolis, IN 46204-4203.

Jackson Area Office (Birmingham District), 207 West Amite Street,

Jackson, MS 39201.

Kansas City Area Office (St. Louis District), 400 State Avenue, Suite

905, Kansas City, KS 66101.

Little Rock Area Office (Memphis District), 425 West Capitol Avenue,

Suite 625, Little Rock, AR 72201.

Los Angeles District Office, 255 E. Temple Street, 4th Floor, Los

Angeles, CA 90012.

Louisville Area Office (Indianapolis District), 600 Dr. Martin Luther

King Jr. Place, Suite 268, Louisville, KY 40202.

Memphis District Office, 1407 Union Avenue, Suite 621, Memphis, TN

38104.

Miami District Office, One Biscayne Tower, 2 South Biscayne Boulevard,

Suite 2700, Miami, FL 33131.

Milwaukee District Office, 310 West Wisconsin Avenue, Suite 800,

Milwaukee, WI 53203-2292.

Minneapolis Area Office (Milwaukee District), 330 South Second Avenue,

Suite 430, Minneapolis, MN 55402-2224.

Nashville Area Office (Memphis District), 50 Vantage Way, Suite 202,

Nashville, TN 37228-9940.

Newark Area Office (Philadelphia District), 1 Newark Center, 21st

Floor, Newark, NJ 07102-5233.

New Orleans District Office, 701 Loyola Avenue, Suite 600, New Orleans,

LA 70113-9936.

New York District Office, 7 World Trade Center, 18th Floor, New York,

NY 10048-1102.

Norfolk Area Office (Baltimore District), World Trade Center, 101 South

Main Street, Suite 4300, Norfolk, VA 23510.

Oakland Local Office (San Francisco District), 1301 Clay Street, Suite

1170-N, Oakland, CA 94612-5217.

Oklahoma Area Office (Dallas District), 210 Park Avenue, Suite 1350,

Oklahoma City, OK 73102.

Philadelphia District Office, 21 South 5th Street, Suite 400,

Philadelphia, PA 19106-2515.

Phoenix District Office, 3300 N. Central Avenue, Suite 690, Phoenix, AZ

85012-2504.

Pittsburgh Area Office (Philadelphia District), 1001 Liberty Avenue,

Suite 300, Pittsburgh, PA 15222-4187.

Raleigh Area Office (Charlotte District), 1309 Annapolis Drive,

Raleigh, NC 27608-2129.

Richmond Area Office (Baltimore District), 3600 West Broad Street, Room

229, Richmond, VA 23230.

San Antonio District Office, 5410 Fredericksburg Road, Suite 200, San

Antonio, TX 78229-3555.

San Diego Area Office (Los Angeles District), 401 B Street, Suite 1550,

San Diego, CA 92101.

San Francisco District Office, 901 Market Street, Suite 500, San

Francisco, CA 94103.

San Jose Local Office (San Francisco District), 96 North 3rd Street,

Suite 200, San Jose, CA 95112.

Savannah Local Office (Atlanta District), 410 Mall Boulevard, Suite G,

Savannah, GA 31406-4821.

Seattle District Office, Federal Office Building, 909 First Avenue,

Suite 400, Seattle, WA 98104-1061.

St. Louis District Office, Robert A. Young Building, 1222 Spruce

Street, Room 8.100, St. Louis, MO 63103.

Tampa Area Office (Miami District), 501 East Polk Street, Room 1020,

Tampa, FL 33602.

Washington Field Office (Baltimore District), 1400 L Street, NW, Suite

200, Washington, DC 20005.

Sec. 1610.5 [Amended]

3. Paragraph (c) of Sec. 1610.5 is amended by replacing ``verify

the scope of the request and;'' with ``verify the scope of the request

and,'' at the end of paragraph (c).

4. Section 1610.8 is revised to read as follows:

Sec. 1610.8 Authority to determine.

The Legal Counsel's designee, the regional attorney, or the

regional attorney's designee, when receiving a request pursuant to

these regulations, shall grant or deny each such request. That decision

shall be final, subject only to administrative review as provided in

Sec. 1610.11 of this subpart.

5. Section 1610.9 is amended by revising the heading, the

introductory text of paragraph (a), and paragraph (b), and by adding a

new paragraph (c) to read as follows:

Sec. 1610.9 Responses: timing.

(a) The Legal Counsel's designee, the regional attorney, or the

regional attorney's designee shall either grant or deny a request for

records within 20 working days after receipt of the request unless

additional time is required for one of the following reasons:

* * * * *

(b) When additional time is required for one of the reasons stated

in

[[Page 1342]]

paragraph (a) of this section the Legal Counsel's designee, the

regional attorney, or the regional attorney's designee, shall

acknowledge receipt of the request within the 20 day period and include

a brief notation 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 working additional 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.

(c)(1) Requests 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 person primarily engaged in

disseminating information 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

working days. The Legal Counsel or designee shall promptly respond to

any appeal of the denial for expedited processing.

6. Section 1610.10 is amended by adding a new sentence between the

first and second sentences in paragraph (a), revising the introductory

text of paragraph (b), redesignating paragraph (c) as paragraph (d),

and adding a new paragraph (c) to read as follows:

Sec. 1610.10 Responses: form and content.

(a) * * * Records shall be made available in the form or format

indicated by the requester, if the record is readily reproducible in

that form or format. * * *

(b) A reply denying a written request for a record shall be in

writing, signed by the Legal Counsel's designee, the regional attorney,

or the regional attorney's designee, and shall include:

* * * * *

(c) When denying a request for records, the estimated volume of

denied material shall be indicated, unless providing such estimate

would harm an interest protected by the exemptions in 5 U.S.C. 522(b).

When providing a reasonably segregable portion of a record, 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 shall be indicated.

7. Section 1610.11 is amended by revising the first and last

sentences of paragraph (a), the last sentence of paragraph (b),

paragraph (c) and the first sentence of paragraph (f) to read as

follows:

Sec. 1610.11 Appeals to the Legal Counsel from initial denials.

(a) When the Legal Counsel's designee, the regional attorney, or

the regional attorney's designee, has denied a request for records in

whole or in part, the person making the request may appeal within 30

calendar days of its receipt. * * * Any appeal of a denial in whole or

part by a regional attorney, or the regional attorney's designee, must

include a copy of the regional attorney's, or the regional attorney's

designee's determination.

(b) * * * The Legal Counsel or designee may extend the 20 day

period in which to render a decision on an appeal for that period of

time which could have been claimed and consumed by the Legal Counsel's

designee, the regional attorney, or the regional attorney's designee,

under Sec. 1610.9 but which was either not claimed or consumed in

making the original determination.

(c) The decision on appeal shall be in writing and signed by the

Legal Counsel or designee. 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 applied to the records withheld and the reasons for

asserting it, if different from that described by the Legal Counsel's

designee, the regional attorney, or the regional attorney's designee

under Sec. 1610.10, and that the person making the request may, if

dissatisfied with the decision on appeal, file a civil action in the

district in which the person resides or has his principal place of

business, in the district where the records reside, or in the District

of Columbia.

* * * * *

(f) In the event that the Commission terminates its proceedings on

a charge after the regional attorney or the regional attorney's

designee denies a request for the charge file but during consideration

of the requester's appeal from that denial, the request may be remanded

for redetermination. * * *

Sec. 1610.14 [Amended]

8. Section 1610.14 is amended by adding ``or designees'' after

``and regional attorneys'' in the first sentence of paragraph (a).

Sec. 1610.15 [Amended]

9. Section 1610.15(f) is amended by replacing the word ``requrie''

with ``require.''

Sec. 1610.18 [Amended]

10. Section 1610.18(a) is amended by replacing the word

``perviously'' with ``previously.''

11. Section 1610.21 is revised to read as follows:

Sec. 1610.21 Annual report.

The Legal Counsel shall, on or before February 1, 1998, and

annually thereafter, submit a Freedom of Information Act report

covering the preceding fiscal year to the Attorney General of the

United States. The report shall include those matters required by 5

U.S.C. 552(e), and shall be made available electronically.

Sec. 1610.34 [Amended]

12. Section 1610.34(a) is amended by replacing the word ``Council''

with ``Counsel.''

Dated: December 22, 1997.

Gilbert F. Casellas,

Chairman.

[FR Doc. 98-498 Filed 1-8-98; 8:45 am]

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