Availability of Official Information, 36121-36129 [E9-17242]

Download as PDF 36121 Proposed Rules Federal Register Vol. 74, No. 139 Wednesday, July 22, 2009 This section of the FEDERAL REGISTER contains notices to the public of the proposed issuance of rules and regulations. The purpose of these notices is to give interested persons an opportunity to participate in the rule making prior to the adoption of the final rules. FEDERAL LABOR RELATIONS AUTHORITY 5 CFR Part 2411 Availability of Official Information erowe on DSK5CLS3C1PROD with PROPOSALS-1 AGENCY: Federal Labor Relations Authority. ACTION: Notice of proposed rulemaking. SUMMARY: The Federal Labor Relations Authority (Authority) seeks public comment on a proposed revision to its regulations implementing the Freedom of Information Act, as amended. The proposed regulations contain new provisions to comply with the OPEN Government Act of 2007, as well as changes to satisfy the Electronic Freedom of Information Act Amendments of 1996. The regulations have also been revised to reflect changes required by Executive Order 12600 and Executive Order 13392. In addition, the proposed regulations have been updated to reflect changes in the Authority’s policies and procedures. As a result of these proposed amendments, the public will have a clearer understanding of the Authority’s policies and procedures implementing the FOIA. DATES: Comments must be received on or before August 21, 2009. ADDRESSES: You may submit comments by any of the following methods: • E-mail: solmail@flra.gov. Include ‘‘FOIA PROPOSED RULEMAKING’’ in the subject line of message. • Fax: (202) 343–1007. • Mail: Office of the Solicitor, 1400 K Street, NW., Suite 300, Washington, DC 20424. • Hand Delivery Courier: Same as mailing address. Instructions: All submissions must include your name, return address and e-mail address, if applicable. Please clearly label submissions as ‘‘FOIA PROPOSED RULEMAKING.’’ If you submit comments by e-mail, you will receive an automatic confirmation email from the system indicating that we have received your submission. If, in VerDate Nov<24>2008 15:30 Jul 21, 2009 Jkt 217001 response to your comments submitted via e-mail, you do not receive a confirmation e-mail within 5 working days, please contact us directly at (202) 218–7999. FOR FURTHER INFORMATION CONTACT: Rosa M. Koppel, Solicitor, via telephone: (202) 218–7999, or via e-mail: rkoppel@flra.gov. SUPPLEMENTARY INFORMATION: The comprehensive revisions to part 2411 that the Authority proposes include changes to the language and structure of the regulations. Provisions have been revised, added, and/or in some cases, reorganized in order to clarify how the Authority implements the procedural requirements of the FOIA. The proposed revisions are not intended to change any rights under the FOIA. The proposed regulations are intended to achieve compliance with the OPEN Government Act of 2007, Public Law 110–175, 121 Stat. 2524, and Executive Order 13392, 70 FR 75371– 75371 (Dec. 9, 2005). Provisions which relate to implementation of the OPEN Government Act are as follows—(1) § 2411.4(b)(1) (identification of deleted information); (2) § 2411.8(a) (setting forth criteria for when the time period for processing requests begins to run and when that time period may be suspended or tolled); (3) §§ 2411.8(c)(5) and 2411.13(b)(3) (address waiver of fees when time limits for complying with FOIA requests are not met); and (4) § 2411.8(d) (assigns individual tracking numbers to requests requiring more than ten days to process and provides phone number/Web site address to inquire about status). The OPEN Government Act and EO 13392 establish and set forth duties and responsibilities for the Chief FOIA Officer and the FOIA Public Liaison(s). The provisions of the regulations pertaining to these duties and responsibilities are found at: (1) § 2411.3(a) and (c) (delegation of FOIArelated duties to Chief FOIA Officer and designation of FOIA Public Liaison(s)); (2) § 2411.4(b)(1) (identification of deleted information); (3) §§ 2411.8(c)(5) and 2411.13(b)(3) (waives certain processing fees when time limits are not met for processing FOIA requests); (4) § 2411.11(a) (to aid in meeting time limits the FOIA Public Liaison(s) are given responsibility to resolve disputes between requesters and the agency as to the scope of requests or modification of PO 00000 Frm 00001 Fmt 4702 Sfmt 4702 time limits); and (5) § 2411.13(a)(8) (adds definition of ‘‘representative of the news media’’). The proposed regulations would also add new provisions to explicitly implement Executive Order 12600, 52 FR 23781 (June 23, 1987), 3 CFR 235 (1987 Comp.) and the Electronic Freedom of Information Act Amendments of 1996, Public Law 104– 231, 110 Stat. 3048 (E–FOIA). The Authority has been operating in compliance with these provisions of law, and based on its experience is now proposing to update the regulations to reflect this compliance. A new section implementing Executive Order 12600’s procedural structure for notifying those who submit business information to the government when that information becomes the subject of a FOIA request can be found at § 2411.9. New provisions implementing the E–FOIA can be found at: (1) § 2411.2(a) (includes electronic formats within the meaning of the term ‘‘record’’); (2) § 2411.4(a)(iv) (requires that records that ‘‘have become or are likely to become the subject of subsequent requests for substantially the same records’’ be included in FOIA reading room); (3) § 2411.4(a)(v) (requires general index of records be included in FOIA reading room); (4) § 2411.4(b)(2) (establishment of electronic reading room); (5) § 2411.7 (format of disclosure); (6) § 2411.13(a)(2) (searches for records in electronic form or format); and (7) § 2411.15 (modification of deadline for submission of Annual Report and requirement that it shall be available in electronic format). Further, the proposed revisions are intended as a routine updating of the Authority’s procedures—to streamline the existing procedures based on experience, to reflect certain changes in the procedural requirements of the FOIA since the current regulations issued, and to make the Authority’s procedures easier for the public to understand. Provisions that implement these goals can be found at: (1) § 2411.2 (adds a new section clarifying that the regulations’ scope includes information in electronic formats and the relation of the regulations to the Privacy Act regulations in part 2412); (2) § 2411.4(a) and (b) (merging paragraph (b) of § 2411.4 into paragraph (a) of § 2411.4 so that the policies of all three FLRA components are addressed in one E:\FR\FM\22JYP1.SGM 22JYP1 erowe on DSK5CLS3C1PROD with PROPOSALS-1 36122 Federal Register / Vol. 74, No. 139 / Wednesday, July 22, 2009 / Proposed Rules paragraph); (3) § 2411.4(d) (eliminating explanatory discussion of specific FOIA exemptions from mandatory disclosures); (4) § 2411.4(f)(1) and (2) (providing Web site addresses to obtain copies of agency forms); (5) § 2411.5(b) (requiring requesters to state they will assume financial liability for FOIA processing fees); (6) § 2411.6(a) (adding language to give requester the opportunity to discuss/clarify request so that it may be modified, if necessary, to meet regulatory requirements); (7) § 2411.8(b) (moving language from § 2411.13(c)(4) to set forth earlier the objective that requesters reasonably describe records sought); (8) § 2411.10(a)(2) (adding language to explain how to calculate the twenty day period for responding to appeal); (9) § 2411.10(a)(2)(i) and (b)(2)(i) (providing consistency with other sections regarding the cut-off amount at which fees ($250 and above) will be requested in advance of information production); (10) § 2411.10(a)(2)(ii) and (b)(2)(ii) (providing for information production before payment of fees below $250 if no history of failure to pay fees on time); (11) § 2411.13(a)(2) (adding language to inform requesters that searches will be conducted in the most efficient and least expensive manner reasonably possible); (12) § 2411.13(b)(4)(ii)(A) thru (D) (adding language to set forth more clearly the factors to be considered in determining when fees should be waived because a disclosure is in the ‘‘public interest’’); (13) § 2411.13(b)(4)(iii)(A) and (B) (adding language clarifying when a requester’s interest is ‘‘primarily commercial’’); (14) § 2411.13(b)(4)(v) (adding language to clarify when partial fees will be assessed); (15) § 2411.13(h) (adding language related to handling requests by other than a party to a proceeding before the agency for a copy of a transcript, diskette, or other recordation of the proceeding); and (16) § 2411.14 (providing information on record retention and preservation). The Authority has added language relating to the role of the Inspector General throughout the regulation (i.e., purpose (§ 2411.1), scope (§ 2411.2), information policy (§ 2411.4), procedures for obtaining information (§ 2411.5)), when requests for information relate to records, documents, or other information of the Inspector General for the Authority. Finally, the Authority has deleted former § 2411.11 and replaced it with a new part 2417. See 74 FR 11634 (March 14, 2009). Accordingly, the Authority proposes to revise its regulations implementing the FOIA and put them out for public VerDate Nov<24>2008 15:30 Jul 21, 2009 Jkt 217001 comment. The Authority reproduces proposed 5 CFR part 2411 in its entirety. PART 2411—AVAILABILITY OF OFFICIAL INFORMATION Executive Order 12866 Sec. 2411.1 Purpose. 2411.2 Scope. 2411.3 Delegation of authority. 2411.4 Information policy. 2411.5 Procedure for obtaining information. 2411.6 Identification of information requested. 2411.7 Format of disclosure. 2411.8 Time limits for processing requests. 2411.9 Business information. 2411.10 Appeal from denial of request. 2411.11 Modification of time limits. 2411.12 Effect of failure to meet time limits. 2411.13 Fees. 2411.14 Record retention and preservation. 2411.15 Annual report. The Authority is an independent regulatory agency, and as such, is not subject to the requirements of E.O. 12866. Executive Order 13132 The Authority is an independent regulatory agency, and as such, is not subject to the requirements of E.O. 13132. Regulatory Flexibility Act Certification Pursuant to section 605(b) of the Regulatory Flexibility Act, 5 U.S.C. 605(b), the Chairman of the Authority has determined that this regulation, as amended, will not have a significant impact on a substantial number of small entities, because this rule only applies to Federal employees, Federal agencies, and labor organizations representing Federal employees. Unfunded Mandates Reform Act of 1995 This rule change 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 action 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 foreignbased companies in domestic and export markets. Paperwork Reduction Act of 1995 The amended regulations contain no additional information collection or recordkeeping requirements under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501, et seq. List of Subjects in 5 CFR Part 2411 Freedom of Information Act. For the reasons stated in the preamble, the Authority proposes that 5 CFR part 2411 be revised as follows: PO 00000 Frm 00002 Fmt 4702 Sfmt 4702 Authority: 5 U.S.C. 552, as amended and OPEN Government Act of 2007, Pub. L. No. 110–175, 121 Stat. 2524; E.O. 13392 (Dec. 14, 2005); and E.O. 12600 (June 23, 1987). § 2411.1 Purpose. This part contains the regulations of the Federal Labor Relations Authority (Authority), the General Counsel of the Federal Labor Relations Authority (General Counsel), the Federal Service Impasses Panel (Panel) and the Inspector General of the Federal Labor Relations Authority (IG) providing for public access to information from the Authority, the General Counsel, the Panel or the IG. These regulations implement the Freedom of Information Act, as amended, 5 U.S.C. 552, and the policy of the Authority, the General Counsel, the Panel and the IG to disseminate information on matters of interest to the public and to disclose to members of the public on request such information contained in records insofar as is compatible with the discharge of their responsibilities, consistent with applicable law. § 2411.2 Scope. (a) For the purpose of this part, the term record and any other term used in reference to information includes any information that would be subject to the requirements of 5 U.S.C. 552 when maintained by the Authority, the General Counsel, the Panel or the IG in any format including an electronic format. All written requests for information from the public that are not processed under part 2412 of this chapter will be processed under this part. The Authority, the General Counsel, the Panel and the IG may continue, regardless of this part, to furnish the public with the information it has furnished in the regular course of performing its official duties, unless furnishing the information would E:\FR\FM\22JYP1.SGM 22JYP1 Federal Register / Vol. 74, No. 139 / Wednesday, July 22, 2009 / Proposed Rules violate the Privacy Act of 1974, 5 U.S.C. 552a, or another law. (b) When the subject of a record, or the subject’s representative, requests the record from a Privacy Act system of records, as that term is defined by 5 U.S.C. 552a(a)(5), and the Authority retrieves the record by the subject’s name or other personal identifier, the Authority will handle the request under the procedures and subject to the fees set out in part 2412. When a third party requests access to those records, without the written consent of the subject of the record, the Authority will process the request under this part. (c) Nothing in 5 U.S.C. 552 or this part requires that the Authority, the General Counsel, the Panel or the IG, as appropriate, create a new record in order to respond to a request for the records. § 2411.3 Delegation of authority. (a) Chief FOIA Officer. The Chairman of the Federal Labor Relations Authority designates the Chief FOIA Officer who has agency-wide responsibility for the efficient and appropriate compliance with the FOIA. The Chief FOIA Officer monitors the implementation of the FOIA throughout the agency. (b) Authority/General Counsel/Panel/ IG. Regional Directors of the Authority, the Freedom of Information Officer of the Office of the General Counsel, Washington, DC, the Solicitor of the Authority, the Executive Director of the Panel and the IG are delegated the exclusive authority to act upon all requests for information, documents and records which are received from any person or organization under § 2411.5(a) & (b). (c) FOIA Public Liaison(s). The Chief FOIA Officer shall designate the FOIA Public Liaison(s), who shall serve as the supervisory official(s) to whom a FOIA requester can raise concerns about the service the FOIA requester has received following an initial response. erowe on DSK5CLS3C1PROD with PROPOSALS-1 § 2411.4 Information policy. (a) Authority/General Counsel/Panel/ IG. (1) It is the policy of the Authority, the General Counsel, the Panel and IG to make available for public inspection and copying (unless they are published and copies are offered for sale): (i) Final decisions and orders of the Authority and administrative rulings of the General Counsel; and procedural determinations, final decisions and orders of the Panel; and factfinding and arbitration reports; and reports and executive summaries of the IG; (ii) Statements of policy and interpretations which have been adopted by the Authority, the General VerDate Nov<24>2008 15:30 Jul 21, 2009 Jkt 217001 Counsel, the Panel or the IG and are not published in the Federal Register; (iii) Administrative staff manuals and instructions to staff that affect a member of the public (except those establishing internal operating rules, guidelines, and procedures for the investigation, trial, and settlement of cases); (iv) Copies of all records, regardless of form or format, which have been released to any person under 5 U.S.C. 552(a)(3) and which, because of the nature of their subject matter, the Authority, the General Counsel, the Panel or the IG determines have become or are likely to become the subject of subsequent requests for substantially the same records; and (v) A general index of the records referred to in paragraph (a)(1)(i) through (iv) of this section. (2) It is the policy of the Authority, the General Counsel, the Panel and the IG to make promptly available for public inspection and copying, upon request by any person, other records where the request reasonably describes such records and otherwise conforms to the procedures of this part. (b) Records Availability. (1) Any person may examine and copy items in § 2411.4(a)(1)(i) through (iv), at each regional office of the Authority and at the offices of the Authority, the General Counsel, the Panel and the IG, respectively, in Washington, DC, under conditions prescribed by the Authority, the General Counsel, the Panel and the IG, respectively, and at reasonable times during normal working hours so long as it does not interfere with the efficient operations of the Authority, the General Counsel, the Panel and the IG. To the extent required to prevent a clearly unwarranted invasion of personal privacy, identifying details may be deleted and, in each case, the justification for the deletion shall be fully explained in writing. On the released portion of the record, the amount of information deleted, and the exemption under which the deletion is made, shall be indicated unless an interest protected by the exemption would be harmed. (2) All records covered by this section are available through the Internet/World Wide-Web site http://www.flra.gov/foia/ reading_room.html. The Web site containing these records may also be accessed: (i) From a computer terminal located in the library at FLRA headquarters at 1400 K Street, NW., Washington, DC. Requests to use this terminal to access the FLRA’s electronic Reading Room should be submitted to the FLRA’s Office of the Solicitor (mail: Office of the Solicitor, FLRA, 1400 K Street, NW., PO 00000 Frm 00003 Fmt 4702 Sfmt 4702 36123 Washington, DC 20424; telephone: 202– 218–7770; e-mail: solmail@flra.gov); or (ii) From computer terminals located in the FLRA regional offices. A listing of these offices, including appropriate information for requesting the use of the terminal, is provided in Appendix A to this part or at http://www.flra.gov/foia/ contacts.html. (c) The Authority, the General Counsel, the Panel and the IG shall maintain and make available for public inspection and copying the current indexes and supplements to the records which are required by 5 U.S.C. 552(a)(2) and, as appropriate, a record of the final votes of each member of the Authority and of the Panel in every agency proceeding. Any person may examine and copy such document or record of the Authority, the General Counsel, the Panel or the IG at the offices of either the Authority, the General Counsel, the Panel or the IG, as appropriate, in Washington, DC, under conditions prescribed by the Authority, the General Counsel, the Panel or the IG at reasonable times during normal working hours so long as it does not interfere with the efficient operations of either the Authority, the General Counsel, the Panel or the IG. (d) All agency records, except those exempt from mandatory disclosure by one or more provisions of 5 U.S.C. 552(b), will be made promptly available to any person submitting a written request in accordance with the procedures of this part. (e)(1) The formal documents constituting the record in a case or proceeding are matters of official record and, until destroyed pursuant to applicable statutory authority, are available to the public for inspection and copying at the appropriate regional office of the Authority, or the offices of the Authority, the General Counsel, the Panel or the IG in Washington, DC, as appropriate, under conditions prescribed by the Authority, the General Counsel or the Panel at reasonable times during normal working hours so long as it does not interfere with the efficient operations of the Authority, the General Counsel or the Panel. (2) The Authority, the General Counsel, the Panel or the IG, as appropriate, shall certify copies of the formal documents upon request made a reasonable time in advance of need and payment of lawfully prescribed costs. (f)(1) Copies of forms prescribed by the General Counsel for the filing of charges and petitions may be obtained without charge from any regional office of the Authority or on the Authority’s Web site at: http://www.flra.gov/forms/ forms.html#gc. E:\FR\FM\22JYP1.SGM 22JYP1 36124 Federal Register / Vol. 74, No. 139 / Wednesday, July 22, 2009 / Proposed Rules (2) Copies of forms prescribed by the Panel for the filing of requests may be obtained without charge from the Panel’s offices in Washington, DC or on the Authority’s Web site at: http:// www.flra.gov/forms/flra_14.pdf. erowe on DSK5CLS3C1PROD with PROPOSALS-1 § 2411.5 Procedure for obtaining information. (a) Authority/General Counsel/Panel/ IG. Any person who desires to inspect or copy any records, documents or other information of the Authority, the General Counsel, the Panel or the IG, covered by this part, other than those specified in paragraphs (a)(1) and (c) of § 2411.4, shall submit a written or email request (see office and e-mail addresses listed at http://www.flra.gov/ foia/contacts.html) to that effect as follows: (1) If the request is for records, documents or other information in a regional office of the Authority, it should be made to the appropriate Regional Director; (2) If the request is for records, documents or other information in the Office of the General Counsel and located in Washington, DC, it should be made to the Freedom of Information Officer, Office of the General Counsel, Washington, DC; (3) If the request is for records, documents or other information in the offices of the Authority in Washington, DC, it should be made to the Solicitor of the Authority, Washington, DC; (4) If the request is for records, documents or other information in the offices of the Panel in Washington, DC, it should be made to the Executive Director, Federal Service Impasses Panel, Washington, DC; and (5) If the request is for records, documents or other information in the offices of the IG in Washington, DC, it should be made to the Inspector General, Washington, DC. (b) Each request under this part should be 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 identified as such on the envelope or other cover. The request must contain a specific statement assuming financial liability for the direct costs of responding to the request. The request should identify any ceiling dollar amount applicable. Fee charges will be assessed for the full allowable direct costs of document search, review, and duplicating, as appropriate, in accordance with § 2411.13. If a request does not comply with the provisions of this paragraph, it shall not be deemed received by the appropriate Regional VerDate Nov<24>2008 15:30 Jul 21, 2009 Jkt 217001 Director, the Freedom of Information Officer of the General Counsel, the Solicitor of the Authority, the Executive Director of the Panel, or the IG, as appropriate. A list of the office and email addresses is in Appendix A to 5 CFR Chapter XIV and on the Federal Labor Relations Authority’s World Wide Web site at http://www.flra.gov/foia/ contacts.html. § 2411.6 Identification of information requested. (a) Each request under this part shall reasonably describe the records being sought in a way that they can be identified and located. A request shall be legible and include all pertinent details that will help identify the records sought. Requesters may be given an opportunity to discuss their requests so that they may be modified to meet the requirements of this section. (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 record sought. (c) Upon receipt of a request for records, the appropriate Regional Director, the Freedom of Information Officer of the General Counsel, the Solicitor of the Authority, the Executive Director of the Panel, or the IG, as appropriate, 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 paragraphs (b) and (c) of § 2411.8, 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. § 2411.7 Format of disclosure. (a) After a determination has been made to grant a request in whole or in part, the appropriate Regional Director, the Freedom of Information Officer of the General Counsel, the Solicitor of the Authority, the Executive Director of the Panel or the IG, as appropriate, will notify the requester in writing. The notice will describe the manner in which the record will be disclosed. The appropriate Regional Director, the Freedom of Information Officer of the General Counsel, the Solicitor of the Authority, the Executive Director of the Panel or the IG, as appropriate, will provide the record in the form or format requested if the record is readily reproducible in that form or format, PO 00000 Frm 00004 Fmt 4702 Sfmt 4702 provided the requester has agreed to pay and/or has paid any fees required by § 2411.13 of this part. The appropriate Regional Director, the Freedom of Information Officer of the General Counsel, the Solicitor of the Authority, the Executive Director of the Panel, or the IG, as appropriate, will determine on a case-by-case basis what constitutes a readily reproducible format. These offices will make a reasonable effort to maintain their records in commonly reproducible forms or formats. (b) Alternatively, the appropriate Regional Director, the Freedom of Information Officer of the General Counsel, the Solicitor of the Authority, the Executive Director of the Panel, or the IG, as appropriate, may make a copy of the releasable portions of the record available to the requester for inspection at a reasonable time and place. The procedure for such an inspection will not unreasonably disrupt the operations of the office. § 2411.8 Time limits for processing requests. (a) The 20-day period (excepting Saturdays, Sundays, and legal public holidays), established in this section, shall commence on the date on which the request is first received by the appropriate component of the agency (Regional Director, the Freedom of Information Officer of the Office of the General Counsel, the Solicitor of the Authority, the Executive Director of the Panel, or the IG of the Authority), but in any event not later than ten days after the request is first received by any Authority component responsible for receiving FOIA requests under part 2411. The 20-day period does not run when— (1) The agency component makes one request to the requester for information and is awaiting such information that it has reasonably requested from the requester; or (2) It is necessary to clarify with the requester issues regarding fee assessment. (3) The agency component’s receipt of the requested information or clarification triggers the commencement of the 20-day period. (b) A request for records shall be logged in by the appropriate Regional Director, the Freedom of Information Officer of the General Counsel, the Solicitor of the Authority, the Executive Director of the Panel or the IG, as appropriate, pursuant to § 2411.6(c). All requesters must reasonably describe the records sought. An oral request for records shall not begin any time requirement. A written request for records sent to other than the E:\FR\FM\22JYP1.SGM 22JYP1 erowe on DSK5CLS3C1PROD with PROPOSALS-1 Federal Register / Vol. 74, No. 139 / Wednesday, July 22, 2009 / Proposed Rules appropriate officer will be forwarded to that officer by the receiving officer, but in that event the applicable time limit for response shall begin as set forth in paragraph (a) of this section. (c) Except as provided in § 2411.11, the appropriate Regional Director, the Freedom of Information Officer of the General Counsel, the Solicitor of the Authority, the Executive Director of the Panel, or the IG, as appropriate, shall, within twenty (20) working days following receipt of the request, as provided by paragraph (a) of this section, respond in writing to the requester, determining whether, or the extent to which, the request shall be complied with. (1) If all the records requested have been located and a final determination has been made with respect to disclosure of all of 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 the records requested, the response shall state the extent to which the records involved shall be disclosed pursuant to the rules established in this part. (3) If the request is expected to involve allowed charges in excess of $250.00, the response shall specify or estimate the fee involved and shall require prepayment of any charges in accordance with the provisions of paragraph (g) of § 2411.13 before the request is processed further. (4) Whenever possible, subject to the provisions of paragraph (g) of § 2411.13, the response relating to a request for records that involves a fee of less than $250.00 shall be accompanied by the requested records. Where this is not possible, the records shall be forwarded as soon as possible thereafter, consistent with other obligations of the Authority, the General Counsel or the Panel. (5) Search fees shall not be assessed requesters (or duplication fees in the case of an educational or noncommercial scientific institution, whose purpose is scholarly or scientific research; or a representative of the news media requester, as defined by § 2411.13(a)(8)), under this subparagraph if an agency component fails to comply with any time limit under paragraph (a) of this section, if no unusual or exceptional circumstances (as those terms are defined for purposes of § 2411.11(a)) apply to the processing of the request. (d) If a request will take longer than ten days to process: (1) An individualized tracking number will be assigned to the request and provided to the requester; and VerDate Nov<24>2008 15:30 Jul 21, 2009 Jkt 217001 (2) Using the tracking number, the requester can find, by calling (202) 218– 7770 or linking to http://www.flra.gov/ foia/foia_main.html, status information about the request including: (i) The date on which the agency originally received the request; and (ii) An estimated date on which the agency will complete action on the request. (e) If any request for records is denied in whole or in part, the response required by paragraph (c) of this section shall notify the requester of the denial. Such denial shall specify the reason therefore, set forth the name and title or position of the person responsible for the denial, and notify the person making the request of the right to appeal the denial under the provisions of § 2411.10. § 2411.9 Business information. (a) In general. Business information obtained by the Authority from a submitter will be disclosed under the FOIA only under this section. (b) Definitions. For purposes of this section: (1) Business information means commercial or financial information obtained by the Authority from a submitter that may be protected from disclosure under Exemption 4 of the FOIA. (2) Submitter means any person or entity from whom the Authority obtains business information, directly or indirectly. The term includes corporations; State, local, and Tribal governments; and foreign governments. (c) Designation of business information. A submitter of business information will use good-faith efforts to designate, by appropriate markings, either at the time of submission or at a reasonable time thereafter, any portions of its submission that it considers to be protected from disclosure under Exemption 4. These designations will expire ten years after the date of the submission unless the submitter requests, and provides justification for, a longer designation period. (d) Notice to submitters. The Authority shall provide a submitter with prompt written notice of a FOIA request or administrative appeal that seeks its business information wherever required under paragraph (e) of this section, except as provided in paragraph (h) of this section, in order to give the submitter an opportunity to object to disclosure of any specified portion of that information under paragraph (f) of this section. The notice shall either describe the business information requested or include copies of the requested records or record portions PO 00000 Frm 00005 Fmt 4702 Sfmt 4702 36125 containing the information. When notification of a voluminous number of submitters is required, notification may be made by posting or publishing the notice in a place reasonably likely to accomplish it. (e) Where notice is required. Notice shall be given to a submitter wherever: (1) The information has been designated in good faith by the submitter as information considered protected from disclosure under Exemption 4; or (2) The Authority has reason to believe that the information may be protected from disclosure under Exemption 4. (f) Opportunity to object to disclosure. The Authority will allow a submitter a reasonable time to respond to the notice described in paragraph (d) of this section and will specify that time period within the notice. If a submitter has any objection to disclosure, it is required to submit a detailed written statement. The statement must specify all grounds for withholding any portion of the information under any exemption of the FOIA and, in the case of Exemption 4, it must show why the information is a trade secret or commercial or financial information that is privileged or confidential. In the event that a submitter fails to respond to the notice within the time specified in it, the submitter will be considered to have no objection to disclosure of the information. Information provided by the submitter that is not received by the Authority until after its disclosure decision has been made shall not be considered by the Authority. Information provided by a submitter under this paragraph may itself be subject to disclosure under the FOIA. (g) Notice of intent to disclose. The Authority shall consider a submitter’s objections and specific grounds for nondisclosure in deciding whether to disclose business information. Whenever the Authority decides to disclose business information over the objection of a submitter, the Authority shall give the submitter written notice, which shall include: (1) A statement of the reason(s) why each of the submitter’s disclosure objections were not sustained; (2) A description of the business information to be disclosed; and (3) A specified disclosure date, which shall be a reasonable time subsequent to the notice. (h) Exceptions to notice requirements. The notice requirements of paragraphs (d) and (g) of this section shall not apply if: (1) The Authority determines that the information should not be disclosed; E:\FR\FM\22JYP1.SGM 22JYP1 36126 Federal Register / Vol. 74, No. 139 / Wednesday, July 22, 2009 / Proposed Rules (2) The information lawfully has been published or has been officially made available to the public; (3) Disclosure of the information is required by statute (other than the FOIA) or by a regulation issued in accordance with the requirements of Executive Order 12600 (3 CFR, 1988 Comp., p. 235); or (4) The designation made by the submitter under paragraph (c) of this section appears obviously frivolous— except that, in such a case, the Authority shall, within a reasonable time prior to a specified disclosure date, give the submitter written notice of any final decision to disclose the information. (i) Notice of FOIA lawsuit. Whenever a requester files a lawsuit seeking to compel the disclosure of business information, the Authority shall promptly notify the submitter. (j) Corresponding notice to requesters. Whenever the Authority provides a submitter with notice and an opportunity to object to disclosure under paragraph (d) of this section, the Authority shall also notify the requester(s). Whenever the Authority notifies a submitter of its intent to disclose requested information under paragraph (g) of this section, the Authority shall also notify the requester(s). Whenever a submitter files a lawsuit seeking to prevent the disclosure of business information, the Authority shall notify the requester(s). erowe on DSK5CLS3C1PROD with PROPOSALS-1 § 2411.10 Appeal from denial of request. (a) Authority/General Counsel/Panel/ IG. (1) Whenever any request for records is denied, a written appeal may be filed within thirty (30) days after the 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. If the denial was made by a Regional Director or by the Freedom of Information Officer of the General Counsel, the appeal shall be filed with the General Counsel in Washington, DC. If the denial was made by the Executive Director of the Panel, the appeal shall be filed with the Chairman of the Panel. If the denial was made by the Solicitor or the IG, the appeal shall be filed with the Chairman of the Authority in Washington, DC. (2) The Chairman of the Authority, the Chairman of the Panel or the General Counsel, as appropriate, shall, within twenty (20) working days (excepting Saturdays, Sundays, and legal public holidays) from the time of receipt of the appeal, except as provided in § 2411.11, make a determination on the appeal and respond in writing to the VerDate Nov<24>2008 15:30 Jul 21, 2009 Jkt 217001 requester, determining whether, or the extent to which, the request shall be granted. (i) If the determination is to grant the request and the request is expected to involve an assessed fee in excess of $250.00, the determination shall specify or estimate the fee involved and shall require prepayment of any charges due in accordance with the provisions of paragraph (a) of § 2411.13 before the records are made available. (ii) Whenever possible, the determination relating to a request for records that involves a fee of less than $250.00 shall be accompanied by the requested records when there is no history of the requester having previously failed to pay fees in a timely manner. Where this is not possible, the records shall be forwarded as soon as possible thereafter, consistent with other obligations of the Authority, the Panel, the General Counsel or IG. (b) If on appeal the denial of the request for records is upheld in whole or in part by the Chairman of the Authority, the General Counsel, or the Chairman of the Panel, as appropriate, the person making the request shall be notified of the reasons for the determination, the name and title or position of the person responsible for the denial, and the provisions for judicial review of that determination under 5 U.S.C. 552(a)(4). Even though no appeal is filed from a denial in whole or in part of a request for records by the person making the request, the Chairman of the Authority, the General Counsel or the Chairman of the Panel, as appropriate, may, without regard to the time limit for filing of an appeal, sua sponte initiate consideration of a denial under this appeal procedure by written notification to the person making the request. In such event the time limit for making the determination shall commence with the issuance of such notification. § 2411.11 Modification of time limits. (a) In unusual circumstances as specified in this section, the time limits prescribed with respect to initial determinations or determinations on appeal may be extended by written notice from the agency component handling the request (either initial or on appeal) to the person making such request setting forth the reasons for such extension and the date on which a determination is expected to be dispatched. As appropriate, the notice shall provide the requester with an opportunity to limit the scope of the request so that it may be processed within the time limit or an opportunity to arrange with the agency component PO 00000 Frm 00006 Fmt 4702 Sfmt 4702 an alternative time frame for processing the request or a modified request. To aid the requester, the FOIA Public Liaison shall assist in the resolution of any disputes between the requester and the processing agency component. No such notice shall specify a date that would result in a total extension of more than ten (10) working days. (b) As used in this section, ‘‘unusual or exceptional circumstances’’ means, but only to the extent reasonably necessary to the proper processing of the particular request: (1) The need to search for and collect the requested records from field facilities or other establishments that are separate from the office processing the request; (2) The need to search for, collect and appropriately examine a voluminous amount of separate and distinct records which are demanded in a single request; or (3) The need for consultation, which shall be conducted with all practicable speed, with another agency having a substantial interest in the determination of the request or among two or more components of the agency having substantial subject matter interest therein. (c) Expedited processing of a request for records, or an appeal of a denial of a request for expedited processing, shall be provided when the requester demonstrates a compelling need for the information and in other cases as determined by the officer processing the request. A requester seeking expedited processing can demonstrate a compelling need by submitting a statement certified by the requester to be true and correct to the best of such person’s knowledge and belief and that satisfies the statutory and regulatory definitions of compelling need. Requesters shall be notified within ten (10) calendar days after receipt of such a request whether expedited processing, or an appeal of a denial of a request for expedited processing, was granted. As used in this section, ‘‘compelling need’’ means: (1) That a failure to obtain 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 (2) With respect to a request made by a person primarily engaged in disseminating information, urgency to inform the public concerning actual or alleged Federal Government activity. § 2411.12 limits. Effect of failure to meet time Failure by the Authority, the General Counsel, the Panel, or the IG either to E:\FR\FM\22JYP1.SGM 22JYP1 Federal Register / Vol. 74, No. 139 / Wednesday, July 22, 2009 / Proposed Rules deny or grant any request under this part within the time limits prescribed by the Freedom of Information Act, as amended, 5 U.S.C. 552, and these regulations shall be deemed to be an exhaustion of the administrative remedies available to the person making this request. erowe on DSK5CLS3C1PROD with PROPOSALS-1 § 2411.13 Fees. (a) Definitions. For the purpose of this section: (1) The term direct costs means those expenditures which the Authority, the General Counsel, the Panel, or the IG actually incurs in searching for and duplicating (and in the case of commercial requesters, reviewing) documents to respond to a FOIA request. Direct costs include, for example, the salary of the employee performing work (the basic rate of pay for the employee plus 16 percent of the rate to cover benefits) and the cost of operating duplicating machinery. Not included in direct costs are overhead expenses such as costs of space, and heating or lighting the facility in which the records are stored. (2) The term search includes all time spent looking for material that is responsive to a request, including pageby-page or line-by-line identification of material within documents as well as all reasonable efforts to locate and retrieve information from records maintained in electronic form or format. Searches may be done manually or by computer using existing programming. The Authority, the General Counsel, the Panel or the IG shall ensure that searches are done in the most efficient and least expensive manner reasonably possible. For example, if duplicating an entire document would be quicker and less expensive, a line-by-line search should not be done. (3) The term duplication refers to the process of making a copy of a document necessary to respond to a FOIA request. Such copies can take the form of paper copy, microfilm, audio-visual materials, or machine readable documentation (e.g., magnetic tape or disk), among others. (4) The term review refers to the process of examining documents located in response to a commercial use request (see paragraph (a)(5) of this section) to determine whether any portion of any document located is permitted to be withheld. It also includes processing any documents for disclosure, e.g., doing all that is necessary to excise them and otherwise prepare them for release. Review does not include time spent resolving general legal or policy issues regarding the application of exemptions. VerDate Nov<24>2008 15:30 Jul 21, 2009 Jkt 217001 (5) The term ‘‘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 interests of the requester or the person on whose behalf the request is made. In determining whether a requester properly belongs in this category, the Authority, the General Counsel, the Panel, or the IG will look first to the use to which a requester will put the document requested. Where the Authority, the General Counsel, the Panel, or the IG has reasonable cause to doubt the use to which a requester will put the records sought, or where that use is not clear from the request itself, the Authority, the General Counsel, the Panel, or the IG may seek additional clarification before assigning the request to a specific category. (6) The term educational institution refers to a preschool, a public or private elementary or secondary school, an institution of graduate higher education, an institution of undergraduate higher education, an institution of professional education, and an institution of vocational education, which operates a program or programs of scholarly research. (7) The term non-commercial scientific institution refers to an institution that is not operated on a commercial basis as that term is referenced 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. (8) The term 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. The term ‘news’ means information that is about current events or that would be of current interest to the public. Examples of news-media entities include 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 or subscription by or free distribution to the general public. These examples are not intended to be all-inclusive. Moreover, as methods of news delivery evolve (for example, the adoption of the electronic dissemination of newspapers through telecommunications services), such alternative media shall be considered to be news-media entities. A freelance journalist shall be regarded as PO 00000 Frm 00007 Fmt 4702 Sfmt 4702 36127 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 Government may also consider the past publication record of the requester in making such a determination. (b) Exceptions to fee charges. (1) With the exception of requesters seeking documents for a commercial use, the Authority, the General Counsel, the Panel or the IG will provide the first 100 pages of duplication and the first two hours of search time without charge. The word ‘‘pages’’ in this paragraph refers to paper copies of standard size, usually 81⁄2 by 11, or their equivalent in microfiche or computer disks. The term ‘‘search time’’ in this paragraph is based on a manual search for records. In applying this term to searches made by computer, when the cost of the search as set forth in paragraph (d)(2) of this section equals the equivalent dollar amount of two hours of the salary of the person performing the search, the Authority, the General Counsel, the Panel or the IG will begin assessing charges for computer search. (2) The Authority, the General Counsel, the Panel or the IG will not charge fees to any requester, including commercial use requesters, if the cost of collecting the fee would be equal to or greater than the fee itself. (3) As provided in § 2411.8(c)(5), the Authority, the General Counsel, the Panel or the IG will not charge search fees (or duplication fees if the requester is an educational or noncommercial scientific institution, whose purpose is scholarly or scientific research; or a representative of the news media, as described in this section), when the time limits are not met. (4)(i) The Authority, the General Counsel, the Panel or the IG will provide documents without charge or at reduced charges 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. (ii) In determining whether disclosure is in the ‘‘public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government’’ under paragraph (b)(4)(i) of this section, the Authority, the General Counsel, the Panel, and the IG will consider the following factors: (A) The subject of the request. Whether the subject of the requested E:\FR\FM\22JYP1.SGM 22JYP1 erowe on DSK5CLS3C1PROD with PROPOSALS-1 36128 Federal Register / Vol. 74, No. 139 / Wednesday, July 22, 2009 / Proposed Rules records concerns ‘‘the operations or activities of the government.’’ The subject of the requested records must concern identifiable operations or activities of the Federal government, with a connection that is direct and clear, not remote or attenuated; (B) The informative value of the information to be disclosed. Whether the disclosure is ‘‘likely to contribute’’ to an understanding of government operations or activities. The disclosable portions of the requested records must be meaningfully informative about government operations or activities in order to be ‘‘likely to contribute’’ to an increased public understanding of those operations or activities. The disclosure of information that already is in the public domain, in either a duplicative or a substantially identical form, would not be as likely to contribute to such understanding where nothing new would be added to the public’s understanding; (C) The contribution to an understanding of the subject by the general public likely to result from disclosure. Whether disclosure of the requested information will contribute to ‘‘public understanding.’’ The disclosure must contribute to the understanding of a reasonably broad audience of persons interested in the subject, as opposed to the individual understanding of the requester. A requester’s expertise in the subject area and ability and intention to effectively convey information to the public shall be considered. It shall be presumed that a representative of the news media will satisfy this consideration; and (D) The significance of the contribution to the public understanding. Whether the disclosure is likely to contribute ‘‘significantly’’ to public understanding of government operations or activities. The public’s understanding of the subject in question, as compared to the level of public understanding existing prior to the disclosure, must be enhanced by the disclosure to a significant extent. The Authority, the General Counsel, the Panel and the IG shall not make value judgments about whether information that would contribute significantly to public understanding of the operations or activities of the government is ‘‘important’’ enough to be made public. (iii) In determining whether disclosure ‘‘is not primarily in the commercial interest of the requester’’ under paragraph (b)(4)(i) of this section, the Authority, the General Counsel, the Panel and the IG will consider the following factors: (A) The existence and magnitude of a commercial interest. Whether the VerDate Nov<24>2008 15:30 Jul 21, 2009 Jkt 217001 requester has a commercial interest that would be furthered by the requested disclosure. Commercial interest of the requester (with reference to the definition of ‘‘commercial use’’ in paragraph (a)(5) of this section), or of any person on whose behalf the requester may be acting, that would be furthered by the requested disclosure. Requesters shall be given an opportunity in the administrative process to provide explanatory information regarding this consideration; and, (B) The primary interest in disclosure. Whether the magnitude of the identified commercial interest of the requester is sufficiently large, in comparison with the public interest in disclosure, that disclosure ‘‘is primarily in the commercial interest of the requester.’’ A fee waiver or reduction is justified where the public interest standard is satisfied and that public interest is greater in magnitude than that of any identified commercial interest in disclosure. The Authority, the General Counsel, the Panel, and the IG ordinarily shall presume that where a news media requester has satisfied the public interest standard, the public interest will be the interest primarily served by disclosure to that requester. Disclosure to data brokers or others who merely compile and market government information for direct economic return shall not be presumed to primarily serve the public interest. (iv) A request for a fee waiver based on the public interest under paragraph (b)(4)(i) of this section must address these factors as they apply to the request for records in order to be considered by the Authority, the General Counsel, the Panel, or the IG. (v) Where only some of the records to be released satisfy the requirements for a waiver of fees, a waiver shall be granted for those records. (c) Level of fees to be charged. The level of fees to be charged by the Authority, the General Counsel, the Panel, or the IG, in accordance with the schedule set forth in paragraph (d) of this section, depends on the category of the requester. The fee levels to be charged are as follows: (1) A request for documents appearing to be for commercial use will be charged to recover the full direct costs of searching for, reviewing for release, and duplicating the records sought. (2) A request for documents from an educational or non-commercial scientific institution will be charged for the cost of reproduction alone, excluding charges for the first 100 pages. To be eligible for inclusion in this category, requesters must show that PO 00000 Frm 00008 Fmt 4702 Sfmt 4702 the request is being made under the auspices of a qualifying institution and that the records are not sought for a commercial use, but are sought in furtherance of scholarly (if the request is from an educational institution) or scientific (if the request is from a noncommercial scientific institution) research. (3) The Authority, the General Counsel, the Panel or the IG shall provide documents to requesters who are representatives of the news media for the cost of reproduction alone, excluding charges for the first 100 pages. (4) The Authority, the General Counsel, the Panel or the IG shall charge requesters who do not fit into any of the categories of this section fees which recover the full direct cost of searching for and reproducing records that are responsive to the request, except that the first 100 pages of reproduction and the first two hours of search time shall be furnished without charge. Requests from record subjects for records about themselves filed in Authority, General Counsel, or Panel systems of records will continue to be treated under the fee provisions of the Privacy Act of 1974, which permits fees only for reproduction. (d) The following fees shall be charged in accordance with paragraph (c) of this section: (1) Manual searches for records. The salary rate (i.e., basic pay plus 16 percent) of the employee(s) making the search. Search time under this paragraph and paragraph (d)(2) of this section may be charged for even if the Authority, the General Counsel, the Panel or the IG fails to locate records or if records located are determined to be exempt from disclosure. (2) Computer searches for records. The actual direct cost of providing the service, including computer search time directly attributable to searching for records responsive to a FOIA request, runs, and operator salary apportionable to the search. (3) Review of records. The salary rate (i.e., basic pay plus 16 percent) of the employee(s) conducting the review. This charge applies only to requesters who are seeking documents for commercial use, and only to the review necessary at the initial administrative level to determine the applicability of any relevant FOIA exemptions, and not at the administrative appeal level of an exemption already applied. (4) Duplication of records. Twentyfive cents per page for paper copy reproduction of documents, which the Authority, the General Counsel, the Panel and the IG determined is the E:\FR\FM\22JYP1.SGM 22JYP1 erowe on DSK5CLS3C1PROD with PROPOSALS-1 Federal Register / Vol. 74, No. 139 / Wednesday, July 22, 2009 / Proposed Rules reasonable direct cost of making such copies, taking into account the average salary of the operator and the cost of the reproduction machinery. For copies of records prepared by computer, such as tapes or printouts, the Authority, the General Counsel, the Panel or the IG shall charge the actual cost, including operator time, of production of the tape or printout. (5) Forwarding material to destination. Postage, insurance and special fees will be charged on an actual cost basis. (e) Aggregating requests. When the Authority, the General Counsel, the Panel or the IG reasonably believes that a requester or group of requesters is attempting to break a request down into a series of requests for the purpose of evading the assessment of fees, the Authority, the General Counsel, the Panel or the IG will aggregate any such requests and charge accordingly. (f) Charging interest. Interest at the rate prescribed in 31 U.S.C. 3717 may be charged those requesters who fail to pay fees charged, beginning on the 30th day following the billing date. Receipt of a fee by the Authority, the General Counsel, the Panel or the IG, whether processed or not, will stay the accrual of interest. (g) Advanced payments. The Authority, the General Counsel, the Panel or the IG will not require a requester to make an advance payment, i.e., payment before work is commenced or continued on a request, unless: (1) The Authority, the General Counsel, the Panel or the IG estimates or determines that allowable charges that a requester may be required to pay are likely to exceed $250. Then the Authority, the General Counsel, the Panel or the IG will notify the requester of the likely cost and obtain satisfactory assurance of full payment where 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 payment; or (2) A requester has previously failed to pay a fee charged in a timely fashion (i.e., within 30 days of the date of the billing), in which case the Authority, the General Counsel, the Panel or the IG requires the requester to pay the full amount owed plus any applicable interest as provided of this section or demonstrate that the requester has, in fact, paid the fee, and to make an advance payment of the full amount of the estimated fee before the agency begins to process a new request or a pending request from that requester. When the Authority, the General VerDate Nov<24>2008 15:30 Jul 21, 2009 Jkt 217001 Counsel, the Panel or the IG acts under paragraph (g)(1) or (2) of this section, the administrative time limits prescribed in subsection (a)(6) of the FOIA (i.e., 20 working days from receipt of initial requests and 20 working days from receipt of appeals from initial denial, plus permissible extension of these time limits) will begin only after the Authority, the General Counsel, the Panel or the IG has received fee payments described of this section. (h) When a person other than a party to a proceeding before the agency makes a request for a copy of a transcript, diskette, or other recordation of the proceeding, the Authority, the General Counsel, the Panel or the IG, as appropriate, will handle the request under this part. (i) Payment of fees shall be made by check or money order payable to the U.S. Treasury. § 2411.14 Record retention and preservation. The Authority, the General Counsel, the Panel, and the IG shall preserve all correspondence pertaining to the requests that it receives under this subpart, as well as copies of all requested records, until such time as disposition or destruction is authorized by title 44 of the United States Code or the National Archives and Records Administration’s General Records Schedule 14. Records will not be disposed of while they are the subject of a pending request, appeal, or lawsuit under the FOIA. § 2411.15 Annual report. On or before February 1 annually, the Chief FOIA Officer of the Authority shall submit a report of the activities of the Authority, the General Counsel, the Panel, and the IG with regard to public information requests during 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. Carol Waller Pope, Chairman. [FR Doc. E9–17242 Filed 7–21–09; 8:45 am] BILLING CODE P PO 00000 Frm 00009 Fmt 4702 Sfmt 4702 36129 DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA–2009–0614; Directorate Identifier 2009–NM–045–AD] RIN 2120–AA64 Airworthiness Directives; Empresa Brasileira de Aeronautica S.A. (EMBRAER) Model ERJ 170 and Model ERJ 190 Airplanes AGENCY: Federal Aviation Administration (FAA), DOT. ACTION: Notice of proposed rulemaking (NPRM). SUMMARY: We propose to adopt a new airworthiness directive (AD) for the products listed above. This proposed AD results from mandatory continuing airworthiness information (MCAI) originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as: It has been found the occurrence of outboard slat skew sensor failure in open or closed position. The combination of an outboard slat skew sensor failed closed, an outboard slat actuator structural failure (rupture) and its adjacent actuator torque limiter failing high (allows higher loads to the panel structure) occurring in the same slat surface, under normal flight loads, may lead [the] slat surface to detach from the wing with the possibility of hitting and damaging the horizontal stabilizer and elevator, which may affect the airplane controllability. * * * * * The proposed AD would require actions that are intended to address the unsafe condition described in the MCAI. DATES: We must receive comments on this proposed AD by August 21, 2009. ADDRESSES: You may send comments by any of the following methods: • Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the instructions for submitting comments. • Fax: (202) 493–2251. • Mail: U.S. Department of Transportation, Docket Operations, M– 30, West Building Ground Floor, Room W12–140, 1200 New Jersey Avenue, SE., Washington, DC 20590. • Hand Delivery: U.S. Department of Transportation, Docket Operations, M– 30, West Building Ground Floor, Room W12–40, 1200 New Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. For service information identified in this proposed AD, contact Empresa Brasileira de Aeronautica S.A. E:\FR\FM\22JYP1.SGM 22JYP1

Agencies

[Federal Register Volume 74, Number 139 (Wednesday, July 22, 2009)]
[Proposed Rules]
[Pages 36121-36129]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-17242]


========================================================================
Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of 
the proposed issuance of rules and regulations. The purpose of these 
notices is to give interested persons an opportunity to participate in 
the rule making prior to the adoption of the final rules.

========================================================================


Federal Register / Vol. 74, No. 139 / Wednesday, July 22, 2009 / 
Proposed Rules

[[Page 36121]]



FEDERAL LABOR RELATIONS AUTHORITY

5 CFR Part 2411


Availability of Official Information

AGENCY: Federal Labor Relations Authority.

ACTION: Notice of proposed rulemaking.

-----------------------------------------------------------------------

SUMMARY: The Federal Labor Relations Authority (Authority) seeks public 
comment on a proposed revision to its regulations implementing the 
Freedom of Information Act, as amended. The proposed regulations 
contain new provisions to comply with the OPEN Government Act of 2007, 
as well as changes to satisfy the Electronic Freedom of Information Act 
Amendments of 1996. The regulations have also been revised to reflect 
changes required by Executive Order 12600 and Executive Order 13392. In 
addition, the proposed regulations have been updated to reflect changes 
in the Authority's policies and procedures. As a result of these 
proposed amendments, the public will have a clearer understanding of 
the Authority's policies and procedures implementing the FOIA.

DATES: Comments must be received on or before August 21, 2009.

ADDRESSES: You may submit comments by any of the following methods:
     E-mail: solmail@flra.gov.
    Include ``FOIA PROPOSED RULEMAKING'' in the subject line of 
message.
     Fax: (202) 343-1007.
     Mail: Office of the Solicitor, 1400 K Street, NW., Suite 
300, Washington, DC 20424.
     Hand Delivery Courier: Same as mailing address.
    Instructions: All submissions must include your name, return 
address and e-mail address, if applicable. Please clearly label 
submissions as ``FOIA PROPOSED RULEMAKING.'' If you submit comments by 
e-mail, you will receive an automatic confirmation e-mail from the 
system indicating that we have received your submission. If, in 
response to your comments submitted via e-mail, you do not receive a 
confirmation e-mail within 5 working days, please contact us directly 
at (202) 218-7999.

FOR FURTHER INFORMATION CONTACT: Rosa M. Koppel, Solicitor, via 
telephone: (202) 218-7999, or via e-mail: rkoppel@flra.gov.

SUPPLEMENTARY INFORMATION: The comprehensive revisions to part 2411 
that the Authority proposes include changes to the language and 
structure of the regulations. Provisions have been revised, added, and/
or in some cases, reorganized in order to clarify how the Authority 
implements the procedural requirements of the FOIA. The proposed 
revisions are not intended to change any rights under the FOIA.
    The proposed regulations are intended to achieve compliance with 
the OPEN Government Act of 2007, Public Law 110-175, 121 Stat. 2524, 
and Executive Order 13392, 70 FR 75371-75371 (Dec. 9, 2005). Provisions 
which relate to implementation of the OPEN Government Act are as 
follows--(1) Sec.  2411.4(b)(1) (identification of deleted 
information); (2) Sec.  2411.8(a) (setting forth criteria for when the 
time period for processing requests begins to run and when that time 
period may be suspended or tolled); (3) Sec. Sec.  2411.8(c)(5) and 
2411.13(b)(3) (address waiver of fees when time limits for complying 
with FOIA requests are not met); and (4) Sec.  2411.8(d) (assigns 
individual tracking numbers to requests requiring more than ten days to 
process and provides phone number/Web site address to inquire about 
status).
    The OPEN Government Act and EO 13392 establish and set forth duties 
and responsibilities for the Chief FOIA Officer and the FOIA Public 
Liaison(s). The provisions of the regulations pertaining to these 
duties and responsibilities are found at: (1) Sec.  2411.3(a) and (c) 
(delegation of FOIA-related duties to Chief FOIA Officer and 
designation of FOIA Public Liaison(s)); (2) Sec.  2411.4(b)(1) 
(identification of deleted information); (3) Sec. Sec.  2411.8(c)(5) 
and 2411.13(b)(3) (waives certain processing fees when time limits are 
not met for processing FOIA requests); (4) Sec.  2411.11(a) (to aid in 
meeting time limits the FOIA Public Liaison(s) are given responsibility 
to resolve disputes between requesters and the agency as to the scope 
of requests or modification of time limits); and (5) Sec.  
2411.13(a)(8) (adds definition of ``representative of the news 
media'').
    The proposed regulations would also add new provisions to 
explicitly implement Executive Order 12600, 52 FR 23781 (June 23, 
1987), 3 CFR 235 (1987 Comp.) and the Electronic Freedom of Information 
Act Amendments of 1996, Public Law 104-231, 110 Stat. 3048 (E-FOIA). 
The Authority has been operating in compliance with these provisions of 
law, and based on its experience is now proposing to update the 
regulations to reflect this compliance. A new section implementing 
Executive Order 12600's procedural structure for notifying those who 
submit business information to the government when that information 
becomes the subject of a FOIA request can be found at Sec.  2411.9. New 
provisions implementing the E-FOIA can be found at: (1) Sec.  2411.2(a) 
(includes electronic formats within the meaning of the term 
``record''); (2) Sec.  2411.4(a)(iv) (requires that records that ``have 
become or are likely to become the subject of subsequent requests for 
substantially the same records'' be included in FOIA reading room); (3) 
Sec.  2411.4(a)(v) (requires general index of records be included in 
FOIA reading room); (4) Sec.  2411.4(b)(2) (establishment of electronic 
reading room); (5) Sec.  2411.7 (format of disclosure); (6) Sec.  
2411.13(a)(2) (searches for records in electronic form or format); and 
(7) Sec.  2411.15 (modification of deadline for submission of Annual 
Report and requirement that it shall be available in electronic 
format).
    Further, the proposed revisions are intended as a routine updating 
of the Authority's procedures--to streamline the existing procedures 
based on experience, to reflect certain changes in the procedural 
requirements of the FOIA since the current regulations issued, and to 
make the Authority's procedures easier for the public to understand. 
Provisions that implement these goals can be found at: (1) Sec.  2411.2 
(adds a new section clarifying that the regulations' scope includes 
information in electronic formats and the relation of the regulations 
to the Privacy Act regulations in part 2412); (2) Sec.  2411.4(a) and 
(b) (merging paragraph (b) of Sec.  2411.4 into paragraph (a) of Sec.  
2411.4 so that the policies of all three FLRA components are addressed 
in one

[[Page 36122]]

paragraph); (3) Sec.  2411.4(d) (eliminating explanatory discussion of 
specific FOIA exemptions from mandatory disclosures); (4) Sec.  
2411.4(f)(1) and (2) (providing Web site addresses to obtain copies of 
agency forms); (5) Sec.  2411.5(b) (requiring requesters to state they 
will assume financial liability for FOIA processing fees); (6) Sec.  
2411.6(a) (adding language to give requester the opportunity to 
discuss/clarify request so that it may be modified, if necessary, to 
meet regulatory requirements); (7) Sec.  2411.8(b) (moving language 
from Sec.  2411.13(c)(4) to set forth earlier the objective that 
requesters reasonably describe records sought); (8) Sec.  2411.10(a)(2) 
(adding language to explain how to calculate the twenty day period for 
responding to appeal); (9) Sec.  2411.10(a)(2)(i) and (b)(2)(i) 
(providing consistency with other sections regarding the cut-off amount 
at which fees ($250 and above) will be requested in advance of 
information production); (10) Sec.  2411.10(a)(2)(ii) and (b)(2)(ii) 
(providing for information production before payment of fees below $250 
if no history of failure to pay fees on time); (11) Sec.  2411.13(a)(2) 
(adding language to inform requesters that searches will be conducted 
in the most efficient and least expensive manner reasonably possible); 
(12) Sec.  2411.13(b)(4)(ii)(A) thru (D) (adding language to set forth 
more clearly the factors to be considered in determining when fees 
should be waived because a disclosure is in the ``public interest''); 
(13) Sec.  2411.13(b)(4)(iii)(A) and (B) (adding language clarifying 
when a requester's interest is ``primarily commercial''); (14) Sec.  
2411.13(b)(4)(v) (adding language to clarify when partial fees will be 
assessed); (15) Sec.  2411.13(h) (adding language related to handling 
requests by other than a party to a proceeding before the agency for a 
copy of a transcript, diskette, or other recordation of the 
proceeding); and (16) Sec.  2411.14 (providing information on record 
retention and preservation).
    The Authority has added language relating to the role of the 
Inspector General throughout the regulation (i.e., purpose (Sec.  
2411.1), scope (Sec.  2411.2), information policy (Sec.  2411.4), 
procedures for obtaining information (Sec.  2411.5)), when requests for 
information relate to records, documents, or other information of the 
Inspector General for the Authority.
    Finally, the Authority has deleted former Sec.  2411.11 and 
replaced it with a new part 2417. See 74 FR 11634 (March 14, 2009).
    Accordingly, the Authority proposes to revise its regulations 
implementing the FOIA and put them out for public comment. The 
Authority reproduces proposed 5 CFR part 2411 in its entirety.

Executive Order 12866

    The Authority is an independent regulatory agency, and as such, is 
not subject to the requirements of E.O. 12866.

Executive Order 13132

    The Authority is an independent regulatory agency, and as such, is 
not subject to the requirements of E.O. 13132.

Regulatory Flexibility Act Certification

    Pursuant to section 605(b) of the Regulatory Flexibility Act, 5 
U.S.C. 605(b), the Chairman of the Authority has determined that this 
regulation, as amended, will not have a significant impact on a 
substantial number of small entities, because this rule only applies to 
Federal employees, Federal agencies, and labor organizations 
representing Federal employees.

Unfunded Mandates Reform Act of 1995

    This rule change 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 action 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.

Paperwork Reduction Act of 1995

    The amended regulations contain no additional information 
collection or recordkeeping requirements under the Paperwork Reduction 
Act of 1995, 44 U.S.C. 3501, et seq.

List of Subjects in 5 CFR Part 2411

    Freedom of Information Act.

    For the reasons stated in the preamble, the Authority proposes that 
5 CFR part 2411 be revised as follows:

PART 2411--AVAILABILITY OF OFFICIAL INFORMATION

Sec.
2411.1 Purpose.
2411.2 Scope.
2411.3 Delegation of authority.
2411.4 Information policy.
2411.5 Procedure for obtaining information.
2411.6 Identification of information requested.
2411.7 Format of disclosure.
2411.8 Time limits for processing requests.
2411.9 Business information.
2411.10 Appeal from denial of request.
2411.11 Modification of time limits.
2411.12 Effect of failure to meet time limits.
2411.13 Fees.
2411.14 Record retention and preservation.
2411.15 Annual report.

    Authority: 5 U.S.C. 552, as amended and OPEN Government Act of 
2007, Pub. L. No. 110-175, 121 Stat. 2524; E.O. 13392 (Dec. 14, 
2005); and E.O. 12600 (June 23, 1987).


Sec.  2411.1   Purpose.

    This part contains the regulations of the Federal Labor Relations 
Authority (Authority), the General Counsel of the Federal Labor 
Relations Authority (General Counsel), the Federal Service Impasses 
Panel (Panel) and the Inspector General of the Federal Labor Relations 
Authority (IG) providing for public access to information from the 
Authority, the General Counsel, the Panel or the IG. These regulations 
implement the Freedom of Information Act, as amended, 5 U.S.C. 552, and 
the policy of the Authority, the General Counsel, the Panel and the IG 
to disseminate information on matters of interest to the public and to 
disclose to members of the public on request such information contained 
in records insofar as is compatible with the discharge of their 
responsibilities, consistent with applicable law.


Sec.  2411.2   Scope.

    (a) For the purpose of this part, the term record and any other 
term used in reference to information includes any information that 
would be subject to the requirements of 5 U.S.C. 552 when maintained by 
the Authority, the General Counsel, the Panel or the IG in any format 
including an electronic format. All written requests for information 
from the public that are not processed under part 2412 of this chapter 
will be processed under this part. The Authority, the General Counsel, 
the Panel and the IG may continue, regardless of this part, to furnish 
the public with the information it has furnished in the regular course 
of performing its official duties, unless furnishing the information 
would

[[Page 36123]]

violate the Privacy Act of 1974, 5 U.S.C. 552a, or another law.
    (b) When the subject of a record, or the subject's representative, 
requests the record from a Privacy Act system of records, as that term 
is defined by 5 U.S.C. 552a(a)(5), and the Authority retrieves the 
record by the subject's name or other personal identifier, the 
Authority will handle the request under the procedures and subject to 
the fees set out in part 2412. When a third party requests access to 
those records, without the written consent of the subject of the 
record, the Authority will process the request under this part.
    (c) Nothing in 5 U.S.C. 552 or this part requires that the 
Authority, the General Counsel, the Panel or the IG, as appropriate, 
create a new record in order to respond to a request for the records.


Sec.  2411.3   Delegation of authority.

    (a) Chief FOIA Officer. The Chairman of the Federal Labor Relations 
Authority designates the Chief FOIA Officer who has agency-wide 
responsibility for the efficient and appropriate compliance with the 
FOIA. The Chief FOIA Officer monitors the implementation of the FOIA 
throughout the agency.
    (b) Authority/General Counsel/Panel/IG. Regional Directors of the 
Authority, the Freedom of Information Officer of the Office of the 
General Counsel, Washington, DC, the Solicitor of the Authority, the 
Executive Director of the Panel and the IG are delegated the exclusive 
authority to act upon all requests for information, documents and 
records which are received from any person or organization under Sec.  
2411.5(a) & (b).
    (c) FOIA Public Liaison(s). The Chief FOIA Officer shall designate 
the FOIA Public Liaison(s), who shall serve as the supervisory 
official(s) to whom a FOIA requester can raise concerns about the 
service the FOIA requester has received following an initial response.


Sec.  2411.4   Information policy.

    (a) Authority/General Counsel/Panel/IG. (1) It is the policy of the 
Authority, the General Counsel, the Panel and IG to make available for 
public inspection and copying (unless they are published and copies are 
offered for sale):
    (i) Final decisions and orders of the Authority and administrative 
rulings of the General Counsel; and procedural determinations, final 
decisions and orders of the Panel; and factfinding and arbitration 
reports; and reports and executive summaries of the IG;
    (ii) Statements of policy and interpretations which have been 
adopted by the Authority, the General Counsel, the Panel or the IG and 
are not published in the Federal Register;
    (iii) Administrative staff manuals and instructions to staff that 
affect a member of the public (except those establishing internal 
operating rules, guidelines, and procedures for the investigation, 
trial, and settlement of cases);
    (iv) Copies of all records, regardless of form or format, which 
have been released to any person under 5 U.S.C. 552(a)(3) and which, 
because of the nature of their subject matter, the Authority, the 
General Counsel, the Panel or the IG determines have become or are 
likely to become the subject of subsequent requests for substantially 
the same records; and
    (v) A general index of the records referred to in paragraph 
(a)(1)(i) through (iv) of this section.
    (2) It is the policy of the Authority, the General Counsel, the 
Panel and the IG to make promptly available for public inspection and 
copying, upon request by any person, other records where the request 
reasonably describes such records and otherwise conforms to the 
procedures of this part.
    (b) Records Availability. (1) Any person may examine and copy items 
in Sec.  2411.4(a)(1)(i) through (iv), at each regional office of the 
Authority and at the offices of the Authority, the General Counsel, the 
Panel and the IG, respectively, in Washington, DC, under conditions 
prescribed by the Authority, the General Counsel, the Panel and the IG, 
respectively, and at reasonable times during normal working hours so 
long as it does not interfere with the efficient operations of the 
Authority, the General Counsel, the Panel and the IG. To the extent 
required to prevent a clearly unwarranted invasion of personal privacy, 
identifying details may be deleted and, in each case, the justification 
for the deletion shall be fully explained in writing. On the released 
portion of the record, the amount of information deleted, and the 
exemption under which the deletion is made, shall be indicated unless 
an interest protected by the exemption would be harmed.
    (2) All records covered by this section are available through the 
Internet/World Wide-Web site http://www.flra.gov/foia/reading_room.html. The Web site containing these records may also be accessed:
    (i) From a computer terminal located in the library at FLRA 
headquarters at 1400 K Street, NW., Washington, DC. Requests to use 
this terminal to access the FLRA's electronic Reading Room should be 
submitted to the FLRA's Office of the Solicitor (mail: Office of the 
Solicitor, FLRA, 1400 K Street, NW., Washington, DC 20424; telephone: 
202-218-7770; e-mail: solmail@flra.gov); or
    (ii) From computer terminals located in the FLRA regional offices. 
A listing of these offices, including appropriate information for 
requesting the use of the terminal, is provided in Appendix A to this 
part or at http://www.flra.gov/foia/contacts.html.
    (c) The Authority, the General Counsel, the Panel and the IG shall 
maintain and make available for public inspection and copying the 
current indexes and supplements to the records which are required by 5 
U.S.C. 552(a)(2) and, as appropriate, a record of the final votes of 
each member of the Authority and of the Panel in every agency 
proceeding. Any person may examine and copy such document or record of 
the Authority, the General Counsel, the Panel or the IG at the offices 
of either the Authority, the General Counsel, the Panel or the IG, as 
appropriate, in Washington, DC, under conditions prescribed by the 
Authority, the General Counsel, the Panel or the IG at reasonable times 
during normal working hours so long as it does not interfere with the 
efficient operations of either the Authority, the General Counsel, the 
Panel or the IG.
    (d) All agency records, except those exempt from mandatory 
disclosure by one or more provisions of 5 U.S.C. 552(b), will be made 
promptly available to any person submitting a written request in 
accordance with the procedures of this part.
    (e)(1) The formal documents constituting the record in a case or 
proceeding are matters of official record and, until destroyed pursuant 
to applicable statutory authority, are available to the public for 
inspection and copying at the appropriate regional office of the 
Authority, or the offices of the Authority, the General Counsel, the 
Panel or the IG in Washington, DC, as appropriate, under conditions 
prescribed by the Authority, the General Counsel or the Panel at 
reasonable times during normal working hours so long as it does not 
interfere with the efficient operations of the Authority, the General 
Counsel or the Panel.
    (2) The Authority, the General Counsel, the Panel or the IG, as 
appropriate, shall certify copies of the formal documents upon request 
made a reasonable time in advance of need and payment of lawfully 
prescribed costs.
    (f)(1) Copies of forms prescribed by the General Counsel for the 
filing of charges and petitions may be obtained without charge from any 
regional office of the Authority or on the Authority's Web site at: 
http://www.flra.gov/forms/forms.html#gc.

[[Page 36124]]

    (2) Copies of forms prescribed by the Panel for the filing of 
requests may be obtained without charge from the Panel's offices in 
Washington, DC or on the Authority's Web site at: http://www.flra.gov/forms/flra_14.pdf.


Sec.  2411.5   Procedure for obtaining information.

    (a) Authority/General Counsel/Panel/IG. Any person who desires to 
inspect or copy any records, documents or other information of the 
Authority, the General Counsel, the Panel or the IG, covered by this 
part, other than those specified in paragraphs (a)(1) and (c) of Sec.  
2411.4, shall submit a written or e-mail request (see office and e-mail 
addresses listed at http://www.flra.gov/foia/contacts.html) to that 
effect as follows:
    (1) If the request is for records, documents or other information 
in a regional office of the Authority, it should be made to the 
appropriate Regional Director;
    (2) If the request is for records, documents or other information 
in the Office of the General Counsel and located in Washington, DC, it 
should be made to the Freedom of Information Officer, Office of the 
General Counsel, Washington, DC;
    (3) If the request is for records, documents or other information 
in the offices of the Authority in Washington, DC, it should be made to 
the Solicitor of the Authority, Washington, DC;
    (4) If the request is for records, documents or other information 
in the offices of the Panel in Washington, DC, it should be made to the 
Executive Director, Federal Service Impasses Panel, Washington, DC; and
    (5) If the request is for records, documents or other information 
in the offices of the IG in Washington, DC, it should be made to the 
Inspector General, Washington, DC.
    (b) Each request under this part should be 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 identified as such on the 
envelope or other cover. The request must contain a specific statement 
assuming financial liability for the direct costs of responding to the 
request. The request should identify any ceiling dollar amount 
applicable. Fee charges will be assessed for the full allowable direct 
costs of document search, review, and duplicating, as appropriate, in 
accordance with Sec.  2411.13. If a request does not comply with the 
provisions of this paragraph, it shall not be deemed received by the 
appropriate Regional Director, the Freedom of Information Officer of 
the General Counsel, the Solicitor of the Authority, the Executive 
Director of the Panel, or the IG, as appropriate. A list of the office 
and e-mail addresses is in Appendix A to 5 CFR Chapter XIV and on the 
Federal Labor Relations Authority's World Wide Web site at http://www.flra.gov/foia/contacts.html.


Sec.  2411.6  Identification of information requested.

    (a) Each request under this part shall reasonably describe the 
records being sought in a way that they can be identified and located. 
A request shall be legible and include all pertinent details that will 
help identify the records sought. Requesters may be given an 
opportunity to discuss their requests so that they may be modified to 
meet the requirements of this section.
    (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 record sought.
    (c) Upon receipt of a request for records, the appropriate Regional 
Director, the Freedom of Information Officer of the General Counsel, 
the Solicitor of the Authority, the Executive Director of the Panel, or 
the IG, as appropriate, 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 paragraphs (b) and (c) of Sec.  2411.8, 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.


Sec.  2411.7  Format of disclosure.

    (a) After a determination has been made to grant a request in whole 
or in part, the appropriate Regional Director, the Freedom of 
Information Officer of the General Counsel, the Solicitor of the 
Authority, the Executive Director of the Panel or the IG, as 
appropriate, will notify the requester in writing. The notice will 
describe the manner in which the record will be disclosed. The 
appropriate Regional Director, the Freedom of Information Officer of 
the General Counsel, the Solicitor of the Authority, the Executive 
Director of the Panel or the IG, as appropriate, will provide the 
record in the form or format requested if the record is readily 
reproducible in that form or format, provided the requester has agreed 
to pay and/or has paid any fees required by Sec.  2411.13 of this part. 
The appropriate Regional Director, the Freedom of Information Officer 
of the General Counsel, the Solicitor of the Authority, the Executive 
Director of the Panel, or the IG, as appropriate, will determine on a 
case-by-case basis what constitutes a readily reproducible format. 
These offices will make a reasonable effort to maintain their records 
in commonly reproducible forms or formats.
    (b) Alternatively, the appropriate Regional Director, the Freedom 
of Information Officer of the General Counsel, the Solicitor of the 
Authority, the Executive Director of the Panel, or the IG, as 
appropriate, may make a copy of the releasable portions of the record 
available to the requester for inspection at a reasonable time and 
place. The procedure for such an inspection will not unreasonably 
disrupt the operations of the office.


Sec.  2411.8  Time limits for processing requests.

    (a) The 20-day period (excepting Saturdays, Sundays, and legal 
public holidays), established in this section, shall commence on the 
date on which the request is first received by the appropriate 
component of the agency (Regional Director, the Freedom of Information 
Officer of the Office of the General Counsel, the Solicitor of the 
Authority, the Executive Director of the Panel, or the IG of the 
Authority), but in any event not later than ten days after the request 
is first received by any Authority component responsible for receiving 
FOIA requests under part 2411. The 20-day period does not run when--
    (1) The agency component makes one request to the requester for 
information and is awaiting such information that it has reasonably 
requested from the requester; or
    (2) It is necessary to clarify with the requester issues regarding 
fee assessment.
    (3) The agency component's receipt of the requested information or 
clarification triggers the commencement of the 20-day period.
    (b) A request for records shall be logged in by the appropriate 
Regional Director, the Freedom of Information Officer of the General 
Counsel, the Solicitor of the Authority, the Executive Director of the 
Panel or the IG, as appropriate, pursuant to Sec.  2411.6(c). All 
requesters must reasonably describe the records sought. An oral request 
for records shall not begin any time requirement. A written request for 
records sent to other than the

[[Page 36125]]

appropriate officer will be forwarded to that officer by the receiving 
officer, but in that event the applicable time limit for response shall 
begin as set forth in paragraph (a) of this section.
    (c) Except as provided in Sec.  2411.11, the appropriate Regional 
Director, the Freedom of Information Officer of the General Counsel, 
the Solicitor of the Authority, the Executive Director of the Panel, or 
the IG, as appropriate, shall, within twenty (20) working days 
following receipt of the request, as provided by paragraph (a) of this 
section, respond in writing to the requester, determining whether, or 
the extent to which, the request shall be complied with.
    (1) If all the records requested have been located and a final 
determination has been made with respect to disclosure of all of 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 the 
records requested, the response shall state the extent to which the 
records involved shall be disclosed pursuant to the rules established 
in this part.
    (3) If the request is expected to involve allowed charges in excess 
of $250.00, the response shall specify or estimate the fee involved and 
shall require prepayment of any charges in accordance with the 
provisions of paragraph (g) of Sec.  2411.13 before the request is 
processed further.
    (4) Whenever possible, subject to the provisions of paragraph (g) 
of Sec.  2411.13, the response relating to a request for records that 
involves a fee of less than $250.00 shall be accompanied by the 
requested records. Where this is not possible, the records shall be 
forwarded as soon as possible thereafter, consistent with other 
obligations of the Authority, the General Counsel or the Panel.
    (5) Search fees shall not be assessed requesters (or duplication 
fees in the case of an educational or noncommercial scientific 
institution, whose purpose is scholarly or scientific research; or a 
representative of the news media requester, as defined by Sec.  
2411.13(a)(8)), under this subparagraph if an agency component fails to 
comply with any time limit under paragraph (a) of this section, if no 
unusual or exceptional circumstances (as those terms are defined for 
purposes of Sec.  2411.11(a)) apply to the processing of the request.
    (d) If a request will take longer than ten days to process:
    (1) An individualized tracking number will be assigned to the 
request and provided to the requester; and
    (2) Using the tracking number, the requester can find, by calling 
(202) 218-7770 or linking to http://www.flra.gov/foia/foia_main.html, 
status information about the request including:
    (i) The date on which the agency originally received the request; 
and
    (ii) An estimated date on which the agency will complete action on 
the request.
    (e) If any request for records is denied in whole or in part, the 
response required by paragraph (c) of this section shall notify the 
requester of the denial. Such denial shall specify the reason 
therefore, set forth the name and title or position of the person 
responsible for the denial, and notify the person making the request of 
the right to appeal the denial under the provisions of Sec.  2411.10.


Sec.  2411.9  Business information.

    (a) In general. Business information obtained by the Authority from 
a submitter will be disclosed under the FOIA only under this section.
    (b) Definitions. For purposes of this section:
    (1) Business information means commercial or financial information 
obtained by the Authority from a submitter that may be protected from 
disclosure under Exemption 4 of the FOIA.
    (2) Submitter means any person or entity from whom the Authority 
obtains business information, directly or indirectly. The term includes 
corporations; State, local, and Tribal governments; and foreign 
governments.
    (c) Designation of business information. A submitter of business 
information will use good-faith efforts to designate, by appropriate 
markings, either at the time of submission or at a reasonable time 
thereafter, any portions of its submission that it considers to be 
protected from disclosure under Exemption 4. These designations will 
expire ten years after the date of the submission unless the submitter 
requests, and provides justification for, a longer designation period.
    (d) Notice to submitters. The Authority shall provide a submitter 
with prompt written notice of a FOIA request or administrative appeal 
that seeks its business information wherever required under paragraph 
(e) of this section, except as provided in paragraph (h) of this 
section, in order to give the submitter an opportunity to object to 
disclosure of any specified portion of that information under paragraph 
(f) of this section. The notice shall either describe the business 
information requested or include copies of the requested records or 
record portions containing the information. When notification of a 
voluminous number of submitters is required, notification may be made 
by posting or publishing the notice in a place reasonably likely to 
accomplish it.
    (e) Where notice is required. Notice shall be given to a submitter 
wherever:
    (1) The information has been designated in good faith by the 
submitter as information considered protected from disclosure under 
Exemption 4; or
    (2) The Authority has reason to believe that the information may be 
protected from disclosure under Exemption 4.
    (f) Opportunity to object to disclosure. The Authority will allow a 
submitter a reasonable time to respond to the notice described in 
paragraph (d) of this section and will specify that time period within 
the notice. If a submitter has any objection to disclosure, it is 
required to submit a detailed written statement. The statement must 
specify all grounds for withholding any portion of the information 
under any exemption of the FOIA and, in the case of Exemption 4, it 
must show why the information is a trade secret or commercial or 
financial information that is privileged or confidential. In the event 
that a submitter fails to respond to the notice within the time 
specified in it, the submitter will be considered to have no objection 
to disclosure of the information. Information provided by the submitter 
that is not received by the Authority until after its disclosure 
decision has been made shall not be considered by the Authority. 
Information provided by a submitter under this paragraph may itself be 
subject to disclosure under the FOIA.
    (g) Notice of intent to disclose. The Authority shall consider a 
submitter's objections and specific grounds for nondisclosure in 
deciding whether to disclose business information. Whenever the 
Authority decides to disclose business information over the objection 
of a submitter, the Authority shall give the submitter written notice, 
which shall include:
    (1) A statement of the reason(s) why each of the submitter's 
disclosure objections were not sustained;
    (2) A description of the business information to be disclosed; and
    (3) A specified disclosure date, which shall be a reasonable time 
subsequent to the notice.
    (h) Exceptions to notice requirements. The notice requirements of 
paragraphs (d) and (g) of this section shall not apply if:
    (1) The Authority determines that the information should not be 
disclosed;

[[Page 36126]]

    (2) The information lawfully has been published or has been 
officially made available to the public;
    (3) Disclosure of the information is required by statute (other 
than the FOIA) or by a regulation issued in accordance with the 
requirements of Executive Order 12600 (3 CFR, 1988 Comp., p. 235); or
    (4) The designation made by the submitter under paragraph (c) of 
this section appears obviously frivolous--except that, in such a case, 
the Authority shall, within a reasonable time prior to a specified 
disclosure date, give the submitter written notice of any final 
decision to disclose the information.
    (i) Notice of FOIA lawsuit. Whenever a requester files a lawsuit 
seeking to compel the disclosure of business information, the Authority 
shall promptly notify the submitter.
    (j) Corresponding notice to requesters. Whenever the Authority 
provides a submitter with notice and an opportunity to object to 
disclosure under paragraph (d) of this section, the Authority shall 
also notify the requester(s). Whenever the Authority notifies a 
submitter of its intent to disclose requested information under 
paragraph (g) of this section, the Authority shall also notify the 
requester(s). Whenever a submitter files a lawsuit seeking to prevent 
the disclosure of business information, the Authority shall notify the 
requester(s).


Sec.  2411.10  Appeal from denial of request.

    (a) Authority/General Counsel/Panel/IG. (1) Whenever any request 
for records is denied, a written appeal may be filed within thirty (30) 
days after the 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. If the denial was made by a 
Regional Director or by the Freedom of Information Officer of the 
General Counsel, the appeal shall be filed with the General Counsel in 
Washington, DC. If the denial was made by the Executive Director of the 
Panel, the appeal shall be filed with the Chairman of the Panel. If the 
denial was made by the Solicitor or the IG, the appeal shall be filed 
with the Chairman of the Authority in Washington, DC.
    (2) The Chairman of the Authority, the Chairman of the Panel or the 
General Counsel, as appropriate, shall, within twenty (20) working days 
(excepting Saturdays, Sundays, and legal public holidays) from the time 
of receipt of the appeal, except as provided in Sec.  2411.11, make a 
determination on the appeal and respond in writing to the requester, 
determining whether, or the extent to which, the request shall be 
granted.
    (i) If the determination is to grant the request and the request is 
expected to involve an assessed fee in excess of $250.00, the 
determination shall specify or estimate the fee involved and shall 
require prepayment of any charges due in accordance with the provisions 
of paragraph (a) of Sec.  2411.13 before the records are made 
available.
    (ii) Whenever possible, the determination relating to a request for 
records that involves a fee of less than $250.00 shall be accompanied 
by the requested records when there is no history of the requester 
having previously failed to pay fees in a timely manner. Where this is 
not possible, the records shall be forwarded as soon as possible 
thereafter, consistent with other obligations of the Authority, the 
Panel, the General Counsel or IG.
    (b) If on appeal the denial of the request for records is upheld in 
whole or in part by the Chairman of the Authority, the General Counsel, 
or the Chairman of the Panel, as appropriate, the person making the 
request shall be notified of the reasons for the determination, the 
name and title or position of the person responsible for the denial, 
and the provisions for judicial review of that determination under 5 
U.S.C. 552(a)(4). Even though no appeal is filed from a denial in whole 
or in part of a request for records by the person making the request, 
the Chairman of the Authority, the General Counsel or the Chairman of 
the Panel, as appropriate, may, without regard to the time limit for 
filing of an appeal, sua sponte initiate consideration of a denial 
under this appeal procedure by written notification to the person 
making the request. In such event the time limit for making the 
determination shall commence with the issuance of such notification.


Sec.  2411.11  Modification of time limits.

    (a) In unusual circumstances as specified in this section, the time 
limits prescribed with respect to initial determinations or 
determinations on appeal may be extended by written notice from the 
agency component handling the request (either initial or on appeal) to 
the person making such request setting forth the reasons for such 
extension and the date on which a determination is expected to be 
dispatched. As appropriate, the notice shall provide the requester with 
an opportunity to limit the scope of the request so that it may be 
processed within the time limit or an opportunity to arrange with the 
agency component an alternative time frame for processing the request 
or a modified request. To aid the requester, the FOIA Public Liaison 
shall assist in the resolution of any disputes between the requester 
and the processing agency component. No such notice shall specify a 
date that would result in a total extension of more than ten (10) 
working days.
    (b) As used in this section, ``unusual or exceptional 
circumstances'' means, but only to the extent reasonably necessary to 
the proper processing of the particular request:
    (1) The need to search for and collect the requested records from 
field facilities or other establishments that are separate from the 
office processing the request;
    (2) The need to search for, collect and appropriately examine a 
voluminous amount of separate and distinct records which are demanded 
in a single request; or
    (3) The need for consultation, which shall be conducted with all 
practicable speed, with another agency having a substantial interest in 
the determination of the request or among two or more components of the 
agency having substantial subject matter interest therein.
    (c) Expedited processing of a request for records, or an appeal of 
a denial of a request for expedited processing, shall be provided when 
the requester demonstrates a compelling need for the information and in 
other cases as determined by the officer processing the request. A 
requester seeking expedited processing can demonstrate a compelling 
need by submitting a statement certified by the requester to be true 
and correct to the best of such person's knowledge and belief and that 
satisfies the statutory and regulatory definitions of compelling need. 
Requesters shall be notified within ten (10) calendar days after 
receipt of such a request whether expedited processing, or an appeal of 
a denial of a request for expedited processing, was granted. As used in 
this section, ``compelling need'' means:
    (1) That a failure to obtain 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
    (2) With respect to a request made by a person primarily engaged in 
disseminating information, urgency to inform the public concerning 
actual or alleged Federal Government activity.


Sec.  2411.12  Effect of failure to meet time limits.

    Failure by the Authority, the General Counsel, the Panel, or the IG 
either to

[[Page 36127]]

deny or grant any request under this part within the time limits 
prescribed by the Freedom of Information Act, as amended, 5 U.S.C. 552, 
and these regulations shall be deemed to be an exhaustion of the 
administrative remedies available to the person making this request.


Sec.  2411.13  Fees.

    (a) Definitions. For the purpose of this section:
    (1) The term direct costs means those expenditures which the 
Authority, the General Counsel, the Panel, or the IG actually incurs in 
searching for and duplicating (and in the case of commercial 
requesters, reviewing) documents to respond to a FOIA request. Direct 
costs include, for example, the salary of the employee performing work 
(the basic rate of pay for the employee plus 16 percent of the rate to 
cover benefits) and the cost of operating duplicating machinery. Not 
included in direct costs are overhead expenses such as costs of space, 
and heating or lighting the facility in which the records are stored.
    (2) The term search includes all time spent looking for material 
that is responsive to a request, including page-by-page or line-by-line 
identification of material within documents as well as all reasonable 
efforts to locate and retrieve information from records maintained in 
electronic form or format. Searches may be done manually or by computer 
using existing programming. The Authority, the General Counsel, the 
Panel or the IG shall ensure that searches are done in the most 
efficient and least expensive manner reasonably possible. For example, 
if duplicating an entire document would be quicker and less expensive, 
a line-by-line search should not be done.
    (3) The term duplication refers to the process of making a copy of 
a document necessary to respond to a FOIA request. Such copies can take 
the form of paper copy, microfilm, audio-visual materials, or machine 
readable documentation (e.g., magnetic tape or disk), among others.
    (4) The term review refers to the process of examining documents 
located in response to a commercial use request (see paragraph (a)(5) 
of this section) to determine whether any portion of any document 
located is permitted to be withheld. It also includes processing any 
documents for disclosure, e.g., doing all that is necessary to excise 
them and otherwise prepare them for release. Review does not include 
time spent resolving general legal or policy issues regarding the 
application of exemptions.
    (5) The term ``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 interests of the requester or 
the person on whose behalf the request is made. In determining whether 
a requester properly belongs in this category, the Authority, the 
General Counsel, the Panel, or the IG will look first to the use to 
which a requester will put the document requested. Where the Authority, 
the General Counsel, the Panel, or the IG has reasonable cause to doubt 
the use to which a requester will put the records sought, or where that 
use is not clear from the request itself, the Authority, the General 
Counsel, the Panel, or the IG may seek additional clarification before 
assigning the request to a specific category.
    (6) The term educational institution refers to a preschool, a 
public or private elementary or secondary school, an institution of 
graduate higher education, an institution of undergraduate higher 
education, an institution of professional education, and an institution 
of vocational education, which operates a program or programs of 
scholarly research.
    (7) The term non-commercial scientific institution refers to an 
institution that is not operated on a commercial basis as that term is 
referenced 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.
    (8) The term 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. The term 
`news' means information that is about current events or that would be 
of current interest to the public. Examples of news-media entities 
include 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 or subscription by or free distribution to the general 
public. These examples are not intended to be all-inclusive. Moreover, 
as methods of news delivery evolve (for example, the adoption of the 
electronic dissemination of newspapers through telecommunications 
services), such alternative media shall be considered to be news-media 
entities. 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 Government may 
also consider the past publication record of the requester in making 
such a determination.
    (b) Exceptions to fee charges. (1) With the exception of requesters 
seeking documents for a commercial use, the Authority, the General 
Counsel, the Panel or the IG will provide the first 100 pages of 
duplication and the first two hours of search time without charge. The 
word ``pages'' in this paragraph refers to paper copies of standard 
size, usually 8\1/2\ by 11, or their equivalent in microfiche or 
computer disks. The term ``search time'' in this paragraph is based on 
a manual search for records. In applying this term to searches made by 
computer, when the cost of the search as set forth in paragraph (d)(2) 
of this section equals the equivalent dollar amount of two hours of the 
salary of the person performing the search, the Authority, the General 
Counsel, the Panel or the IG will begin assessing charges for computer 
search.
    (2) The Authority, the General Counsel, the Panel or the IG will 
not charge fees to any requester, including commercial use requesters, 
if the cost of collecting the fee would be equal to or greater than the 
fee itself.
    (3) As provided in Sec.  2411.8(c)(5), the Authority, the General 
Counsel, the Panel or the IG will not charge search fees (or 
duplication fees if the requester is an educational or noncommercial 
scientific institution, whose purpose is scholarly or scientific 
research; or a representative of the news media, as described in this 
section), when the time limits are not met.
    (4)(i) The Authority, the General Counsel, the Panel or the IG will 
provide documents without charge or at reduced charges 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.
    (ii) In determining whether disclosure is in the ``public interest 
because it is likely to contribute significantly to public 
understanding of the operations or activities of the government'' under 
paragraph (b)(4)(i) of this section, the Authority, the General 
Counsel, the Panel, and the IG will consider the following factors:
    (A) The subject of the request. Whether the subject of the 
requested

[[Page 36128]]

records concerns ``the operations or activities of the government.'' 
The subject of the requested records must concern identifiable 
operations or activities of the Federal government, with a connection 
that is direct and clear, not remote or attenuated;
    (B) The informative value of the information to be disclosed. 
Whether the disclosure is ``likely to contribute'' to an understanding 
of government operations or activities. The disclosable portions of the 
requested records must be meaningfully informative about government 
operations or activities in order to be ``likely to contribute'' to an 
increased public understanding of those operations or activities. The 
disclosure of information that already is in the public domain, in 
either a duplicative or a substantially identical form, would not be as 
likely to contribute to such understanding where nothing new would be 
added to the public's understanding;
    (C) The contribution to an understanding of the subject by the 
general public likely to result from disclosure. Whether disclosure of 
the requested information will contribute to ``public understanding.'' 
The disclosure must contribute to the understanding of a reasonably 
broad audience of persons interested in the subject, as opposed to the 
individual understanding of the requester. A requester's expertise in 
the subject area and ability and intention to effectively convey 
information to the public shall be considered. It shall be presumed 
that a representative of the news media will satisfy this 
consideration; and
    (D) The significance of the contribution to the public 
understanding. Whether the disclosure is likely to contribute 
``significantly'' to public understanding of government operations or 
activities. The public's understanding of the subject in question, as 
compared to the level of public understanding existing prior to the 
disclosure, must be enhanced by the disclosure to a significant extent. 
The Authority, the General Counsel, the Panel and the IG shall not make 
value judgments about whether information that would contribute 
significantly to public understanding of the operations or activities 
of the government is ``important'' enough to be made public.
    (iii) In determining whether disclosure ``is not primarily in the 
commercial interest of the requester'' under paragraph (b)(4)(i) of 
this section, the Authority, the General Counsel, the Panel and the IG 
will consider the following factors:
    (A) The existence and magnitude of a commercial interest. Whether 
the requester has a commercial interest that would be furthered by the 
requested disclosure. Commercial interest of the requester (with 
reference to the definition of ``commercial use'' in paragraph (a)(5) 
of this section), or of any person on whose behalf the requester may be 
acting, that would be furthered by the requested disclosure. Requesters 
shall be given an opportunity in the administrative process to provide 
explanatory information regarding this consideration; and,
    (B) The primary interest in disclosure. Whether the magnitude of 
the identified commercial interest of the requester is sufficiently 
large, in comparison with the public interest in disclosure, that 
disclosure ``is primarily in the commercial interest of the 
requester.'' A fee waiver or reduction is justified where the public 
interest standard is satisfied and that public interest is greater in 
magnitude than that of any identified commercial interest in 
disclosure. The Authority, the General Counsel, the Panel, and the IG 
ordinarily shall presume that where a news media requester has 
satisfied the public interest standard, the public interest will be the 
interest primarily served by disclosure to that requester. Disclosure 
to data brokers or others who merely compile and market government 
information for direct economic return shall not be presumed to 
primarily serve the public interest.
    (iv) A request for a fee waiver based on the public interest under 
paragraph (b)(4)(i) of this section must address these factors as they 
apply to the request for records in order to be considered by the 
Authority, the General Counsel, the Panel, or the IG.
    (v) Where only some of the records to be released satisfy the 
requirements for a waiver of fees, a waiver shall be granted for those 
records.
    (c) Level of fees to be charged. The level of fees to be charged by 
the Authority, the General Counsel, the Panel, or the IG, in accordance 
with the schedule set forth in paragraph (d) of this section, depends 
on the category of the requester. The fee levels to be charged are as 
follows:
    (1) A request for documents appearing to be for commercial use will 
be charged to recover the full direct costs of searching for, reviewing 
for release, and duplicating the records sought.
    (2) A request for documents from an educational or non-commercial 
scientific institution will be charged for the cost of reproduction 
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 and that the 
records are not sought for a commercial use, but are sought in 
furtherance of scholarly (if the request is from an educational 
institution) or scientific (if the request is from a non-commercial 
scientific institution) research.
    (3) The Authority, the General Counsel, the Panel or the IG shall 
provide documents to requesters who are representatives of the news 
media for the cost of reproduction alone, excluding charges for the 
first 100 pages.
    (4) The Authority, the General Counsel, the Panel or the IG shall 
charge requesters who do not fit into any of the categories of this 
section fees which recover the full direct cost of searching for and 
reproducing records that are responsive to the request, except that the 
first 100 pages of reproduction and the first two hours of search time 
shall be furnished without charge. Requests from record subjects for 
records about themselves filed in Authority, General Counsel, or Panel 
systems of records will continue to be treated under the fee provisions 
of the Privacy Act of 1974, which permits fees only for reproduction.
    (d) The following fees shall be charged in accordance with 
paragraph (c) of this section:
    (1) Manual searches for records. The salary rate (i.e., basic pay 
plus 16 percent) of the employee(s) making the search. Search time 
under this paragraph and paragraph (d)(2) of this section may be 
charged for even if the Authority, the General Counsel, the Panel or 
the IG fails to locate records or if records located are determined to 
be exempt from disclosure.
    (2) Computer searches for records. The actual direct cost of 
providing the service, including computer search time directly 
attributable to searching for records responsive to a FOIA request, 
runs, and operator salary apportionable to the search.
    (3) Review of records. The salary rate (i.e., basic pay plus 16 
percent) of the employee(s) conducting the review. This charge applies 
only to requesters who are seeking documents for commercial use, and 
only to the review necessary at the initial administrative level to 
determine the applicability of any relevant FOIA exemptions, and not at 
the administrative appeal level of an exemption already applied.
    (4) Duplication of records. Twenty-five cents per page for paper 
copy reproduction of documents, which the Authority, the General 
Counsel, the Panel and the IG determined is the

[[Page 36129]]

reasonable direct cost of making such copies, taking into account the 
average salary of the operator and the cost of the reproduction 
machinery. For copies of records prepared by computer, such as tapes or 
printouts, the Authority, the General Counsel, the Panel or the IG 
shall charge the actual cost, including operator time, of production of 
the tape or printout.
    (5) Forwarding material to destination. Postage, insurance and 
special fees will be charged on an actual cost basis.
    (e) Aggregating requests. When the Authority, the General Counsel, 
the Panel or the IG reasonably believes that a requester or group of 
requesters is attempting to break a request down into a series of 
requests for the purpose of evading the assessment of fees, the 
Authority, the General Counsel, the Panel or the IG will aggregate any 
such requests and charge accordingly.
    (f) Charging interest. Interest at the rate prescribed in 31 U.S.C. 
3717 may be charged those requesters who fail to pay fees charged, 
beginning on the 30th day following the billing date. Receipt of a fee 
by the Authority, the General Counsel, the Panel or the IG, whether 
processed or not, will stay the accrual of interest.
    (g) Advanced payments. The Authority, the General Counsel, the 
Panel or the IG will not require a requester to make an advance 
payment, i.e., payment before work is commenced or continued on a 
request, unless:
    (1) The Authority, the General Counsel, the Panel or the IG 
estimates or determines that allowable charges that a requester may be 
required to pay are likely to exceed $250. Then the Authority, the 
General Counsel, the Panel or the IG will notify the requester of the 
likely cost and obtain satisfactory assurance of full payment where 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 payment; or
    (2) A requester has previously failed to pay a fee charged in a 
timely fashion (i.e., within 30 days of the date of the billing), in 
which case the Authority, the General Counsel, the Panel or the IG 
requires the requester to pay the full amount owed plus any applicable 
interest as provided of this section or demonstrate that the requester 
has, in fact, paid the fee, and to make an advance payment of the full 
amount of the estimated fee before the agency begins to process a new 
request or a pending request from that requester. When the Authority, 
the General Counsel, the Panel or the IG acts under paragraph (g)(1) or 
(2) of this section, the administrative time limits prescribed in 
subsection (a)(6) of the FOIA (i.e., 20 working days from receipt of 
initial requests and 20 working days from receipt of appeals from 
initial denial, plus permissible extension of these time limits) will 
begin only after the Authority, the General Counsel, the Panel or the 
IG has received fee payments described of this section.
    (h) When a person other than a party to a proceeding before the 
agency makes a request for a copy of a transcript, diskette, or other 
recordation of the proceeding, the Authority, the General Counsel, the 
Panel or the IG, as appropriate, will handle the request under this 
part.
    (i) Payment of fees shall be made by check or money order payable 
to the U.S. Treasury.


Sec.  2411.14  Record retention and preservation.

    The Authority, the General Counsel, the Panel, and the IG shall 
preserve all correspondence pertaining to the requests that it receives 
under this subpart, as well as copies of all requested records, until 
such time as disposition or destruction is authorized by title 44 of 
the United States Code or the National Archives and Records 
Administration's General Records Schedule 14. Records will not be 
disposed of while they are the subject of a pending request, appeal, or 
lawsuit under the FOIA.


Sec.  2411.15  Annual report.

    On or before February 1 annually, the Chief FOIA Officer of the 
Authority shall submit a report of the activities of the Authority, the 
General Counsel, the Panel, and the IG with regard to public 
information requests during 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.

Carol Waller Pope,
Chairman.
[FR Doc. E9-17242 Filed 7-21-09; 8:45 am]
BILLING CODE P