Availability of Official Information, 2849-2857 [2016-31121]

Download as PDF 2849 Rules and Regulations Federal Register Vol. 82, No. 6 Tuesday, January 10, 2017 This section of the FEDERAL REGISTER contains regulatory documents having general applicability and legal effect, most of which are keyed to and codified in the Code of Federal Regulations, which is published under 50 titles pursuant to 44 U.S.C. 1510. The Code of Federal Regulations is sold by the Superintendent of Documents. Prices of new books are listed in the first FEDERAL REGISTER issue of each week. FEDERAL LABOR RELATIONS AUTHORITY 5 CFR Part 2411 Availability of Official Information Federal Labor Relations Authority. ACTION: Final rule. AGENCY: This rulemaking amends the regulations that the Federal Labor Relations Authority (FLRA) follows in processing records under the Freedom of Information Act (FOIA) to comply with the FOIA Improvement Act of 2016. The amendments would clarify and update procedures for requesting information from the FLRA and procedures that the FLRA follows in responding to requests from the public. DATES: Effective January 24, 2017. FOR FURTHER INFORMATION CONTACT: If you have any comments or questions, please contact Fred B. Jacob, Solicitor, Chief FOIA Officer, Federal Labor Relations Authority, 1400 K Street NW., Washington, DC 20424; (202) 218–7999; fax: (202) 343–1007; or email: solmail@ flra.gov. SUPPLEMENTARY INFORMATION: On June 30, 2016, President Obama signed into law the FOIA Improvement Act of 2016. The Act specifically requires all agencies to review and update their FOIA regulations in accordance with its provisions, and the FLRA is making changes to its regulations accordingly. Among other things, the Act addresses a range of procedural issues that affect agency FOIA regulations, including requirements that agencies establish a minimum of 90 days for requesters to file an administrative appeal and that they provide dispute-resolution services at various times throughout the FOIA process. In addition to some minor nonsubstantive changes to correct typographical errors, make small stylistic adjustments for clarification, pmangrum on DSK3GDR082PROD with RULES SUMMARY: VerDate Sep<11>2014 14:51 Jan 09, 2017 Jkt 241001 and streamline the language of some procedural provisions, the FLRA is making the following changes: • Section 2411.4 is amended to emphasize the ability to view records electronically on the FLRA’s Web site. Because all of the FLRA’s disclosable records under 5 U.S.C. 552(a)(2) are available on the FLRA’s Web site, section 2411.4 is also amended to eliminate the procedure for requesting use of a computer terminal at the FLRA’s headquarters or one of its regional offices. Finally, section 2411.4 is amended to reflect the requirement under the FOIA Improvement Act of 2016 that agencies make available for public inspection, in electronic format, records that have been requested three or more times. • Section 2411.6 is amended to notify requesters that they may contact the FLRA’s Chief FOIA Officer or FOIA Public Liaison to discuss and to receive assistance in processing records requests. This section also updates the information that is listed in the agency’s public FOIA logs to include, among other things, whether any exemptions were applied in processing a request. The section additionally describes the agency’s consultation, referral, and coordination efforts with other agencies in processing FOIA requests. • Section 2411.7 is amended to describe that the agency will inform a requester of the availability of the FLRA’s FOIA Public Liaison to assist in processing his or her request. • Section 2411.8 describes the time limits for processing FOIA requests and provides instances in which fees will not be assessed if an agency component fails to comply with deadlines listed in 5 U.S.C. 552(a)(4)(A). The section is amended to further describe exceptions under this rule, including, for instance, when unusual circumstances are present and when large numbers of documents are necessary to respond to the request. This section is also amended to explain that in the case of a denial, the agency will notify the requester of additional assistance that is available, specifically from the FLRA’s FOIA Public Liaison and the Office of Government Information Services (OGIS). • Section 2411.10, describing how a requester can appeal a denied request, is amended to provide the requester with 90 calendar days to appeal. This section PO 00000 Frm 00001 Fmt 4700 Sfmt 4700 also now notifies a requester of the dispute-resolution services offered by OGIS. • Section 2411.11 is amended to again notify requesters of the availability of OGIS and its disputeresolution services. • Section 2411.12 is amended to state that no search or review fees will be charged for a quarter-hour period unless more than half of that period is required for search or review. This section is also amended to elaborate on how a requester may submit a fee waiver, as well as to describe the obligations on the requester when a fee waiver is denied. Additionally, the section is amended to explain the consequences of failing to pay fees, such as the agency closing the matter without further processing the request. • Section 2411.15 is amended to incorporate the additional reporting requirements related to the agency’s FOIA annual report, including that the report will provide raw statistical data to the public. This rule is internal and procedural rather than substantive. It does not create a right to obtain FLRA records, nor does it create any additional right or privilege not already available to the public as a result of the FOIA Improvement Act of 2016. It merely adopts the improvements mandated in the Act and builds upon the previous agency procedures for processing FOIArelated requests. Regulatory Flexibility Act Certification Pursuant to section 605(b) of the Regulatory Flexibility Act, 5 U.S.C. 605(b), the FLRA has determined that this regulation, as amended, will not have a significant impact on a substantial number of small entities. 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. E:\FR\FM\10JAR1.SGM 10JAR1 2850 Federal Register / Vol. 82, No. 6 / Tuesday, January 10, 2017 / Rules and Regulations 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, 5 U.S.C. 804. 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 record-keeping requirements under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501, et seq. Public Participation This rule is published as a final rule. It is exempt from public comment, pursuant to 5 U.S.C. 553(b)(A), as a rule of ‘‘agency organization, procedure, or practice.’’ If you wish to contact the agency, please do so at the above listed address. However, before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so. List of Subjects in 5 CFR Part 2411 Freedom of Information Act. For the reasons stated in the preamble, the Authority amends 5 CFR part 2411 as follows: PART 2411—AVAILABILITY OF OFFICIAL INFORMATION 1. The authority citation for part 2411 is revised to read as follows: pmangrum on DSK3GDR082PROD with RULES ■ Authority: 5 U.S.C. 552, as amended; Freedom of Information Improvement Act of 2016, Pub. L. 114–185, 130 Stat. 528; Openness Promotes Effectiveness in our National Government Act of 2007 (OPEN Government Act), Pub. L. 110–175, 121 Stat. 2524. ■ 2. Revise § 2411.1 to read as follows: § 2411.1 Purpose. This part contains the rules that the Federal Labor Relations Authority (FLRA), including the three-Member VerDate Sep<11>2014 14:51 Jan 09, 2017 Jkt 241001 Authority component (Authority), the General Counsel of the FLRA (General Counsel), the Federal Service Impasses Panel (Panel), and the Inspector General of the FLRA (IG), follow in processing requests for information under the Freedom of Information Act, as amended, 5 U.S.C. 552 (FOIA) These regulations should be read in conjunction with the text of the FOIA and the Uniform Freedom of Information Fee Schedule and Guidelines published by the Office of Management and Budget. Requests by individuals for records about themselves under the Privacy Act of 1974, 5 U.S.C. 552a, are processed in accordance with the Authority’s Privacy Act regulations, see 5 CFR part 2412, as well as under this subpart. ■ 3. Revise § 2411.2 to read as follows: § 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 parts 2412 and 2417 of this chapter will be processed under this part. The Authority, the General Counsel, the Panel, and the IG may each continue, regardless of this part, to furnish the public with the information that it has furnished in the regular course of performing its official duties, unless furnishing the information would 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 FLRA retrieves the record by the subject’s name or other personal identifier, the FLRA 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 FLRA 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. ■ 4. Revise § 2411.3 to read as follows: § 2411.3 Delegation of authority. (a) Chief FOIA Officer. The Chairman of the FLRA designates the Chief FOIA PO 00000 Frm 00002 Fmt 4700 Sfmt 4700 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 FOIA 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 that are received from any person or organization under § 2411.5(a) and (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 that the FOIA requester has received following an initial response. ■ 5. Amend § 2411.4 by revising paragraphs (a) through (c) and (e) and (f) to read as follows: § 2411.4 Information policy. (a)(1) It is the policy of the Authority, the General Counsel, the Panel, and the IG to make available for public inspection in an electronic format: (i) Final decisions and orders of the Authority and administrative rulings of the General Counsel; procedural determinations, final decisions and orders of the Panel; factfinding and arbitration reports; and reports and executive summaries of the IG; (ii) Statements of policy and interpretations that have been adopted by the Authority, the General Counsel, the Panel, or the IG and that 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, that have been released to any person under 5 U.S.C. 552(a)(3) and that: (A) 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; or (B) Have been requested three or more times; and (v) A general index of the records referred to in paragraph (a)(i)–(iv) of this section. (2) It is the policy of the Authority, the General Counsel, the Panel, and the E:\FR\FM\10JAR1.SGM 10JAR1 pmangrum on DSK3GDR082PROD with RULES Federal Register / Vol. 82, No. 6 / Tuesday, January 10, 2017 / Rules and Regulations IG to make promptly available for public inspection in an electronic format, upon request by any person, other records where the request reasonably describes such records and otherwise conforms to the procedures of this part. (b)(1) Any person may examine and copy items in paragraphs (a)(1)(i) through (iv) of this section, 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, or 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 on the FLRA’s Web site (https://www.flra.gov/elibrary). (c) The Authority, the General Counsel, the Panel, and the IG shall maintain and make available for public inspection in an electronic format the current indexes and supplements to the records that 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 the Authority, the General Counsel, the Panel, or the IG. * * * * * (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 VerDate Sep<11>2014 14:51 Jan 09, 2017 Jkt 241001 Panel, or the IG in Washington, DC, as appropriate, 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 the Authority, the General Counsel, the Panel, or the IG. (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: https://www.flra.gov/ resources-training/resources/formschecklists. (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: https:// www.flra.gov/resources-training/ resources/forms-checklists. (3) Copies of optional forms for filing exceptions or appeals with the Authority may be obtained without charge from the Office of Case Intake and Publication at the Authority’s offices in Washington, DC or on the Authority’s Web site at: https:// www.flra.gov/resources-training/ resources/forms-checklists. ■ 6. Revise § 2411.5 to read as follows: § 2411.5 Procedure for obtaining information. (a) 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 § 2411.4(a)(1) and (c), shall submit an electronic written request via the FOIAOnline system at https:// foiaonline.regulations.gov or a written, facsimiled, or email request (see office and email addresses listed at https:// www.flra.gov/foia_contact and in Appendix A to 5 CFR Chapter XIV) 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 FOIA Officer, Office of the General Counsel, Washington, DC; PO 00000 Frm 00003 Fmt 4700 Sfmt 4700 2851 (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 of the 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 IG, Washington, DC. (b) Each request under this part should be clearly and prominently identified as a request for information under the FOIA 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. A request shall be considered an agreement by the requester to pay all applicable fees charged under § 2411.13, up to $25.00, unless the requester seeks a waiver of fees. When making a request, the requester may specify a willingness to pay a greater or lesser amount. Fee charges will be assessed for the full allowable direct costs of document search, review, and duplication, 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 Director, the FOIA Officer of the General Counsel, the Solicitor of the Authority, the Executive Director of the Panel, or the IG, as appropriate. ■ 7. Revise § 2411.6 to read as follows: § 2411.6 Identification of information requested. (a) Reasonably describe and identify records. Each request under this part shall reasonably describe the records being sought in a way that the FLRA can be identify and locate them. A request shall be legible and include all pertinent details that will help identify the records sought. Before submitting a request, a requester may contact the FLRA’s Chief FOIA Officer or FOIA Public Liaison to discuss the records that he or she seeks and to receive assistance in describing the records. (b) Agency efforts to further identify records. If the description does not meet the requirements of paragraph (a) of this section, the officer processing the request shall 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 E:\FR\FM\10JAR1.SGM 10JAR1 pmangrum on DSK3GDR082PROD with RULES 2852 Federal Register / Vol. 82, No. 6 / Tuesday, January 10, 2017 / Rules and Regulations records sought. A requester who is attempting to reformulate or modify his or her request may discuss the request with the FLRA’s Chief FOIA Officer or FOIA Public Liaison. (c) Public logs. Upon receipt of a request for records, the appropriate Regional Director, the FOIA 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 request number; the date received; the nature of the records requested; the action taken on the request; the agency’s response date; any exemptions that were applied (if applicable) and their descriptions; and whether any fees were charged for processing the request. (d) Consultation, referral, and coordination. When reviewing records located in response to a request, the Authority, the General Counsel, the Panel, or the IG will determine whether another agency of the Federal Government is better able to determine whether the record is exempt from disclosure under the FOIA. As to any such record, the Authority, the General Counsel, the Panel, or the IG will proceed in one of the following ways: (1) Consultation. When records originated with the Authority, the General Counsel, the Panel, or the IG, but contain within them information of interest to another agency or other Federal Government component, the Authority, the General Counsel, the Panel, or the IG will typically consult with that other entity prior to making a release determination. (2) Referral. (i) When the Authority, the General Counsel, the Panel, or the IG believes that a different agency or component is best able to determine whether to disclose the record, the Authority, the General Counsel, the Panel, or the IG will typically refer the responsibility for responding to the request regarding that record to that agency or component. Ordinarily, the agency or component that originated the record is presumed to be the best agency or component to make the disclosure determination. However, if the FLRA and the originating agency or component jointly agree that the FLRA is in the best position to respond regarding the record, then the record may be handled as a consultation. (ii) Whenever the Authority, the General Counsel, the Panel, or the IG refers any part of the responsibility for responding to a request to another Federal agency, it must document the referral, maintain a copy of the record that it refers, and notify the requester of the referral, informing the requester of VerDate Sep<11>2014 14:51 Jan 09, 2017 Jkt 241001 the name(s) of the agency to which the record was referred, including that agency’s FOIA contact information. (3) Coordination. The standard referral procedure is not appropriate where disclosure of the identity of the agency to which the referral would be made could harm an interest protected by an applicable exemption, such as the exemptions that protect personal privacy or national-security interests. In such instances, in order to avoid harm to an interest protected by an applicable exemption, the Authority, the General Counsel, the Panel, or the IG should coordinate with the originating agency to seek its views on the disclosability of the record. The release determination for the record that is the subject of the coordination should then be conveyed to the requester by the Authority, the General Counsel, the Panel, or the IG. ■ 8. Revise § 2411.7 to read as follows: § 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 FOIA 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 and will inform the requester of the availability of the Authority’s FOIA Public Liaison to offer assistance. The appropriate Regional Director, the FOIA 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 § 2411.13 of this part. The appropriate Regional Director, the FOIA 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 FOIA 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. PO 00000 Frm 00004 Fmt 4700 Sfmt 4700 9. Amend § 2411.8 by revising paragraphs (a) introductory text, (b), (c) introductory text, (c)(1) and (2), (c)(5), (d), and (e) to read as follows: ■ § 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 FOIA Officer of the Office of the General Counsel, the Solicitor of the Authority, the Executive Director of the Panel, or the IG), but in any event not later than 10 days after the request is first received by any FLRA component responsible for receiving FOIA requests under part 2411. The 20day period does not run when: * * * * * (b) A request for records shall be logged in by the appropriate Regional Director, the FOIA 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 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 FOIA Officer of the General Counsel, the Solicitor of the Authority, the Executive Director of the Panel, or the IG, as appropriate, shall, within 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 of 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 of 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. * * * * * (5) Search fees shall not be assessed to requesters (or duplication fees in the case of an educational or noncommercial scientific institution, E:\FR\FM\10JAR1.SGM 10JAR1 pmangrum on DSK3GDR082PROD with RULES Federal Register / Vol. 82, No. 6 / Tuesday, January 10, 2017 / Rules and Regulations 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 of the deadlines in 5 U.S.C. 552(a)(4)(A), except as provided in the following paragraphs (c)(5)(i) through (iii): (i) If the Authority, the General Counsel, the Panel, or the IG has determined that unusual circumstances apply (as the term is defined in § 2411.11(b)) and the Authority, the General Counsel, the Panel, or the IG provided a timely written notice to the requester in accordance with § 2411.11(a), a failure described in this paragraph (c)(5) is excused for an additional 10 days. If the Authority, the General Counsel, the Panel, or the IG fails to comply with the extended time limit, the Authority, the General Counsel, the Panel, or the IG may not assess any search fees (or, in the case of a requester described in § 2411.13(a)(8), duplication fees). (ii) If the Authority, the General Counsel, the Panel, or the IG determines that unusual circumstances apply and more than 5,000 pages are necessary to respond to the request, the Authority, the General Counsel, the Panel, or the IG may charge search fees or, in the case of requesters defined in § 2411.13(a)(6) through (8), may charge duplication fees, if the following steps are taken. The Authority, the General Counsel, the Panel, or the IG must have provided timely written notice of unusual circumstances to the requester in accordance with the FOIA and must have discussed with the requester via written mail, email, or telephone (or made not less than three good-faith attempts to do so) how the requester could effectively limit the scope of the request in accordance with 5 U.S.C. 552(a)(6)(B)(ii). If this exception is satisfied, the Authority, the General Counsel, the Panel, or the IG may charge all applicable fees incurred in the processing of the request. (iii) If a court has determined that exceptional circumstances exist, as defined by the FOIA, a failure to comply with the time limits shall be excused for the length of time provided by the court order. (d) If a request will take longer than 10 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– 7999 or visiting https:// foiaonline.regulations.gov, status information about the request including: VerDate Sep<11>2014 14:51 Jan 09, 2017 Jkt 241001 (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. Such denial shall also notify the requester of the assistance available from the FLRA’s FOIA Public Liaison and the dispute resolution services offered by the Office of Government Information Services of the National Archives and Records Administration (OGIS). ■ 10. Amend § 2411.9 by revising paragraphs (a), (b), (d), (e)(2), (f), (g) introductory text, (h)(1), (3), and (4), (i), and (j) to read as follows: § 2411.9 Business information. (a) In general. Business information obtained by the FLRA 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 FLRA 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 FLRA obtains business information, directly or indirectly. The term includes corporations; state, local, and tribal governments; and foreign governments. * * * * * (d) Notice to submitters. The FLRA 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. PO 00000 Frm 00005 Fmt 4700 Sfmt 4700 2853 (e) * * * (2) The FLRA has reason to believe that the information may be protected from disclosure under Exemption 4. (f) Opportunity to object to disclosure. The FLRA 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 FLRA until after it has made its disclosure decision shall not be considered by the FLRA. Information provided by a submitter under this paragraph may itself be subject to disclosure under the FOIA. (g) Notice of intent to disclose. The FLRA shall consider a submitter’s objections and specific grounds for nondisclosure in deciding whether to disclose business information. Whenever the FLRA decides to disclose business information over the objection of a submitter, the FLRA shall give the submitter written notice, which shall include: * * * * * (h) * * * (1) The FLRA determines that the information should not be disclosed; * * * * * (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, (52 FR 23781, 3 CFR, 1987 Comp. p. 235); or (4) The designation made by the submitter under paragraph (c) of this section appears to be obviously frivolous—except that, in such a case, the FLRA 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 FLRA shall promptly notify the submitter. (j) Corresponding notice to requesters. Whenever the FLRA provides a E:\FR\FM\10JAR1.SGM 10JAR1 2854 Federal Register / Vol. 82, No. 6 / Tuesday, January 10, 2017 / Rules and Regulations submitter with notice and an opportunity to object to disclosure under paragraph (d) of this section, the FLRA shall also notify the requester(s). Whenever the FLRA notifies a submitter of its intent to disclose requested information under paragraph (g) of this section, the FLRA shall also notify the requester(s). Whenever a submitter files a lawsuit seeking to prevent the disclosure of business information, the FLRA shall notify the requester(s). ■ 11. Revise § 2411.10 to read as follows: pmangrum on DSK3GDR082PROD with RULES § 2411.10 Appeal from denial of request. (a)(1) When a request for records is denied, in whole or in part, a requester may appeal the denial by submitting a written appeal by mail or online that is postmarked, or in the case of an electronic submission, transmitted, within 90 calendar 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. The appeal should clearly identify the agency determination that is being appealed and the assigned request number. (i) 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. (ii) If the denial was made by a Regional Director or by the FOIA Officer of the General Counsel, the appeal shall be filed with the General Counsel in Washington, DC. (iii) If the denial was made by the Executive Director of the Panel, the appeal shall be filed with the Chairman of the Panel. (2) The Chairman of the Authority, the General Counsel, or the Chairman of the Panel, as appropriate, shall, within 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 requester, determining whether, or the extent to which, the request shall be granted. An appeal ordinarily will not be adjudicated if the request becomes a matter of FOIA litigation. (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 it shall require prepayment of any charges due in accordance with the provisions of § 2411.13(a) before the records are made available. (ii) Whenever possible, the determination relating to a request for VerDate Sep<11>2014 14:51 Jan 09, 2017 Jkt 241001 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 General Counsel, the Panel, or the 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). The determination will also inform the requester of the mediation services offered by the OGIS as a non-exclusive alternative to litigation. Mediation is a voluntary process. If the FLRA agrees to participate in the mediation services provided by the OGIS, it will actively engage as a partner to the process in an attempt to resolve the dispute. (c) 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. (d) Before seeking judicial review of the FLRA’s denial of a request, a requester generally must first submit a timely administrative appeal. ■ 12. Revise § 2411.11 to read as follows: § 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 PO 00000 Frm 00006 Fmt 4700 Sfmt 4700 to arrange with the processing agency component an alternative time frame for processing the request or a modified request. No such notice shall specify a date that would result in a total extension of more than 10 working days. To aid the requester, the FOIA Public Liaison shall assist in the resolution of any disputes between the requester and the processing agency component, and shall notify the requester of the requester’s right to seek dispute resolution services from the OGIS. (b) As used in this section, ‘‘unusual 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 processing agency component; (2) The need to search for, collect, and appropriately examine a voluminous amount of separate and distinct records that 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 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. E:\FR\FM\10JAR1.SGM 10JAR1 Federal Register / Vol. 82, No. 6 / Tuesday, January 10, 2017 / Rules and Regulations 13. Revise § 2411.12 to read as follows: ■ § 2411.12 limits. Effect of failure to meet time Failure by the Authority, the General Counsel, the Panel, or the IG either to deny or grant any request under this part within the time limits prescribed by the FOIA, as amended and these regulations shall be deemed to be an exhaustion of the administrative remedies available to the person making this request. ■ 14. Amend § 2411.13 by revising paragraphs (a)(1), (a)(3) through (8), (b), (c)(2) through (4), (d)(2) through (5), (e) through (h), and adding paragraph (j) to read as follows: pmangrum on DSK3GDR082PROD with RULES § 2411.13 Fees. (a) * * * (1) The term direct costs means those expenditures that 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 duplication 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. * * * * * (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, audio-visual materials, or machine-readable documentation, 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 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 VerDate Sep<11>2014 14:51 Jan 09, 2017 Jkt 241001 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 undergraduate higher education, an institution of graduate higher education, an institution of professional education, or an institution of vocational education that 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 that 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 that disseminate ‘‘news’’ and make their products available through a variety of means to the general public including news organizations that disseminate solely on the Internet. These examples are not intended to be all-inclusive. Moreover, as methods of news delivery evolve, 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 FLRA 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 PO 00000 Frm 00007 Fmt 4700 Sfmt 4700 2855 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. 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 the computer search. No search or review fees will be charged for a quarter-hour period unless more than half of that period is required for search or review. (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. 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. The disclosable portions of the requested records must be meaningfully informative about government operations or activities in order to be E:\FR\FM\10JAR1.SGM 10JAR1 pmangrum on DSK3GDR082PROD with RULES 2856 Federal Register / Vol. 82, No. 6 / Tuesday, January 10, 2017 / Rules and Regulations ‘‘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. 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 his or her 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. 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. The processing agency component will identify any 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. 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 VerDate Sep<11>2014 14:51 Jan 09, 2017 Jkt 241001 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) Requests for a waiver or reduction of fees should be made when the request is first submitted to the Authority, the General Counsel, the Panel, or the IG. A requester may submit a fee-waiver request at a later time so long as the underlying record request is pending or on administrative appeal. When a requester who has committed to pay fees subsequently asks for a waiver of those fees, and that waiver is denied, the requester must pay any costs incurred up to the date on which the fee-waiver request was received. (vi) When 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) * * * (2) A request for documents from an educational or non-commercial scientific institution will be charged for the cost of duplication alone, excluding charges for the first 100 pages. To be eligible for inclusion in this category, requesters must show that the request is being made under the auspices of a qualifying institution 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 duplication 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 that recover the full direct cost of searching for and duplicating records that are responsive to the request, except that the first 100 pages of duplication and the first two hours of search time shall be furnished without charge. Requests from record subjects PO 00000 Frm 00008 Fmt 4700 Sfmt 4700 for records about themselves filed in Authority, General Counsel, Panel, or IG systems of records will continue to be treated under the fee provisions of the Privacy Act of 1974, which permits fees only for duplication. (d) * * * (2) Computer searches for records. The actual direct cost of providing the service, including the cost of operating computers and other electronic equipment, and the salary (i.e., basic pay plus 16 percent of that rate to cover benefits) of the employee conducting the search. (3) Review of records. The salary rate (i.e., basic pay plus 16 percent of that rate to cover benefits) 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 duplication of documents, which the Authority, the General Counsel, the Panel, and the IG have determined is the reasonable direct cost of making such copies, taking into account the average salary of the operator and the cost of the duplication machinery. For copies of records produced on tapes, disks, or other media, the Authority, the General Counsel, the Panel, or the IG shall charge the actual cost of production, including operator time. When paper documents must be scanned in order to comply with a requester’s preference to receive the records in an electronic format, the requester shall pay the direct costs associated with scanning those materials, including operator time. For all other forms of duplication, the Authority, the General Counsel, the Panel, and the IG will charge the direct costs, including operator time. (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 to those requesters who fail to pay fees charged, beginning on the 31st E:\FR\FM\10JAR1.SGM 10JAR1 pmangrum on DSK3GDR082PROD with RULES Federal Register / Vol. 82, No. 6 / Tuesday, January 10, 2017 / Rules and Regulations 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) Advance 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. In those circumstances, 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 in 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 has a reasonable basis to believe that a requester has misrepresented his or her identity in order to avoid paying outstanding fees, it may require that the requester provide proof of identity. 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 in this section. If the requester does not pay the advance payment within 30 calendar days after the date of the fee determination, the request will be closed. (h) When a person other than a party to a proceeding before the FLRA makes a request for a copy of a transcript or recording of the proceeding, the Authority, the General Counsel, the VerDate Sep<11>2014 14:51 Jan 09, 2017 Jkt 241001 Panel, or the IG, as appropriate, will handle the request under this part. * * * * * (j) The fee schedule of this section does not apply to fees charged under any statute that specifically requires the Authority, the General Counsel, the Panel, or the IG to set and collect fees for particular types of records. In instances in which records responsive to a request are subject to a statutorily based fee-schedule program, the Authority, the General Counsel, the Panel, or the IG will inform the requester of the contact information for that program. ■ 15. Revise § 2411.14 to read as follows. Dated: December 20, 2016. Carol Waller Pope, Chairman. § 2411.14 Record retention and preservation. 2857 AGENCY: 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. ■ 16. Revise § 2411.15 to read as follows: § 2411.15 Annual report. Each year, on or around February 1, as requested by the Department of Justice’s Office of Information Policy, the Chief FOIA Officer of the FLRA 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 and the Director of the OGIS. The report shall include those matters required by 5 U.S.C. 552(e), and it shall be made available electronically. The Chief FOIA Officer of the FLRA shall make each such report available for public inspection in an electronic format. In addition, the Chief FOIA Officer of the FLRA shall make the raw statistical data used in each report available in a timely manner for public inspection in an electronic format, which shall be available— (a) Without charge, license, or registration requirement; (b) In an aggregated, searchable format; and (c) In a format that may be downloaded in bulk. PO 00000 Frm 00009 Fmt 4700 Sfmt 4700 [FR Doc. 2016–31121 Filed 1–9–17; 8:45 am] BILLING CODE P DEPARTMENT OF ENERGY 10 CFR Part 435 [Docket No. EERE–2016–BT–STD–0003] RIN 1904–AD56 Energy Efficiency Standards for the Design and Construction of New Federal Low-Rise Residential Buildings’ Baseline Standards Update Office of Energy Efficiency and Renewable Energy, Department of Energy. ACTION: Final rule. The U.S. Department of Energy (DOE) is publishing this final rule to implement provisions in the Energy Conservation and Production Act (ECPA) that require DOE to update the baseline Federal energy efficiency performance standards for the construction of new Federal low-rise residential buildings. This rule updates the baseline Federal residential standard to the International Code Council (ICC) 2015 International Energy Conservation Code (IECC). DATES: This rule is effective March 13, 2017. The incorporation by reference of a certain publication listed in this rule was approved by the Director of the Federal Register as of March 13, 2017. All Federal agencies shall design new Federal buildings that are low-rise residential buildings, for which design for construction began on or after January 10, 2018, using the 2015 IECC as the baseline standard for 10 CFR part 435. ADDRESSES: The docket, which includes Federal Register notices, public meeting attendee lists and transcripts, comments, and other supporting documents/materials, is available for review at https://www.regulations.gov/ docketBrowser?rpp=25&po=0&D=EERE2016-BT-STD-0003]. All documents in the docket are listed in the regulations.gov index. However, some documents listed in the index, such as those containing information that is exempt from public disclosure, may not be publicly available. The regulations.gov site contains simple instructions on how to access all documents, including public comments, in the docket. SUMMARY: E:\FR\FM\10JAR1.SGM 10JAR1

Agencies

[Federal Register Volume 82, Number 6 (Tuesday, January 10, 2017)]
[Rules and Regulations]
[Pages 2849-2857]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-31121]



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Rules and Regulations
                                                Federal Register
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having general applicability and legal effect, most of which are keyed 
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under 50 titles pursuant to 44 U.S.C. 1510.

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Federal Register / Vol. 82, No. 6 / Tuesday, January 10, 2017 / Rules 
and Regulations

[[Page 2849]]



FEDERAL LABOR RELATIONS AUTHORITY

5 CFR Part 2411


Availability of Official Information

AGENCY: Federal Labor Relations Authority.

ACTION: Final rule.

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

SUMMARY: This rulemaking amends the regulations that the Federal Labor 
Relations Authority (FLRA) follows in processing records under the 
Freedom of Information Act (FOIA) to comply with the FOIA Improvement 
Act of 2016. The amendments would clarify and update procedures for 
requesting information from the FLRA and procedures that the FLRA 
follows in responding to requests from the public.

DATES: Effective January 24, 2017.

FOR FURTHER INFORMATION CONTACT: If you have any comments or questions, 
please contact Fred B. Jacob, Solicitor, Chief FOIA Officer, Federal 
Labor Relations Authority, 1400 K Street NW., Washington, DC 20424; 
(202) 218-7999; fax: (202) 343-1007; or email: solmail@flra.gov.

SUPPLEMENTARY INFORMATION: On June 30, 2016, President Obama signed 
into law the FOIA Improvement Act of 2016. The Act specifically 
requires all agencies to review and update their FOIA regulations in 
accordance with its provisions, and the FLRA is making changes to its 
regulations accordingly. Among other things, the Act addresses a range 
of procedural issues that affect agency FOIA regulations, including 
requirements that agencies establish a minimum of 90 days for 
requesters to file an administrative appeal and that they provide 
dispute-resolution services at various times throughout the FOIA 
process. In addition to some minor non-substantive changes to correct 
typographical errors, make small stylistic adjustments for 
clarification, and streamline the language of some procedural 
provisions, the FLRA is making the following changes:
     Section 2411.4 is amended to emphasize the ability to view 
records electronically on the FLRA's Web site. Because all of the 
FLRA's disclosable records under 5 U.S.C. 552(a)(2) are available on 
the FLRA's Web site, section 2411.4 is also amended to eliminate the 
procedure for requesting use of a computer terminal at the FLRA's 
headquarters or one of its regional offices. Finally, section 2411.4 is 
amended to reflect the requirement under the FOIA Improvement Act of 
2016 that agencies make available for public inspection, in electronic 
format, records that have been requested three or more times.
     Section 2411.6 is amended to notify requesters that they 
may contact the FLRA's Chief FOIA Officer or FOIA Public Liaison to 
discuss and to receive assistance in processing records requests. This 
section also updates the information that is listed in the agency's 
public FOIA logs to include, among other things, whether any exemptions 
were applied in processing a request. The section additionally 
describes the agency's consultation, referral, and coordination efforts 
with other agencies in processing FOIA requests.
     Section 2411.7 is amended to describe that the agency will 
inform a requester of the availability of the FLRA's FOIA Public 
Liaison to assist in processing his or her request.
     Section 2411.8 describes the time limits for processing 
FOIA requests and provides instances in which fees will not be assessed 
if an agency component fails to comply with deadlines listed in 5 
U.S.C. 552(a)(4)(A). The section is amended to further describe 
exceptions under this rule, including, for instance, when unusual 
circumstances are present and when large numbers of documents are 
necessary to respond to the request. This section is also amended to 
explain that in the case of a denial, the agency will notify the 
requester of additional assistance that is available, specifically from 
the FLRA's FOIA Public Liaison and the Office of Government Information 
Services (OGIS).
     Section 2411.10, describing how a requester can appeal a 
denied request, is amended to provide the requester with 90 calendar 
days to appeal. This section also now notifies a requester of the 
dispute-resolution services offered by OGIS.
     Section 2411.11 is amended to again notify requesters of 
the availability of OGIS and its dispute-resolution services.
     Section 2411.12 is amended to state that no search or 
review fees will be charged for a quarter-hour period unless more than 
half of that period is required for search or review. This section is 
also amended to elaborate on how a requester may submit a fee waiver, 
as well as to describe the obligations on the requester when a fee 
waiver is denied. Additionally, the section is amended to explain the 
consequences of failing to pay fees, such as the agency closing the 
matter without further processing the request.
     Section 2411.15 is amended to incorporate the additional 
reporting requirements related to the agency's FOIA annual report, 
including that the report will provide raw statistical data to the 
public.
    This rule is internal and procedural rather than substantive. It 
does not create a right to obtain FLRA records, nor does it create any 
additional right or privilege not already available to the public as a 
result of the FOIA Improvement Act of 2016. It merely adopts the 
improvements mandated in the Act and builds upon the previous agency 
procedures for processing FOIA-related requests.

Regulatory Flexibility Act Certification

    Pursuant to section 605(b) of the Regulatory Flexibility Act, 5 
U.S.C. 605(b), the FLRA has determined that this regulation, as 
amended, will not have a significant impact on a substantial number of 
small entities.

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.

[[Page 2850]]

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, 5 U.S.C. 
804. 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 record-keeping requirements under the Paperwork Reduction 
Act of 1995, 44 U.S.C. 3501, et seq.

Public Participation

    This rule is published as a final rule. It is exempt from public 
comment, pursuant to 5 U.S.C. 553(b)(A), as a rule of ``agency 
organization, procedure, or practice.'' If you wish to contact the 
agency, please do so at the above listed address. However, before 
including your address, phone number, email address, or other personal 
identifying information in your comment, you should be aware that your 
entire comment--including your personal identifying information--may be 
made publicly available at any time. While you can ask us in your 
comment to withhold your personal identifying information from public 
review, we cannot guarantee that we will be able to do so.

List of Subjects in 5 CFR Part 2411

    Freedom of Information Act.

    For the reasons stated in the preamble, the Authority amends 5 CFR 
part 2411 as follows:

PART 2411--AVAILABILITY OF OFFICIAL INFORMATION

0
1. The authority citation for part 2411 is revised to read as follows:

    Authority:  5 U.S.C. 552, as amended; Freedom of Information 
Improvement Act of 2016, Pub. L. 114-185, 130 Stat. 528; Openness 
Promotes Effectiveness in our National Government Act of 2007 (OPEN 
Government Act), Pub. L. 110-175, 121 Stat. 2524.


0
2. Revise Sec.  2411.1 to read as follows:


Sec.  2411.1   Purpose.

    This part contains the rules that the Federal Labor Relations 
Authority (FLRA), including the three-Member Authority component 
(Authority), the General Counsel of the FLRA (General Counsel), the 
Federal Service Impasses Panel (Panel), and the Inspector General of 
the FLRA (IG), follow in processing requests for information under the 
Freedom of Information Act, as amended, 5 U.S.C. 552 (FOIA) These 
regulations should be read in conjunction with the text of the FOIA and 
the Uniform Freedom of Information Fee Schedule and Guidelines 
published by the Office of Management and Budget. Requests by 
individuals for records about themselves under the Privacy Act of 1974, 
5 U.S.C. 552a, are processed in accordance with the Authority's Privacy 
Act regulations, see 5 CFR part 2412, as well as under this subpart.

0
3. Revise Sec.  2411.2 to read as follows:


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 parts 2412 and 2417 of 
this chapter will be processed under this part. The Authority, the 
General Counsel, the Panel, and the IG may each continue, regardless of 
this part, to furnish the public with the information that it has 
furnished in the regular course of performing its official duties, 
unless furnishing the information would 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 FLRA retrieves the record by 
the subject's name or other personal identifier, the FLRA 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 FLRA 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.

0
4. Revise Sec.  2411.3 to read as follows:


Sec.  2411.3   Delegation of authority.

    (a) Chief FOIA Officer. The Chairman of the FLRA 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 FOIA 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 that are 
received from any person or organization under Sec.  2411.5(a) and (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 that the FOIA requester has received following an initial 
response.

0
5. Amend Sec.  2411.4 by revising paragraphs (a) through (c) and (e) 
and (f) to read as follows:


Sec.  2411.4  Information policy.

    (a)(1) It is the policy of the Authority, the General Counsel, the 
Panel, and the IG to make available for public inspection in an 
electronic format:
    (i) Final decisions and orders of the Authority and administrative 
rulings of the General Counsel; procedural determinations, final 
decisions and orders of the Panel; factfinding and arbitration reports; 
and reports and executive summaries of the IG;
    (ii) Statements of policy and interpretations that have been 
adopted by the Authority, the General Counsel, the Panel, or the IG and 
that 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, that have 
been released to any person under 5 U.S.C. 552(a)(3) and that:
    (A) 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; or
    (B) Have been requested three or more times; and
    (v) A general index of the records referred to in paragraph (a)(i)-
(iv) of this section.
    (2) It is the policy of the Authority, the General Counsel, the 
Panel, and the

[[Page 2851]]

IG to make promptly available for public inspection in an electronic 
format, upon request by any person, other records where the request 
reasonably describes such records and otherwise conforms to the 
procedures of this part.
    (b)(1) Any person may examine and copy items in paragraphs 
(a)(1)(i) through (iv) of this section, 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, or 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 on the FLRA's 
Web site (https://www.flra.gov/elibrary).
    (c) The Authority, the General Counsel, the Panel, and the IG shall 
maintain and make available for public inspection in an electronic 
format the current indexes and supplements to the records that 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 the Authority, the General 
Counsel, the Panel, or the IG.
* * * * *
    (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, the Panel, or the IG 
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, or the IG.
    (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: 
https://www.flra.gov/resources-training/resources/forms-checklists.
    (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: https://www.flra.gov/resources-training/resources/forms-checklists.
    (3) Copies of optional forms for filing exceptions or appeals with 
the Authority may be obtained without charge from the Office of Case 
Intake and Publication at the Authority's offices in Washington, DC or 
on the Authority's Web site at: https://www.flra.gov/resources-training/resources/forms-checklists.

0
6. Revise Sec.  2411.5 to read as follows:


Sec.  2411.5  Procedure for obtaining information.

    (a) 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 Sec.  2411.4(a)(1) and (c), shall submit an electronic written 
request via the FOIAOnline system at https://foiaonline.regulations.gov 
or a written, facsimiled, or email request (see office and email 
addresses listed at https://www.flra.gov/foia_contact and in Appendix A 
to 5 CFR Chapter XIV) 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 FOIA 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 of the 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 
IG, Washington, DC.
    (b) Each request under this part should be clearly and prominently 
identified as a request for information under the FOIA 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. A 
request shall be considered an agreement by the requester to pay all 
applicable fees charged under Sec.  2411.13, up to $25.00, unless the 
requester seeks a waiver of fees. When making a request, the requester 
may specify a willingness to pay a greater or lesser amount. Fee 
charges will be assessed for the full allowable direct costs of 
document search, review, and duplication, 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 FOIA Officer of the General Counsel, the 
Solicitor of the Authority, the Executive Director of the Panel, or the 
IG, as appropriate.

0
7. Revise Sec.  2411.6 to read as follows:


Sec.  2411.6   Identification of information requested.

    (a) Reasonably describe and identify records. Each request under 
this part shall reasonably describe the records being sought in a way 
that the FLRA can be identify and locate them. A request shall be 
legible and include all pertinent details that will help identify the 
records sought. Before submitting a request, a requester may contact 
the FLRA's Chief FOIA Officer or FOIA Public Liaison to discuss the 
records that he or she seeks and to receive assistance in describing 
the records.
    (b) Agency efforts to further identify records. If the description 
does not meet the requirements of paragraph (a) of this section, the 
officer processing the request shall 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

[[Page 2852]]

records sought. A requester who is attempting to reformulate or modify 
his or her request may discuss the request with the FLRA's Chief FOIA 
Officer or FOIA Public Liaison.
    (c) Public logs. Upon receipt of a request for records, the 
appropriate Regional Director, the FOIA 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 request number; the date received; the nature of the records 
requested; the action taken on the request; the agency's response date; 
any exemptions that were applied (if applicable) and their 
descriptions; and whether any fees were charged for processing the 
request.
    (d) Consultation, referral, and coordination. When reviewing 
records located in response to a request, the Authority, the General 
Counsel, the Panel, or the IG will determine whether another agency of 
the Federal Government is better able to determine whether the record 
is exempt from disclosure under the FOIA. As to any such record, the 
Authority, the General Counsel, the Panel, or the IG will proceed in 
one of the following ways:
    (1) Consultation. When records originated with the Authority, the 
General Counsel, the Panel, or the IG, but contain within them 
information of interest to another agency or other Federal Government 
component, the Authority, the General Counsel, the Panel, or the IG 
will typically consult with that other entity prior to making a release 
determination.
    (2) Referral. (i) When the Authority, the General Counsel, the 
Panel, or the IG believes that a different agency or component is best 
able to determine whether to disclose the record, the Authority, the 
General Counsel, the Panel, or the IG will typically refer the 
responsibility for responding to the request regarding that record to 
that agency or component. Ordinarily, the agency or component that 
originated the record is presumed to be the best agency or component to 
make the disclosure determination. However, if the FLRA and the 
originating agency or component jointly agree that the FLRA is in the 
best position to respond regarding the record, then the record may be 
handled as a consultation.
    (ii) Whenever the Authority, the General Counsel, the Panel, or the 
IG refers any part of the responsibility for responding to a request to 
another Federal agency, it must document the referral, maintain a copy 
of the record that it refers, and notify the requester of the referral, 
informing the requester of the name(s) of the agency to which the 
record was referred, including that agency's FOIA contact information.
    (3) Coordination. The standard referral procedure is not 
appropriate where disclosure of the identity of the agency to which the 
referral would be made could harm an interest protected by an 
applicable exemption, such as the exemptions that protect personal 
privacy or national-security interests. In such instances, in order to 
avoid harm to an interest protected by an applicable exemption, the 
Authority, the General Counsel, the Panel, or the IG should coordinate 
with the originating agency to seek its views on the disclosability of 
the record. The release determination for the record that is the 
subject of the coordination should then be conveyed to the requester by 
the Authority, the General Counsel, the Panel, or the IG.

0
8. Revise Sec.  2411.7 to read as follows:


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 FOIA 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 and will inform the requester of the availability of the 
Authority's FOIA Public Liaison to offer assistance. The appropriate 
Regional Director, the FOIA 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 FOIA 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 FOIA 
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.

0
9. Amend Sec.  2411.8 by revising paragraphs (a) introductory text, 
(b), (c) introductory text, (c)(1) and (2), (c)(5), (d), and (e) to 
read as follows:


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 FOIA Officer of the 
Office of the General Counsel, the Solicitor of the Authority, the 
Executive Director of the Panel, or the IG), but in any event not later 
than 10 days after the request is first received by any FLRA component 
responsible for receiving FOIA requests under part 2411. The 20-day 
period does not run when:
* * * * *
    (b) A request for records shall be logged in by the appropriate 
Regional Director, the FOIA 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 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 FOIA Officer of the General Counsel, the Solicitor of the 
Authority, the Executive Director of the Panel, or the IG, as 
appropriate, shall, within 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 of 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 of 
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.
* * * * *
    (5) Search fees shall not be assessed to requesters (or duplication 
fees in the case of an educational or noncommercial scientific 
institution,

[[Page 2853]]

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 of 
the deadlines in 5 U.S.C. 552(a)(4)(A), except as provided in the 
following paragraphs (c)(5)(i) through (iii):
    (i) If the Authority, the General Counsel, the Panel, or the IG has 
determined that unusual circumstances apply (as the term is defined in 
Sec.  2411.11(b)) and the Authority, the General Counsel, the Panel, or 
the IG provided a timely written notice to the requester in accordance 
with Sec.  2411.11(a), a failure described in this paragraph (c)(5) is 
excused for an additional 10 days. If the Authority, the General 
Counsel, the Panel, or the IG fails to comply with the extended time 
limit, the Authority, the General Counsel, the Panel, or the IG may not 
assess any search fees (or, in the case of a requester described in 
Sec.  2411.13(a)(8), duplication fees).
    (ii) If the Authority, the General Counsel, the Panel, or the IG 
determines that unusual circumstances apply and more than 5,000 pages 
are necessary to respond to the request, the Authority, the General 
Counsel, the Panel, or the IG may charge search fees or, in the case of 
requesters defined in Sec.  2411.13(a)(6) through (8), may charge 
duplication fees, if the following steps are taken. The Authority, the 
General Counsel, the Panel, or the IG must have provided timely written 
notice of unusual circumstances to the requester in accordance with the 
FOIA and must have discussed with the requester via written mail, 
email, or telephone (or made not less than three good-faith attempts to 
do so) how the requester could effectively limit the scope of the 
request in accordance with 5 U.S.C. 552(a)(6)(B)(ii). If this exception 
is satisfied, the Authority, the General Counsel, the Panel, or the IG 
may charge all applicable fees incurred in the processing of the 
request.
    (iii) If a court has determined that exceptional circumstances 
exist, as defined by the FOIA, a failure to comply with the time limits 
shall be excused for the length of time provided by the court order.
    (d) If a request will take longer than 10 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 
202-218-7999 or visiting https://foiaonline.regulations.gov, 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. 
Such denial shall also notify the requester of the assistance available 
from the FLRA's FOIA Public Liaison and the dispute resolution services 
offered by the Office of Government Information Services of the 
National Archives and Records Administration (OGIS).

0
10. Amend Sec.  2411.9 by revising paragraphs (a), (b), (d), (e)(2), 
(f), (g) introductory text, (h)(1), (3), and (4), (i), and (j) to read 
as follows:


Sec.  2411.9   Business information.

    (a) In general. Business information obtained by the FLRA 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 FLRA 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 FLRA obtains 
business information, directly or indirectly. The term includes 
corporations; state, local, and tribal governments; and foreign 
governments.
* * * * *
    (d) Notice to submitters. The FLRA 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) * * *
    (2) The FLRA has reason to believe that the information may be 
protected from disclosure under Exemption 4.
    (f) Opportunity to object to disclosure. The FLRA 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 FLRA until after it has made its disclosure 
decision shall not be considered by the FLRA. Information provided by a 
submitter under this paragraph may itself be subject to disclosure 
under the FOIA.
    (g) Notice of intent to disclose. The FLRA shall consider a 
submitter's objections and specific grounds for nondisclosure in 
deciding whether to disclose business information. Whenever the FLRA 
decides to disclose business information over the objection of a 
submitter, the FLRA shall give the submitter written notice, which 
shall include:
* * * * *
    (h) * * *
    (1) The FLRA determines that the information should not be 
disclosed;
* * * * *
    (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, (52 FR 23781, 3 CFR, 1987 Comp. 
p. 235); or
    (4) The designation made by the submitter under paragraph (c) of 
this section appears to be obviously frivolous--except that, in such a 
case, the FLRA 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 FLRA 
shall promptly notify the submitter.
    (j) Corresponding notice to requesters. Whenever the FLRA provides 
a

[[Page 2854]]

submitter with notice and an opportunity to object to disclosure under 
paragraph (d) of this section, the FLRA shall also notify the 
requester(s). Whenever the FLRA notifies a submitter of its intent to 
disclose requested information under paragraph (g) of this section, the 
FLRA shall also notify the requester(s). Whenever a submitter files a 
lawsuit seeking to prevent the disclosure of business information, the 
FLRA shall notify the requester(s).

0
11. Revise Sec.  2411.10 to read as follows:


Sec.  2411.10   Appeal from denial of request.

    (a)(1) When a request for records is denied, in whole or in part, a 
requester may appeal the denial by submitting a written appeal by mail 
or online that is postmarked, or in the case of an electronic 
submission, transmitted, within 90 calendar 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. The appeal should clearly identify the agency 
determination that is being appealed and the assigned request number.
    (i) 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.
    (ii) If the denial was made by a Regional Director or by the FOIA 
Officer of the General Counsel, the appeal shall be filed with the 
General Counsel in Washington, DC.
    (iii) If the denial was made by the Executive Director of the 
Panel, the appeal shall be filed with the Chairman of the Panel.
    (2) The Chairman of the Authority, the General Counsel, or the 
Chairman of the Panel, as appropriate, shall, within 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. An appeal ordinarily will not be adjudicated if the request 
becomes a matter of FOIA litigation.
    (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 it shall 
require prepayment of any charges due in accordance with the provisions 
of Sec.  2411.13(a) 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 
General Counsel, the Panel, or the 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). The determination will also 
inform the requester of the mediation services offered by the OGIS as a 
non-exclusive alternative to litigation. Mediation is a voluntary 
process. If the FLRA agrees to participate in the mediation services 
provided by the OGIS, it will actively engage as a partner to the 
process in an attempt to resolve the dispute.
    (c) 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.
    (d) Before seeking judicial review of the FLRA's denial of a 
request, a requester generally must first submit a timely 
administrative appeal.

0
12. Revise Sec.  2411.11 to read as follows:


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 
processing agency component an alternative time frame for processing 
the request or a modified request. No such notice shall specify a date 
that would result in a total extension of more than 10 working days. To 
aid the requester, the FOIA Public Liaison shall assist in the 
resolution of any disputes between the requester and the processing 
agency component, and shall notify the requester of the requester's 
right to seek dispute resolution services from the OGIS.
    (b) As used in this section, ``unusual 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 
processing agency component;
    (2) The need to search for, collect, and appropriately examine a 
voluminous amount of separate and distinct records that 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 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.

[[Page 2855]]


0
13. Revise Sec.  2411.12 to read as follows:


Sec.  2411.12   Effect of failure to meet time limits.

    Failure by the Authority, the General Counsel, the Panel, or the IG 
either to deny or grant any request under this part within the time 
limits prescribed by the FOIA, as amended and these regulations shall 
be deemed to be an exhaustion of the administrative remedies available 
to the person making this request.

0
14. Amend Sec.  2411.13 by revising paragraphs (a)(1), (a)(3) through 
(8), (b), (c)(2) through (4), (d)(2) through (5), (e) through (h), and 
adding paragraph (j) to read as follows:


Sec.  2411.13   Fees.

    (a) * * *
    (1) The term direct costs means those expenditures that 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 duplication 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.
* * * * *
    (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, audio-visual materials, or machine-readable 
documentation, 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 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 
undergraduate higher education, an institution of graduate higher 
education, an institution of professional education, or an institution 
of vocational education that 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 that 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 that disseminate ``news'' and make their 
products available through a variety of means to the general public 
including news organizations that disseminate solely on the Internet. 
These examples are not intended to be all-inclusive. Moreover, as 
methods of news delivery evolve, 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 FLRA 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. 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 
the computer search. No search or review fees will be charged for a 
quarter-hour period unless more than half of that period is required 
for search or review.
    (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. 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. The 
disclosable portions of the requested records must be meaningfully 
informative about government operations or activities in order to be

[[Page 2856]]

``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. 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 his or her 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. 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. The 
processing agency component will identify any 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. 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) Requests for a waiver or reduction of fees should be made when 
the request is first submitted to the Authority, the General Counsel, 
the Panel, or the IG. A requester may submit a fee-waiver request at a 
later time so long as the underlying record request is pending or on 
administrative appeal. When a requester who has committed to pay fees 
subsequently asks for a waiver of those fees, and that waiver is 
denied, the requester must pay any costs incurred up to the date on 
which the fee-waiver request was received.
    (vi) When 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) * * *
    (2) A request for documents from an educational or non-commercial 
scientific institution will be charged for the cost of duplication 
alone, excluding charges for the first 100 pages. To be eligible for 
inclusion in this category, requesters must show that the request is 
being made under the auspices of a qualifying institution 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 duplication 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 that recover the full direct cost of searching for and 
duplicating records that are responsive to the request, except that the 
first 100 pages of duplication 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, Panel, or 
IG systems of records will continue to be treated under the fee 
provisions of the Privacy Act of 1974, which permits fees only for 
duplication.
    (d) * * *
    (2) Computer searches for records. The actual direct cost of 
providing the service, including the cost of operating computers and 
other electronic equipment, and the salary (i.e., basic pay plus 16 
percent of that rate to cover benefits) of the employee conducting the 
search.
    (3) Review of records. The salary rate (i.e., basic pay plus 16 
percent of that rate to cover benefits) 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 duplication of documents, which the Authority, the General 
Counsel, the Panel, and the IG have determined is the reasonable direct 
cost of making such copies, taking into account the average salary of 
the operator and the cost of the duplication machinery. For copies of 
records produced on tapes, disks, or other media, the Authority, the 
General Counsel, the Panel, or the IG shall charge the actual cost of 
production, including operator time. When paper documents must be 
scanned in order to comply with a requester's preference to receive the 
records in an electronic format, the requester shall pay the direct 
costs associated with scanning those materials, including operator 
time. For all other forms of duplication, the Authority, the General 
Counsel, the Panel, and the IG will charge the direct costs, including 
operator time.
    (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 to those requesters who fail to pay fees charged, 
beginning on the 31st

[[Page 2857]]

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) Advance 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. In those circumstances, 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 in 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 has a 
reasonable basis to believe that a requester has misrepresented his or 
her identity in order to avoid paying outstanding fees, it may require 
that the requester provide proof of identity. 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 in this section. If the 
requester does not pay the advance payment within 30 calendar days 
after the date of the fee determination, the request will be closed.
    (h) When a person other than a party to a proceeding before the 
FLRA makes a request for a copy of a transcript or recording of the 
proceeding, the Authority, the General Counsel, the Panel, or the IG, 
as appropriate, will handle the request under this part.
* * * * *
    (j) The fee schedule of this section does not apply to fees charged 
under any statute that specifically requires the Authority, the General 
Counsel, the Panel, or the IG to set and collect fees for particular 
types of records. In instances in which records responsive to a request 
are subject to a statutorily based fee-schedule program, the Authority, 
the General Counsel, the Panel, or the IG will inform the requester of 
the contact information for that program.

0
15. Revise Sec.  2411.14 to read as follows.


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.

0
16. Revise Sec.  2411.15 to read as follows:


Sec.  2411.15   Annual report.

    Each year, on or around February 1, as requested by the Department 
of Justice's Office of Information Policy, the Chief FOIA Officer of 
the FLRA 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 and the Director of the OGIS. The report 
shall include those matters required by 5 U.S.C. 552(e), and it shall 
be made available electronically. The Chief FOIA Officer of the FLRA 
shall make each such report available for public inspection in an 
electronic format. In addition, the Chief FOIA Officer of the FLRA 
shall make the raw statistical data used in each report available in a 
timely manner for public inspection in an electronic format, which 
shall be available--
    (a) Without charge, license, or registration requirement;
    (b) In an aggregated, searchable format; and
    (c) In a format that may be downloaded in bulk.

    Dated: December 20, 2016.
Carol Waller Pope,
Chairman.
[FR Doc. 2016-31121 Filed 1-9-17; 8:45 am]
 BILLING CODE P