Availability of Official Information, 67058-67063 [2023-20909]
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67058
§ 1201.24
Federal Register / Vol. 88, No. 188 / Friday, September 29, 2023 / Rules and Regulations
[Amended]
3. Amend § 1201.24 as follows:
a. By removing from the third
sentence in paragraph (a) introductory
text the words ‘‘in electronic form’’ and
adding in their place ‘‘electronically’’;
■ b. By removing from paragraph (a)(1)
the words ‘‘and telephone number’’ and
adding in their place ‘‘telephone
number, and email address’’;
■ c. By removing from paragraph (a)(6)
the words ‘‘and telephone number’’ and
adding in their place ‘‘telephone
number, and email address’’;
■ d. By removing from paragraph (a)(9)
the words ‘‘the Board’s e-Appeal site
(https://e-appeal.mspb.gov)’’ and adding
in their place ‘‘e-Appeal’’; and
■ e. By removing from paragraph (c) the
words ‘‘the e-Appeal site (https://eappeal.mspb.gov)’’ and adding in their
place ‘‘e-Appeal’’ and by removing the
words ‘‘Board’s Web site’’ and adding in
their place ‘‘MSPB’s website’’.
■ 4. Revise § 1201.26 to read as follows:
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■
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§ 1201.26 Service of Pleadings and
Response
(a) Service—(1) Service by the Board.
The appropriate office of the Board will
notify each party to the proceeding that
a new appeal has been docketed and
will attach to the initial order in the
proceeding a certificate of service,
consisting of a list of the parties to the
proceeding or their designated
representatives.
(2) Service by the parties. The parties
must serve on each other one copy of
each pleading, as defined by § 1201.4(b),
and all documents submitted with it,
except for the appeal. They may do so
by electronic filing in accordance with
§ 1201.14, postal mail, facsimile, or
commercial or personal delivery.
Documents and pleadings must be
served on each party and each
representative. A certificate of service
stating how and when service was made
must accompany each pleading. The
parties and their representatives must
notify the appropriate Board office and
one another, in a pleading, of any
changes in their address, telephone
number, or email address.
(b) Submission of documents.
Pleadings and attachments filed via
postal mail, facsimile, or commercial or
personal delivery must be filed on 81⁄2inch by 11-inch paper. This requirement
enables the Board to comply with
standards established for U.S. courts.
Paper pleadings and attachments may
not contain binders, folders, staples,
paper clips, or notes adhered to pages.
Such items will be removed and not
included in the record, or the filing may
be rejected. Documents may not be
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submitted on an electronic media
storage device such as a Compact Disc
(CD), Digital Video Disc (DVD), or flash
drive. Parties are responsible for
reviewing all pleadings to confirm
legibility and to minimize the inclusion
of nonrelevant personally identifiable
information. Pleadings filed via eAppeal must adhere to the formatting
and filing requirements set forth in
§ 1201.14(h).
(c) Submission of audio and video
evidence. Audio and video evidence
must be submitted according to the
formatting and submission requirements
set forth in policies posted to the
MSPB’s website.
Appendix II to Part 1201—[Amended]
5. Amend appendix II to part 1201 by:
a. Removing the second sentence of
the introductory text; and
■ b. Removing from paragraph 3a the
words ‘‘26 Federal Plaza, Room 3137–A,
New York, New York 10278–0022,
Facsimile No.: (212) 264–1417’’ and
adding in their place ‘‘1601 Market
Street, Suite 1700, Philadelphia, PA
19103, Facsimile No.: (215) 597–3456’’.
■
■
Jennifer Everling,
Acting Clerk of the Board.
[FR Doc. 2023–21272 Filed 9–28–23; 8:45 am]
BILLING CODE 7400–01–P
FEDERAL LABOR RELATIONS
AUTHORITY
5 CFR Part 2411
Availability of Official Information
Federal Labor Relations
Authority.
ACTION: Final rule.
AGENCY:
The Federal Labor Relations
Authority (FLRA) amends its
regulations for processing records under
the Freedom of Information Act (FOIA).
The amendments streamline and update
procedures for requesting information
from the FLRA and procedures that the
FLRA follows in responding to requests
from the public.
DATES: Effective September 29, 2023.
FOR FURTHER INFORMATION CONTACT: If
you have any questions, please contact
Thomas Tso, Solicitor, Chief FOIA
Officer, Federal Labor Relations
Authority, 1400 K Street NW,
Washington, DC 20424; (771) 444–5775.
SUPPLEMENTARY INFORMATION: To adapt
to recent trends in FOIA requests made
to the FLRA, the amendments centralize
and streamline its FOIA request system.
In addition to some minor nonsubstantive changes to correct
SUMMARY:
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typographical errors, the FLRA
consolidates responsibility under the
FOIA regulations for the FLRA’s threemember Authority component, the
Office of General Counsel, and the
Federal Service Impasses Panel by
transferring those responsibilities to the
Solicitor of the FLRA (‘‘Solicitor’’) as
their FOIA representative. The Solicitor
serves as the agency’s in-house counsel
and typically as the agency’s Chief FOIA
Officer. The FLRA revises the relevant
regulations in order to reflect the
Solicitor’s role as the representative of
the Authority, the General Counsel, and
the Panel for FOIA matters.
Consistent with the Office of
Management and Budget’s 2020 Update
to the Uniform Freedom of Information
Act Fee Schedule and Guidelines, 85 FR
81955 (Dec. 17, 2020), and the decision
of the U.S. Court of Appeals for the
District of Columbia Circuit addressing
the ‘‘educational institution’’ fee
category, the revisions also clarify the
individuals who may qualify for
reduced fees as an educational or
noncommercial scientific institution
under 5 CFR 2411.13(c)(2). See Sack v.
Dept. of Defense, 823 F.3d 687, 693
(D.C. Cir. 2016) (‘‘To be clear, to qualify
for reduced fees as an educational
institution, the requester—whether
teacher or student—must seek the
information in connection with his or
her role at the educational institution.’’).
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
builds upon and clarifies 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
these regulations, 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.
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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 any communications
with the agency, you should be aware
that your communications—including
your personal identifying information—
may be made publicly available at any
time. While you can ask us in your
communications 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 Federal Labor Relations
Authority amends 5 CFR part 2411 as
follows:
PART 2411—AVAILABILITY OF
OFFICIAL INFORMATION
1. The authority for part 2411
continues to read as follows:
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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. Amend § 2411.3 by revising
paragraph (b) to read as follows:
■
§ 2411.3
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Delegation of authority.
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(b) Solicitor/IG. The Solicitor of the
FLRA 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).
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■ 3. 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 FOIAXpress system or a written,
facsimiled, or email request (see
FOIAXpress, office and email addresses
listed at https://www.flra.gov/foia_
contact) as follows:
(1) If the request is for records,
documents, or other information in the
Authority, the Office of General
Counsel, or the Panel, it should be made
to the Office of the Solicitor,
Washington, DC;
(2) 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
Office of the Solicitor or the IG, as
appropriate.
■ 4. Amend § 2411.6 by revising
paragraphs (a), (c) and (d) 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
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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 the individual seeks and to receive
assistance in describing the records.
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(c) Public logs. Upon receipt of a
request for records, the Solicitor 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
Solicitor or the IG, as appropriate, 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 Solicitor 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
Solicitor or the IG, as appropriate, will
typically consult with that other entity
prior to making a release determination.
(2) Referral. (i) When the Solicitor or
the IG believes that a different agency or
component is best able to determine
whether to disclose the record, the
Solicitor 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 Solicitor 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.
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(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 Solicitor 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
Solicitor or the IG.
■ 5. 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 Solicitor 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 Solicitor 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 Solicitor 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 Solicitor 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.
■ 6. Amend § 2411.8 by revising
paragraphs (a), (b), (c) introductory text,
(c)(4) and (5), (d) introductory text, and
(d)(2) introductory text to read as
follows:
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§ 2411.8 Time limits for processing
requests.
(a) The 20-day period (excepting
Saturdays, Sundays, and federal public
holidays), established in this section,
shall commence on the date on which
the request is first received by the
Solicitor or the IG, but in any event not
later than 10 days after the request is
first received by the FLRA component
responsible for receiving FOIA requests
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under part 2411. The 20-day period
does not run when:
(1) the Solicitor or the IG makes one
request to the requester for information
and is awaiting such information that it
has reasonably requested from the
requester;
(2) it is necessary to clarify with the
requester issues regarding fee
assessment; or
(3) the Solicitor’s or the IG’s s receipt
of the requested information or
clarification triggers the commencement
of the 20-day period.
(b) A request for records shall be
logged by the Solicitor 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 Solicitor 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.
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(4) Whenever possible, subject to the
provisions of paragraph (g) of § 2411.13,
the response relating to a request for
records that involves a fee of less than
$250.00 shall be accompanied by the
requested records. Where this is not
possible, the records shall be forwarded
as soon as possible thereafter, consistent
with other obligations of the Solicitor or
the IG.
(5) Search fees shall not be assessed
to requesters (or duplication fees in the
case of an educational or
noncommercial scientific institution,
whose purpose is scholarly or scientific
research; or a representative of the news
media requester, as defined by
§ 2411.13(a)(8)) under this subparagraph
if an agency component fails to comply
with any of the deadlines in 5 U.S.C.
552(a)(4)(A), except as provided in the
following paragraphs (c)(5)(i) through
(iii) below:
(i) If the Solicitor or the IG has
determined that unusual circumstances
apply (as the term is defined in
§ 2411.11(b)) and the Solicitor 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 Solicitor or the
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IG fails to comply with the extended
time limit, the Solicitor 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 Solicitor or the IG
determines that unusual circumstances
apply and more than 5,000 pages are
necessary to respond to the request, the
Solicitor or the IG may charge search
fees or, in the case of requesters defined
in § 2411.13(6) through (8), may charge
duplication fees, if the following steps
are taken. The Solicitor 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 Solicitor 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:
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(2) Using the tracking number, the
requester can find, by calling the Office
of the Solicitor, emailing solmail@
flra.gov, or visiting FOIAXPress (see
telephone numbers and addresses at
https://www.flra.gov/foia_contact),
status information about the request
including:
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■ 7. Amend § 2411.10 by revising
paragraphs (a)(1), (a)(2) introductory
text, (a)(2)(ii), (b), and (c) to read as
follows:
§ 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 for records
related to work performed by the
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Authority component of the FLRA,
including the IG, the appeal shall be
filed with the Chairman of the Authority
or the Chairman’s designee in
Washington, DC.
(ii) If the denial was made for records
related to work performed by the Office
of the General Counsel, the appeal shall
be filed with the General Counsel or the
General Counsel’s designee in
Washington, DC.
(iii) If the denial was made for records
related to work performed by the Panel,
the appeal shall be filed with the
Chairman of the Panel or the Chairman’s
designee.
(2) The Chairman of the Authority,
the General Counsel, or the Chairman of
the Panel, or their designees, as
appropriate, shall, within 20 working
days (excepting Saturdays, Sundays,
and federal 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.
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(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 Solicitor 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, or their
designees, 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 National Archives, Office
of Government Information Services
(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
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request for records by the person
making the request, the Chairman of the
Authority, the General Counsel, or the
Chairman of the Panel, or their
designees, 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.
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■ 8. Revise § 2411.12 to read as follows:
§ 2411.12
limits.
Effect of failure to meet time
Failure by the Solicitor 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.
■ 9. Amend § 2411.13 by revising
paragraphs (a) introductory text, (a)(1),
(a)(2), (a)(5), paragraph (b) heading,
(b)(1), (b)(2), (b)(3), (b)(4)(i), (b)(4)(ii)
introductory text, (b)(4)(ii)(D), (b)(4)(iii)
introductory text, (b)(4)(iii)(B), (b)(4)(iv),
(b)(4)(v), (c) introductory text, (c)(2),
(c)(3), (c)(4), (d) introductory text, (d)(1),
(d)(4), (e), (f), (g), (h), and (j) to read as
follows:
§ 2411.13
Fees.
(a) Definitions. For the purpose of this
section:
(1) The term direct costs means those
expenditures that the Solicitor 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.
(2) The term search includes all time
spent looking for material that is
responsive to a request, including pageby-page or line-by-line identification of
material within documents as well as all
reasonable efforts to locate and retrieve
information from records maintained in
electronic form or format. Searches may
be done manually or by computer using
existing programming. The Solicitor or
the IG shall ensure that searches are
done in the most efficient and least
expensive manner reasonably possible.
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For example, if duplicating an entire
document would be quicker and less
expensive, a line-by-line search should
not be done.
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(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 Solicitor or the IG will
look first to the use to which a requester
will put the document requested. Where
the Solicitor 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 Solicitor or the IG may
seek additional clarification before
assigning the request to a specific
category.
*
*
*
*
*
(b) Exceptions to fee charges. (1) With
the exception of requesters seeking
documents for a commercial use, the
Solicitor 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
Solicitor 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 Solicitor 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
Solicitor 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 Solicitor 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
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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
Solicitor or the IG, as appropriate, will
consider the following factors:
*
*
*
*
*
(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
Solicitor or the IG, as appropriate, 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 Solicitor or the IG, as appropriate,
will consider the following factors:
*
*
*
*
*
(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 Solicitor or the IG, as
appropriate, 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 Solicitor or the IG.
(v) Requests for a waiver or reduction
of fees should be made when the request
is first submitted to the Solicitor 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
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16:15 Sep 28, 2023
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incurred up to the date on which the
fee-waiver request was received.
*
*
*
*
*
(c) Level of fees to be charged. The
level of fees to be charged by the
Solicitor or the IG, in accordance with
the schedule set forth in paragraph (d)
of this section, depends on the category
of the requester. The fee levels to be
charged are as follows:
*
*
*
*
*
(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—whether faculty, staff, or
students—must show that the request is
being made in connection with their
role at the 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 Solicitor 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 Solicitor 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, Office of
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) The following fees shall be
charged in accordance with paragraph
(c) of this section:
(1) Manual searches for records. The
salary rate (i.e., basic pay plus 16
percent) of the employee(s) making the
search. Search time under this
paragraph and paragraph (d)(2) of this
section may be charged for even if the
Solicitor or the IG fails to locate records
or if records located are determined to
be exempt from disclosure.
*
*
*
*
*
(4) Duplication of records. Twentyfive cents per page for paper-copy
duplication of documents, which the
Solicitor or the IG has determined is the
reasonable direct cost of making such
copies, taking into account the average
PO 00000
Frm 00008
Fmt 4700
Sfmt 4700
salary of the operator and the cost of the
duplication machinery. For copies of
records produced on tapes, disks, or
other media, the Solicitor 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
Solicitor or the IG will charge the direct
costs, including operator time.
*
*
*
*
*
(e) Aggregating requests. When the
Solicitor 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
Solicitor 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
day following the billing date. Receipt
of a fee by the Solicitor or the IG,
whether processed or not, will stay the
accrual of interest.
(g) Advance payments. The Solicitor
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 Solicitor 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 Solicitor 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 Solicitor 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 Solicitor 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
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requester provide proof of identity.
When the Solicitor 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 Solicitor 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
Solicitor 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, the Solicitor 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 Solicitor or the IG will inform the
requester of the contact information for
that program.
■ 10. Revise § 2411.114 to read as
follows.
§ 2411.14 Record retention and
preservation.
The Solicitor 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.
■ 11. Revise § 2411.15 to read as
follows:
lotter on DSK11XQN23PROD with RULES1
§ 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 Solicitor 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
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16:15 Sep 28, 2023
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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.
Approved: September 21, 2023.
Rebecca J. Osborne,
Federal Register Liaison, Federal Labor
Relations Authority.
[FR Doc. 2023–20909 Filed 9–28–23; 8:45 am]
BILLING CODE 7627–01–P
DEPARTMENT OF HOMELAND
SECURITY
8 CFR Part 217
RIN 1601–AA94
Designation of Israel for the Visa
Waiver Program
Office of the Secretary;
Department of Homeland Security
(DHS).
ACTION: Final rule; technical
amendment.
AGENCY:
Eligible citizens, nationals,
and passport holders from designated
Visa Waiver Program countries may
apply for admission to the United States
at U.S. ports of entry as nonimmigrant
noncitizens for a period of ninety days
or less for business or pleasure without
first obtaining a nonimmigrant visa,
provided that they are otherwise eligible
for admission under applicable statutory
and regulatory requirements. The
Secretary of Homeland Security, in
consultation with the Secretary of State,
has designated Israel as a country that
is eligible to participate in the Visa
Waiver Program. Accordingly, this rule
updates the list of countries designated
for participation in the Visa Waiver
Program by adding Israel.
DATES: This final rule is effective on
September 29, 2023. The Secretary’s
designation was effective on September
26, 2023. The designation will be
implemented on November 30, 2023.
FOR FURTHER INFORMATION CONTACT:
Anjum Agarwala, Department of
Homeland Security, Visa Waiver
Program Office, (202) 790–5207.
SUPPLEMENTARY INFORMATION:
SUMMARY:
PO 00000
Frm 00009
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67063
I. Background
A. The Visa Waiver Program
Pursuant to section 217 of the
Immigration and Nationality Act (INA),
8 U.S.C. 1187, the Secretary of
Homeland Security (the Secretary), in
consultation with the Secretary of State,
may designate certain countries as Visa
Waiver Program (VWP) countries 1 if
certain requirements are met. Those
requirements include: (1) a U.S.
Government determination that the
country meets the applicable statutory
requirement with respect to
nonimmigrant visitor visa refusals for
nationals of the country during the
previous full fiscal year; (2) a U.S.
Government determination that the
country extends or agrees to extend
reciprocal privileges to citizens and
nationals of the United States; (3) an
official certification that it issues
machine-readable, electronic passports
that comply with internationally
accepted standards; (4) a U.S.
Government determination that the
country’s designation would not
negatively affect U.S. law enforcement
and security interests; (5) an agreement
with the United States to report, or
make available through other designated
means, to the U.S. Government
information about the theft or loss of
passports; (6) a U.S. Government
determination that the government
accepts for repatriation any citizen,
former citizen, or national not later than
three weeks after the issuance of a final
executable order of removal; and (7) an
agreement with the United States to
share information regarding whether
citizens or nationals of the country
represent a threat to the security or
welfare of the United States or its
citizens.
The INA also sets forth requirements
for continued eligibility and, where
appropriate, probation and/or
termination of program countries.
Prior to this final rule, the designated
countries in the VWP were Andorra,
Australia, Austria, Belgium, Brunei,
Chile, Croatia, Czech Republic,
Denmark, Estonia, Finland, France,
Germany, Greece, Hungary, Iceland,
Ireland, Italy, Japan, Latvia,
Liechtenstein, Lithuania, Luxembourg,
1 All references to ‘‘country’’ or ‘‘countries’’ in the
laws authorizing the Visa Waiver Program are read
to include Taiwan. See Taiwan Relations Act of
1979, Public Law 96–8, section 4(b)(1) (codified at
22 U.S.C. 3303(b)(1)) (providing that ‘‘[w]henever
the laws of the United States refer or relate to
foreign countries, nations, states, governments, or
similar entities, such terms shall include and such
laws shall apply with respect to Taiwan’’). This is
consistent with the United States’ one-China policy,
under which the United States has maintained
unofficial relations with Taiwan since 1979.
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]]>Agencies
[Federal Register Volume 88, Number 188 (Friday, September 29, 2023)]
[Rules and Regulations]
[Pages 67058-67063]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-20909]
=======================================================================
-----------------------------------------------------------------------
FEDERAL LABOR RELATIONS AUTHORITY
5 CFR Part 2411
Availability of Official Information
AGENCY: Federal Labor Relations Authority.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Federal Labor Relations Authority (FLRA) amends its
regulations for processing records under the Freedom of Information Act
(FOIA). The amendments streamline and update procedures for requesting
information from the FLRA and procedures that the FLRA follows in
responding to requests from the public.
DATES: Effective September 29, 2023.
FOR FURTHER INFORMATION CONTACT: If you have any questions, please
contact Thomas Tso, Solicitor, Chief FOIA Officer, Federal Labor
Relations Authority, 1400 K Street NW, Washington, DC 20424; (771) 444-
5775.
SUPPLEMENTARY INFORMATION: To adapt to recent trends in FOIA requests
made to the FLRA, the amendments centralize and streamline its FOIA
request system. In addition to some minor non-substantive changes to
correct typographical errors, the FLRA consolidates responsibility
under the FOIA regulations for the FLRA's three-member Authority
component, the Office of General Counsel, and the Federal Service
Impasses Panel by transferring those responsibilities to the Solicitor
of the FLRA (``Solicitor'') as their FOIA representative. The Solicitor
serves as the agency's in-house counsel and typically as the agency's
Chief FOIA Officer. The FLRA revises the relevant regulations in order
to reflect the Solicitor's role as the representative of the Authority,
the General Counsel, and the Panel for FOIA matters.
Consistent with the Office of Management and Budget's 2020 Update
to the Uniform Freedom of Information Act Fee Schedule and Guidelines,
85 FR 81955 (Dec. 17, 2020), and the decision of the U.S. Court of
Appeals for the District of Columbia Circuit addressing the
``educational institution'' fee category, the revisions also clarify
the individuals who may qualify for reduced fees as an educational or
noncommercial scientific institution under 5 CFR 2411.13(c)(2). See
Sack v. Dept. of Defense, 823 F.3d 687, 693 (D.C. Cir. 2016) (``To be
clear, to qualify for reduced fees as an educational institution, the
requester--whether teacher or student--must seek the information in
connection with his or her role at the educational institution.'').
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 builds upon and
clarifies 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 these regulations, 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 67059]]
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 any communications with the agency, you
should be aware that your communications--including your personal
identifying information--may be made publicly available at any time.
While you can ask us in your communications 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 Federal Labor Relations
Authority amends 5 CFR part 2411 as follows:
PART 2411--AVAILABILITY OF OFFICIAL INFORMATION
0
1. The authority for part 2411 continues 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. Amend Sec. 2411.3 by revising paragraph (b) to read as follows:
Sec. 2411.3 Delegation of authority.
* * * * *
(b) Solicitor/IG. The Solicitor of the FLRA 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).
* * * * *
0
3. 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 FOIAXpress system or a written, facsimiled, or email
request (see FOIAXpress, office and email addresses listed at https://www.flra.gov/foia_contact) as follows:
(1) If the request is for records, documents, or other information
in the Authority, the Office of General Counsel, or the Panel, it
should be made to the Office of the Solicitor, Washington, DC;
(2) 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 Office of the
Solicitor or the IG, as appropriate.
0
4. Amend Sec. 2411.6 by revising paragraphs (a), (c) and (d) 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 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
the individual seeks and to receive assistance in describing the
records.
* * * * *
(c) Public logs. Upon receipt of a request for records, the
Solicitor 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 Solicitor or the IG, as
appropriate, 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 Solicitor 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 Solicitor or the IG, as appropriate, will typically
consult with that other entity prior to making a release determination.
(2) Referral. (i) When the Solicitor or the IG believes that a
different agency or component is best able to determine whether to
disclose the record, the Solicitor 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 Solicitor 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.
[[Page 67060]]
(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
Solicitor 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 Solicitor or the IG.
0
5. 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 Solicitor 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 Solicitor 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 Solicitor 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 Solicitor 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
6. Amend Sec. 2411.8 by revising paragraphs (a), (b), (c) introductory
text, (c)(4) and (5), (d) introductory text, and (d)(2) introductory
text to read as follows:
Sec. 2411.8 Time limits for processing requests.
(a) The 20-day period (excepting Saturdays, Sundays, and federal
public holidays), established in this section, shall commence on the
date on which the request is first received by the Solicitor or the IG,
but in any event not later than 10 days after the request is first
received by the FLRA component responsible for receiving FOIA requests
under part 2411. The 20-day period does not run when:
(1) the Solicitor or the IG makes one request to the requester for
information and is awaiting such information that it has reasonably
requested from the requester;
(2) it is necessary to clarify with the requester issues regarding
fee assessment; or
(3) the Solicitor's or the IG's s receipt of the requested
information or clarification triggers the commencement of the 20-day
period.
(b) A request for records shall be logged by the Solicitor 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 Solicitor 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.
* * * * *
(4) Whenever possible, subject to the provisions of paragraph (g)
of Sec. 2411.13, the response relating to a request for records that
involves a fee of less than $250.00 shall be accompanied by the
requested records. Where this is not possible, the records shall be
forwarded as soon as possible thereafter, consistent with other
obligations of the Solicitor or the IG.
(5) Search fees shall not be assessed to requesters (or duplication
fees in the case of an educational or noncommercial scientific
institution, whose purpose is scholarly or scientific research; or a
representative of the news media requester, as defined by Sec.
2411.13(a)(8)) under this subparagraph if an agency component fails to
comply with any of the deadlines in 5 U.S.C. 552(a)(4)(A), except as
provided in the following paragraphs (c)(5)(i) through (iii) below:
(i) If the Solicitor or the IG has determined that unusual
circumstances apply (as the term is defined in Sec. 2411.11(b)) and
the Solicitor 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
Solicitor or the IG fails to comply with the extended time limit, the
Solicitor 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 Solicitor or the IG determines that unusual
circumstances apply and more than 5,000 pages are necessary to respond
to the request, the Solicitor or the IG may charge search fees or, in
the case of requesters defined in Sec. 2411.13(6) through (8), may
charge duplication fees, if the following steps are taken. The
Solicitor 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 Solicitor 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:
* * * * *
(2) Using the tracking number, the requester can find, by calling
the Office of the Solicitor, emailing [email protected], or visiting
FOIAXPress (see telephone numbers and addresses at https://www.flra.gov/foia_contact), status information about the request
including:
* * * * *
0
7. Amend Sec. 2411.10 by revising paragraphs (a)(1), (a)(2)
introductory text, (a)(2)(ii), (b), and (c) 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 for records related to work performed by
the
[[Page 67061]]
Authority component of the FLRA, including the IG, the appeal shall be
filed with the Chairman of the Authority or the Chairman's designee in
Washington, DC.
(ii) If the denial was made for records related to work performed
by the Office of the General Counsel, the appeal shall be filed with
the General Counsel or the General Counsel's designee in Washington,
DC.
(iii) If the denial was made for records related to work performed
by the Panel, the appeal shall be filed with the Chairman of the Panel
or the Chairman's designee.
(2) The Chairman of the Authority, the General Counsel, or the
Chairman of the Panel, or their designees, as appropriate, shall,
within 20 working days (excepting Saturdays, Sundays, and federal
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.
* * * * *
(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 Solicitor 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, or their designees, 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 National Archives, Office of Government Information
Services (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, or their designees, 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.
* * * * *
0
8. Revise Sec. 2411.12 to read as follows:
Sec. 2411.12 Effect of failure to meet time limits.
Failure by the Solicitor 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
9. Amend Sec. 2411.13 by revising paragraphs (a) introductory text,
(a)(1), (a)(2), (a)(5), paragraph (b) heading, (b)(1), (b)(2), (b)(3),
(b)(4)(i), (b)(4)(ii) introductory text, (b)(4)(ii)(D), (b)(4)(iii)
introductory text, (b)(4)(iii)(B), (b)(4)(iv), (b)(4)(v), (c)
introductory text, (c)(2), (c)(3), (c)(4), (d) introductory text,
(d)(1), (d)(4), (e), (f), (g), (h), and (j) to read as follows:
Sec. 2411.13 Fees.
(a) Definitions. For the purpose of this section:
(1) The term direct costs means those expenditures that the
Solicitor 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.
(2) The term search includes all time spent looking for material
that is responsive to a request, including page-by-page or line-by-line
identification of material within documents as well as all reasonable
efforts to locate and retrieve information from records maintained in
electronic form or format. Searches may be done manually or by computer
using existing programming. The Solicitor or the IG shall ensure that
searches are done in the most efficient and least expensive manner
reasonably possible. For example, if duplicating an entire document
would be quicker and less expensive, a line-by-line search should not
be done.
* * * * *
(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 Solicitor or the IG
will look first to the use to which a requester will put the document
requested. Where the Solicitor 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 Solicitor or the IG may
seek additional clarification before assigning the request to a
specific category.
* * * * *
(b) Exceptions to fee charges. (1) With the exception of requesters
seeking documents for a commercial use, the Solicitor 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 Solicitor 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 Solicitor 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 Solicitor 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 Solicitor 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
[[Page 67062]]
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 Solicitor or the IG, as
appropriate, will consider the following factors:
* * * * *
(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 Solicitor or the IG, as appropriate, 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 Solicitor or the IG, as appropriate, will consider
the following factors:
* * * * *
(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 Solicitor or the IG, as
appropriate, 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
Solicitor or the IG.
(v) Requests for a waiver or reduction of fees should be made when
the request is first submitted to the Solicitor 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.
* * * * *
(c) Level of fees to be charged. The level of fees to be charged by
the Solicitor or the IG, in accordance with the schedule set forth in
paragraph (d) of this section, depends on the category of the
requester. The fee levels to be charged are as follows:
* * * * *
(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--whether faculty, staff, or
students--must show that the request is being made in connection with
their role at the 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 Solicitor 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 Solicitor 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, Office of 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) The following fees shall be charged in accordance with
paragraph (c) of this section:
(1) Manual searches for records. The salary rate (i.e., basic pay
plus 16 percent) of the employee(s) making the search. Search time
under this paragraph and paragraph (d)(2) of this section may be
charged for even if the Solicitor or the IG fails to locate records or
if records located are determined to be exempt from disclosure.
* * * * *
(4) Duplication of records. Twenty-five cents per page for paper-
copy duplication of documents, which the Solicitor or the IG has
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 Solicitor 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 Solicitor or the IG will
charge the direct costs, including operator time.
* * * * *
(e) Aggregating requests. When the Solicitor 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 Solicitor 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 day following the billing date. Receipt of a fee
by the Solicitor or the IG, whether processed or not, will stay the
accrual of interest.
(g) Advance payments. The Solicitor 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 Solicitor 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 Solicitor 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 Solicitor 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 Solicitor 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
[[Page 67063]]
requester provide proof of identity. When the Solicitor 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 Solicitor 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 Solicitor 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, the Solicitor 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 Solicitor or the IG will inform the requester of the contact
information for that program.
0
10. Revise Sec. 2411.114 to read as follows.
Sec. 2411.14 Record retention and preservation.
The Solicitor 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
11. 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 Solicitor 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.
Approved: September 21, 2023.
Rebecca J. Osborne,
Federal Register Liaison, Federal Labor Relations Authority.
[FR Doc. 2023-20909 Filed 9-28-23; 8:45 am]
BILLING CODE 7627-01-P
