[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]


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FEDERAL LABOR RELATIONS AUTHORITY

5 CFR Part 2411


Availability of Official Information

AGENCY: Federal Labor Relations Authority.

ACTION: Final rule.

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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