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Rules and Regulations Federal Register

50673 

Vol. 74, No. 189 

Thursday, October 1, 2009 

FEDERAL LABOR RELATIONS 

AUTHORITY 

5 CFR Part 2411 

Availability of Official Information 

AGENCY: Federal Labor Relations 

Authority. 

ACTION: Final rule. 

SUMMARY: This final rule amends the 

Federal Labor Relations Authority’s 

(Authority) regulations implementing 

the Freedom of Information Act, as 

amended. The final rule adds provisions 

to the regulations for compliance with 

the OPEN Government Act of 2007, and 

the Electronic Freedom of Information 

Act Amendments of 1996. The final rule 

amends the regulations to reflect 

changes required by Executive Order 

12600 and Executive Order 13392. The 

final rules also update the regulations to 

reflect changes in the Authority’s 

policies and procedures. As a result of 

these amendments to the regulations, 

the public will have a clearer 

understanding of the Authority’s 

policies and procedures implementing 

the FOIA. 

DATES: This final rule is effective 

October 1, 2009. 

FOR FURTHER INFORMATION CONTACT: Rosa 

M. Koppel, Solicitor, via telephone: 

(202) 218–7999, or via e-mail: 

rkoppel@flra.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

The comprehensive revisions that the 

Authority is making to part 2411 

include changes to the language and 

structure of the regulations. Provisions 

have been revised, added, and/or in 

some cases, reorganized in order to 

clarify how the Authority implements 

the procedural requirements of the 

FOIA. The revisions are not intended to 

change any rights under the FOIA. 

The revisions are intended to achieve 

compliance with the OPEN Government 

Act of 2007, Public Law 110–175, 121 

Stat. 2524, and Executive Order 13392, 

70 FR 75371–75371 (Dec. 9, 2005). 

Provisions which relate to 

implementation of the OPEN 

Government Act are as follows—(1) 

§ 2411.4(b)(1) (identification of deleted 

information); (2) § 2411.8(a) (setting 

forth criteria for when the time period 

for processing requests begins to run 

and when that time period may be 

suspended or tolled); (3) §§ 2411.8(c)(5) 

and 2411.13(b)(3) (address waiver of 

fees when time limits for complying 

with FOIA requests are not met); and (4) 

§ 2411.8(d) (assigns individual tracking 

numbers to requests requiring more than 

ten days to process and provides phone 

number/Web site address to inquire 

about status). 

The OPEN Government Act and EO 

13392 establish and set forth duties and 

responsibilities for the Chief FOIA 

Officer and the FOIA Public Liaison(s). 

The provisions of the regulations 

pertaining to these duties and 

responsibilities are found at: (1) 

§ 2411.3(a) and (c) (delegation of FOIArelated duties to Chief FOIA Officer and 

designation of FOIA Public Liaison(s)); 

(2) § 2411.4(b)(1) (identification of 

deleted information); (3) §§ 2411.8(c)(5) 

and 2411.13(b)(3) (waives certain 

processing fees when time limits are not 

met for processing FOIA requests); (4) 

§ 2411.11(a) (to aid in meeting time 

limits the FOIA Public Liaison(s) are 

given responsibility to resolve disputes 

between requesters and the agency as to 

the scope of requests or modification of 

time limits); and (5) § 2411.13(a)(8) 

(adds definition of ‘‘representative of 

the news media’’). 

The regulations also contain new 

provisions to explicitly implement 

Executive Order 12600, 52 FR 23781 

(June 23, 1987), 3 CFR 235 (1987 Comp.) 

and the Electronic Freedom of 

Information Act Amendments of 1996, 

Public Law 104–231, 110 Stat. 3048 (E– 

FOIA). The Authority has been 

operating in compliance with these 

provisions of law, and based on its 

experience is now updating its 

regulations to reflect this compliance. A 

new section implementing Executive 

Order 12600’s procedural structure for 

notifying those who submit business 

information to the government when 

that information becomes the subject of 

a FOIA request can be found at § 2411.9. 

New provisions implementing the E– 

FOIA can be found at: (1) § 2411.2(a) 

(includes electronic formats within the 

meaning of the term ‘‘record’’); (2) 

§ 2411.4(a)(iv) (requires that records that 

‘‘have become or are likely to become 

the subject of subsequent requests for 

substantially the same records’’ be 

included in FOIA reading room); (3) 

§ 2411.4(a)(v) (requires general index of 

records be included in FOIA reading 

room); (4) § 2411.4(b)(2) (establishment 

of electronic reading room); (5) § 2411.7 

(format of disclosure); (6) § 2411.13(a)(2) 

(searches for records in electronic form 

or format); and (7) § 2411.15 

(modification of deadline for 

submission of Annual Report and 

requirement that it shall be available in 

electronic format). 

Further, the revisions are intended as 

a routine updating of the Authority’s 

procedures—to streamline the existing 

procedures based on experience, to 

reflect certain changes in the procedural 

requirements of the FOIA since the 

previous regulations issued, and to 

make the Authority’s procedures easier 

for the public to understand. Provisions 

that implement these goals can be found 

at: (1) § 2411.2 (adds a new section 

clarifying that the regulations’ scope 

includes information in electronic 

formats and the relation of the 

regulations to the Privacy Act 

regulations in part 2412); (2) § 2411.4 (a) 

and (b) (merging paragraph (b) of 

§ 2411.4 into paragraph (a) of § 2411.4 

so that the policies of all three FLRA 

components are addressed in one 

paragraph); (3) § 2411.4(d) (eliminating 

explanatory discussion of specific FOIA 

exemptions from mandatory 

disclosures); (4) § 2411.4(f)(1) and (2) 

(providing Web site addresses to obtain 

copies of agency forms); (5) § 2411.5(b) 

(request is considered an agreement to 

pay all applicable fees, up to $25.00, 

unless a waiver is sought); (6) 

§ 2411.6(b) (adding language to give 

requester the opportunity to discuss/ 

clarify request so that it may be 

modified, if necessary, to meet 

regulatory requirements); (7) § 2411.8(b) 

(moving language from § 2411.13(c)(4) 

to set forth earlier the objective that 

requesters reasonably describe records 

sought); (8) § 2411.10(a)(2) (adding 

language to explain how to calculate the 

twenty-day period for responding to 

appeal); (9) § 2411.10(a)(2)(i) and 

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(b)(2)(i) (providing consistency with 

other sections regarding the cut-off 

amount at which fees ($250 and above) 

will be requested in advance of 

information production); (10) 

§ 2411.10(a)(2)(ii) and (b)(2)(ii) 

(providing for information production 

before payment of fees below $250 if no 

history of failure to pay fees on time); 

(11) § 2411.13(a)(2) (adding language to 

inform requesters that searches will be 

conducted in the most efficient and 

least expensive manner reasonably 

possible); (12) § 2411.13(b)(4)(ii)(A) thru 

(D) (adding language to set forth more 

clearly the factors to be considered in 

determining when fees should be 

waived because a disclosure is in the 

‘‘public interest’’); (13) 

§ 2411.13(b)(4)(iii)(A) and (B) (adding 

language clarifying when a requester’s 

interest is ‘‘primarily commercial’’); (14) 

§ 2411.13(b)(4)(v) (adding language to 

clarify when partial fees will be 

assessed); (15) § 2411.13(h) (adding 

language related to handling requests by 

other than a party to a proceeding before 

the agency for a copy of a transcript, 

diskette, or other recordation of the 

proceeding); and (16) § 2411.14 

(providing information on record 

retention and preservation). 

The Authority has added language 

relating to the role of the Inspector 

General throughout the regulation (i.e., 

purpose (§ 2411.1), scope (§ 2411.2), 

information policy (§ 2411.4), 

procedures for obtaining information 

(§ 2411.5)), when requests for 

information relate to records, 

documents, or other information of the 

Inspector General for the Authority. 

Finally, the Authority has deleted 

former § 2411.11 and replaced it with a 

new part 2417. See 74 FR 11634 (March 

14, 2009). 

II. Response to Comment and Revisions 

Included in Final Rule 

On July 22, 2009, the Authority 

published a proposed rule with request 

for comments that proposed to amend 5 

CFR, chapter XIV, part 2411 (74 FR 

36121). The FLRA received no 

comments during the 30 days allowed 

for public comment, but received one 

set of comments after the close of the 

comment period on August 21, 2009. 

This set of comments, from the National 

Security Archive, is discussed below. 

Comment 1: Amend proposed 

§ 2411.5(a) to clarify that agency 

subcomponents will accept facsimiled 

requests as well as written and e-mail 

requests. 

The Authority agrees with this 

comment and amends proposed 

§ 2411.5(a) to provide for the acceptance 

of facsimiled requests. 

Comment 2: Amend proposed 

§ 2411.5(b) to eliminate the requirement 

that requests include an explicit 

statement accepting financial liability 

for the direct costs of processing the 

request, and encourage requesters to 

state their fee category. 

The Authority agrees with this 

comment in part and amends proposed 

§ 2411.5(b) to provide that each request 

will be considered an agreement to pay 

all applicable fees charged under 

§ 2411.13, up to $25.00, unless a 

requesters seeks a waiver of fees. 

However, the Authority sees no need to 

add a statement encouraging requesters 

to state their fee category inasmuch as 

the relevance of fee categories is 

adequately addressed in § 2411.13. 

Comment 3: Amend proposed 

§ 2411.6 to clarify that Authority 

personnel are required to provide 

requesters with assistance in 

reformulating requests that 

insufficiently describe the record 

sought. The commenter explains that, as 

drafted, § 2411.6(b) requires that a 

requester be given an opportunity to 

modify a request that does not 

‘‘reasonably describe’’ the records 

sought whereas § 2411.6(a) could be 

read to state that this opportunity may, 

or may not, be granted. 

The Authority agrees with the 

comment and modifies paragraphs (a) 

and (b) of § 2411.6 to clarify that a 

requester will be given an opportunity 

to modify a request that does not 

‘‘reasonably describe’’ the records 

sought. 

Comment 4: Amend proposed 

§ 2411.8(c)(5) to clarify that applicable 

fees will not be charged for partial 

determinations when the remainder of 

the request is pending beyond FOIA’s 

20 day statutory time limit, unless 

‘‘unusual or exceptional circumstances’’ 

exist, as defined in § 2411.11(b). 

The Authority agrees with this 

comment and modifies proposed 

§ 2411.8(c)(5) to clarify that the 

Authority, absent unusual or 

exceptional circumstances, will not 

assess search fees if an agency 

component fails to make a final 

determination with respect to disclosure 

of all of the records requested within the 

20-day period set out in § 2411.8(a). 

List of Subjects in 5 CFR Part 2411 

Freedom of Information Act. 

■ For the reasons stated in the preamble, 

the Authority revises 5 CFR part 2411 to 

read as follows: 

PART 2411—AVAILABILITY OF 

OFFICIAL INFORMATION 

Sec. 

2411.1 Purpose. 

2411.2 Scope. 

2411.3 Delegation of authority. 

2411.4 Information policy. 

2411.5 Procedure for obtaining information. 

2411.6 Identification of information 

requested. 

2411.7 Format of disclosure. 

2411.8 Time limits for processing requests. 

2411.9 Business information. 

2411.10 Appeal from denial of request. 

2411.11 Modification of time limits. 

2411.12 Effect of failure to meet time limits. 

2411.13 Fees. 

2411.14 Record retention and preservation. 

2411.15 Annual report. 

Authority: 5 U.S.C. 552, as amended and 

OPEN Government Act of 2007, Pub. L. 110– 

175, 121 Stat. 2524; E.O. 13392 (Dec. 14, 

2005); and E.O. 12600 (June 23, 1987). 

§ 2411 Purpose. 

This part contains the regulations of 

the Federal Labor Relations Authority 

(Authority), the General Counsel of the 

Federal Labor Relations Authority 

(General Counsel), the Federal Service 

Impasses Panel (Panel) and the 

Inspector General of the Federal Labor 

Relations Authority (IG) providing for 

public access to information from the 

Authority, the General Counsel, the 

Panel or the IG. These regulations 

implement the Freedom of Information 

Act, as amended, 5 U.S.C. 552, and the 

policy of the Authority, the General 

Counsel, the Panel and the IG to 

disseminate information on matters of 

interest to the public and to disclose to 

members of the public on request such 

information contained in records insofar 

as is compatible with the discharge of 

their responsibilities, consistent with 

applicable law. 

§ 2411.2 Scope. 

(a) For the purpose of this part, the 

term record and any other term used in 

reference to information includes any 

information that would be subject to the 

requirements of 5 U.S.C. 552 when 

maintained by the Authority, the 

General Counsel, the Panel or the IG in 

any format including an electronic 

format. All written requests for 

information from the public that are not 

processed under part 2412 of this 

chapter will be processed under this 

part. The Authority, the General 

Counsel, the Panel and the IG may 

continue, regardless of this part, to 

furnish the public with the information 

it has furnished in the regular course of 

performing its official duties, unless 

furnishing the information would 

violate the Privacy Act of 1974, 5 U.S.C. 

552a, or another law. 

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(b) When the subject of a record, or 

the subject’s representative, requests the 

record from a Privacy Act system of 

records, as that term is defined by 5 

U.S.C. 552a(a)(5), and the Authority 

retrieves the record by the subject’s 

name or other personal identifier, the 

Authority will handle the request under 

the procedures and subject to the fees 

set out in part 2412. When a third party 

requests access to those records, without 

the written consent of the subject of the 

record, the Authority will process the 

request under this part. 

(c) Nothing in 5 U.S.C. 552 or this part 

requires that the Authority, the General 

Counsel, the Panel or the IG, as 

appropriate, create a new record in 

order to respond to a request for the 

records. 

§ 2411.3 Delegation of authority. 

(a) Chief FOIA Officer. The Chairman 

of the Federal Labor Relations Authority 

designates the Chief FOIA Officer who 

has agency-wide responsibility for the 

efficient and appropriate compliance 

with the FOIA. The Chief FOIA Officer 

monitors the implementation of the 

FOIA throughout the agency. 

(b) Authority/General Counsel/Panel/ 

IG. Regional Directors of the Authority, 

the Freedom of Information Officer of 

the Office of the General Counsel, 

Washington, DC, the Solicitor of the 

Authority, the Executive Director of the 

Panel and the IG are delegated the 

exclusive authority to act upon all 

requests for information, documents and 

records which are received from any 

person or organization under § 2411.5(a) 

and (b). 

(c) FOIA Public Liaison(s). The Chief 

FOIA Officer shall designate the FOIA 

Public Liaison(s), who shall serve as the 

supervisory official(s) to whom a FOIA 

requester can raise concerns about the 

service the FOIA requester has received 

following an initial response. 

§ 2411.4 Information policy. 

(a) Authority/General Counsel/Panel/ 

IG. (1) It is the policy of the Authority, 

the General Counsel, the Panel and IG 

to make available for public inspection 

and copying (unless they are published 

and copies are offered for sale): 

(i) Final decisions and orders of the 

Authority and administrative rulings of 

the General Counsel; and procedural 

determinations, final decisions and 

orders of the Panel; and factfinding and 

arbitration reports; and reports and 

executive summaries of the IG; 

(ii) Statements of policy and 

interpretations which have been 

adopted by the Authority, the General 

Counsel, the Panel or the IG and are not 

published in the Federal Register; 

(iii) Administrative staff manuals and 

instructions to staff that affect a member 

of the public (except those establishing 

internal operating rules, guidelines, and 

procedures for the investigation, trial, 

and settlement of cases); 

(iv) Copies of all records, regardless of 

form or format, which have been 

released to any person under 5 U.S.C. 

552(a)(3) and which, because of the 

nature of their subject matter, the 

Authority, the General Counsel, the 

Panel or the IG determines have become 

or are likely to become the subject of 

subsequent requests for substantially the 

same records; and 

(v) A general index of the records 

referred to in paragraphs (a)(1)(i) 

through (iv) of this section. 

(2) It is the policy of the Authority, 

the General Counsel, the Panel and the 

IG to make promptly available for public 

inspection and copying, upon request 

by any person, other records where the 

request reasonably describes such 

records and otherwise conforms to the 

procedures of this part. 

(b) Records Availability. (1) Any 

person may examine and copy items in 

paragraphs (a)(1)(i) through (iv) of this 

section, at each regional office of the 

Authority and at the offices of the 

Authority, the General Counsel, the 

Panel and the IG, respectively, in 

Washington, DC, under conditions 

prescribed by the Authority, the General 

Counsel, the Panel and the IG, 

respectively, and at reasonable times 

during normal working hours so long as 

it does not interfere with the efficient 

operations of the Authority, the General 

Counsel, the Panel and the IG. To the 

extent required to prevent a clearly 

unwarranted invasion of personal 

privacy, identifying details may be 

deleted and, in each case, the 

justification for the deletion shall be 

fully explained in writing. On the 

released portion of the record, the 

amount of information deleted, and the 

exemption under which the deletion is 

made, shall be indicated unless an 

interest protected by the exemption 

would be harmed. 

(2) All records covered by this section 

are available through the Internet/World 

Wide-Web site (http://www.flra.gov/ 

foia/reading_room.html). The Web site 

containing these records may also be 

accessed from a computer terminal 

located in the library at FLRA 

headquarters at 1400 K Street, NW., 

Washington, DC. Requests to use this 

terminal to access the FLRA’s electronic 

Reading Room should be submitted to 

the FLRA’s Office of the Solicitor (mail: 

Office of the Solicitor, FLRA, 1400 K 

Street, NW., Washington, DC 20424; 

telephone: 202–218–7770; e-mail: 

solmail@flra.gov); or from computer 

terminals located in the FLRA regional 

offices. A listing of these offices, 

including appropriate information for 

requesting the use of the terminal, is 

provided at http://www.flra.gov/foia/ 

contacts.html. 

(c) The Authority, the General 

Counsel, the Panel and the IG shall 

maintain and make available for public 

inspection and copying the current 

indexes and supplements to the records 

which are required by 5 U.S.C. 552(a)(2) 

and, as appropriate, a record of the final 

votes of each member of the Authority 

and of the Panel in every agency 

proceeding. Any person may examine 

and copy such document or record of 

the Authority, the General Counsel, the 

Panel or the IG at the offices of either 

the Authority, the General Counsel, the 

Panel or the IG, as appropriate, in 

Washington, DC, under conditions 

prescribed by the Authority, the General 

Counsel, the Panel or the IG at 

reasonable times during normal working 

hours so long as it does not interfere 

with the efficient operations of either 

the Authority, the General Counsel, the 

Panel or the IG. 

(d) All agency records, except those 

exempt from mandatory disclosure by 

one or more provisions of 5 U.S.C. 

552(b), will be made promptly available 

to any person submitting a written 

request in accordance with the 

procedures of this part. 

(e)(1) The formal documents 

constituting the record in a case or 

proceeding are matters of official record 

and, until destroyed pursuant to 

applicable statutory authority, are 

available to the public for inspection 

and copying at the appropriate regional 

office of the Authority, or the offices of 

the Authority, the General Counsel, the 

Panel or the IG in Washington, DC, as 

appropriate, under conditions 

prescribed by the Authority, the General 

Counsel or the Panel at reasonable times 

during normal working hours so long as 

it does not interfere with the efficient 

operations of the Authority, the General 

Counsel, the Panel, or the IG. 

(2) The Authority, the General 

Counsel, the Panel or the IG, as 

appropriate, shall certify copies of the 

formal documents upon request made a 

reasonable time in advance of need and 

payment of lawfully prescribed costs. 

(f)(1) Copies of forms prescribed by 

the General Counsel for the filing of 

charges and petitions may be obtained 

without charge from any regional office 

of the Authority or on the Authority’s 

Web site at: http://www.flra.gov/forms/ 

forms.html#gc. 

(2) Copies of forms prescribed by the 

Panel for the filing of requests may be 

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obtained without charge from the 

Panel’s offices in Washington, DC or on 

the Authority’s Web site at: http:// 

www.flra.gov/forms/flra_14.pdf. 

§ 2411.5 Procedure for obtaining 

information. 

(a) Authority/General Counsel/Panel/ 

IG. Any person who desires to inspect 

or copy any records, documents or other 

information of the Authority, the 

General Counsel, the Panel or the IG, 

covered by this part, other than those 

specified in paragraphs (a)(1) and (c) of 

§ 2411.4, shall submit a written, 

facsimiled, or e-mail request (see office 

and e-mail addresses listed at http:// 

www.flra.gov/foia/contacts.html) to that 

effect as follows: 

(1) If the request is for records, 

documents or other information in a 

regional office of the Authority, it 

should be made to the appropriate 

Regional Director; 

(2) If the request is for records, 

documents or other information in the 

Office of the General Counsel and 

located in Washington, DC, it should be 

made to the Freedom of Information 

Officer, Office of the General Counsel, 

Washington, DC; 

(3) If the request is for records, 

documents or other information in the 

offices of the Authority in Washington, 

DC, it should be made to the Solicitor 

of the Authority, Washington, DC; 

(4) If the request is for records, 

documents or other information in the 

offices of the Panel in Washington, DC, 

it should be made to the Executive 

Director, Federal Service Impasses 

Panel, Washington, DC; and 

(5) If the request is for records, 

documents or other information in the 

offices of the IG in Washington, DC, it 

should be made to the Inspector 

General, Washington, DC. 

(b) Each request under this part 

should be clearly and prominently 

identified as a request for information 

under the Freedom of Information Act 

and, if submitted by mail or otherwise 

submitted in an envelope or other cover, 

should be clearly identified as such on 

the envelope or other cover. 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. The component responsible for 

responding to the request ordinarily will 

confirm this agreement in an 

acknowledgment letter. 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 

duplicating, as appropriate, in 

accordance with § 2411.13. If a request 

does not comply with the provisions of 

this paragraph, it shall not be deemed 

received by the appropriate Regional 

Director, the Freedom of Information 

Officer of the General Counsel, the 

Solicitor of the Authority, the Executive 

Director of the Panel, or the IG, as 

appropriate. A list of the office and email addresses is in Appendix A to 5 

CFR Chapter XIV and on the Federal 

Labor Relations Authority’s World Wide 

Web site at http://www.flra.gov/foia/ 

contacts.html. 

§ 2411.6 Identification of information 

requested. 

(a) Each request under this part shall 

reasonably describe the records being 

sought in a way that they can be 

identified and located. A request shall 

be legible and include all pertinent 

details that will help identify the 

records sought. 

(b) If the description does not meet 

the requirements of paragraph (a) of this 

section, the officer processing the 

request shall so notify the person 

making the request and indicate the 

additional information needed. Every 

reasonable effort shall be made to assist 

in the identification and location of the 

record sought. 

(c) Upon receipt of a request for 

records, the appropriate Regional 

Director, the Freedom of Information 

Officer of the General Counsel, the 

Solicitor of the Authority, the Executive 

Director of the Panel, or the IG, as 

appropriate, shall enter it in a public 

log. The log shall state the date and time 

received, the name and address of the 

person making the request, the nature of 

the records requested, the action taken 

on the request, the date of the 

determination letter sent pursuant to 

paragraphs (b) and (c) of § 2411.8, the 

date(s) any records are subsequently 

furnished, the number of staff-hours and 

grade levels of persons who spent time 

responding to the request, and the 

payment requested and received. 

§ 2411.7 Format of disclosure. 

(a) After a determination has been 

made to grant a request in whole or in 

part, the appropriate Regional Director, 

the Freedom of Information Officer of 

the General Counsel, the Solicitor of the 

Authority, the Executive Director of the 

Panel or the IG, as appropriate, will 

notify the requester in writing. The 

notice will describe the manner in 

which the record will be disclosed. The 

appropriate Regional Director, the 

Freedom of Information Officer of the 

General Counsel, the Solicitor of the 

Authority, the Executive Director of the 

Panel or the IG, as appropriate, will 

provide the record in the form or format 

requested if the record is readily 

reproducible in that form or format, 

provided the requester has agreed to pay 

and/or has paid any fees required by 

§ 2411.13 of this part. The appropriate 

Regional Director, the Freedom of 

Information Officer of the General 

Counsel, the Solicitor of the Authority, 

the Executive Director of the Panel, or 

the IG, as appropriate, will determine on 

a case-by-case basis what constitutes a 

readily reproducible format. These 

offices will make a reasonable effort to 

maintain their records in commonly 

reproducible forms or formats. 

(b) Alternatively, the appropriate 

Regional Director, the Freedom of 

Information Officer of the General 

Counsel, the Solicitor of the Authority, 

the Executive Director of the Panel, or 

the IG, as appropriate, may make a copy 

of the releasable portions of the record 

available to the requester for inspection 

at a reasonable time and place. The 

procedure for such an inspection will 

not unreasonably disrupt the operations 

of the office. 

§ 2411.8 Time limits for processing 

requests. 

(a) The 20-day period (excepting 

Saturdays, Sundays, and legal public 

holidays), established in this section, 

shall commence on the date on which 

the request is first received by the 

appropriate component of the agency 

(Regional Director, the Freedom of 

Information Officer of the Office of the 

General Counsel, the Solicitor of the 

Authority, the Executive Director of the 

Panel, or the IG of the Authority), but in 

any event not later than ten days after 

the request is first received by any 

Authority component responsible for 

receiving FOIA requests under part 

2411. The 20-day period does not run 

when— 

(1) The agency component makes one 

request to the requester for information 

and is awaiting such information that it 

has reasonably requested from the 

requester; or 

(2) It is necessary to clarify with the 

requester issues regarding fee 

assessment. 

(3) The agency component’s receipt of 

the requested information or 

clarification triggers the commencement 

of the 20-day period. 

(b) A request for records shall be 

logged in by the appropriate Regional 

Director, the Freedom of Information 

Officer of the General Counsel, the 

Solicitor of the Authority, the Executive 

Director of the Panel or the IG, as 

appropriate, pursuant to § 2411.6(c). All 

requesters must reasonably describe the 

records sought. An oral request for 

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records shall not begin any time 

requirement. A written request for 

records sent to other than the 

appropriate officer will be forwarded to 

that officer by the receiving officer, but 

in that event the applicable time limit 

for response shall begin as set forth in 

paragraph (a) of this section. 

(c) Except as provided in § 2411.11, 

the appropriate Regional Director, the 

Freedom of Information Officer of the 

General Counsel, the Solicitor of the 

Authority, the Executive Director of the 

Panel, or the IG, as appropriate, shall, 

within twenty (20) working days 

following receipt of the request, as 

provided by paragraph (a) of this 

section, respond in writing to the 

requester, determining whether, or the 

extent to which, the request shall be 

complied with. 

(1) If all the records requested have 

been located and a final determination 

has been made with respect to 

disclosure of all of the records 

requested, the response shall so state. 

(2) If all of the records have not been 

located or a final determination has not 

been made with respect to disclosure of 

all the records requested, the response 

shall state the extent to which the 

records involved shall be disclosed 

pursuant to the rules established in this 

part. 

(3) If the request is expected to 

involve allowed charges in excess of 

$250.00, the response shall specify or 

estimate the fee involved and shall 

require prepayment of any charges in 

accordance with the provisions of 

paragraph (g) of § 2411.13 before the 

request is processed further. 

(4) Whenever possible, subject to the 

provisions of paragraph (g) of § 2411.13, 

the response relating to a request for 

records that involves a fee of less than 

$250.00 shall be accompanied by the 

requested records. Where this is not 

possible, the records shall be forwarded 

as soon as possible thereafter, consistent 

with other obligations of the Authority, 

the General Counsel, the Panel, or the 

IG. 

(5) Search fees shall not be assessed 

requesters (or duplication fees in the 

case of an educational or 

noncommercial scientific institution, 

whose purpose is scholarly or scientific 

research; or a representative of the news 

media requester, as defined by 

§ 2411.13(a)(8)), under this 

subparagraph if an agency component 

fails to make a final determination with 

respect to disclosure of all records 

requested as described under 

subparagraph (c)(1) of this section 

within any time limit under paragraph 

(a) of this section, if no unusual or 

exceptional circumstances (as those 

terms are defined for purposes of 

§ 2411.11(a)) apply to the processing of 

the request. 

(d) If a request will take longer than 

ten days to process: 

(1) An individualized tracking 

number will be assigned to the request 

and provided to the requester; and 

(2) Using the tracking number, the 

requester can find, by calling (202) 218– 

7770 or linking to http://www.flra.gov/ 

foia/foia_main.html, status information 

about the request including: 

(i) The date on which the agency 

originally received the request; and 

(ii) An estimated date on which the 

agency will complete action on the 

request. 

(e) If any request for records is denied 

in whole or in part, the response 

required by paragraph (c) of this section 

shall notify the requester of the denial. 

Such denial shall specify the reason 

therefore, set forth the name and title or 

position of the person responsible for 

the denial, and notify the person making 

the request of the right to appeal the 

denial under the provisions of 

§ 2411.10. 

§ 2411.9 Business information. 

(a) In general. Business information 

obtained by the Authority from a 

submitter will be disclosed under the 

FOIA only under this section. 

(b) Definitions. For purposes of this 

section: 

(1) Business information means 

commercial or financial information 

obtained by the Authority from a 

submitter that may be protected from 

disclosure under Exemption 4 of the 

FOIA. 

(2) Submitter means any person or 

entity from whom the Authority obtains 

business information, directly or 

indirectly. The term includes 

corporations; State, local, and Tribal 

governments; and foreign governments. 

(c) Designation of business 

information. A submitter of business 

information will use good-faith efforts to 

designate, by appropriate markings, 

either at the time of submission or at a 

reasonable time thereafter, any portions 

of its submission that it considers to be 

protected from disclosure under 

Exemption 4. These designations will 

expire ten years after the date of the 

submission unless the submitter 

requests, and provides justification for, 

a longer designation period. 

(d) Notice to submitters. The 

Authority shall provide a submitter with 

prompt written notice of a FOIA request 

or administrative appeal that seeks its 

business information wherever required 

under paragraph (e) of this section, 

except as provided in paragraph (h) of 

this section, in order to give the 

submitter an opportunity to object to 

disclosure of any specified portion of 

that information under paragraph (f) of 

this section. The notice shall either 

describe the business information 

requested or include copies of the 

requested records or record portions 

containing the information. When 

notification of a voluminous number of 

submitters is required, notification may 

be made by posting or publishing the 

notice in a place reasonably likely to 

accomplish it. 

(e) Where notice is required. Notice 

shall be given to a submitter wherever: 

(1) The information has been 

designated in good faith by the 

submitter as information considered 

protected from disclosure under 

Exemption 4; or 

(2) The Authority has reason to 

believe that the information may be 

protected from disclosure under 

Exemption 4. 

(f) Opportunity to object to disclosure. 

The Authority will allow a submitter a 

reasonable time to respond to the notice 

described in paragraph (d) of this 

section and will specify that time period 

within the notice. If a submitter has any 

objection to disclosure, it is required to 

submit a detailed written statement. The 

statement must specify all grounds for 

withholding any portion of the 

information under any exemption of the 

FOIA and, in the case of Exemption 4, 

it must show why the information is a 

trade secret or commercial or financial 

information that is privileged or 

confidential. In the event that a 

submitter fails to respond to the notice 

within the time specified in it, the 

submitter will be considered to have no 

objection to disclosure of the 

information. Information provided by 

the submitter that is not received by the 

Authority until after its disclosure 

decision has been made shall not be 

considered by the Authority. 

Information provided by a submitter 

under this paragraph may itself be 

subject to disclosure under the FOIA. 

(g) Notice of intent to disclose. The 

Authority shall consider a submitter’s 

objections and specific grounds for 

nondisclosure in deciding whether to 

disclose business information. 

Whenever the Authority decides to 

disclose business information over the 

objection of a submitter, the Authority 

shall give the submitter written notice, 

which shall include: 

(1) A statement of the reason(s) why 

each of the submitter’s disclosure 

objections were not sustained; 

(2) A description of the business 

information to be disclosed; and 

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(3) A specified disclosure date, which 

shall be a reasonable time subsequent to 

the notice. 

(h) Exceptions to notice requirements. 

The notice requirements of paragraphs 

(d) and (g) of this section shall not apply 

if: 

(1) The Authority determines that the 

information should not be disclosed; 

(2) The information lawfully has been 

published or has been officially made 

available to the public; 

(3) Disclosure of the information is 

required by statute (other than the 

FOIA) or by a regulation issued in 

accordance with the requirements of 

Executive Order 12600 (3 CFR, 1988 

Comp., p. 235); or 

(4) The designation made by the 

submitter under paragraph (c) of this 

section appears obviously frivolous— 

except that, in such a case, the 

Authority shall, within a reasonable 

time prior to a specified disclosure date, 

give the submitter written notice of any 

final decision to disclose the 

information. 

(i) Notice of FOIA lawsuit. Whenever 

a requester files a lawsuit seeking to 

compel the disclosure of business 

information, the Authority shall 

promptly notify the submitter. 

(j) Corresponding notice to requesters. 

Whenever the Authority provides a 

submitter with notice and an 

opportunity to object to disclosure 

under paragraph (d) of this section, the 

Authority shall also notify the 

requester(s). Whenever the Authority 

notifies a submitter of its intent to 

disclose requested information under 

paragraph (g) of this section, the 

Authority shall also notify the 

requester(s). Whenever a submitter files 

a lawsuit seeking to prevent the 

disclosure of business information, the 

Authority shall notify the requester(s). 

§ 2411.10 Appeal from denial of request. 

(a) Authority/General Counsel/Panel/ 

IG. (1) Whenever any request for records 

is denied, a written appeal may be filed 

within thirty (30) days after the 

requester receives notification that the 

request has been denied or after the 

requester receives any records being 

made available, in the event of partial 

denial. 

(i) If the denial was made by a 

Regional Director or by the Freedom of 

Information Officer of the General 

Counsel, the appeal shall be filed with 

the General Counsel in Washington, DC. 

(ii) If the denial was made by the 

Executive Director of the Panel, the 

appeal shall be filed with the Chairman 

of the Panel. 

(iii) If the denial was made by the 

Solicitor or the IG, the appeal shall be 

filed with the Chairman of the Authority 

in Washington, DC. 

(2) The Chairman of the Authority, 

the Chairman of the Panel or the 

General Counsel, as appropriate, shall, 

within twenty (20) working days 

(excepting Saturdays, Sundays, and 

legal public holidays) from the time of 

receipt of the appeal, except as provided 

in § 2411.11, make a determination on 

the appeal and respond in writing to the 

requester, determining whether, or the 

extent to which, the request shall be 

granted. 

(i) If the determination is to grant the 

request and the request is expected to 

involve an assessed fee in excess of 

$250.00, the determination shall specify 

or estimate the fee involved and shall 

require prepayment of any charges due 

in accordance with the provisions of 

paragraph (a) of § 2411.13 before the 

records are made available. 

(ii) Whenever possible, the 

determination relating to a request for 

records that involves a fee of less than 

$250.00 shall be accompanied by the 

requested records when there is no 

history of the requester having 

previously failed to pay fees in a timely 

manner. Where this is not possible, the 

records shall be forwarded as soon as 

possible thereafter, consistent with 

other obligations of the Authority, the 

Panel, the General Counsel or IG. 

(b) If on appeal the denial of the 

request for records is upheld in whole 

or in part by the Chairman of the 

Authority, the General Counsel, or the 

Chairman of the Panel, as appropriate, 

the person making the request shall be 

notified of the reasons for the 

determination, the name and title or 

position of the person responsible for 

the denial, and the provisions for 

judicial review of that determination 

under 5 U.S.C. 552(a)(4). Even though 

no appeal is filed from a denial in whole 

or in part of a request for records by the 

person making the request, the 

Chairman of the Authority, the General 

Counsel or the Chairman of the Panel, 

as appropriate, may, without regard to 

the time limit for filing of an appeal, sua 

sponte initiate consideration of a denial 

under this appeal procedure by written 

notification to the person making the 

request. In such event the time limit for 

making the determination shall 

commence with the issuance of such 

notification. 

§ 2411.11 Modification of time limits. 

(a) In unusual circumstances as 

specified in this section, the time limits 

prescribed with respect to initial 

determinations or determinations on 

appeal may be extended by written 

notice from the agency component 

handling the request (either initial or on 

appeal) to the person making such 

request setting forth the reasons for such 

extension and the date on which a 

determination is expected to be 

dispatched. As appropriate, the notice 

shall provide the requester with an 

opportunity to limit the scope of the 

request so that it may be processed 

within the time limit or an opportunity 

to arrange with the agency component 

an alternative time frame for processing 

the request or a modified request. To aid 

the requester, the FOIA Public Liaison 

shall assist in the resolution of any 

disputes between the requester and the 

processing agency component. No such 

notice shall specify a date that would 

result in a total extension of more than 

ten (10) working days. 

(b) As used in this section, ‘‘unusual 

or exceptional circumstances’’ means, 

but only to the extent reasonably 

necessary to the proper processing of 

the particular request: 

(1) The need to search for and collect 

the requested records from field 

facilities or other establishments that are 

separate from the office processing the 

request; 

(2) The need to search for, collect and 

appropriately examine a voluminous 

amount of separate and distinct records 

which are demanded in a single request; 

or 

(3) The need for consultation, which 

shall be conducted with all practicable 

speed, with another agency having a 

substantial interest in the determination 

of the request or among two or more 

components of the agency having 

substantial subject matter interest 

therein. 

(c) Expedited processing of a request 

for records, or an appeal of a denial of 

a request for expedited processing, shall 

be provided when the requester 

demonstrates a compelling need for the 

information and in other cases as 

determined by the officer processing the 

request. A requester seeking expedited 

processing can demonstrate a 

compelling need by submitting a 

statement certified by the requester to be 

true and correct to the best of such 

person’s knowledge and belief and that 

satisfies the statutory and regulatory 

definitions of compelling need. 

Requesters shall be notified within ten 

(10) calendar days after receipt of such 

a request whether expedited processing, 

or an appeal of a denial of a request for 

expedited processing, was granted. As 

used in this section, ‘‘compelling need’’ 

means: 

(1) That a failure to obtain requested 

records on an expedited basis could 

reasonably be expected to pose an 

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imminent threat to the life or physical 

safety of an individual; or 

(2) With respect to a request made by 

a person primarily engaged in 

disseminating information, urgency to 

inform the public concerning actual or 

alleged Federal Government activity. 

§ 2411.12 Effect of failure to meet time 

limits. 

Failure by the Authority, the General 

Counsel, the Panel, or the IG either to 

deny or grant any request under this 

part within the time limits prescribed by 

the Freedom of Information Act, as 

amended, 5 U.S.C. 552, and these 

regulations shall be deemed to be an 

exhaustion of the administrative 

remedies available to the person making 

this request. 

§ 2411.13 Fees. 

(a) Definitions. For the purpose of this 

section: 

(1) The term direct costs means those 

expenditures which the Authority, the 

General Counsel, the Panel, or the IG 

actually incurs in searching for and 

duplicating (and in the case of 

commercial requesters, reviewing) 

documents to respond to a FOIA 

request. Direct costs include, for 

example, the salary of the employee 

performing work (the basic rate of pay 

for the employee plus 16 percent of the 

rate to cover benefits) and the cost of 

operating duplicating machinery. Not 

included in direct costs are overhead 

expenses such as costs of space, and 

heating or lighting the facility in which 

the records are stored. 

(2) The term search includes all time 

spent looking for material that is 

responsive to a request, including pageby-page or line-by-line identification of 

material within documents as well as all 

reasonable efforts to locate and retrieve 

information from records maintained in 

electronic form or format. Searches may 

be done manually or by computer using 

existing programming. The Authority, 

the General Counsel, the Panel or the IG 

shall ensure that searches are done in 

the most efficient and least expensive 

manner reasonably possible. For 

example, if duplicating an entire 

document would be quicker and less 

expensive, a line-by-line search should 

not be done. 

(3) The term duplication refers to the 

process of making a copy of a document 

necessary to respond to a FOIA request. 

Such copies can take the form of paper 

copy, microfilm, audio-visual materials, 

or machine readable documentation 

(e.g., magnetic tape or disk), among 

others. 

(4) The term review refers to the 

process of examining documents located 

in response to a commercial use request 

(see paragraph (a)(5) of this section) to 

determine whether any portion of any 

document located is permitted to be 

withheld. It also includes processing 

any documents for disclosure, e.g., 

doing all that is necessary to excise 

them and otherwise prepare them for 

release. Review does not include time 

spent resolving general legal or policy 

issues regarding the application of 

exemptions. 

(5) The term ‘‘commercial use’’ 

request refers to a request from or on 

behalf of one who seeks information for 

a use or purpose that furthers the 

commercial, trade, or profit interests of 

the requester or the person on whose 

behalf the request is made. In 

determining whether a requester 

properly belongs in this category, the 

Authority, the General Counsel, the 

Panel, or the IG will look first to the use 

to which a requester will put the 

document requested. Where the 

Authority, the General Counsel, the 

Panel, or the IG has reasonable cause to 

doubt the use to which a requester will 

put the records sought, or where that 

use is not clear from the request itself, 

the Authority, the General Counsel, the 

Panel, or the IG may seek additional 

clarification before assigning the request 

to a specific category. 

(6) The term educational institution 

refers to a preschool, a public or private 

elementary or secondary school, an 

institution of graduate higher education, 

an institution of undergraduate higher 

education, an institution of professional 

education, and an institution of 

vocational education, which operates a 

program or programs of scholarly 

research. 

(7) The term non-commercial 

scientific institution refers to an 

institution that is not operated on a 

commercial basis as that term is 

referenced in paragraph (a)(5) of this 

section, and which is operated solely for 

the purpose of conducting scientific 

research the results of which are not 

intended to promote any particular 

product or industry. 

(8) The term representative of the 

news media refers to any person or 

entity that gathers information of 

potential interest to a segment of the 

public, uses its editorial skills to turn 

the raw materials into a distinct work, 

and distributes that work to an 

audience. The term ‘news’ means 

information that is about current events 

or that would be of current interest to 

the public. Examples of news-media 

entities include television or radio 

stations broadcasting to the public at 

large and publishers of periodicals (but 

only if such entities qualify as 

disseminators of ‘news’) who make their 

products available for purchase by or 

subscription by or free distribution to 

the general public. These examples are 

not intended to be all-inclusive. 

Moreover, as methods of news delivery 

evolve (for example, the adoption of the 

electronic dissemination of newspapers 

through telecommunications services), 

such alternative media shall be 

considered to be news-media entities. A 

freelance journalist shall be regarded as 

working for a news-media entity if the 

journalist can demonstrate a solid basis 

for expecting publication through that 

entity, whether or not the journalist is 

actually employed by the entity. A 

publication contract would present a 

solid basis for such an expectation; the 

Government may also consider the past 

publication record of the requester in 

making such a determination. 

(b) Exceptions to fee charges. 

(1) With the exception of requesters 

seeking documents for a commercial 

use, the Authority, the General Counsel, 

the Panel or the IG will provide the first 

100 pages of duplication and the first 

two hours of search time without 

charge. The word ‘‘pages’’ in this 

paragraph refers to paper copies of 

standard size, usually 81⁄2 by 11, or their 

equivalent in microfiche or computer 

disks. The term ‘‘search time’’ in this 

paragraph is based on a manual search 

for records. In applying this term to 

searches made by computer, when the 

cost of the search as set forth in 

paragraph (d)(2) of this section equals 

the equivalent dollar amount of two 

hours of the salary of the person 

performing the search, the Authority, 

the General Counsel, the Panel or the IG 

will begin assessing charges for 

computer search. 

(2) The Authority, the General 

Counsel, the Panel or the IG will not 

charge fees to any requester, including 

commercial use requesters, if the cost of 

collecting the fee would be equal to or 

greater than the fee itself. 

(3) As provided in § 2411.8(c)(5), the 

Authority, the General Counsel, the 

Panel or the IG will not charge search 

fees (or duplication fees if the requester 

is an educational or noncommercial 

scientific institution, whose purpose is 

scholarly or scientific research; or a 

representative of the news media, as 

described in this section), when the 

time limits are not met. 

(4)(i) The Authority, the General 

Counsel, the Panel or the IG will 

provide documents without charge or at 

reduced charges if disclosure of the 

information is in the public interest 

because it is likely to contribute 

significantly to public understanding of 

the operations or activities of the 

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government; and is not primarily in the 

commercial interest of the requester. 

(ii) In determining whether disclosure 

is in the ‘‘public interest because it is 

likely to contribute significantly to 

public understanding of the operations 

or activities of the government’’ under 

paragraph (b)(4)(i) of this section, the 

Authority, the General Counsel, the 

Panel, and the IG will consider the 

following factors: 

(A) The subject of the request. 

Whether the subject of the requested 

records concerns ‘‘the operations or 

activities of the government.’’ The 

subject of the requested records must 

concern identifiable operations or 

activities of the federal government, 

with a connection that is direct and 

clear, not remote or attenuated; 

(B) The informative value of the 

information to be disclosed. Whether 

the disclosure is ‘‘likely to contribute’’ 

to an understanding of government 

operations or activities. The disclosable 

portions of the requested records must 

be meaningfully informative about 

government operations or activities in 

order to be ‘‘likely to contribute’’ to an 

increased public understanding of those 

operations or activities. The disclosure 

of information that already is in the 

public domain, in either a duplicative or 

a substantially identical form, would 

not be as likely to contribute to such 

understanding where nothing new 

would be added to the public’s 

understanding; 

(C) The contribution to an 

understanding of the subject by the 

general public likely to result from 

disclosure. Whether disclosure of the 

requested information will contribute to 

‘‘public understanding.’’ The disclosure 

must contribute to the understanding of 

a reasonably broad audience of persons 

interested in the subject, as opposed to 

the individual understanding of the 

requester. A requester’s expertise in the 

subject area and ability and intention to 

effectively convey information to the 

public shall be considered. It shall be 

presumed that a representative of the 

news media will satisfy this 

consideration; and 

(D) The significance of the 

contribution to the public 

understanding. Whether the disclosure 

is likely to contribute ‘‘significantly’’ to 

public understanding of government 

operations or activities. The public’s 

understanding of the subject in 

question, as compared to the level of 

public understanding existing prior to 

the disclosure, must be enhanced by the 

disclosure to a significant extent. The 

Authority, the General Counsel, the 

Panel and the IG shall not make value 

judgments about whether information 

that would contribute significantly to 

public understanding of the operations 

or activities of the government is 

‘‘important’’ enough to be made public. 

(iii) In determining whether 

disclosure ‘‘is not primarily in the 

commercial interest of the requester’’ 

under paragraph (b)(4)(i) of this section, 

the Authority, the General Counsel, the 

Panel and the IG will consider the 

following factors: 

(A) The existence and magnitude of a 

commercial interest. Whether the 

requester has a commercial interest that 

would be furthered by the requested 

disclosure. Commercial interest of the 

requester (with reference to the 

definition of ‘‘commercial use’’ in 

paragraph (a)(5) of this section), or of 

any person on whose behalf the 

requester may be acting, that would be 

furthered by the requested disclosure. 

Requesters shall be given an 

opportunity in the administrative 

process to provide explanatory 

information regarding this 

consideration; and 

(B) The primary interest in disclosure. 

Whether the magnitude of the identified 

commercial interest of the requester is 

sufficiently large, in comparison with 

the public interest in disclosure, that 

disclosure ‘‘is primarily in the 

commercial interest of the requester.’’ A 

fee waiver or reduction is justified 

where the public interest standard is 

satisfied and that public interest is 

greater in magnitude than that of any 

identified commercial interest in 

disclosure. The Authority, the General 

Counsel, the Panel, and the IG 

ordinarily shall presume that where a 

news media requester has satisfied the 

public interest standard, the public 

interest will be the interest primarily 

served by disclosure to that requester. 

Disclosure to data brokers or others who 

merely compile and market government 

information for direct economic return 

shall not be presumed to primarily serve 

the public interest. 

(iv) A request for a fee waiver based 

on the public interest under paragraph 

(b)(4)(i) of this section must address 

these factors as they apply to the request 

for records in order to be considered by 

the Authority, the General Counsel, the 

Panel, or the IG. 

(v) Where only some of the records to 

be released satisfy the requirements for 

a waiver of fees, a waiver shall be 

granted for those records. 

(c) Level of fees to be charged. The 

level of fees to be charged by the 

Authority, the General Counsel, the 

Panel, or the IG, in accordance with the 

schedule set forth in paragraph (d) of 

this section, depends on the category of 

the requester. The fee levels to be 

charged are as follows: 

(1) A request for documents appearing 

to be for commercial use will be charged 

to recover the full direct costs of 

searching for, reviewing for release, and 

duplicating the records sought. 

(2) A request for documents from an 

educational or non-commercial 

scientific institution will be charged for 

the cost of reproduction alone, 

excluding charges for the first 100 

pages. To be eligible for inclusion in 

this category, requesters must show that 

the request is being made under the 

auspices of a qualifying institution and 

that the records are not sought for a 

commercial use, but are sought in 

furtherance of scholarly (if the request is 

from an educational institution) or 

scientific (if the request is from a noncommercial scientific institution) 

research. 

(3) The Authority, the General 

Counsel, the Panel or the IG shall 

provide documents to requesters who 

are representatives of the news media 

for the cost of reproduction alone, 

excluding charges for the first 100 

pages. 

(4) The Authority, the General 

Counsel, the Panel or the IG shall charge 

requesters who do not fit into any of the 

categories of this section fees which 

recover the full direct cost of searching 

for and reproducing records that are 

responsive to the request, except that 

the first 100 pages of reproduction and 

the first two hours of search time shall 

be furnished without charge. Requests 

from record subjects for records about 

themselves filed in Authority, General 

Counsel, 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 

reproduction. 

(d) The following fees shall be 

charged in accordance with paragraph 

(c) of this section: 

(1) Manual searches for records. The 

salary rate (i.e., basic pay plus 16 

percent) of the employee(s) making the 

search. Search time under this 

paragraph and paragraph (d)(2) of this 

section may be charged for even if the 

Authority, the General Counsel, the 

Panel or the IG fails to locate records or 

if records located are determined to be 

exempt from disclosure. 

(2) Computer searches for records. 

The actual direct cost of providing the 

service, including computer search time 

directly attributable to searching for 

records responsive to a FOIA request, 

runs, and operator salary apportionable 

to the search. 

(3) Review of records. The salary rate 

(i.e., basic pay plus 16 percent) of the 

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employee(s) conducting the review. 

This charge applies only to requesters 

who are seeking documents for 

commercial use, and only to the review 

necessary at the initial administrative 

level to determine the applicability of 

any relevant FOIA exemptions, and not 

at the administrative appeal level of an 

exemption already applied. 

(4) Duplication of records. Twentyfive cents per page for paper copy 

reproduction of documents, which the 

Authority, the General Counsel, the 

Panel and the IG determined is the 

reasonable direct cost of making such 

copies, taking into account the average 

salary of the operator and the cost of the 

reproduction machinery. For copies of 

records prepared by computer, such as 

tapes or printouts, the Authority, the 

General Counsel, the Panel or the IG 

shall charge the actual cost, including 

operator time, of production of the tape 

or printout. 

(5) Forwarding material to 

destination. Postage, insurance and 

special fees will be charged on an actual 

cost basis. 

(e) Aggregating requests. When the 

Authority, the General Counsel, the 

Panel or the IG reasonably believes that 

a requester or group of requesters is 

attempting to break a request down into 

a series of requests for the purpose of 

evading the assessment of fees, the 

Authority, the General Counsel, the 

Panel or the IG will aggregate any such 

requests and charge accordingly. 

(f) Charging interest. Interest at the 

rate prescribed in 31 U.S.C. 3717 may be 

charged those requesters who fail to pay 

fees charged, beginning on the 30th day 

following the billing date. Receipt of a 

fee by the Authority, the General 

Counsel, the Panel or the IG, whether 

processed or not, will stay the accrual 

of interest. 

(g) Advanced payments. The 

Authority, the General Counsel, the 

Panel or the IG will not require a 

requester to make an advance payment, 

i.e., payment before work is commenced 

or continued on a request, unless: 

(1) The Authority, the General 

Counsel, the Panel or the IG estimates 

or determines that allowable charges 

that a requester may be required to pay 

are likely to exceed $250. Then the 

Authority, the General Counsel, the 

Panel or the IG will notify the requester 

of the likely cost and obtain satisfactory 

assurance of full payment where the 

requester has a history of prompt 

payment of FOIA fees, or require an 

advance payment of an amount up to 

the full estimated charges in the case of 

requesters with no history of payment; 

or 

(2) A requester has previously failed 

to pay a fee charged in a timely fashion 

(i.e., within 30 days of the date of the 

billing), in which case the Authority, 

the General Counsel, the Panel or the IG 

requires the requester to pay the full 

amount owed plus any applicable 

interest as provided in this section or 

demonstrate that the requester has, in 

fact, paid the fee, and to make an 

advance payment of the full amount of 

the estimated fee before the agency 

begins to process a new request or a 

pending request from that requester. 

When the Authority, the General 

Counsel, the Panel or the IG acts under 

paragraph (g)(1) or (2) of this section, 

the administrative time limits 

prescribed in subsection (a)(6) of the 

FOIA (i.e., 20 working days from receipt 

of initial requests and 20 working days 

from receipt of appeals from initial 

denial, plus permissible extension of 

these time limits) will begin only after 

the Authority, the General Counsel, the 

Panel or the IG has received fee 

payments described in this section. 

(h) When a person other than a party 

to a proceeding before the agency makes 

a request for a copy of a transcript, 

diskette, or other recordation of the 

proceeding, the Authority, the General 

Counsel, the Panel or the IG, as 

appropriate, will handle the request 

under this part. 

(i) Payment of fees shall be made by 

check or money order payable to the 

U.S. Treasury. 

§ 2411.14 Record retention and 

preservation. 

The Authority, the General Counsel, 

the Panel, and the IG shall preserve all 

correspondence pertaining to the 

requests that it receives under this 

subpart, as well as copies of all 

requested records, until such time as 

disposition or destruction is authorized 

by title 44 of the United States Code or 

the National Archives and Records 

Administration’s General Records 

Schedule 14. Records will not be 

disposed of while they are the subject of 

a pending request, appeal, or lawsuit 

under the FOIA. 

§ 2411.15 Annual report. 

On or before February 1 annually, the 

Chief FOIA Officer of the Authority 

shall submit a report of the activities of 

the Authority, the General Counsel, the 

Panel, and the IG with regard to public 

information requests during the 

preceding fiscal year to the Attorney 

General of the United States. The report 

shall include those matters required by 

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

available electronically. 

Dated: September 25, 2009. 

Carol Waller Pope, 

Chairman. 

[FR Doc. E9–23553 Filed 9–30–09; 8:45 am] 

BILLING CODE 6727–01–P 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 981 

[Doc. No. AMS–FV–08–0045; FV08–981–2 

FIR] 

Almonds Grown in California; Revision 

of Outgoing Quality Control 

Requirements 

AGENCY: Agricultural Marketing Service, 

USDA. 

ACTION: Affirmation of interim final rule 

as final rule. 

SUMMARY: The Department of 

Agriculture (USDA) is adopting as a 

final rule, without change, an interim 

final rule that revised the outgoing 

quality control regulations issued under 

the California almond marketing order 

(order). The interim final rule revised 

the term ‘‘validation’’ under the 

Salmonella bacteria (Salmonella) 

treatment program by specifying that 

validation data must be both submitted 

to and accepted by the Almond Board 

of California’s (Board) Technical Expert 

Review Panel (TERP) for all treatment 

equipment prior to its use under this 

program. The interim final rule was 

necessary to ensure that all treatment 

equipment meets a 4-log reduction of 

Salmonella in almonds. 

DATES: Effective Date: Effective October 

2, 2009. 

FOR FURTHER INFORMATION CONTACT: 

Terry Vawter, Senior Marketing 

Specialist, or Kurt J. Kimmel, Regional 

Manager, California Marketing Field 

Office, Marketing Order Administration 

Branch, Fruit and Vegetable Programs, 

AMS, USDA; Telephone: (559) 487– 

5901, Fax: (559) 487–5906, or E-mail: 

Terry.Vawter@ams.usda.gov, or 

Kurt.Kimmel@ams.usda.gov. 

Small businesses may obtain 

information on complying with this and 

other marketing order regulations by 

viewing a guide at the following Web 

site: http://www.ams.usda.gov/

AMSv1.0/ams.fetchTemplateData.

do?template=TemplateN&page=

MarketingOrdersSmallBusinessGuide; 

or by contacting Jay Guerber, Marketing 

Order Administration Branch, Fruit and 

Vegetable Programs, AMS, USDA, 1400 

Independence Avenue, SW., STOP 

0237, Washington, DC 20250–0237; 

mstockstill on DSKH9S0YB1PROD with RULES