67058 Federal Register / Vol. 88, No. 188 / Friday, September 29, 2023 / Rules and Regulations 

§ 1201.24 [Amended] 

■ 3. Amend § 1201.24 as follows: 

■ a. By removing from the third 

sentence in paragraph (a) introductory 

text the words ‘‘in electronic form’’ and 

adding in their place ‘‘electronically’’; 

■ b. By removing from paragraph (a)(1) 

the words ‘‘and telephone number’’ and 

adding in their place ‘‘telephone 

number, and email address’’; 

■ c. By removing from paragraph (a)(6) 

the words ‘‘and telephone number’’ and 

adding in their place ‘‘telephone 

number, and email address’’; 

■ d. By removing from paragraph (a)(9) 

the words ‘‘the Board’s e-Appeal site 

(https://e-appeal.mspb.gov)’’ and adding 

in their place ‘‘e-Appeal’’; and 

■ e. By removing from paragraph (c) the 

words ‘‘the e-Appeal site (https://eappeal.mspb.gov)’’ and adding in their 

place ‘‘e-Appeal’’ and by removing the 

words ‘‘Board’s Web site’’ and adding in 

their place ‘‘MSPB’s website’’. 

■ 4. Revise § 1201.26 to read as follows: 

§ 1201.26 Service of Pleadings and 

Response 

(a) Service—(1) Service by the Board. 

The appropriate office of the Board will 

notify each party to the proceeding that 

a new appeal has been docketed and 

will attach to the initial order in the 

proceeding a certificate of service, 

consisting of a list of the parties to the 

proceeding or their designated 

representatives. 

(2) Service by the parties. The parties 

must serve on each other one copy of 

each pleading, as defined by § 1201.4(b), 

and all documents submitted with it, 

except for the appeal. They may do so 

by electronic filing in accordance with 

§ 1201.14, postal mail, facsimile, or 

commercial or personal delivery. 

Documents and pleadings must be 

served on each party and each 

representative. A certificate of service 

stating how and when service was made 

must accompany each pleading. The 

parties and their representatives must 

notify the appropriate Board office and 

one another, in a pleading, of any 

changes in their address, telephone 

number, or email address. 

(b) Submission of documents. 

Pleadings and attachments filed via 

postal mail, facsimile, or commercial or 

personal delivery must be filed on 81⁄2- 

inch by 11-inch paper. This requirement 

enables the Board to comply with 

standards established for U.S. courts. 

Paper pleadings and attachments may 

not contain binders, folders, staples, 

paper clips, or notes adhered to pages. 

Such items will be removed and not 

included in the record, or the filing may 

be rejected. Documents may not be 

submitted on an electronic media 

storage device such as a Compact Disc 

(CD), Digital Video Disc (DVD), or flash 

drive. Parties are responsible for 

reviewing all pleadings to confirm 

legibility and to minimize the inclusion 

of nonrelevant personally identifiable 

information. Pleadings filed via eAppeal must adhere to the formatting 

and filing requirements set forth in 

§ 1201.14(h). 

(c) Submission of audio and video 

evidence. Audio and video evidence 

must be submitted according to the 

formatting and submission requirements 

set forth in policies posted to the 

MSPB’s website. 

Appendix II to Part 1201—[Amended] 

■ 5. Amend appendix II to part 1201 by: 

■ a. Removing the second sentence of 

the introductory text; and 

■ b. Removing from paragraph 3a the 

words ‘‘26 Federal Plaza, Room 3137–A, 

New York, New York 10278–0022, 

Facsimile No.: (212) 264–1417’’ and 

adding in their place ‘‘1601 Market 

Street, Suite 1700, Philadelphia, PA 

19103, Facsimile No.: (215) 597–3456’’. 

Jennifer Everling, 

Acting Clerk of the Board. 

[FR Doc. 2023–21272 Filed 9–28–23; 8:45 am] 

BILLING CODE 7400–01–P 

FEDERAL LABOR RELATIONS 

AUTHORITY 

5 CFR Part 2411 

Availability of Official Information 

AGENCY: Federal Labor Relations 

Authority. 

ACTION: Final rule. 

SUMMARY: The Federal Labor Relations 

Authority (FLRA) amends its 

regulations for processing records under 

the Freedom of Information Act (FOIA). 

The amendments streamline and update 

procedures for requesting information 

from the FLRA and procedures that the 

FLRA follows in responding to requests 

from the public. 

DATES: Effective September 29, 2023. 

FOR FURTHER INFORMATION CONTACT: If 

you have any questions, please contact 

Thomas Tso, Solicitor, Chief FOIA 

Officer, Federal Labor Relations 

Authority, 1400 K Street NW, 

Washington, DC 20424; (771) 444–5775. 

SUPPLEMENTARY INFORMATION: To adapt 

to recent trends in FOIA requests made 

to the FLRA, the amendments centralize 

and streamline its FOIA request system. 

In addition to some minor nonsubstantive changes to correct 

typographical errors, the FLRA 

consolidates responsibility under the 

FOIA regulations for the FLRA’s threemember Authority component, the 

Office of General Counsel, and the 

Federal Service Impasses Panel by 

transferring those responsibilities to the 

Solicitor of the FLRA (‘‘Solicitor’’) as 

their FOIA representative. The Solicitor 

serves as the agency’s in-house counsel 

and typically as the agency’s Chief FOIA 

Officer. The FLRA revises the relevant 

regulations in order to reflect the 

Solicitor’s role as the representative of 

the Authority, the General Counsel, and 

the Panel for FOIA matters. 

Consistent with the Office of 

Management and Budget’s 2020 Update 

to the Uniform Freedom of Information 

Act Fee Schedule and Guidelines, 85 FR 

81955 (Dec. 17, 2020), and the decision 

of the U.S. Court of Appeals for the 

District of Columbia Circuit addressing 

the ‘‘educational institution’’ fee 

category, the revisions also clarify the 

individuals who may qualify for 

reduced fees as an educational or 

noncommercial scientific institution 

under 5 CFR 2411.13(c)(2). See Sack v. 

Dept. of Defense, 823 F.3d 687, 693 

(D.C. Cir. 2016) (‘‘To be clear, to qualify 

for reduced fees as an educational 

institution, the requester—whether 

teacher or student—must seek the 

information in connection with his or 

her role at the educational institution.’’). 

This rule is internal and procedural 

rather than substantive. It does not 

create a right to obtain FLRA records, 

nor does it create any additional right or 

privilege not already available to the 

public as a result of the FOIA 

Improvement Act of 2016. It merely 

builds upon and clarifies the previous 

agency procedures for processing FOIArelated requests. 

Regulatory Flexibility Act Certification 

Pursuant to section 605(b) of the 

Regulatory Flexibility Act, 5 U.S.C. 

605(b), the FLRA has determined that 

these regulations, as amended, will not 

have a significant impact on a 

substantial number of small entities. 

Unfunded Mandates Reform Act of 

1995 

This rule change will not result in the 

expenditure by state, local, and tribal 

governments, in the aggregate, or by the 

private sector, of $100,000,000 or more 

in any one year, and it will not 

significantly or uniquely affect small 

governments. Therefore, no actions were 

deemed necessary under the provisions 

of the Unfunded Mandates Reform Act 

of 1995. 


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Small Business Regulatory Enforcement 

Fairness Act of 1996 

This action is not a major rule as 

defined by section 804 of the Small 

Business Regulatory Enforcement 

Fairness Act of 1996, 5 U.S.C. 804. This 

rule will not result in an annual effect 

on the economy of $100,000,000 or 

more; a major increase in costs or prices; 

or significant adverse effects on 

competition, employment, investment, 

productivity, innovation, or on the 

ability of United States-based 

companies to compete with foreignbased companies in domestic and 

export markets. 

Paperwork Reduction Act of 1995 

The amended regulations contain no 

additional information-collection or 

record-keeping requirements under the 

Paperwork Reduction Act of 1995, 44 

U.S.C. 3501, et seq. 

Public Participation 

This rule is published as a final rule. 

It is exempt from public comment, 

pursuant to 5 U.S.C. 553(b)(A), as a rule 

of ‘‘agency organization, procedure, or 

practice.’’ If you wish to contact the 

agency, please do so at the above listed 

address. However, before including your 

address, phone number, email address, 

or other personal identifying 

information in any communications 

with the agency, you should be aware 

that your communications—including 

your personal identifying information— 

may be made publicly available at any 

time. While you can ask us in your 

communications to withhold your 

personal identifying information from 

public review, we cannot guarantee that 

we will be able to do so. 

List of Subjects in 5 CFR Part 2411 

Freedom of Information Act. 

For the reasons stated in the 

preamble, the Federal Labor Relations 

Authority amends 5 CFR part 2411 as 

follows: 

PART 2411—AVAILABILITY OF 

OFFICIAL INFORMATION 

■ 1. The authority for part 2411 

continues to read as follows: 

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

Freedom of Information Improvement Act of 

2016, Pub. L. 114–185, 130 Stat. 528; 

Openness Promotes Effectiveness in our 

National Government Act of 2007 (OPEN 

Government Act), Pub. L. 110–175, 121 Stat. 

2524. 

■ 2. Amend § 2411.3 by revising 

paragraph (b) to read as follows: 

§ 2411.3 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 § 2411.5(a) 

and (b). 

* * * * * 

■ 3. Revise § 2411.5 to read as follows: 

§ 2411.5 Procedure for obtaining 

information. 

(a) Any person who desires to inspect 

or copy any records, documents, or 

other information of the Authority, the 

General Counsel, the Panel, or the IG, 

covered by this part, other than those 

specified in § 2411.4(a)(1) and (c), shall 

submit an electronic written request via 

the FOIAXpress system or a written, 

facsimiled, or email request (see 

FOIAXpress, office and email addresses 

listed at https://www.flra.gov/foia_

contact) as follows: 

(1) If the request is for records, 

documents, or other information in the 

Authority, the Office of General 

Counsel, or the Panel, it should be made 

to the Office of the Solicitor, 

Washington, DC; 

(2) If the request is for records, 

documents or other information in the 

offices of the IG in Washington, DC, it 

should be made to the IG, Washington, 

DC. 

(b) Each request under this part 

should be clearly and prominently 

identified as a request for information 

under the FOIA and, if submitted by 

mail or otherwise submitted in an 

envelope or other cover, should be 

clearly identified as such on the 

envelope or other cover. A request shall 

be considered an agreement by the 

requester to pay all applicable fees 

charged under § 2411.13, up to $25.00, 

unless the requester seeks a waiver of 

fees. When making a request, the 

requester may specify a willingness to 

pay a greater or lesser amount. Fee 

charges will be assessed for the full 

allowable direct costs of document 

search, review, and duplication, as 

appropriate, in accordance with 

§ 2411.13. If a request does not comply 

with the provisions of this paragraph, it 

shall not be deemed received by the 

Office of the Solicitor or the IG, as 

appropriate. 

■ 4. Amend § 2411.6 by revising 

paragraphs (a), (c) and (d) to read as 

follows: 

§ 2411.6 Identification of information 

requested. 

(a) Reasonably describe and identify 

records. Each request under this part 

shall reasonably describe the records 

being sought in a way that the FLRA can 

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. 


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67060 Federal Register / Vol. 88, No. 188 / Friday, September 29, 2023 / Rules and Regulations 

(3) Coordination. The standard 

referral procedure is not appropriate 

where disclosure of the identity of the 

agency to which the referral would be 

made could harm an interest protected 

by an applicable exemption, such as the 

exemptions that protect personal 

privacy or national-security interests. In 

such instances, in order to avoid harm 

to an interest protected by an applicable 

exemption, the Solicitor or the IG 

should coordinate with the originating 

agency to seek its views on the 

disclosability of the record. The release 

determination for the record that is the 

subject of the coordination should then 

be conveyed to the requester by the 

Solicitor or the IG. 

■ 5. Revise § 2411.7 to read as follows: 

§ 2411.7 Format of disclosure. 

(a) After a determination has been 

made to grant a request in whole or in 

part, the Solicitor or the IG, as 

appropriate, will notify the requester in 

writing. The notice will describe the 

manner in which the record will be 

disclosed and will inform the requester 

of the availability of the Authority’s 

FOIA Public Liaison to offer assistance. 

The Solicitor or the IG, as appropriate, 

will provide the record in the form or 

format requested if the record is readily 

reproducible in that form or format, 

provided the requester has agreed to pay 

and/or has paid any fees required by 

§ 2411.13 of this part. The Solicitor or 

the IG, as appropriate, will determine on 

a case-by-case basis what constitutes a 

readily reproducible format. These 

offices will make a reasonable effort to 

maintain their records in commonly 

reproducible forms or formats. 

(b) Alternatively, the Solicitor or the 

IG, as appropriate, may make a copy of 

the releasable portions of the record 

available to the requester for inspection 

at a reasonable time and place. The 

procedure for such an inspection will 

not unreasonably disrupt the operations 

of the office. 

■ 6. Amend § 2411.8 by revising 

paragraphs (a), (b), (c) introductory text, 

(c)(4) and (5), (d) introductory text, and 

(d)(2) introductory text to read as 

follows: 

§ 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 § 2411.6(c). All 

requesters must reasonably describe the 

records sought. An oral request for 

records shall not begin any time 

requirement. A written request for 

records sent to other than the 

appropriate officer will be forwarded to 

that officer by the receiving officer, but, 

in that event, the applicable time limit 

for response shall begin as set forth in 

paragraph (a) of this section. 

(c) Except as provided in § 2411.11, 

the Solicitor or the IG, as appropriate, 

shall, within 20 working days following 

receipt of the request, as provided by 

paragraph (a) of this section, respond in 

writing to the requester, determining 

whether, or the extent to which, the 

request shall be complied with. 

* * * * * 

(4) Whenever possible, subject to the 

provisions of paragraph (g) of § 2411.13, 

the response relating to a request for 

records that involves a fee of less than 

$250.00 shall be accompanied by the 

requested records. Where this is not 

possible, the records shall be forwarded 

as soon as possible thereafter, consistent 

with other obligations of the Solicitor or 

the IG. 

(5) Search fees shall not be assessed 

to requesters (or duplication fees in the 

case of an educational or 

noncommercial scientific institution, 

whose purpose is scholarly or scientific 

research; or a representative of the news 

media requester, as defined by 

§ 2411.13(a)(8)) under this subparagraph 

if an agency component fails to comply 

with any of the deadlines in 5 U.S.C. 

552(a)(4)(A), except as provided in the 

following paragraphs (c)(5)(i) through 

(iii) below: 

(i) If the Solicitor or the IG has 

determined that unusual circumstances 

apply (as the term is defined in 

§ 2411.11(b)) and the Solicitor or the IG 

provided a timely written notice to the 

requester in accordance with 

§ 2411.11(a), a failure described in this 

paragraph (c)(5) is excused for an 

additional 10 days. If the Solicitor or the 

IG fails to comply with the extended 

time limit, the Solicitor or the IG may 

not assess any search fees (or, in the 

case of a requester described in 

§ 2411.13(a)(8), duplication fees). 

(ii) If the Solicitor or the IG 

determines that unusual circumstances 

apply and more than 5,000 pages are 

necessary to respond to the request, the 

Solicitor or the IG may charge search 

fees or, in the case of requesters defined 

in § 2411.13(6) through (8), may charge 

duplication fees, if the following steps 

are taken. The Solicitor or the IG must 

have provided timely written notice of 

unusual circumstances to the requester 

in accordance with the FOIA and must 

have discussed with the requester via 

written mail, email, or telephone (or 

made not less than three good-faith 

attempts to do so) how the requester 

could effectively limit the scope of the 

request in accordance with 5 U.S.C. 

552(a)(6)(B)(ii). If this exception is 

satisfied, the Solicitor or the IG may 

charge all applicable fees incurred in 

the processing of the request. 

(iii) If a court has determined that 

exceptional circumstances exist, as 

defined by the FOIA, a failure to comply 

with the time limits shall be excused for 

the length of time provided by the court 

order. 

(d) If a request will take longer than 

10 days to process: 

* * * * * 

(2) Using the tracking number, the 

requester can find, by calling the Office 

of the Solicitor, emailing solmail@

flra.gov, or visiting FOIAXPress (see 

telephone numbers and addresses at 

https://www.flra.gov/foia_contact), 

status information about the request 

including: 

* * * * * 

■ 7. Amend § 2411.10 by revising 

paragraphs (a)(1), (a)(2) introductory 

text, (a)(2)(ii), (b), and (c) to read as 

follows: 

§ 2411.10 Appeal from denial of request. 

(a)(1) When a request for records is 

denied, in whole or in part, a requester 

may appeal the denial by submitting a 

written appeal by mail or online that is 

postmarked, or in the case of an 

electronic submission, transmitted, 

within 90 calendar days after the 

requester receives notification that the 

request has been denied or after the 

requester receives any records being 

made available, in the event of partial 

denial. The appeal should clearly 

identify the agency determination that is 

being appealed and the assigned request 

number. 

(i) If the denial was made for records 

related to work performed by the 


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Authority component of the FLRA, 

including the IG, the appeal shall be 

filed with the Chairman of the Authority 

or the Chairman’s designee in 

Washington, DC. 

(ii) If the denial was made for records 

related to work performed by the Office 

of the General Counsel, the appeal shall 

be filed with the General Counsel or the 

General Counsel’s designee in 

Washington, DC. 

(iii) If the denial was made for records 

related to work performed by the Panel, 

the appeal shall be filed with the 

Chairman of the Panel or the Chairman’s 

designee. 

(2) The Chairman of the Authority, 

the General Counsel, or the Chairman of 

the Panel, or their designees, as 

appropriate, shall, within 20 working 

days (excepting Saturdays, Sundays, 

and federal public holidays) from the 

time of receipt of the appeal, except as 

provided in § 2411.11, make a 

determination on the appeal and 

respond in writing to the requester, 

determining whether, or the extent to 

which, the request shall be granted. An 

appeal ordinarily will not be 

adjudicated if the request becomes a 

matter of FOIA litigation. 

* * * * * 

(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. 

* * * * * 

■ 8. Revise § 2411.12 to read as follows: 

§ 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. 

■ 9. Amend § 2411.13 by revising 

paragraphs (a) introductory text, (a)(1), 

(a)(2), (a)(5), paragraph (b) heading, 

(b)(1), (b)(2), (b)(3), (b)(4)(i), (b)(4)(ii) 

introductory text, (b)(4)(ii)(D), (b)(4)(iii) 

introductory text, (b)(4)(iii)(B), (b)(4)(iv), 

(b)(4)(v), (c) introductory text, (c)(2), 

(c)(3), (c)(4), (d) introductory text, (d)(1), 

(d)(4), (e), (f), (g), (h), and (j) to read as 

follows: 

§ 2411.13 Fees. 

(a) Definitions. For the purpose of this 

section: 

(1) The term direct costs means those 

expenditures that the Solicitor or the IG 

actually incurs in searching for and 

duplicating (and in the case of 

commercial requesters, reviewing) 

documents to respond to a FOIA 

request. Direct costs include, for 

example, the salary of the employee 

performing work (the basic rate of pay 

for the employee plus 16 percent of the 

rate to cover benefits) and the cost of 

operating duplication machinery. Not 

included in direct costs are overhead 

expenses such as costs of space, and 

heating or lighting the facility in which 

the records are stored. 

(2) The term search includes all time 

spent looking for material that is 

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

material within documents as well as all 

reasonable efforts to locate and retrieve 

information from records maintained in 

electronic form or format. Searches may 

be done manually or by computer using 

existing programming. The Solicitor or 

the IG shall ensure that searches are 

done in the most efficient and least 

expensive manner reasonably possible. 

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 81⁄2 by 11. The 

term search time in this paragraph is 

based on a manual search for records. In 

applying this term to searches made by 

computer, when the cost of the search 

as set forth in paragraph (d)(2) of this 

section equals the equivalent dollar 

amount of two hours of the salary of the 

person performing the search, the 

Solicitor or the IG will begin assessing 

charges for the computer search. No 

search or review fees will be charged for 

a quarter-hour period unless more than 

half of that period is required for search 

or review. 

(2) The Solicitor or the IG will not 

charge fees to any requester, including 

commercial-use requesters, if the cost of 

collecting the fee would be equal to or 

greater than the fee itself. 

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

Solicitor or the IG will not charge search 

fees (or duplication fees if the requester 

is an educational or noncommercial 

scientific institution, whose purpose is 

scholarly or scientific research; or a 

representative of the news media, as 

described in this section), when the 

time limits are not met. 

(4)(i) The Solicitor or the IG will 

provide documents without charge or at 

reduced charges if disclosure of the 

information is in the public interest 

because it is likely to contribute 

significantly to public understanding of 


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67062 Federal Register / Vol. 88, No. 188 / Friday, September 29, 2023 / Rules and Regulations 

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. Twentyfive cents per page for paper-copy 

duplication of documents, which the 

Solicitor or the IG has determined is the 

reasonable direct cost of making such 

copies, taking into account the average 

salary of the operator and the cost of the 

duplication machinery. For copies of 

records produced on tapes, disks, or 

other media, the Solicitor or the IG shall 

charge the actual cost of production, 

including operator time. When paper 

documents must be scanned in order to 

comply with a requester’s preference to 

receive the records in an electronic 

format, the requester shall pay the direct 

costs associated with scanning those 

materials, including operator time. For 

all other forms of duplication, the 

Solicitor or the IG will charge the direct 

costs, including operator time. 

* * * * * 

(e) Aggregating requests. When the 

Solicitor or the IG reasonably believes 

that a requester or group of requesters is 

attempting to break a request down into 

a series of requests for the purpose of 

evading the assessment of fees, the 

Solicitor or the IG will aggregate any 

such requests and charge accordingly. 

(f) Charging interest. Interest at the 

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

charged to those requesters who fail to 

pay fees charged, beginning on the 31st 

day following the billing date. Receipt 

of a fee by the Solicitor or the IG, 

whether processed or not, will stay the 

accrual of interest. 

(g) Advance payments. The Solicitor 

or the IG will not require a requester to 

make an advance payment, i.e., payment 

before work is commenced or continued 

on a request, unless: 

(1) The Solicitor or the IG estimates or 

determines that allowable charges that a 

requester may be required to pay are 

likely to exceed $250. In those 

circumstances, the Solicitor or the IG 

will notify the requester of the likely 

cost and obtain satisfactory assurance of 

full payment, where the requester has a 

history of prompt payment of FOIA fees, 

or require an advance payment of an 

amount up to the full estimated charges 

in the case of requesters with no history 

of payment; or 

(2) A requester has previously failed 

to pay a fee charged in a timely fashion 

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

billing), in which case the Solicitor or 

the IG requires the requester to pay the 

full amount owed plus any applicable 

interest, as provided in this section, or 

demonstrate that the requester has, in 

fact, paid the fee, and to make an 

advance payment of the full amount of 

the estimated fee before the agency 

begins to process a new request or a 

pending request from that requester. 

When the Solicitor or the IG has a 

reasonable basis to believe that a 

requester has misrepresented his or her 

identity in order to avoid paying 

outstanding fees, it may require that the 


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Federal Register / Vol. 88, No. 188 / Friday, September 29, 2023 / Rules and Regulations 67063 

1All references to ‘‘country’’ or ‘‘countries’’ in the 

laws authorizing the Visa Waiver Program are read 

to include Taiwan. See Taiwan Relations Act of 

1979, Public Law 96–8, section 4(b)(1) (codified at 

22 U.S.C. 3303(b)(1)) (providing that ‘‘[w]henever 

the laws of the United States refer or relate to 

foreign countries, nations, states, governments, or 

similar entities, such terms shall include and such 

laws shall apply with respect to Taiwan’’). This is 

consistent with the United States’ one-China policy, 

under which the United States has maintained 

unofficial relations with Taiwan since 1979. 

requester provide proof of identity. 

When the Solicitor or the IG acts under 

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

the administrative time limits 

prescribed in subsection (a)(6) of the 

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

of initial requests and 20 working days 

from receipt of appeals from initial 

denial, plus permissible extension of 

these time limits) will begin only after 

the Solicitor or the IG has received fee 

payments described in this section. If 

the requester does not pay the advance 

payment within 30 calendar days after 

the date of the fee determination, the 

request will be closed. 

(h) When a person other than a party 

to a proceeding before the FLRA makes 

a request for a copy of a transcript or 

recording of the proceeding, the 

Solicitor or the IG, as appropriate, will 

handle the request under this part. 

* * * * * 

(j) The fee schedule of this section 

does not apply to fees charged under 

any statute that specifically requires the 

Authority, the General Counsel, the 

Panel, the Solicitor or the IG to set and 

collect fees for particular types of 

records. In instances in which records 

responsive to a request are subject to a 

statutorily based fee-schedule program, 

the Solicitor or the IG will inform the 

requester of the contact information for 

that program. 

■ 10. Revise § 2411.114 to read as 

follows. 

§ 2411.14 Record retention and 

preservation. 

The Solicitor and the IG shall 

preserve all correspondence pertaining 

to the requests that it receives under this 

subpart, as well as copies of all 

requested records, until such time as 

disposition or destruction is authorized 

by title 44 of the United States Code or 

the National Archives and Records 

Administration’s General Records 

Schedule 14. Records will not be 

disposed of while they are the subject of 

a pending request, appeal, or lawsuit 

under the FOIA. 

■ 11. Revise § 2411.15 to read as 

follows: 

§ 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 

DEPARTMENT OF HOMELAND 

SECURITY 

8 CFR Part 217 

RIN 1601–AA94 

Designation of Israel for the Visa 

Waiver Program 

AGENCY: Office of the Secretary; 

Department of Homeland Security 

(DHS). 

ACTION: Final rule; technical 

amendment. 

SUMMARY: Eligible citizens, nationals, 

and passport holders from designated 

Visa Waiver Program countries may 

apply for admission to the United States 

at U.S. ports of entry as nonimmigrant 

noncitizens for a period of ninety days 

or less for business or pleasure without 

first obtaining a nonimmigrant visa, 

provided that they are otherwise eligible 

for admission under applicable statutory 

and regulatory requirements. The 

Secretary of Homeland Security, in 

consultation with the Secretary of State, 

has designated Israel as a country that 

is eligible to participate in the Visa 

Waiver Program. Accordingly, this rule 

updates the list of countries designated 

for participation in the Visa Waiver 

Program by adding Israel. 

DATES: This final rule is effective on 

September 29, 2023. The Secretary’s 

designation was effective on September 

26, 2023. The designation will be 

implemented on November 30, 2023. 

FOR FURTHER INFORMATION CONTACT: 

Anjum Agarwala, Department of 

Homeland Security, Visa Waiver 

Program Office, (202) 790–5207. 

SUPPLEMENTARY INFORMATION: 

I. Background 

A. The Visa Waiver Program 

Pursuant to section 217 of the 

Immigration and Nationality Act (INA), 

8 U.S.C. 1187, the Secretary of 

Homeland Security (the Secretary), in 

consultation with the Secretary of State, 

may designate certain countries as Visa 

Waiver Program (VWP) countries 1 if 

certain requirements are met. Those 

requirements include: (1) a U.S. 

Government determination that the 

country meets the applicable statutory 

requirement with respect to 

nonimmigrant visitor visa refusals for 

nationals of the country during the 

previous full fiscal year; (2) a U.S. 

Government determination that the 

country extends or agrees to extend 

reciprocal privileges to citizens and 

nationals of the United States; (3) an 

official certification that it issues 

machine-readable, electronic passports 

that comply with internationally 

accepted standards; (4) a U.S. 

Government determination that the 

country’s designation would not 

negatively affect U.S. law enforcement 

and security interests; (5) an agreement 

with the United States to report, or 

make available through other designated 

means, to the U.S. Government 

information about the theft or loss of 

passports; (6) a U.S. Government 

determination that the government 

accepts for repatriation any citizen, 

former citizen, or national not later than 

three weeks after the issuance of a final 

executable order of removal; and (7) an 

agreement with the United States to 

share information regarding whether 

citizens or nationals of the country 

represent a threat to the security or 

welfare of the United States or its 

citizens. 

The INA also sets forth requirements 

for continued eligibility and, where 

appropriate, probation and/or 

termination of program countries. 

Prior to this final rule, the designated 

countries in the VWP were Andorra, 

Australia, Austria, Belgium, Brunei, 

Chile, Croatia, Czech Republic, 

Denmark, Estonia, Finland, France, 

Germany, Greece, Hungary, Iceland, 

Ireland, Italy, Japan, Latvia, 

Liechtenstein, Lithuania, Luxembourg, 


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