[Code of Federal Regulations]
[Title 5, Volume 3, Parts 1200 to end]
[Revised as of January 1, 1999]
From the U.S. Government Printing Office via GPO Access
[CITE: 5CFR2411.10]
[Page 352-355]
TITLE 5--ADMINISTRATIVE PERSONNEL
CHAPTER XIV--FEDERAL LABOR RELATIONS AUTHORITY, GENERAL COUNSEL OF THE
FEDERAL LABOR RELATIONS AUTHORITY AND FEDERAL SERVICE IMPASSES PANEL
PART 2411--AVAILABILITY OF OFFICIAL INFORMATION--Table of Contents
Sec. 2411.10 Fees.
(a) Definitions. For the purpose of this section:
(1) The term direct costs means those expenditures which the
Authority, the General Counsel or the Panel 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 page-by-page or line-by-line
identification of material within documents. Searches may be done
manually or by computer using existing programming.
(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 or the Panel will look first to the use to which a requester
will put the document requested. Where the Authority, the General
Counsel or the Panel 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 or the Panel
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
actively gathering news for an entity that is organized and operated to
publish or broadcast news to the public. 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
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public at large, and publishers of periodicals (but only in those
instances when they can qualify as disseminators of ``news'') who make
their products available for purchase or subscription by the general
public. These examples are not intended to be all-inclusive. In the case
of ``freelance'' journalists, they may be regarded as working for a news
organization if they demonstrate a solid basis for expecting publication
through that organization, even though not actually employed by it. A
publication contract would be the clearest proof, but the Authority, the
General Counsel or the Panel may also look to the past publication
record of a requester, press accreditation, guild membership, business
registration, Federal Communications Commission licensing, or similar
credentials of a requester in making this determination.
(b) Exceptions to fee charges. (1) With the exception of requesters
seeking documents for a commercial use, the Authority, the General
Counsel or the Panel will provide the first 100 pages of duplication and
the first two hours of search time without charge. The word ``pages'' in
this paragraph refers to paper copies of standard size, usually 8\1/2\"
by 11", 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 or the
Panel will begin assessing charges for computer search.
(2) The Authority, the General Counsel, or the Panel 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)(i) The Authority, the General Counsel or the Panel will provide
documents without charge or at reduced charges if disclosure of the
information is in the public interest because it is likely to contribute
significantly to public understanding of the operations or activities of
the government and is not primarily in the commercial interest of the
requester.
(ii) In determining whether disclosure is in the public interest
under paragraph (b)(3)(i) of this section, the Authority, the General
Counsel, and the Panel 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'';
(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;
(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'';
(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;
(e) The existence and magnitude of a commercial interest. Whether
the requester has a commercial interest that would be furthered by the
requested disclosure; and, if so
(f) 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
``primary in the commercial interest of the requester.''
(iii) A request for a fee waiver based on the public interest under
paragraph (b)(3)(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, or the Panel.
(c) Level of fees to be charged. The level of fees to be charged by
the Authority, the General Counsel or the Panel, 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
[[Page 354]]
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 non-commercial
scientific institution) research.
(3) The Authority, the General Counsel or the Panel 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 or the Panel shall charge
requesters who do not fit into any of the categories above 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, or Panel systems of
records will continue to be treated under the fee provisions of the
Privacy Act of 1974, which permits fees only for reproduction.
All requesters must reasonably describe the records sought.
(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 or the Panel fails to locate
records or if records located are determined to be exempt from
disclosure.
(2) Computer searches for records. $4.15 per quarter hour, which the
Authority, the General Counsel and the Panel determined to be 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 employee(s) conducting the review. This charge applies
only to requesters who are seeking documents for commercial use, and
only to the review necessary at the initial administrative level to
determine the applicability of any relevant FOIA exemptions, and not at
the administrative appeal level of an exemption already applied.
(4) Duplication of records. Twenty-five cents per page for paper
copy reproduction of documents, which the Authority, the General Counsel
and the Panel 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
or the Panel 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 or
the Panel 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 or the Panel 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 or the Panel, whether processed or
not, will stay the accrual of interest.
(g) Advanced payments. The Authority, the General Counsel or the
Panel will not require a requester to make an advance payment, i.e.,
payment before work is commenced or continued on a request, unless:
[[Page 355]]
(1) The Authority, the General Counsel or the Panel 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
or the Panel 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 or the Panel requires the
requester to pay the full amount owed plus any applicable interest as
provided above 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 or
the Panel 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 or the Panel has received fee payments described above.
(h) Requests for copies of transcripts of hearings should be made to
the official hearing reporter. However, a person may request a copy of a
transcript of a hearing from the Authority, the Panel or the General
Counsel, as appropriate. In such instances, the Authority, the General
Counsel or the Panel, as appropriate, may, by agreement with the person
making the request, make arrangements with commercial firms for required
services to be charged directly to the requester.
(i) Payment of fees shall be made by check or money order payable to
the U.S. Treasury.
[52 FR 26128, July 13, 1987, as amended at 62 FR 60997, Nov. 14, 1997]