[Code of Federal Regulations]
[Title 10, Volume 4]
[Revised as of January 1, 2003]
From the U.S. Government Printing Office via GPO Access
[CITE: 10CFR1004.9]

[Page 654-657]
 
                            TITLE 10--ENERGY
 
          CHAPTER X--DEPARTMENT OF ENERGY (GENERAL PROVISIONS)
 
PART 1004--FREEDOM OF INFORMATION--Table of Contents
 
Sec. 1004.9  Fees for providing records.

    (a) Fees to be charged. The DOE will charge fees that recoup the 
full allowable direct costs incurred. The DOE will use the most 
efficient and least costly methods to comply with requests for documents 
made under the FOIA. The DOE may contract with private sector services 
to locate, reproduce and disseminate records in response to FOIA 
requests when that is the most efficient and least costly method. When 
doing so, however, the DOE will ensure that the ultimate cost to the 
requester is no greater than it would be if the DOE itself had performed 
these tasks. In no case will the DOE contract out responsibilities which 
the FOIA provides that only the agency may discharge, such as 
determining the applicability of an exemption, or determining whether to 
waive or reduce fees. Where the DOE can identify documents that are 
responsive to a request and are maintained for public distribution by 
other agencies such as the National Technical Information Service and 
the Government Printing Office, the Freedom of Information Officer will 
inform requesters of the procedures to obtain records from those 
sources.
    (1) Manual searches for records. Whenever feasible, the DOE will 
charge for manual searches for records at the salary rate(s) (i.e. basic 
pay plus 16 percent) of the employee(s) making the search.
    (2) Computer searches for records. The DOE will charge at the actual 
direct cost of providing the service. This will include the cost of 
operating the central processing unit (CPU) for that portion of 
operating time that is directly attributable to searching for records 
responsive to a FOIA request and operator/programmer salary.
    (3) Review of records. The DOE will charge requesters who are 
seeking documents for commercial use for time spent reviewing records to 
determine whether they are exempt from mandatory disclosure. Charges 
will be assessed only for the initial review (i.e., the review 
undertaken the first time the DOE analyzes the applicability of a 
specific exemption to a particular record or portion of a record. The 
DOE will not charge for review at the administrative appeal level of an 
exemption already applied. However, records or portions of records 
withheld in full under an exemption which is subsequently determined not 
to apply may be reviewed again to determine the applicability of other 
exemptions not previously considered. The costs for such a subsequent 
review would be properly assessable.
    (4) Duplication of records. The DOE will make a per-page charge for 
paper copy reproduction of documents. At present, the charge for paper 
to paper copies will be five cents per page and the charge for microform 
to paper copies will be ten cents per page. For computer generated 
copies, such as tapes or printouts, the DOE will charge the actual cost, 
including operator time, for production of the tape or printout. For 
other methods of reproduction or duplication, we will charge the actual 
direct costs of producing the document(s).
    (5) Other charges. It shall be noted that complying with requests 
for special services such as those listed below is entirely at the 
discretion of this agency. Neither the FOIA nor its fee structure cover 
these kinds of services. The DOE will recover the full direct costs of 
providing services such as those enumerated below to the extent that we 
elect to provide them:
    (i) Certifying that records are true copies;
    (ii) Sending records by special methods such as express mail, etc.
    (6) Restrictions on assessing fees. With the exception of requesters 
seeking

[[Page 655]]

documents for a commercial use, section (a)(4)(A)(iv) of the Freedom of 
Information Act, as amended, DOE will provide the first 100 pages of 
duplication and the first two hours of search time without charge. 
Moreover, DOE 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. These provisions work together, 
so that except for commercial use requesters, DOE will not begin to 
assess fees until after the Department has provided the free search and 
reproduction. For example, if a request involves two hours and ten 
minutes of search time and results in 105 pages of documents, DOE will 
charge for only 10 minutes of search time and only five pages of 
reproduction. If this cost is equal to or less than $15.00, the amount 
DOE incurs to process a fee collection, no charges would be assessed. 
For purposes of these restrictions on assessment of fees, the word 
``pages'' refers to paper copies of a standard agency size which will be 
normally be ``8\1/2\x11'' or ``11x14.'' Thus, requesters would not be 
entitled to 100 microfiche or 100 computer disks, for example. A 
microfiche containing the equivalent of 100 pages or 100 pages of 
computer printout, however, might meet the terms of the restriction. 
Similarly, the term ``search time'' is based on a manual search. To 
apply this term to searches made by computer, the DOE will determine the 
hourly cost of operating the central processing unit and the operator's 
hourly salary plus 16 percent. When the cost of the search (including 
the operator time and the cost of operating the computer to process a 
request) equals the equivalent dollar amount of two hours of the salary 
of the computer operator conducting the search, DOE will begin assessing 
charges for computer search.
    (7) Notification of charges. If the DOE determines or estimates that 
the fees to be assessed under this section may amount to more than 
$25.00, the requester will be informed of the estimated amount of fees, 
unless the requester has previously indicated a willingness to pay the 
amount estimated by the agency. In cases where a requester has been 
notified that actual or estimated fees may amount to more than $25.00, 
the request will be deemed not to have been received until the requester 
has agreed to pay the anticipated total fee. A notice to a requester 
pursuant to this paragraph will offer him the opportunity to confer with 
DOE personnel in order to reformulate his request to meet his needs at a 
lower cost.
    (8) Waiving or reducing fees. The DOE will furnish 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 disclosure is not primarily in the commercial interest of the 
requester. This fee waiver standard thus sets forth two basic 
requirements, both of which must be satisfied before fees will be waived 
or reduced. First it must be established that disclosure of the 
requested information is in the public interest because it is likely to 
contribute significantly to public understanding of the operations or 
activities of the government. Second, it must be established that 
disclosure of the information is not primarily in the commercial 
interest of the requester. When these requirements are satisfied, based 
upon information supplied by a requester or otherwise made known to the 
DOE, the waiver or reduction of a FOIA fee will be granted. In 
determining when fees should be waived or reduced the Freedom of 
Information Officer should address the following two criteria:
    (i) That 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.'' Factors to be 
considered in applying this criteria include but are not limited to:
    (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 by the general public of 
the

[[Page 656]]

subject likely to result from disclosure; and
    (D) The significance of the contribution to public understanding: 
Whether the disclosure is likely to contribute ``significantly'' to 
public understanding of government operations or activities.
    (ii) If Disclosure of the Information ``is Not Primarily in the 
Commercial Interest of the Requester.'' Factors to be considered in 
applying this criteria include but are not limited to:
    (A) 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
    (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.''
    (b) Fees to be charged--categories of requesters. There are four 
categories of FOIA requesters: Commercial use requesters; educational 
and non-commercial scientific institutions; representatives of the news 
media; and all other requesters. The Freedom of Information Officer will 
make determinations regarding categories of requesters as defined at 
Sec. 1004.2. The Headquarters Freedom of Information Officer will assist 
field Freedom of Information Officers in categorizing requesters, and 
will resolve conflicting categorizations. The FOIA prescribes specific 
levels of fees for each of these categories:
    (1) Commercial use requesters. When the DOE receives a request for 
documents which appears to be for commercial use, charges will be 
assessed to recover the full direct costs of searching for, reviewing 
for release, and duplicating the records sought. Commerical use 
requesters are not entitled to two hours of free search time nor 100 
free pages of reproduction of documents. The DOE will recover the cost 
of searching for and reviewing records even if there is ultimately no 
disclosure of records.
    (2) Educational and non-commercial scientific institution 
requesters. The DOE will provide documents to requesters in this 
category for the cost of reproduction only, excluding charges for the 
first 100 pages. To be eligible for inclusion in this category, 
requesters must show that the request is being made as authorized by and 
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) Requesters who are representatives of the news media. The DOE 
will provide documents to requesters in this category for the cost of 
reproduction only, excluding charges for the first 100 pages. To be 
eligible for inclusion in this category, a requester must meet the 
criteria in Sec. 1004.2(m), and his or her request must not be made for 
a commercial use. With respect to this class of requesters, a request 
for records supporting the news dissemination function of the requester 
will not be considered to be a request for a commercial use.
    (4) All other requesters. The DOE will charge requesters who do not 
fall into any of the above categories fees which recover the full 
reasonable 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 will be furnished 
without charge. Moreover, requests from individuals for records about 
themselves filed in DOE systems of records will continue to be processed 
under the fee provisions of the Privacy Act of 1974.
    (5) Charging interest--notice and rate. Interest will be charged 
those requesters who fail to pay fees. The DOE will begin to assess 
interest charges on the amount billed on the 31st day following the day 
on which the billing was sent to the requester. Interest will be at the 
rate prescribed in section 3717 of Title 31 U.S.C. and will accrue from 
the date of the billing.
    (6) Charges for unsuccessful search. The DOE will assess charges for 
time spent searching even if the search fails to identify responsive 
records or if records located are determined to be exempt from 
disclosure. If the DOE estimates that search charges are likely

[[Page 657]]

to exceed $25, it will notify the requester of the estimated amount of 
fees, unless the requester has indicated in advance his willingness to 
pay fees as high as those anticipated. Such a notice will offer the 
requester the opportunity to confer with agency personnel in order to 
reformulate the request to reduce the cost of the request.
    (7) Aggregating requests. A requester may not file multiple requests 
each seeking portions of a document or documents, solely to avoid 
payment of fees. When the DOE reasonably believes that a requester or, a 
group of requesters acting in concert, is attempting to break a request 
down into a series of requests for the purpose of evading the assessment 
of fees, the DOE will aggregate any such requests and charge the 
appropriate fees. The DOE may consider the time period in which the 
requests have been made in its determination to aggregate the related 
requests. In no case will DOE aggregate multiple requests on unrelated 
subjects from one requester.
    (8) Advance payments. Requesters are not required to make an advance 
payment (i.e., payment before action is commenced or continued on a 
request) unless:
    (i) The DOE estimates or determines that allowable charges that a 
requester may be required to pay are likely to exceed $250.00. In such 
cases, the DOE will notify the requester of the likely cost and obtain a 
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.
    (ii) A requester has previously failed to pay a fee in a timely 
fashion (i.e., within 30 days of the date of the billing). The DOE will 
require the requester to pay the full amount delinquent plus any 
applicable interest as provided in paragraph (b)(5) of this section, or 
demonstrate that he has, in fact, paid the delinquent fee; and to make 
an advance payment of the full amount of the estimated current fee 
before we begin to process a new request or a pending request from that 
requester.
    When the DOE acts under paragraphs (b)(8) (i) or (ii) of this 
section, the administrative time limits prescribed in subsection (a)(6) 
of the FOIA (i.e., 10 working days from receipt of initial requests and 
20 working days from receipt of appeals from initial denials, plus 
permissible extensions of these time limits) will begin only after the 
DOE has received fee payments described above.
    (c) Effect of the Debt Collection Act of 1982 (Pub. L. 97-365). The 
DOE will use the authorities of the Debt Collection Act, including 
disclosure to consumer reporting agencies and the use of collection 
agencies, where appropriate, to encourage payment of fees.