[Code of Federal Regulations]
[Title 29, Volume 1]
[Revised as of July 1, 2003]
From the U.S. Government Printing Office via GPO Access
[CITE: 29CFR70.38]

[Page 435-437]
 
                             TITLE 29--LABOR
 
PART 70--PRODUCTION OR DISCLOSURE OF INFORMATION OR MATERIALS--Table of 
Contents
 
              Subpart C--Costs for Production of Documents
 
Sec. 70.38  Definitions.


    The following definitions apply to the terms of this subpart.
    (a) The term a statute specifically providing for setting the level 
of fees for particular types of records (See 5 U.S.C. 552(a)(4)(A)(vi)), 
means any statute other than FOIA that specifically requires a 
Government agency to establish a fee schedule for particular types of 
records. An example of such a statute is section 205(c) of the Labor-
Management Reporting and Disclosure Act, as amended, 29 U.S.C. 435(c). 
Statutes such as the User Fee Statute which only provide a general 
discussion of fees without explicitly requiring that an agency set and 
collect fees for particular documents are not within the meaning of this 
term.
    (b) The term direct costs means those expenditures which an agency 
actually incurs in searching for and duplicating (and in the case of a 
commercial requester, reviewing) documents to respond to an FOIA 
request. Direct costs

[[Page 436]]

includes the salary of the employee performing the work and the cost of 
operating duplicating machinery, and when appropriate the cost of the 
medium in which the information is made available.
    (c) The term duplication means 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, microform, audio-visual materials or machine-
readable documentation (e.g., magnetic tape or disk), among others.
    (d) The term search means the process of looking for material that 
is responsive to a FOIA request; including page-by-page or line-by-line 
identification of materials within documents or, when available, use of 
an existing computer program. Searches do not include the review of 
material, as defined in Sec. 70.38(e), which is performed to determine 
whether material is exempt from disclosure.
    (e) The term review means the process of examining documents located 
in response to a request that is for a commercial use, as defined in 
Sec. 70.38 (f), to determine whether any portion of the document located 
is exempt from disclosure, and accordingly may be withheld. It also 
includes the act of preparing materials for disclosure, i.e. 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.
    (f) The term commercial use request means a request from one who 
seeks information for a use or purpose that furthers the commercial, 
trade or profit interests of the requester or the person or entity on 
whose behalf the request was submitted. When a request is submitted by a 
commercial entity or its representative and from the nature of the 
information sought it appears the request is to further the objective of 
that entity, the request will be treated as a commercial use request 
unless the requester indicates that the information is being sought for 
a non-commercial purpose. Where a requester indicates that the 
information is being sought for a non-commercial purpose, the disclosure 
officer will evaluate the requester's submission and determine how the 
request is to be treated. While requests by non-profit organizations 
would normally fall outside the commercial use category, when the 
disclosure officer determines that a request by such an entity or one 
acting on its behalf does further the entity's commercial interests, he 
or she may treat the request as a commercial use request.
    (g) The term educational institution means:
    (1) An institution which is a preschool, a public or private 
elementary or secondary school, an institution of undergraduate higher 
education, an institution of graduate higher education, an institution 
of professional education, or an institution of vocational education, 
and
    (2) Operates a program or programs of scholarly research. To qualify 
under this definition, the program of scholarly research in connection 
with which the information is sought must be carried out under the 
auspices of the academic institution itself as opposed to the individual 
scholarly pursuits of persons affiliated with an institution. For 
example, a request from a professor to assist him or her in writing a 
book independent of his or her institutional responsibilities would not 
qualify under this definition, whereas a request predicated upon 
research funding granted to the institution would meet its requirements. 
Likewise, a request from a student enrolled in an individual course of 
study at an educational institution would not qualify as a request from 
the institution.
    (h) The term non-commercial scientific institute means an 
institution that is not operated on a commercial basis as that term is 
defined in Sec. 70.38(f), and that is operated solely for the purpose of 
conducting scientific research, the results of which are not intended to 
promote any particular product or industry.

[[Page 437]]

    (i) The term representative of the news media means any person 
actively gathering news for an entity that is organized and operated to 
publish or broadcast news to the public. Factors indicating such 
representation status include press accreditation, guild membership, a 
history of continuing publication, business registration, and/or Federal 
Communication Commission licensing, among others. For purpose of this 
definition the term news contemplates information that is about current 
events or that would be of current interest to the public. A freelance 
journalist shall be treated as a representative of the news media if the 
person can demonstrate a solid basis for expecting publication of 
matters related to the requested information through a qualifying news 
media entity. A publication contract with a qualifying news media entity 
satisfies this requirement. An individual's past publication record with 
organizations of the foregoing nature is also relevant to this 
determination. Examples of news media entities include:
    (1) Television or radio stations broadcasting to the public at 
large, and
    (2) Publishers of periodicals including newsletters (but only in 
those instances where they can qualify as disseminators of news) who 
make their products available for purchase or subscription by the 
general public.

[54 FR 23144, May 30, 1989; 54 FR 25204, June 13, 1989]