[Code of Federal Regulations]
[Title 29, Volume 4]
[Revised as of July 1, 2006]
From the U.S. Government Printing Office via GPO Access
[CITE: 29CFR1208.6]
[Page 23-26]
TITLE 29--LABOR
CHAPTER X--NATIONAL MEDIATION BOARD
PART 1208_AVAILABILITY OF INFORMATION--Table of Contents
Sec. 1208.6 Schedule of fees and methods of payment for services
rendered.
(a) Definitions. For the purposes of this section the following
definitions apply:
(1) Direct costs means those expenditures which the National
Mediation Board actually incurs in searching for, duplicating, and, in
the case of commercial requesters, reviewing documents to respond to a
FOIA request. For example, direct costs include the salary of the
employee performing the work (the basic rate of pay for the employee
plus sixteen 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) Search includes all time spent looking for material that is
responsive to a request, including page-by-page and line-by-line
identification of material within documents. Searches may be done
manually or by computer using existing programming.
(3) 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, audiovisual materials, or machine readable
documentation (e.g., magnetic tape or disk), among others.
(4) 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) 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 NMB will look first to the use
which a requester will put the document requested. Where the NMB has
reasonable cause to doubt the use is not clear from the request itself,
the National Mediation Board may seek additional clarification before
assigning the request to a specific category.
(6) 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) Non-commercial scientific institution refers to an institution
that is not operated on a commercial basis as that term is defined 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) 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. 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 NMB may also
look to the past publication record of a requester in making this
determination.
(b) Exceptions of fee charges. (1) With the exception of requesters
seeking documents for a commercial use, the
[[Page 24]]
NMB will provide the first 100 pages of duplication and the first two
hours of search time without charge. The word ``pages'' in this
paragraph (b) refers to paper copies of standard size, usually
8.5x11, or their equivalent in microfiche or
computer disks. The term ``search time'' in this paragraph (b) 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 NMB will begin
assessing charges for computer search.
(2) The NMB 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 NMB 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 NMB 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 contributions 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
``primarily 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 the factors of
paragraph (b)(3)(ii) of this section as they apply to the request for
records in order to be considered by the Chief of Staff.
(c) Level of fees to be charged. The level of fees to be charged by
the NMB 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 non-commercial
scientific institution) research.
(3) The NMB 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 NMB shall charge requesters who do not fit into any of the
categories above such 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
[[Page 25]]
without charge. 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 sixteen 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 NMB fails to locate responsive 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 sixteen
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 or an exemption already applied.
(4) Certification or authentication of records. $2.00 per
certification or authentication.
(5) Duplication of records. Fifteen cents per page for paper copy
reproduction of documents, which the NMB 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 NMB
shall charge the actual cost, including operator time, of production of
the tape or printout.
(6) Forwarding material to destination. Postage, insurance and
special fees will be charged on an actual cost basis.
(7) Other costs. All other direct costs of preparing a response to a
request shall be charged to requester in the same amount as incurred by
NMB.
(e) Aggregating requests. When the NMB 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 NMB 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 thirtieth day following the billing date. Receipt of a
fee by the NMB, whether processed or not, will stay the accrual of
interest. If a debt is not paid, the agency may use the provisions of
the Debt Collection Act of 1982, (Pub. L. 97-365, 96 Stat. 1749)
including disclosure to consumer reporting agencies, for the purpose of
obtaining payment.
(g) Advance payments. The NMB 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 NMB estimates or determines that allowable charges that a
requester may be required to pay are likely to exceed $250. Then the NMB
will notify the requester of the likely cost and obtain satisfactory
assurances 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 charge in a
timely fashion (i.e, within thirty days of the date of the billing), in
which case the NMB requires the requester to pay the full amount owed
plus any applicable interest as provided above or demonstrate that he
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 NMB acts
under paragraph (g)(1) or (2) of this section, the administrative time
limits prescribed in subsection (a)(6) of the FOIA (i.e., twenty working
days from receipt of initial requests and twenty working days from
receipt of appeals from initial denial, plus permissible extension of
these time limits) will begin only after the NMB has received fee
payments described in this paragraph (g).
[[Page 26]]
(h) Payment. Payment of fees shall be made by check or money order
payable to the United States Treasury.
[63 FR 44395, Aug. 19, 1998]