§ 1703.107 - Fees for record requests.

§ 1703.107 Fees for record requests.

Cross Reference

Link to an amendment published at 89 FR 73260, Sept. 10, 2024.

(a) Fees for records available through the Public Reading Room.

(1) With the exception of copies of transcripts of Board public hearings addressed in paragraph (a)(2) of this section, the fees charged shall be limited to costs of duplication of the requested records. The Board shall either duplicate the requested records or have them duplicated by a commercial contractor. If the Board duplicates the records, it shall not charge the requester for the associated labor costs. A schedule of fees for this duplication service shall be prescribed in accordance with paragraph (b)(6) of this section. A person may obtain a copy of the schedule of fees in person or by mail from the Public Reading Room. There shall be no charge for responses consisting of ten or fewer pages.

(2) Transcripts of Board public hearings are made by private contractors. Interested persons may obtain copies of public hearing transcripts from the contractor at prices set in the contract, or through the duplication service noted in paragraph (a) of this section, if the particular contract so permits. Copies of the contracts shall be available for public inspection in the Public Reading Room.

(3) Requests for certification of copies of official Board records must be accompanied by a fee of $5.00 per document. Inquiries and orders may be made to the Public Reading Room in person or by mail.

(b) Fees for records not available through the Public Reading Room (FOIA requests).

(1) Definitions. For the purpose of paragraph (b) of this section:

Commercial use request means a request from or on behalf of one who seeks information for a use or purpose that furthers commercial, trade, or profit interests as these phrases are commonly known or have been interpreted by the courts in the context of the FOIA;

Direct costs means mean those expenditures which the Board DNFSB incurs in search, review, and duplication, as applicable to different categories of requesters, to respond to requests under § 1703.105. Direct costs include, for example, the average hourly salary and projected benefits costs of Board employees applied to time spent in responding to the request and the cost of operating duplicating machinery. Not included in direct costs are overhead agency personnel who search for, review, or duplicate records in response to a request. Overhead expenses such as cost of space, and heating or lighting the facility in which the Board DNFSB records are stored are not included in direct costs.

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 of scholarly research;

Noncommercial scientific institution refers to an institution that is not operated on a commercial basis 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;

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 public at large, and publishers of periodicals (but only in those instances when the periodicals can qualify as disseminations of “news”) who make their products available for purchase or subscription by the general public. These examples are not intended to be all-inclusive. Moreover, as traditional methods of news delivery evolve (e.g., electronic dissemination of newspapers through telecommunications services), such alternative media may be included in this category. A “freelance” journalist may be regarded as working for a news organization if the journalist can demonstrate a solid basis for expecting publication through that organization, even though the journalist is not actually employed by the news organization. A publication contract would be the clearest proof, but the Board may also look to the past publication record of a requester in making this determination.

(2) Fees.

(i) If documents are requested for commercial use, the Board DNFSB shall charge the average hourly pay rate for Board employees, plus the average hourly projected benefits cost, for document search time and for document review time, and hourly salary and projected benefits costs of agency personnel who search for and review records in response to a request, and for the costs of duplication as established in the schedule of fees referenced in paragraph set out in subsection (b)(6) of this section.

(ii) If documents are not sought for commercial use and the request is made by an educational or noncommercial scientific institution, whose purpose is scholarly or scientific research, or a representative of the news media, the BoardDNFSB's charges shall be limited to the direct costs of duplication as established in the schedule of fees referenced in paragraph set out in subsection (b)(6) of this section. There shall be no charge for the first 100 pages of duplication.

(iii) For a request not described in paragraphs (b)(2) (i) or (ii) of this section the Board , DNFSB shall charge the average hourly pay rate for Board employees, plus the average hourly projected benefits cost, for document search time, hourly salary and projected benefits costs of the agency's personnel who search for records in response to a request and the direct costs of duplication as established in the schedule of fees referenced in paragraph set out in subsection (b)(6) of this section. There shall be no charge for document review time, and the first 100 pages of reproduction and the first two hours of search time will be furnished provided without charge.

(iv) The Board will not assess any fees if it has failed to meet its deadlines in § 1703.108.

(v) The Board, or its designee, may establish minimum fees below which no charges will be collected, if it determines that the costs of routine collection and processing of the fees are likely to equal or exceed the amount of the fees. If total fees determined by the Board for a FOIA request would be less than the appropriate threshold, the Board shall not charge the requesters.

(vi) Payment of fees must be by check or money order made payable to the U.S. Treasury.

(vii) Requesters may not file multiple requests at the same time, each seeking portions of a document or documents, solely in order to avoid payment of fees. When the Board 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 assessment of fees, the Board may aggregate any such requests and charge the requester accordingly. The Board shall not, however, aggregate multiple requests on unrelated subjects from a requester.

(viii) Whenever the Board estimates that duplication or search costs are likely to exceed $25, it shall notify the requester of the estimated costs, unless the requester has indicated in advance his willingness to pay fees as high as those anticipated. Such a notice shall offer the requester an opportunity to confer with the Board personnel with the object of reformulating the request to meet the requester's needs at a lower cost.

(3) Fees for unsuccessful search. The Board may assess charges for time spent searching, even if it fails to locate the records, or if records located are determined to be exempt from disclosure.

(4) Advance payments.

(i) If the Board estimates or determines that allowable charges that a requester may be required to pay are likely to exceed $250, the Board shall notify such requester of the estimated cost and either require satisfactory assurance of full payment where the requester has a history of prompt payment of fees, or require advance payment of the charges if a requester has no payment history.

(ii) If a requester has previously failed to pay a fee charged in a timely fashion, the Board shall require the requester to pay the full amount owed plus any applicable interest, and to make an advance payment of the full amount of the estimated fee before the Board will begin to process a new request or a pending request from that requester.

(iii) When the Board requires advance payment under this paragraph, the administrative time limits prescribed in § 1703.108(b) will begin only after the Board has received the fee payments.

(5) Debt collection. The Board itself may endeavor to collect unpaid FOIA fees, or may refer unpaid FOIA invoices to the General Services Administration, or other federal agency performing financial management services for the Board, for collection.

(6) Annual adjustment of fees —

(i) Update and publication. The Board, by its designee, the General Manager, shall promulgate a schedule of fees and the average hourly pay rates and average hourly projected benefits cost and will update that schedule once every twelve months. The General Manager shall publish the schedule for public comment in the Federal Register.

(ii) Payment of updated fees. The fee applicable to a particular FOIA request will be the fee in effect on the date that the request is received.

Schedule of Fees. To the extent authorized by these regulations, DNFSB is authorized to seek the following fees to recover costs incurred in responding to FOIA requests:

(i) Document search charges —

(A) Manual: Salary rate(s) (basic hourly pay plus 16%) of personnel performing records search or review.

(B) Electronic: Salary rate(s) (basic hourly pay plus 16%) of personnel performing search or review.

(C) Document Review Charges: Salary rate(s) (basic hourly pay plus 16%) of personnel performing search or review.

(iii) Commercial requests. DNFSB will charge requesters who seek records for commercial purposes for the cost of reviewing them to determine whether they are exempt from mandatory disclosure. The agency will assess these charges only when the records are first analyzed to determine the applicability of a specific exemption to a record or portion thereof. DNFSB will not charge for the review of an exemption previously applied at the administrative review level. If a record or portion thereof was withheld in full under an exemption that is subsequently found inapplicable, it may be reviewed again to determine the applicability of other exemptions not previously considered. DNFSB may charge for the cost of such review.

(iv) Copying charges. (1) Paper: $.05 per page, if done in-house, or generally available commercial rate, approximately $0.10 per page.

(2) Electronic media: Direct cost, including operator time (basic hourly pay plus 16%).

(3) Audio and video cassette: Actual commercial rates.

(4) Duplication of CD or DVD: Direct cost, including operator time (basic hourly pay plus 16%).

(5) Large documents, e.g., maps or diagrams: Actual commercial rates.

[56 FR 21261, May 8, 1991, as amended at 62 FR 66816, Dec. 22, 1997; 82 FR 30723, July 3, 2017; 89 FR 73260, Sept. 10, 2024]