§ 102.117 - Freedom of Information Act Regulations: Agency materials including formal documents available pursuant to the Freedom of Information Act; requests for described records; time limit for response; appeal from denial of request; fees for document search, duplication, and review; files and records not subject to inspection.

§ 102.117 Freedom of Information Act Regulations: Board Agency materials and including formal documents available for public inspection and copyingpursuant to the Freedom of Information Act; requests for described records; time limit for response; appeal from denial of request; fees for document search, duplication, and duplicationreview; files and records not subject to inspection.

(a)

(1) Introduction. This subpart contains the rules Rules that the National Labor Relations Board (Agency) follows in processing requests for records under the Freedom of Information Act (FOIA), 5 U.S.C. 552. Information routinely provided to the public as part of a regular Agency activity (for example, press releases issued by the Division of Information) may be provided to the public without following this subpart. Such records may also be made available in the Agency's reading room in paper form, as well as electronically to facilitate public access. As a matter of policy, the Agency will consider making discretionary disclosures of records or information exempt under the FOIA whenever disclosure would not foreseeably harm an interest protected by a FOIA exemption, but this policy does not create any right enforceable in court.

(2) The following materials are available to the public for inspection and copying during normal business hours:

(i) All final opinions and orders made in the adjudication of cases;

(ii) Statements of policy and interpretations that are not published in the Federal Register;

(iii) Administrative staff manuals and instructions that affect any member of the public (excepting those establishing internal operating rules, guidelines, and procedures for investigation, trial, and settlement of cases);

(iv) A current index of final opinions and orders in the adjudication of cases;

(v) A record of the final votes of each Member of the Board in every Agency proceeding;

(vi) Records which have been released and which the Agency determines, because of their subject matter, have become or are likely to become the subject of subsequent requests for substantially the same records; and

(vii) A general index of records referred to in paragraph (a)(2)(vi) of this section. Items in paragraphs (a)(2)(i) through (vii) of this section are available for inspection and copying during normal business hours at the Board's offices in Washington, DC. Items in paragraph (a)(2)(iii) of this section are also available for inspection and copying during normal business hours at each Regional, Subregional, and Resident Office of the Board. Final opinions and orders made by Regional Directors in the adjudication of representation cases pursuant to the delegation of authority from the Board under section 3(b) of the Act are available to the public for inspection and copying in the original office where issued. Records encompassed within paragraphs (a)(2)(i) through (a)(2)(vii) of this section created on or after November 1, 1996, will be made available by November 1, 1997, to the public by computer telecommunications or, if computer telecommunications means have not been established by the Agency, by other electronic means. The Agency shall maintain and make available for public inspection and copying a current subject matter index of all reading room materials which shall be updated regularly, at least quarterly, with respect to newly included records. Copies of the index are available upon request for a fee of the direct cost of duplication. The index of FOIA-processed records referred to in paragraph (a)(2)(vii) of this section will be available by computer telecommunications by December 31, 1999.

(3) Copies of forms prescribed by the board for the filing of charges under section 10 alleging violations of the Act under section 8, or petitions under section 9, may be obtained without charge from any Regional, Subregional, or Resident Office of the Board. These forms are available electronically through the Agency's World Wide Web site (which can be found at http://www.nlrb.gov).

(4) The Agency shall, on or before February 1, 1998, and annually thereafter, submit a FOIA report covering the preceding fiscal year to the Attorney General of the United States. The report shall include those matters required by

The Rules in this subpart may be read in conjunction with the text of the FOIA and the Uniform Freedom of Information Fee Schedule and Guidelines published by the Office of Management and Budget (OMB Guidelines). Some records will be made available on the Agency's Web site at www.nlrb.gov to facilitate public access. Requests made by individuals for records about themselves under the Privacy Act of 1974, 5 U.S.C. 552(a), are processed under § 102.119.

(2) FOIA Officials. The following are designated as the Agency's FOIA officials with responsibilities for complying with the FOIA:

(i) FOIA Officer. The Assistant General Counsel for the FOIA Branch is the Agency's designated FOIA Officer.

(ii) Chief FOIA Officer. The Associate General Counsel for the Division of Legal Counsel is the Agency's designated Chief FOIA Officer.

(iii) FOIA Public Liaison. The official(s) designated by the Chief FOIA Officer is the Agency's FOIA Public Liaison, with overall responsibilities for assisting in reducing delays, increasing transparency, understanding the status of requests, and assisting in the resolution of disputes. The designated FOIA Public Liaison is available on the Agency's Web site.

(3) Authority to respond to requests and administrative appeals. The FOIA Officer has the authority to act upon and respond on behalf of the Board and the General Counsel to all requests for Agency records, except for records maintained by the Agency's Office of the Inspector General. The Office of the Inspector General has the authority to respond to all requests for records maintained by that Office. The Chief FOIA Officer has the authority to respond on behalf of the Chairman of the Board and the General Counsel to all administrative appeals of adverse determinations. The Chief FOIA Officer's authority includes responding, on behalf of the Chairman of the Board, to appeals of initial determinations made by the Office of the Inspector General.

(4) Records made available. Records that are required by the FOIA under 5 U.S.C. 552(e), and shall be made available electronically. a)(2) may be accessed through the Agency's Web site at www.nlrb.gov.

(b)

(1) Formal documents. The formal documents constituting the record in a case or proceeding are matters of official record and, until officially destroyed pursuant to applicable statutory authority, are available to the public for inspection and copying during normal business hours at the appropriate Regional Office of the Board or at the Board's office in Washington, DC, as the case may be. If the case or proceeding has been closed for more than 2 years, the appropriate Regional Office of the Board or the Board's office in Washington, DC, upon request, will contact the Federal Records Center to obtain the records.

(2) The Executive Secretary shall

pursuant to the procedures in this section.

(2) Certification of records. The Executive Secretary will certify copies of all formal documents maintained by the Board upon request made a reasonable time in advance of need and payment of lawfully prescribed costs. The Deputy General Counsel will certify copies of any record maintained by, or originating from, the Office of General Counsel and any division, branch, or office organizationally overseen by the Office of the General Counsel, including any Regional, Subregional, or Resident Office.

(c)

(1) Requests for the inspection and copying of records other than those specified in paragraphs (a) and (b) of this section Making FOIA requests to the Agency —

(i) Content of requests —

(A) Description of records sought. Requests for records must be in writing and must reasonably describe the record

in a manner

so as to permit its identification and location.

The envelope and the letter, or the cover sheet of any fax transmittal, should be clearly marked to indicate that it contains a request for records under the Freedom of Information Act (FOIA). The request

To the extent possible, requesters may include specific information, such as the NLRB case number, case name, date(s) of record(s) requested, and/or full name of the party, author, or recipient of the record(s) in question. Requesters should include as much detail as practicable about the records sought. Requesters may contact the FOIA Public Liaison to discuss the records sought and to receive assistance in describing the records.

(B) Assumption of fees. Requests must contain a specific statement assuming financial

liability

responsibility for the direct costs of responding to the request in accordance with paragraph (d)(2) of this section

for the direct costs of

.

(C) Specificity requirement. Requests that do not reasonably describe the records sought or assume sufficient financial responsibility for responding to the request

. If the request is made for records in a Regional or Subregional Office of the Agency, it should be made to that Regional or Subregional Office. If the request is for records located in Washington, DC (in the

, or that otherwise fail to comply with this section, may delay the Agency's response to the request.

(ii) Transmission of requests. Requests for records maintained by the Agency should be made to the FOIA Branch, which is located in the Agency's Washington, DC headquarters. The FOIA Branch is responsible for responding to requests for records originating from, or maintained by, the Board and the Office of the General Counsel,

the Offices of the Board, or the

including Regional, Subregional, and resident offices. Requests for records maintained by the Agency's Office of the Inspector General may be made directly to that office.

(A) Requesters may file FOIA requests electronically through the Agency's Web site (https://www.nlrb.gov), which is the preferred method of submission to allow for prompt receipt, including for requests for records maintained by the Agency's Office of the Inspector General

), it should

. FOIA requests may also be made by mail to the

NLRB FOIA Officer,

Agency's Washington, DC headquarters address, by email to the Agency's designated mailbox, or by facsimile. The mailing address, email address, and facsimile number are available on the Agency's Web site.

(B) Requests not made through the Agency's Web site should be clearly marked to indicate that they contain a request for records under the Freedom of Information Act.

(C) Requests made to an Agency division, branch, or any office other than the

appropriate office

FOIA Branch will be forwarded to

that office

the FOIA Branch by the receiving office, but in that event, the applicable time limit for response set forth in paragraph (

c)(2)(

i) of this section

shall

will be calculated from the date of receipt by the

appropriate office. FOIA requests made to an office other than to the office where the records were generated may be referred to the generating office for response. In the case of records generated by the Inspector General in the possession of another office, or in the possession of the Inspector General but generated by another office of the Agency, the request will be referred to the appropriate FOIA officer for the generating office for decision. If the Agency determines that a request does not reasonably describe records, it may contact the requester to inform the requester either what additional information is needed or why the request is insufficient. Requesters may be given an opportunity to discuss their request so that requests may be modified to meet the requirements of this section.

(2)

(i) The Agency ordinarily shall respond to

FOIA Branch. The receiving office will normally forward the request to the FOIA Branch within 10 days of the initial receipt.

(D) Requests made to the Agency for records that originated with another governmental agency may be referred to that agency.

(2) Processing of FOIA requests —

(i) Timing of response. The Agency ordinarily responds to FOIA requests according to their order of receipt. Effective October 2, 1997, an initial response shall be made An initial determination will be issued within 20 working days (i.e., exempting Saturdays, Sundays, and legal public holidays) after the receipt of a request for a record under this part by the Freedom of Information Officer or his designee. An appeal under paragraph (c)(2)(v) of this section shall be decided within 20 days (excepting Saturdays, Sundays, and legal public holidays) after the receipt of such an appeal by the Office of Appeals or the Chairman of the Board. Because the Agency has been able to process its requests without a backlog of cases, the Agency will not institute a multitrack processing system.

(ii)

. Responsive records are released at the time of the determination or, if necessary, at a time thereafter on a rolling basis.

(ii) Expedited treatment. A request for expedited processing may be made at any time during the pendency of a FOIA request or appeal. Requests and appeals will be taken out of order and given expedited treatment whenever it is determined that they involve: Circumstances in which the when warranted. A requester must provide sufficient justification to grant such processing by showing that any one of the following circumstances exists:

(A) The lack of expedited treatment could reasonably be expected to pose an imminent threat to the life or physical safety of an individual; or

(B) There is an urgency to inform the public about an actual or alleged federal government activity, if made by a person primarily engaged in disseminating information;

the

or

(C) The loss of substantial due process rights; or

a matter of

(D)

(1) There is widespread and exceptional media interest

in which there exist

and possible questions exist about the government's integrity which may affect public confidence.

A request for expedited processing may be made at the time of the initial request for records or at any later time. A requester who seeks expedited processing must submit a statement, certified to be true and correct to the best of that person's knowledge and belief, explaining in detail the basis for requesting expedited processing. The formality of certification may be waived as a matter of administrative discretion. Within ten calendar days of its

(2) Within 10 calendar days of receipt of a request for expedited processing, the Agency

shall

will decide whether to grant it and

shall

will notify the requester of the decision. Once the determination has been made to grant expedited processing, the request

shall

will be given priority and

shall be

processed as soon as practicable. If a request for expedited processing is denied, the Agency

shall

will act expeditiously on any appeal of that decision.

(iii) Initial determination of requests. Within 20 working days after receipt of a request by the appropriate office of the AgencyFOIA Branch, a determination shall will be made whether to comply with such request, and the person making the request shall requester will be notified in writing of that determination. In the case of requests made for records maintained by the Agency's Office of the Inspector General records, that determination shall will be made by the Office of the Inspector General. In the case of all other requests, that determination shall be made by the NLRB FOIA Officer, or the Regional or Subregional Office, as the case may be. Requesters will be made aware of their right to seek assistance from the Agency's FOIA Public Liaison.

(A) Grants of requests. If the determination is to comply with the request, the records

shall

will be made promptly available to the person making the request and, at the same time, a statement of any charges due in accordance with the fee schedule provisions of paragraph (d)(2) of this section will be provided.

(B) Denials of requests. If the determination is to deny the request in any respect, the requester

shall

will be notified in writing of that determination.

Adverse determinations, or denials of requests,

The determination will set forth: The reason(s) for the denial; the name and title or position of each person responsible for the denial; and an estimate of the volume of records or information withheld, in number of pages or in some other reasonable form of estimation: However, this estimate does not need to be provided if the volume is otherwise indicated through deletions on records disclosed in part, or if providing an estimate would harm an interest protected by an applicable exemption. The determination will also inform the requester of the right to seek dispute resolution services from the Agency's FOIA Public Liaison or the Office of Government Information Services, as well as the right to appeal the adverse determination under the administrative appeal provisions of paragraph (c)(2)(v) of this section.

(C) Adverse determinations may consist of: A determination to withhold any requested record in whole or in part; a determination that a requested record does not exist or cannot be located; a determination that what has been requested is not a record subject to the FOIA; a determination on any disputed fee matter, including a denial of a request for a fee waiver or reduction or placement in a particular fee category; and a denial of a request for expedited treatment.

For a determination to deny a request in any respect, the notification shall set forth the reasons therefor and the name and title or position of each person responsible for the denial, shall provide an estimate of the volume of records or information withheld, in number of pages or in some other reasonable form of estimation (this estimate does not need to be provided if the volume is otherwise indicated through deletions on records disclosed in part, or if providing an estimate would harm an interest protected by an applicable exemption), and shall notify the person making the request of

An adverse determination to an administrative appeal by the Chief FOIA Officer will be the final action of the Agency. An adverse determination will inform the requester of the right to seek dispute resolution services from the Agency's FOIA Public Liaison or the Office of Government Information Services, as well as the right to appeal the adverse determination under the administrative appeal provisions of paragraph (c)(2)(v) of this section.

(iv) Records containing business information. Business information obtained by the Agency from a submitter will be disclosed under the FOIA only consistent with the procedures established in this section.

(A) For purposes of this section:

(1) Business information means commercial or financial information obtained by the Agency from a submitter that may be protected from disclosure under Exemption 4 of the FOIA.

(2) Submitter means any person or entity from whom the Agency obtains business information, directly or indirectly. The term includes corporations; state, local, and tribal governments; and foreign governments.

(B) A submitter of business information will use good faith efforts to designate, by appropriate markings, either at the time of submission or at a reasonable time thereafter, any portions of its submission that it considers to be protected from disclosure under Exemption 4. These designations will expire ten 10 years after the date of the submission unless the submitter requests, and provides justification for, a longer designation period. The Agency shall will provide a submitter with prompt written notice of a FOIA request or administrative appeal that seeks its business information wherever required under paragraph (c)(2)(iv)(C) of this section, except as provided in paragraph (c)(2)(iv)(F) of this section, in order to give the submitter an opportunity to object to disclosure of any specified portion of that information under paragraph (c)(2)(iv)(D) of this section. The notice shall will either describe the business information requested or include copies of the requested records or record portions containing the information. When notification of a voluminous number of submitters is required, notification may be made by posting or publishing the notice in a place reasonably likely to accomplish notification.

(C) Notice shall will be given to a submitter whereverwhenever: the The information has been designated in good faith by the submitter as information considered protected from disclosure under Exemption 4; or the Agency has reason to believe that the information may be protected from disclosure under Exemption 4.

(D) The Agency will allow a submitter a reasonable time to respond to the notice described in paragraph (c)(2)(iv)(B) of this section. If a submitter has any objection to disclosure, it is required to submit a detailed written statement. The statement must specify all grounds for withholding any portion of the information under any exemption of the FOIA and, in the case of Exemption 4, it must show why the information is a trade secret or commercial or financial information that is privileged or confidential. In the event that a submitter fails to respond to the notice within the time specified in it, the submitter will be considered to have no objection to disclosure of the information. Information provided by a submitter under this paragraph may itself be subject to disclosure under the FOIA.

(E) The Agency shall will consider a submitter's objections and specific grounds for nondisclosure in deciding whether to disclose business information. Whenever the Agency decides to disclose business information over the objection of a submitter, the Agency shall will give the submitter written notice, which shall will include: A statement of the reason(s) why each of the submitter's disclosure objections was not sustained; a description of the business information to be disclosed; and a specified disclosure date, which shall will be a reasonable time subsequent to the notice.

(F) The notice requirements of paragraphs (c)(2)(iv)(B) and (E) of this section shall will not apply if: The Agency determines that the information should may not be disclosed; the information lawfully has been published or has been officially made available to the public; disclosure of the information is required by statute (other than the FOIA) or by a regulation issued in accordance with the requirements of Executive Order 12600 (3 CFR, 1988 Comp., p. 235); or the designation made by the submitter under paragraph (c)(2)(iv)(B) of this section appears obviously frivolous-except frivolous—except that, in such a case, the Agency shallwill, within a reasonable time prior to a specified disclosure date, give the submitter written notice of any final decision to disclose the information.

(G) Whenever a requester files a lawsuit seeking to compel the disclosure of business information, the Agency shall will promptly notify the submitter.

(H) Whenever the Agency provides a submitter with notice and an opportunity to object to disclosure under paragraph (c)(2)(iv)(B) of this section, the Agency shall will also notify the requester(s). Whenever the Agency notifies a submitter of its intent to disclose requested information under paragraph (c)(2)(iv)(E) of this section, the Agency shall will also notify the requester(s). Whenever a submitter files a lawsuit seeking to prevent the disclosure of business information, the Agency shall will notify the requester(s).

(v) Administrative appeals.

(A) An appeal from an adverse determination made pursuant to paragraph (c)(2)(iii) of this section must be filed within

28

90 calendar days of the service of the notification of the adverse determination, in whole or in part.

If the adverse determination was

Appeals of adverse determinations made by the

NLRB

FOIA Officer

concerning records located in

or the Office of the

General Counsel, Washington, DC, or by a Regional Office or a Subregional Office concerning records located there, the appeal shall be filed with the General Counsel in Washington, DC. If the adverse determination was made by the NLRB FOIA Officer concerning records in the Offices of the Board, or by the Inspector General concerning records generated by that office, the appeal shall

Inspector General may be filed with the

Chairman

Division of

the Board

Legal Counsel in Washington, DC.

(B) As provided in paragraph (c)(2)(iii) of this section, an adverse determination will notify the requester of the right to appeal the adverse determination and will specify where such appeal

shall

may be filed. Within 20 working days after receipt of an appeal, the

General Counsel or the Chairman of the Board, as the case may be, shall

Chief FOIA Officer will make a determination with respect to such appeal and

shall

will notify the

person making the request

requester in writing. If the determination is to

comply with

grant the

request

appeal, the

record shall

responsive records will be made promptly available to the

person making the request

requester upon receipt of payment of any charges due in accordance with the provisions of paragraph (d)(2) of this section. If

on appeal the denial of the request for records is upheld

the appeal is denied, in whole or in part, the

person making the request shall

requester will be notified of the reasons for the

determination

decision, the name and title or position of

each

any person responsible for the denial, and the provisions for judicial review of that determination under the provisions of 5 U.S.C. Section 552(4)(B).

(C) Before seeking judicial review of an adverse determination, a requester must first submit a timely administrative appeal.

(D) Even if no FOIA appeal is filed

from a denial in whole or in part of a request for records by the person making the request, the General Counsel or the Chairman of the Board

, the Chief FOIA Officer may, without regard to the time limit for filing of an appeal,

sua sponte

initiate

consideration

reconsideration of an adverse determination

under this appeal procedure

by issuing written

notification

notice to the

person making the request

requester. In such event, the time limit for making the determination

shall

will commence with the issuance of such notification.

An adverse determination by the General Counsel or the Chairman of the Board, as the case may be, will be the final action of the Agency. If the requester wishes to seek review by a court of any adverse determination, the requester must first appeal it under this section.

(vi) (vi) Extension of time to respond to requests. In unusual circumstances as specified in this paragraph (c)(2)(vi), the Agency may extend the time limits prescribed in either paragraph (c)(2)(i) or (iv) of this section may be extended by written notice to the person requesting the record requester setting forth the reasons for such extension and the date on which a determination is expected to be dispatched. No such notice or notices shall specify a date or dates that would result in an extension or extensions totaling more than 10 working days with respect to a particular request, except as set forth below in this paragraph, and notifying the requester of the right to seek dispute resolution services from the Office of Government Information Services. The extension of time will not exceed 10 working days. As used in this paragraph (c)(2)(vi), unusual circumstances means, but only to the extent reasonably necessary to the proper processing of the particular request:

(A) The need to search for and collect the requested records from field facilities or other establishments other offices in the Agency that are separate from the office processing the requestFOIA Branch;

(B) The need to search for, collect, and appropriately examine a voluminous amount of separate and distinct records which are demanded sought in a single request;

(C)

(1) The need for consultation, which

shall

will be conducted with all practicable speed, with another agency having a substantial interest in the determination of the request or with two or more

components of

offices in the Agency having a substantial subject matter interest in the request.

Where the extension is for more than ten working days

(2) If the request cannot be processed within the time limits prescribed above, the Agency

shall

will provide the requester with an opportunity

either

to

modify

limit the request so that it may be processed within the

time limits or to

10-day extended time limit for response. The requester may also arrange an alternative time

period

frame with the Agency for processing the request or a modified request. The Agency's FOIA Public Liaison is available to assist with any issues that may arise.

(vii) Preservation of FOIA request files. The Agency shall preserve all correspondence pertaining to the requests that it receives under this subpart, as well as copies of all requested records, will preserve files created in response to requests for information under the FOIA and files created in responding to administrative appeals under the FOIA until disposition or destruction is authorized by title Title 44 of the United States Code or the National Archives and Records Administration's General Records Schedule 144.2, item 020. Records will not be disposed of or destroyed while they are the subject of a pending request, appeal, or lawsuit under the FOIA.

(d)

(1) Fees. For purposes of this section, the following definitions apply:

(i) Direct costs means those expenditures which are actually incurred in searching for and duplicating and, in the case of commercial use requests, reviewing documents to respond to a FOIA request.

(ii) Search refers to the process of looking for and retrieving records or information responsive to a request. It includes page-by-page or line-by-line identification of material within documents and also includes reasonable efforts to locate and retrieve information from records maintained in electronic form or format. The Agency shall will ensure that searches are done in the most efficient and least expensive manner reasonably possible.

(iii) Duplication refers to the process of making a copy of a record, or the information contained in it, necessary to respond to a FOIA request. Such copies can take the form of paper, microfilm, videotape, audiotape, or electronic records (e.g., magnetic tape or disk), among others. The Agency shall will honor a requester's specified preference of form or format of disclosure if the record is readily reproducible with reasonable efforts in the requested form or format by the office responding to the request.

(iv) Review refers to the process of examining documents located in response to a request that is for commercial use to determine whether any portion of it is exempt from disclosure. It includes processing any documents for disclosure, e.g., doing all that is necessary to redact and prepare them for disclosure. Review time includes time spent considering any formal objection to disclosure made by a business submitter under paragraph (c)(2)(iv) of this section, but does not include time spent resolving general legal or policy issues regarding the application of exemptions.

(v) Commercial use request refers to a request from or on behalf of a person 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, which can include furthering those interests through litigation.

(vi) Educational institution refers to 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, that operates a program of scholarly research. To be in this category, a requester must show that the request is authorized by and is made under the auspices of a qualifying institution and that the records are not sought for a commercial use but are sought to further scholarly research.

(vii) 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 instances where they can qualify as disseminators of “news” news) who make their products available for purchase or subscription by the general public. For “freelance” journalists to be regarded as working for a news organization, they must demonstrate a solid basis for expecting publication through that organization. A publication contract would be is the clearest proof, but the Agency shall will also look to the past publication record of a requester in making this determination. To be in this category, a requester must not be seeking the requested records for commercial use. However, a request for records supporting the news dissemination function of the requester shall will not be considered to be for a commercial use.

(viii) Working days, as used in this paragraphsection, means calendar days excepting Saturdays, Sundays, and legal holidays.

(2) Persons requesting records from this Agency shall Fee schedule. Requesters will be subject to a charge of fees for the full allowable direct costs of document search, review, and duplicating, as appropriate, in accordance with the following schedules, procedures, and conditions:

(i) Schedule of charges:

(A) For each one-quarter hour or portion thereof of clerical time * * * $3.10.

(B) For each one-quarter hour or portion thereof of professional time * * * $9.25.

(C) For each sheet of duplication (not to exceed 81⁄2 by 14 inches) of requested records * * * $0.12.

(D) All other direct costs of preparing a response to a request shall will be charged to the requester in the same amount as incurred by the Agency. Such costs shall will include, but not be limited to: Certifying that records are true copies; sending records to requesters or receiving records from the Federal records storage centers by special methods such as express mail; and, where applicable, the cost of conducting computer searches for information and for providing information in electronic format.

(ii) Fees incurred in responding to information requests are to be charged in accordance with the following categories of requesters:

(A) Commercial use requesters will be assessed charges to recover the full direct costs for searching for, reviewing for release, and duplicating the records sought. Requesters must reasonably describe the records sought.

(B) Educational institution requesters will be assessed charges 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 commercial use, but are sought in furtherance of scholarly research. Requesters must reasonably describe the records sought.

(C) Requesters who are representatives of the news media will be assessed charges for the cost of reproduction alone, excluding charges for the first 100 pages. To be eligible for inclusion in this category, a requester must meet the criteria in paragraph (d)(1)(vii) of this section, and the request must not be made for commercial use. In reference to this class of requester, a request for records supporting the news dissemination function of the requester shall will not be considered to be a request that is for commercial use. Requesters must reasonably describe the records sought.

(D) All other requesters, not elsewhere described, will be assessed charges to 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 2 hours of search time shall will be furnished without charge. Requesters must reasonably describe the records sought.

(E) Absent a reasonably based factual showing that a requester should may be placed in a particular user category, fees will be imposed as provided for in the commercial use requester category.

(iii) Unusual fee circumstances.

(A) In no event shall will fees be imposed on any requester when the total charges are less than $5, which is the Agency's cost of collecting and processing the fee itself.

(B) If the Agency reasonably believes that a requester or a group of requesters acting together is attempting to divide a request into a series of requests for the purpose of avoiding fees, the Agency may aggregate those requests and charge accordingly. The Agency may presume that multiple requests of this type made within a 30-day period have been made in order to avoid fees. Where requests are separated by a longer period, the Agency will aggregate them only where there exists a solid basis for determining that aggregation is warranted under all the circumstances involved. Multiple requests involving unrelated matters will not be aggregated.

(iv) Requests for fee waiver or reduction. Documents are to be furnished without charge or at reduced levels 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. Disclosure to data brokers or others who merely compile and market government information for direct economic return shall will not be presumed to primarily serve the public interest. A fee waiver or reduction is justified where the public interest standard is satisfied and that public interest is greater in magnitude than that of any identified commercial interest in disclosure. Where only some of the requested records satisfy the requirements for a fee waiver of fees, a waiver shall will be granted for those records.

(v) Failure to pay fees. If a requester fails to pay chargeable fees that were incurred as a result of the Agency's processing of the information request, beginning on the 31st day following the date on which the notification of charges was sent, the Agency may assess interest charges against the requester in the manner prescribed in 31 U.S.C. Section 3717. Where appropriate, other steps permitted by federal debt collection statutes, including disclosure to consumer reporting agencies, use of collection agencies, and offset, will be used by the Agency to encourage payment of amounts overdue.

(vi) Assumption of financial responsibility for processing requests. Each request for records shall must contain a specific statement assuming financial liability, in full or to a specified maximum amount, for charges, in accordance with paragraphs (d)(2)(i) and (ii) of this section, which may be incurred by the Agency in responding to the request. If the anticipated charges exceed the maximum limit stated by the person making the request, or if the request contains no assumption of financial liability or charges, the person shall requester will be notified and afforded an opportunity to assume financial liability. In either case, the request for records shall will not be deemed received for purposes of the applicable time limit for response until a written assumption of financial liability is received. The Agency may require a requester to make an advance payment of anticipated fees under the following circumstances:

(A) If the anticipated charges are likely to exceed $250, the Agency shall will notify the requester of the likely cost and obtain satisfactory assurance of full payment when 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.

(B) If a requester has previously failed to pay fees that have been charged in processing a request within 30 days of the date of the notification of fees was sent, the requester will be required to pay the entire amount of fees that are owed, plus interest as provided for in paragraph (d)(2)(v) of this section, before the Agency will process a further information request. In addition, the Agency may require advance payment of fees that the Agency estimates will be incurred in processing the further request before the Agency commences processing that request. When the Agency acts under paragraph (d)(2)(vi)(A) or (B) of this section, the administrative time limits for responding to a request or an appeal from initial denials determinations will begin to run only after the Agency has received the fee payments required abovein paragraph (d)(2) of this section.

(vii) Fees may be charged even if no documents are provided. Charges may be imposed even though the search discloses no records responsive to the request, or if records located are determined to be exempt from disclosure.

(e) Subject to the provisions of §§ 102.31(c) and 102.66(c), all fines, documents, reports, memoranda, and records of the Agency falling within the exemptions specified in 5 U.S.C. 552(b) shall not be made available for inspection or copying, unless specifically permitted by the Board, its Chairman, or its General Counsel.

[40 FR 7290, Feb. 19, 1975, as amended at 53 FR 10872, Apr. 4, 1988; 58 FR 42235, Aug. 9, 1993; 60 FR 32587, June 23, 1995; 61 FR 13765, Mar. 28, 1996; 61 FR 65183, Dec. 11, 1996; 66 FR 50311, Oct. 3, 2001; 72 FR 38778, July 16, 2007; 72 FR 68503, Dec. 5, 2007; 77 FR 4662, Jan. 31, 2012]