[Federal Register Volume 63, Number 30 (Friday, February 13, 1998)]
[Proposed Rules]
[Pages 7331-7335]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-3115]
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NATIONAL MEDIATION BOARD
29 CFR Part 1208
Freedom of Information Act, Implementation; Fee Schedule
AGENCY: National Mediation Board.
ACTION: Proposed rule.
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SUMMARY: The National Mediation Board is proposing to amend its rule
implementing the Freedom of Information Act (FOIA), as provided by the
Freedom of Information Reform Act of 1986 (Pub. L. 99-570), which
requires that the NMB promulgate regulations, pursuant to notice and
receipt of public comment, specifying the schedule of fees applicable
to the processing of FOIA requests and establishing procedures and
guidelines for determining when such fees should be waived or reduced.
The proposed revisions substantially conform to the Uniform Freedom of
Information Act Fee Schedule and Guidelines published by the Office of
Management and Budget in 52 FR 10012 (March 27, 1987).
DATES: Comments must be received by: March 16, 1998.
ADDRESSES: Send or deliver written comments to: Ronald M. Etters,
General Counsel, 1301 K Street, N.W., Suite 250, Washington, D.C.
20572, Telephone (202) 523-5920.
SUPPLEMENTARY INFORMATION: The Freedom of Information Reform Act of
1986 (Pub. L. 99-570) requires agencies to adopt regulations that
conform to the
[[Page 7332]]
Act regarding procedures and fees for obtaining copies of agency
records. The Reform Act specifically required the Office of Management
and Budget (OMB) to develop and issue a schedule of fees and guidelines
pursuant to notice and comment. That Act also required agencies to
publish their own regulations for those same purposes based upon the
OMB guidelines. The regulations represent NMB's response to that
requirement. They are based upon the OMB guidelines.
Executive Order 12291
This rule is not a ``major rule'' under Executive Order 12291
because it is not ``likely to result in: (1) An annual effect on the
economy of $100 million or more; (2) A major increase in costs or
prices for consumers, individual industries, Federal, State, or local
government agencies, or geographic regions; or (3) Significant adverse
effects on competition, employment, investment, productivity,
innovation, or on the ability of United States-based enterprises to
compete with foreign-based enterprises in domestic or export markets.''
Accordingly, no regulatory impact analysis is required.
Regulatory Flexibility Act
The requirements of the Regulatory Flexibility Act, 5 U.S.C.
605(b), do not apply because the proposed rule does not impose any
significant economic requirements upon small entities. Accordingly, no
regulatory flexibility analysis is required.
Paperwork Reduction Act
These regulations, if promulgated in final form, will not result in
any implications pursuant to the Paperwork Reduction Act.
List of Subjects in 29 CFR 1208
Freedom of information.
In consideration of the foregoing, the NMB proposes to amend Part
1208 of 29 CFR, Chapter X.
PART 1208--FREEDOM OF INFORMATION
1. The authority citation for part 1208 would continue to read as
follows:
Authority: 44 Stat. 577, as amended; 45 U.S.C. 151-163.
2. Section 1208 would be revised to read as follows:
Sec. 1208.2 Production or disclosure of material or information.
(a) Requests for identifiable records and copies. (1) All requests
for National Mediation Board records shall be filed in writing by
mailing, faxing, or delivering the request to the Chief of Staff,
National Mediation Board, Washington, DC 20572.
(2) The request shall reasonably describe the records being sought
in a manner which permits identification and location of the records.
(i) If the description is insufficient to locate the records, the
National Mediation Board will so notify the person making the request
and indicate the additional information needed to identify the records
requested.
(ii) Every reasonable effort shall be made by the Board to assist
in the identification and location of the records sought.
(3) Upon receipt of a request for the records the Chief of Staff
shall maintain records in reference thereto which shall include the
date and time received, the name and address of the requester, the
nature of the records requested, the action taken, the date the
determination letter is sent to the requester, appeals and action
thereon, the date any records are subsequently furnished, the number of
staff hours and grade levels of persons who spent time responding to
the request, and the payment requested and received.
(4) All time limitations established pursuant to this section with
respect to processing initial requests and appeals shall commence at
the time a written request for records is received at the Board's
offices in Washington, D.C.
(i) An oral request for records shall not begin any time
requirement.
(b) Processing the initial request. (1) Time limitations. Within 20
working days (excepting Saturdays, Sundays, and working holidays) after
a request for records is received, the Chief of Staff shall determine
and inform the requester by letter whether or the extent to which the
request will be complied with, unless an extension is taken under
paragraph (b)(3) of this section.
(2) Such reply letter shall include:
(i) A reference to the specific exemption or exemptions under the
Freedom of Information Act authorizing the withholding of the record, a
brief explanation of how the exemption applies to the record withheld.
(ii) The name or names and positions of the person or persons,
other than the Chief of Staff, responsible for the denial.
(iii) A statement that the denial may be appealed within thirty
days by writing to the Chairman, National Mediation Board, Washington,
D.C. 20572, and that judicial review will thereafter be available in
the district in which the requester resides, or has his principal place
of business, or the district in which the agency records are situated,
or the District of Columbia.
(3) Extension of time. In unusual circumstances as specified in
this paragraph, the Chief of Staff may extend the time for initial
determination on requests up to a total of ten days (excluding
Saturdays, Sundays, and legal public holidays). Extensions shall be
granted in increments of five days or less and shall be made by written
notice to the requester which sets forth the reason for the extension
and the date on which a determination is expected to be dispatched. As
used in this paragraph ``unusual circumstances'' means, but only to the
extent necessary to the proper processing of the request:
(i) The need to search for and collect the requested records from
field facilities or other establishments that are separate from the
office processing the request.
(ii) The need to search for, collect, and appropriately examine a
voluminous amount of separate and distinct records which are demanded
in a single request; or
(iii) The need for consultation, which shall be conducted with all
practicable speed, with another agency or another division having
substantial interest in the determination of the request, or the need
for consultation among two or more components of the agency having
substantial subject matter interest therein.
(4) Treatment of delay as a denial. If no determination has been
dispatched at the end of the ten-day period, or the last extension
thereof, the request may deem his request denied, and exercise a right
of appeal, in accordance with Sec. 1208.2(c). When no determination can
be dispatched within the applicable time limit, the responsible
official shall nevertheless continue to process the request; on
expiration of the time limit he shall inform the requester of the
reason for the delay, of the date on which a determination may be
expected to be dispatched, and of his right to treat the delay as a
denial and to appeal to the Chairman of the Board in accordance with
Sec. 1208.2(c) and he may ask the requester to forego appeal until a
determination is made.
(c) Appeals to the Chairman of the Board. (1) When a request for
records has been denied in whole or in part by the Chief of Staff or
other person authorized to deny requests, the requester may, within
thirty days of its receipt, appeal the denial to the Chairman of the
Board. Appeals to the Chairman shall be in writing, addressed to the
Chairman, National Mediation Board, Washington, D.C. 20572.
(2) The Chairman of the Board will act upon the appeal within
twenty working days (excluding Saturdays, Sundays and
[[Page 7333]]
legal public holidays) of its receipt unless an extension is made under
paragraph (c)(3) of this section.
(3) In unusual circumstances as specified in this paragraph, the
time for action on an appeal may be extended up to ten days (excluding
Saturdays, Sundays and legal public holidays) minus any extension
granted at the initial request level pursuant to Sec. 1208.2(b)(3).
Such extension shall be made written notice to the requester which sets
forth the reason for the extension and the date on which a
determination is expected to be dispatched. As used in this paragraph
``unusual circumstances'' means, but only to the extent necessary to
the proper processing of the appeal:
(i) The need to search for and collect the requested records from
field facilities or other establishments that are separate from the
office processing the request;
(ii) The need to search for, collect, and appropriately examine a
voluminous amount of separate and distinct records which are demanded
in a single request; or
(iii) The need for consultation, which shall be conducted with all
practicable speed, with another agency or another division having
substantial interest in the determination of the request or the need
for consultation among components of the agency having substantial
subject matter interest therein.
(4) Treatment of delay as a denial. If no determination on the
appeal has been dispatched at the end of the twenty-day period or the
last extension thereof, the requester is deemed to have exhausted his
administrative remedies, giving rise to a right of review in a district
court of the United States, as specified in 5 U.S.C. 552(a)(4). When no
determination can be dispatched within the applicable time limit, the
appeal will nevertheless continue to be processed; on expiration of the
time limit the requester shall be informed of the reason for the delay,
of the date on which a determination may be expected to be dispatched,
and of his right to seek judicial review in the United States district
court in the district in which he resides or has his principal place of
business, the district in which the Board records are situated or the
District of Columbia. The requester may be asked to forego judicial
review until determination of the appeal.
(d) Indexes of certain records. (1) The National Mediation Board at
its office in Washington, D.C. will maintain, make available for public
inspection and copying, and publish quarterly (unless the Board
determines by order published in the Federal Register that such
publication would be unnecessary or impracticable) a current index of
the materials available at the Board offices which are required to be
indexed by 5 U.S.C. 552(a)(2).
(i) A copy of such index shall be available at cost from the
National Mediation Board, Washington, D.C. 20572.
(ii) Reserved.
2. Section 1208.6 would be revised to read as follows:
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) The term 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) The term 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) The term 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) The term 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) The term 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) The term 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) The term 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) The term 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 ``free-lance'' 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) Exception of fee charges. (1) With the exception of requesters
seeking documents for a commercial use, the NMB will provide the first
100 pages of duplication and the first two hours of search time without
charge. The world ``pages'' in this paragraph refers to paper copies of
standard size, usually 8.5 x 11, or their
equivalent in microfiche or computer disks. The term ``search time'' in
this paragraph 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
[[Page 7334]]
will begin assessing charges for computer search.
(2) The NMB will not charge fees to any requesters, including
commercial use requester, 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
(b)(3)(ii) 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 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, 29 CFR part 1450)
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
[[Page 7335]]
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 above.
(h) Payment. Payment of fees shall be made by check or money order
payable to the United States Treasury.
Dated: February 1, 1998.
Stephen E. Crable,
Chief of Staff.
[FR Doc. 98-3115 Filed 2-12-98; 8:45 am]
BILLING CODE 7550-01-M
