98-3115. Freedom of Information Act, Implementation; Fee Schedule  

  • [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]
    
    
    =======================================================================
    -----------------------------------------------------------------------
    
    NATIONAL MEDIATION BOARD
    
    29 CFR Part 1208
    
    
    Freedom of Information Act, Implementation; Fee Schedule
    
    AGENCY: National Mediation Board.
    
    ACTION: Proposed rule.
    
    -----------------------------------------------------------------------
    
    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
    
    
    

Document Information

Published:
02/13/1998
Department:
National Mediation Board
Entry Type:
Proposed Rule
Action:
Proposed rule.
Document Number:
98-3115
Dates:
Comments must be received by: March 16, 1998.
Pages:
7331-7335 (5 pages)
PDF File:
98-3115.pdf
CFR: (3)
29 CFR 1208.2(c)
29 CFR 1208.2
29 CFR 1208.6