[Federal Register Volume 63, Number 160 (Wednesday, August 19, 1998)]
[Rules and Regulations]
[Pages 44394-44397]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-21978]
[[Page 44394]]
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NATIONAL MEDIATION BOARD
29 CFR Part 1208
Freedom of Information Act, Implementation; Fee Schedule
AGENCY: National Mediation Board.
ACTION: Final rule.
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SUMMARY: The National Mediation Board (NMB) is amending its rules
implementing the Freedom of Information Act (FOIA), as provided by the
Freedom of Information Reform Act of 1986 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 revisions
substantially conform to the Uniform Freedom of Information Act Fee
Schedule and Guidelines published by the Office of Management and
Budget in the Federal Register of March 27, 1987.
DATES: This rule is effective August 19, 1998.
FOR FURTHER INFORMATION CONTACT: Ronald M. Etters, General Counsel,
1301 K Street, N.W., Suite 250, Washington, DC 20572, Telephone (202)
523-5944.
SUPPLEMENTARY INFORMATION: On February 13, 1998, the National Mediation
Board published a proposed rule under the FOIA. See 63 FR 7331, Feb.
13, 1998. Interested parties were afforded an opportunity to
participate in the rulemaking through submission of written comments on
the proposed rule. The NMB received no written comments. The Freedom of
Information Reform Act of 1986 (Pub. L. 99-570) requires agencies to
adopt regulations that conform to the 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 rule does not impose any significant
economic requirements upon small entities. Accordingly, no regulatory
flexibility analysis is required.
Paperwork Reduction Act
These regulations will not result in any implications pursuant to
the Paperwork Reduction Act.
List of Subjects in 29 CFR Part 1208
Freedom of information.
In consideration of the foregoing, the NMB amends 29 CFR Part 1208
as follows:
PART 1208--AVAILABILITY OF INFORMATION
1. The authority citation for part 1208 is revised to read as
follows:
Authority: 5 U.S.C. 552; 45 U.S.C. 151-163.
2. Section 1208.2 is 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.
(ii) [Reserved]
(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 (5 U.S.C. 552) 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
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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 requester may deem his request denied, and exercise a
right of appeal, in accordance with paragraph (c) of this section. 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
paragraph (c) of this section 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, DC 20572.
(2) The Chairman of the Board will act upon the appeal within
twenty working days (excluding Saturdays, Sundays and 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 (c)(3),
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 paragraph
(b)(3) of this section. 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 (c)(3) ``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. The National Mediation Board at its
office in Washington, DC 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).
(1) A copy of such index shall be available at cost from the
National Mediation Board, Washington, DC 20572.
(2) [Reserved].
3. Section 1208.6 is 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) Direct costs means those expenditures which the National
Mediation Board actually incurs in searching for, duplicating, and, in
the case of commercial requesters, reviewing documents to respond to a
FOIA request. For example, direct costs include the salary of the
employee performing the work (the basic rate of pay for the employee
plus sixteen percent of the rate to cover benefits) and the cost of
operating duplicating machinery. Not included in direct costs are
overhead expenses such as costs of space and heating or lighting the
facility in which the records are stored.
(2) Search includes all time spent looking for material that is
responsive to a request, including page-by-page and line-by-line
identification of material within documents. Searches may be done
manually or by computer using existing programming.
(3) Duplication refers to the process of making a copy of a
document necessary to respond to a FOIA request. Such copies can take
the form of paper copy, microfilm, audiovisual materials, or machine
readable documentation (e.g., magnetic tape or disk), among others.
(4) Review refers to the process of examining documents located in
response to a commercial use request (see paragraph (a)(5) of this
section) to determine whether any portion of any document located is
permitted to be withheld. It also includes processing any documents for
disclosure, e.g., doing all that is necessary to excise them and
otherwise prepare them for release. Review does not include time spent
resolving general legal or policy issues regarding the application of
exemptions.
(5) Commercial use request refers to a request from or on behalf of
one who seeks information for a use or purpose that furthers the
commercial, trade, or profit interests of the requester or the person
on whose behalf the request is made. In determining whether a requester
properly belongs in this category, the NMB will look first to the use
which a requester will put the document requested. Where the NMB has
reasonable cause to doubt the use is not clear from the request itself,
the National Mediation Board may seek additional clarification before
assigning the request to a specific category.
(6) Educational institution refers to a preschool, a public or
private elementary or secondary school, an institution of graduate
higher education,
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an institution of undergraduate higher education, an institution of
professional education and an institution of vocational education,
which operates a program or programs of scholarly research.
(7) Non-commercial scientific institution refers to an institution
that is not operated on a commercial basis as that term is defined in
paragraph (a)(5) of this section, and which is operated solely for the
purpose of conducting scientific research the results of which are not
intended to promote any particular product or industry.
(8) Representative of the news media refers to any person actively
gathering news for an entity that is organized and operated to publish
or broadcast news to the public. The term ``news'' means information
that is about current events or that would be of current interest to
the public. These examples are not intended to be all inclusive. In the
case of ``freelance'' journalists, they may be regarded as working for
a news organization if they demonstrate a solid basis for expecting
publication through that organization, even though not actually
employed by it. A publication contract would be the clearest proof, but
the NMB may also look to the past publication record of a requester in
making this determination.
(b) Exceptions of fee charges. (1) With the exception of requesters
seeking documents for a commercial use, the NMB will provide the first
100 pages of duplication and the first two hours of search time without
charge. The word ``pages'' in this paragraph (b) refers to paper copies
of standard size, usually 8.5'' X 11'', or their equivalent in
microfiche or computer disks. The term ``search time'' in this
paragraph (b) is based on a manual search for records. In applying this
term to searches made by computer, when the cost of the search as set
forth in paragraph (d)(2) of this section equals the equivalent dollar
amount of two hours of the salary of the person performing the search,
the NMB will begin assessing charges for computer search.
(2) The NMB will not charge fees to any requester, including
commercial use requesters, if the cost of collecting the fee would be
equal to or greater than the fee itself.
(3) (i) The NMB will provide documents without charge or at reduced
charges if disclosure of the information is in the public interest
because it is likely to contribute significantly to public
understanding of the operations or activities of the government and is
not primarily in the commercial interest of the requester.
(ii) In determining whether disclosure is in the public interest
under paragraph (b)(3)(i) of this section, the NMB will consider the
following factors:
(A) The subject of the request. Whether the subject of the
requested records concerns ``the operations or activities of the
government'';
(B) The informative value of the information to be disclosed.
Whether the disclosure is ``likely to contribute'' to an understanding
of government operations or activities;
(C) The contribution to an understanding of the subject by the
general public likely to result from disclosure. Whether disclosure of
the requested information will contribute to ``public understanding'';
(D) The significance of the contributions to the public
understanding. Whether the disclosure is likely to contribute
``significantly'' to public understanding of government operations or
activities;
(E) The existence and magnitude of a commercial interest. Whether
the requester has a commercial interest that would be furthered by the
requested disclosure; and, if so
(F) The primary interest in disclosure. Whether the magnitude of
the identified commercial interest of the requester is sufficiently
large, in comparison with the public interest in disclosure, that
disclosure is ``primarily in the commercial interest of the
requester.''
(iii) A request for a fee waiver based on the public interest under
paragraph (b)(3)(i) of this section must address the factors of
paragraph (b)(3)(ii) of this section as they apply to the request for
records in order to be considered by the Chief of Staff.
(c) Level of fees to be charged. The level of fees to be charged by
the NMB in accordance with the schedule set forth in paragraph (d) of
this section, depends on the category of the requester. The fee levels
to be charged are as follows:
(1) A request for documents appearing to be for commercial use will
be charged to recover the full direct costs of searching for, reviewing
for release, and duplicating the records sought.
(2) A request for documents from an educational or non-commercial
scientific institution will be charged for the cost of reproduction
alone, excluding charges for the first 100 pages. To be eligible for
inclusion in this category, requesters must show that the request is
being made under the auspices of a qualifying institution and that the
records are not sought for a commercial use, but are sought in
furtherance of scholarly (if the request is from an educational
institution) or scientific (if the request is from a non-commercial
scientific institution) research.
(3) The NMB shall provide documents to requesters who are
representatives of the news media for the cost of reproduction alone,
excluding charges for the first 100 pages.
(4) The NMB shall charge requesters who do not fit into any of the
categories above such fees which recover the full direct cost of
searching for and reproducing records that are responsive to the
request, except that the first 100 pages of reproduction and the first
two hours of search time shall be furnished 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
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shall be charged to requester in the same amount as incurred by NMB.
(e) Aggregating requests. When the NMB reasonably believes that a
requester or group of requesters is attempting to break a request down
into a series of requests for the purpose of evading the assessment of
fees, the NMB will aggregate any such requests and charge accordingly.
(f) Charging interest. Interest at the rate prescribed in 31 U.S.C.
3717 may be charged those requesters who fail to pay fees charged,
beginning on the thirtieth day following the billing date. Receipt of a
fee by the NMB, whether processed or not, will stay the accrual of
interest. If a debt is not paid, the agency may use the provisions of
the Debt Collection Act of 1982, (Pub. L. 97-365, 96 Stat. 1749)
including disclosure to consumer reporting agencies, for the purpose of
obtaining payment.
(g) Advance payments. The NMB will not require a requester to make
an advance payment, i.e., payment before work is commenced or continued
on a request, unless:
(1) The NMB estimates or determines that allowable charges that a
requester may be required to pay are likely to exceed $250. Then the
NMB will notify the requester of the likely cost and obtain
satisfactory assurances of full payment where the requester has a
history of prompt payment of FOIA fees, or require an advance payment
of an amount up to the full estimated charges in the case of requesters
with no history of payment; or
(2) A requester has previously failed to pay a fee charge in a
timely fashion (i.e, within thirty days of the date of the billing), in
which case the NMB requires the requester to pay the full amount owed
plus any applicable interest as provided above or demonstrate that he
has, in fact, paid the fee, and to make an advance payment of the full
amount of the estimated fee before the agency begins to process a new
request or a pending request from that requester. When the NMB acts
under paragraph (g)(1) or (2) of this section, the administrative time
limits prescribed in subsection (a)(6) of the FOIA (i.e., twenty
working days from receipt of initial requests and twenty working days
from receipt of appeals from initial denial, plus permissible extension
of these time limits) will begin only after the NMB has received fee
payments described in this paragraph (g).
(h) Payment. Payment of fees shall be made by check or money order
payable to the United States Treasury.
Dated: August 11, 1998.
Stephen E. Crable,
Chief of Staff.
[FR Doc. 98-21978 Filed 8-18-98; 8:45 am]
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