Charges Assessed for the Production of Records

Office of the Secretary of Labor

§ 70.40

(h) Non-commercial scientific institution
means an institution that is not operated on a commercial basis and that is
operated solely for the purpose of conducting scientific research, the results
of which are not intended to promote
any particular product or industry.
(i) Representative of the news media
means any person actively gathering
news for an entity that is organized
and operated to publish or broadcast
news to the public.
(1) Factors indicating such representation status include press accreditation, guild membership, a history of
continuing publication, business registration, and/or Federal Communication Commission licensing, among others.
(2) For purposes of this definition,
news contemplates information that is
about current events or that would be
of current interest to the public.
(3) A freelance journalist will be
treated as a representative of the news
media if the person can demonstrate a
solid basis for expecting publication of
matters related to the requested information through a qualifying news
media entity. A publication contract
with a qualifying news media entity
satisfies this requirement. An individual’s past publication record with such
organizations is also relevant in making this determination. Examples of
news media entities include television
or radio stations broadcasting to the
public at large, and publishers of periodicals including newsletters (but only
in those instances where they can qualify as disseminators of news) who make
their products available for purchase or
subscription by the general public.

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§ 70.39 Statutes specifically providing
for setting of fees.
This subpart will not apply to fees
charged under any statute, other than
the FOIA, that specifically requires an
agency to set and collect fees for particular types of records.
§ 70.40 Charges assessed for the production of records.
(a) General. There are three types of
charges assessed in connection with
the production of records in response
to a request, charges for costs associated with:

(1) Searching for or locating responsive records (search costs),
(2) Reproducing such records (reproduction costs), and
(3) Reviewing records to determine
whether any materials are exempt (review costs).
(b)(1) There are four types of requesters:
(i) Commercial use requesters,
(ii) Educational and non-commercial
scientific institutions,
(iii) Representatives of the news
media, and
(iv) All other requesters.
(2) Depending upon the type of requester, as set forth in paragraph (b)(1)
of this section, the charges outlined in
paragraph (c) of this section may be assessed.
(c) Types of charges that will be assessed for each type of request—(1) Commercial use request. When a requester
makes a commercial use request,
search costs, reproduction costs and review costs will be assessed in their entirety.
(2) Educational or non-commercial scientific institution request. When an educational or non-commercial scientific
institution makes a request, only reproduction costs will be assessed, excluding charges for the first 100 pages.
(3) Request by representative of news
media. When a representative of the
news media makes a request, only reproduction costs will be assessed, excluding charges for the first 100 pages.
(4) All other requests. Requesters making a request which does not fall within
paragraphs (c)(1), (2), or (3) of this section will be charged search costs and
reproduction costs, except that the
first 100 pages of reproduction and the
first two hours of search time will be
furnished without charge. Where computer searches are involved, the monetary equivalent of two hours of search
time by a professional employee will be
deducted from the total cost of computer processing time.
(d) Charges for each type of activity—
(1) Search costs. (i) When a search for
records is performed by a clerical employee, a rate of $5.00 per quarter hour
will be applicable. When a search is
performed by professional or supervisory personnel, a rate of $10.00 per

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§ 70.40

29 CFR Subtitle A (7–1–09 Edition)

quarter hour will be applicable. Components will charge for time spent
searching even if they do not locate
any responsive records or they withhold the records located as exempt
from disclosure.
(ii) For computer searches of records,
requesters will be charged the direct
costs of conducting the search, except
as provided in paragraph (c)(4) of this
section.
(iii) If the search for requested
records requires transportation of the
searcher to the location of the records
or transportation of the records to the
searcher, all transportation costs in excess of $5.00 may be added to the search
cost.
(2) Reproduction costs. The standard
copying charge for records in black and
white paper copy is $0.15 per page. This
charge includes the operator’s time to
duplicate the record. When responsive
information is provided in a format
other than 81⁄2 x 11 or 11 x 14 inch black
and white paper copy, such as computer tapes, disks and color copies, the
requester may be charged the direct
costs of the tape, disk, audio-visual or
whatever medium is used to produce
the information, as well as the direct
cost of reproduction, including operator time. The disclosure officer may
request that if a medium is requested
other than paper, the medium will be
provided by the requester.
(3) Review costs. Costs associated with
the review of records, as defined in
‘‘70.38(e), will be charged for work performed by a clerical employee at a rate
of $5.00 per quarter hour when applicable. When professional or supervisory
personnel perform work, a rate of $10.00
per quarter hour will be charged, when
applicable. Except as noted in this
paragraph, charges may only be assessed for review the first time the
records are analyzed to determine the
applicability of specific exemptions to
the particular record or portion of the
record. Thus a requester would not be
charged for review at the administrative appeal level with regard to the applicability of an exemption already applied at the initial level. When, however, a record has been withheld pursuant to an exemption which is subsequently determined not to apply and is
reviewed again at the appellate level to

determine the potential applicability
of other exemptions, the costs attendant to such additional review will be
assessed.
(4) Mailing cost. Where requests for
copies are sent by mail, no postage
charge will be made for transmitting
by regular mail a single copy of the requested record to the requester, or for
mailing additional copies where the
total postage cost does not exceed
$5.00. However, where the volume of
paper copy or method of transmittal
requested is such that transmittal
charges to the Department are in excess of $5.00, the transmittal costs will
be added.
(e) Aggregating requests for purposes of
assessing costs. (1) Where a disclosure
officer 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 disclosure
officer may aggregate those requests
and charge accordingly.
(2) Disclosure officers may presume
that multiple requests of this type
made within a 30-day period have been
submitted in order to avoid fees. Where
requests are separated by a longer period, disclosure officers will aggregate
them only where a solid basis exists for
determining that aggregation is warranted under all of the circumstances
involved. Multiple requests involving
unrelated matters will not be aggregated.
(f) Interest charges. Disclosure officers
will assess interest on an unpaid bill
starting on the 31st day following the
date of billing the requester. Interest
charges will be assessed at the rate
provided in 31 U.S.C. 3717 and will accrue from the date of the billing until
payment is received by the component.
Components will follow the provisions
of the Debt Collection Act of 1982,
(Pub. L. 97–365, 96 Stat. 1749), as amended, and its administrative procedures,
including the use of consumer reporting agencies, collection agencies, and
offset.
(g) Authentication of copies—(1) Fees.
The FOIA does not require certification or attestation under seal of copies of records provided in accordance

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Office of the Secretary of Labor

§ 70.41

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with its provisions. Pursuant to provisions of the general user-charger statute, 31 U.S.C. 9701 and Subchapter II of
title 29 U.S.C., the following charges
will be made when, upon request, such
services are nevertheless rendered by
the agency in its discretion:
(i) For certification of true copies,
$10.00 each certification.
(ii) For attestation under the seal of
the Department, $10.00 each attestation
under seal.
(2) Authority and form for attestation
under seal. Authority is hereby given to
any officer or officers of the Department of Labor designated as authentication officer or officers of the Department to sign and issue attestations
under the seal of the Department of
Labor.
(h) Transcripts. Fees for transcripts of
an agency proceeding will be assessed
in accordance with the provisions of
this Subpart.
(i) Privacy Act requesters. A request
from an individual or on behalf of an
individual for a record maintained by
that individual’s name or other unique
identifier which is contained within a
component’s system of records will be
treated under the fee provisions at 29
CFR 71.6.
§ 70.41 Reduction or waiver of fees.
(a) Requirements for waiver or reduction of fees. (1) Records responsive to a
request will be furnished without
charge or at a charge reduced below
that established under paragraph (d) of
§ 70.40 where a Disclosure Officer determines, based on all available information, that the requester has demonstrated that:
(i) Disclosure of the requested 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
(ii) Disclosure of the information is
not primarily in the commercial interest of the requester.
(2) To determine whether the requirement of paragraph (a)(1)(i) of this section is met, components will consider
the following factors:
(i) The subject of the request: Whether the subject of the requested records
concerns ‘‘the operations or activities

of the government.’’ The subject of the
requested records must concern identifiable operations or activities of the
federal government, with a connection
that is direct and clear, not remote or
attenuated.
(ii) The informative value of the information to be disclosed: Whether the
disclosure is ‘‘likely to contribute’’ to
an understanding of government operations or activities. The disclosable
portions of the requested records must
be meaningfully informative about
government operations or activities in
order to be ‘‘likely to contribute’’ to an
increased public understanding of those
operations or activities. The disclosure
of information that already is in the
public domain, in either a duplicative
or a substantially identical form,
would not be as likely to contribute to
such understanding where nothing new
would be added to the public’s understanding.
(iii) The contribution to an understanding of the subject by the public
likely to result from disclosure:
Whether disclosure of the requested information will contribute to ‘‘public
understanding.’’ The disclosure must
contribute to the understanding of a
reasonably broad audience of persons
interested in the subject, as opposed to
the individual understanding of the requester. A requester’s expertise in the
subject area and ability and intention
to effectively convey information to
the public will be considered. It will be
presumed that a representative of the
news media will satisfy this consideration.
(iv) The significance of the contribution to public understanding: Whether
the disclosure is likely to contribute
‘‘significantly’’
to
public
understanding of government operations or
activities. The public’s understanding
of the subject in question must be enhanced by the disclosure to a significant extent.
(3) To determine whether the requirement of paragraph (a)(1)(ii) of this section is met, components will consider
the following factors:
(i) The existence and magnitude of a
commercial interest: Whether the requester has a commercial interest that
would be furthered by the requested
disclosure. The Disclosure Officer will

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