29 CFR 70.40 Charges assessed for the production of records

§ 70.39

29 CFR Subtitle A (7–1–05 Edition)

(i) The term 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. 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. For purpose of
this definition the term news contemplates information that is about
current events or that would be of current interest to the public. A freelance
journalist shall 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 organizations of
the foregoing nature is also relevant to
this determination. Examples of news
media entities include:
(1) Television or radio stations broadcasting to the public at large, and
(2) 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.
[54 FR 23144, May 30, 1989; 54 FR 25204, June
13, 1989]

§ 70.39 Statutes specifically providing
for setting of fees.
Nothing in this subpart shall supersede fees chargeable under a statute
other than the Freedom of Information
Act which specifically provides for setting the level of fees for particular
types of records.
§ 70.40 Charges assessed for the production of records.
(a) There are three types of charges
assessed in connection with the production of agency records in response to a
Freedom of Information Act request:
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) There are four types of FOIA requesters:
(1) Commercial use requesters,
(2) Educational and non-commercial
scientific institutions,
(3) Representatives of the news
media, and
(4) All other requesters.
Depending upon the nature of the requester, one or all of the foregoing
costs may be assessed. Paragraph (c) of
this section sets forth the extent to
which the foregoing costs may be assessed against each type of requester.
Paragraph (d) of this section establishes the actual rate to be charged in
connection with each of the foregoing
types of costs. Paragraph (e) delineates
the manner in which costs are to be assessed against an individual seeking
access to records about himself or herself which are covered by the Privacy
Act.
(c) (1) Commercial use requester. When
a commercial use requester as defined
in § 70.38(f) makes a request for documents, search costs, reproduction costs
and review costs may be assessed in
their entirety.
(2) Educational or non-commercial, scientific institution requester. When an
educational or non-commercial scientific institution requester, as defined
in §§ 70.38 (g) and (h), makes a request,
only reproduction costs may be assessed, excluding charges for the first
100 pages.
(3) Request by representative of news
media. When a representative of the
news media as defined in § 70.38(i)
makes a request, only reproduction
costs may be assessed, excluding
charges for the first 100 pages.
(4) All other requesters. Requesters
who do not fall within paragraphs
(c)(1), (2), and (3) of this section may be
charged search costs and reproduction
costs, except that the first 100 pages of
reproduction and the first two hours of
search time shall be furnished without
charge. Where computer searches are
involved, i.e., executing an existing
program, however, the monetary equivalent of two hours of search time by a

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Office of the Secretary of Labor

§ 70.41

professional employee shall be deducted from the total costs of computer processing time.
(d)(1) Search costs. When a search for
records is performed by a clerical employee, a rate of $2.50 per quarter hour
will be applicable. When a search is
performed by professional or supervisory personnel, a rate of $5.00 per
quarter hour will be applicable. 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.
When an existing computer program is
employed to locate records responsive
to a request, the disclosure officer may
charge the actual cost of providing the
service.
(2) Reproduction costs. The standard
copying charge for documents in paper
copy is $.15 per page. When responsive
information is provided in a format
other than paper copy, such as in the
form of computer tapes and discs, the
requester may be charged the direct
costs of the tape, disc or whatever medium is used to produce the information, as well as any related reproduction costs.
(3) Review costs. Costs associated with
the review of documents, as defined in
§ 70.38(c), will be applicable at a rate of
$5.00 per quarter hour. Except as noted
below, charges may only be assessed
for review at the initial level, i.e. the
review undertaken the first time the
documents 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 may be
assessed.
(4) Mailing cost. Where requests for
copies are made by mail, no postage
charge will be made for transmitting
by regular mail a single copy of the re-

quested record to the requester, or for
mailing additional copies where the
total postage cost does not exceed $1.
However, where the volume of page
copy or method of transmittal requested is such that transmittal
charges to the Department are in excess of $1, the transmittal costs will be
added, unless appropriate stamps or
stamped envelopes are furnished with
the request, or authorization is given
for collection of shipping charges on
delivery.
(e) Privacy Act requesters. Requests
from individuals for records about
themselves which are contained within
agency systems of records shall be
treated under the fee provisions of the
Privacy Act of 1974 which permit the
assessment of reproduction costs only,
after providing the first copy of a file
at no cost.
[54 FR 23144, May 30, 1989; 54 FR 30503, July
20, 1989]

§ 70.41 Reduction or waiver of fees.
This section sets forth conditions
under which the applicable charges for
records responsive to a request under 5
U.S.C. 552, as set forth in § 70.40, are
subject to reduction or waiver by the
disclosure officer.
(a) Statutorily required waiver or reduction in fees. Documents shall be furnished without charge or at a charge
below the fees set forth in § 70.40 if all
of the following conditions are satisfied:
(1) The subject of the requested
records concerns the operations or activities of the United States Government;
(2) The disclosure of the requested
records is likely to contribute to an
understanding of Government operations or activities;
(3) The disclosure is likely to contribute to a public understanding of
such operations or activities;
(4) The contribution to public understanding of government operations and
activities will be significant; and
(5) The public’s interest in disclosure
exceeds the requester’s commercial interest in disclosure.
(b) De minimis costs. Where the cost of
collecting a fee to be assessed to a requester exceeds the amount of the fee
which would otherwise be assessed, no

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