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FOIA Regulations, 29 CFR Part 70

70.19 Requests for records.
70.20 Responses by components to requests.
70.21 Form and content of component responses.
70.22 Appeals from denial of requests.
70.23 Action on appeals.
70.24 Form and content of action on appeals.
70.25 Time limits and order in which requests and appeals shall be processed.
70.26 Predisclosure notification to submitters of confidential commercial information.
70.27 Preservation of records.

70.38 Definitions.
70.39 Statutes specifically providing for setting of fees.
70.40 Charges assessed for the production of records.
70.41 Reduction or waiver of fees.
70.42 Ancillary considerations.

70.53 Office of Labor-Management Standards.
70.54 Pension and Welfare Benefits Administration.

Appendix A to Part 70--Disclosure Officers

Appendix B to Part 70--Freedom of Information/Privacy Act Coordinators

    Authority: 5 U.S.C. 301, 5 U.S.C. 552, as amended; Reorganization Plan No. 6 of 1950, 5 U.S.C. Appendix; E.O. 12600, 52 FR 23781 (June 25, 1987).

    Source: 54 FR 23144, May 30, 1989, unless otherwise noted.

70.1 - Purpose and scope.

    This part contains the regulations of the Department of Labor implementing the Freedom of Information Act (FOIA), as amended, 5 U.S.C. 552 and Executive Order 12600. It also implements the public information provisions of the Labor Management Reporting and Disclosure Act (LMRDA), 29 U.S.C. 435, 461. Subpart A contains general information about Department of Labor policies and procedures; subpart B sets forth the procedures for obtaining access to records of the Department; subpart C contains the Department's regulations on fees; and subpart D sets forth the procedures for obtaining access to certain public records. Appendix A contains a list of all Department of Labor disclosure officers from whom records may be obtained.

70.2 - Definitions.

   As used in this part:

   (a) The terms agency, person, party, rule, order, and adjudication have the meaning attributed to these terms by the definition in 5 U.S.C. 551.

   (b) Component means each separate bureau, office, board, division, commission, service or administration of the Department of Labor.

   (c) Disclosure officer means an official of the Department of Labor who has authority to disclose records under the FOIA and to whom requests to inspect or copy records in his/her custody may be addressed. Department of Labor disclosure officers are listed in Appendix A.

   (d) The Secretary means the Secretary of Labor.

   (e) The Department means the Department of Labor.

   (f) Request means any request for records made pursuant to 5 U.S.C. 552(a)(3).

   (g) Requester means any person who makes a request to a component.

   (h) Confidential commercial information means records provided to the government by a submitter that arguably contain material exempt from release under Exemption 4 of the Freedom of Information Act, 5 U.S.C. 552(b)(4), because disclosure could reasonably be expected to cause substantial competitive harm.

   (i) Business submitter means any person or entity who provides confidential commercial information to the government. The term business submitter, includes, but is not limited to corporations, labor organizations, state governments and foreign governments.

70.3 - Policy.

   All agency records, except those specifically exempted from mandatory disclosure by one or more provisions of 5 U.S.C. 552(b) shall be made promptly available to any person submitting a written request in accordance with the procedures of this part.

70.4 - Public access to certain materials.

   (a) To the extent required by 5 U.S.C. 552(a)(2), each component within the Department shall make the following materials available for public inspection and copying (unless they are published and copies are offered for sale):

   (1) Final opinions, including concurring and dissenting opinions, as well as orders, made in the adjudication of cases;

   (2) Those statements of policy and interpretation which have been adopted by the agency and are not published in the FEDERAL REGISTER; and

   (3) Administrative staff manuals and instructions to staff that affect a member of the public, and which are not exempt from disclosure under section (b) of the FOIA.

   (b) Each component of the Department shall also maintain and make available current indexes providing identifying information regarding any matter issued, adopted or promulgated after July 4, 1967, and required by paragraph (a) of this section to be made available or published. Each component shall publish and make available for distribution, copies of such indexes and supplements thereto at least quarterly, unless it determines by Notice published in the FEDERAL REGISTER that publication would be unnecessary and impracticable. After issuance of such Notice, the component shall provide copies of any index upon request at a cost not to exceed the direct cost of duplication.

   (c) Whenever it is determined to be necessary to prevent a clearly unwarranted invasion of personal privacy, identifying details may be deleted from any record covered by this subsection that is published or made available for inspection.

   (d) Certain records of the Department are available for examination or copying without the submission of a formal request under the FOIA, e.g., records maintained in public reference facilities. Information about the availability of records for examination and copying may be obtained by addressing an inquiry to the component which has custody of the records, or if the appropriate component is unknown, to the Assistant Secretary for Administration and Management.

[54 FR 23144, May 30, 1989; 54 FR 25204, June 13, 1989]

70.5 - Compilation of new records.

   Nothing in 5 U.S.C. 552 or this part requires that any agency or component create a new record, either manually from preexisting files or through creation of a computer program, in order to respond to a request for records.

70.6 - Disclosure of originals.

   No original document or record in the custody of the Department of Labor, or of any agency or officer thereof, shall on any occasion be given to any agent, attorney, or any other person not officially connected with the Department without the written consent of the Secretary or the Solicitor of Labor.

70.7 - Authority of component officials in Department of Labor.

   Each agency of the Department of Labor for which an officer or officers have authority to issue rules and regulations may through such officers promulgate supplementary regulations not inconsistent with this part, governing the disclosure of particular or specific records which are in the custody of that departmental unit.

70.8 - Supplementary regulations currently in force.

   Regulations duly promulgated by agencies of the Department and currently in force which govern the disclosure of records in the custody of the affected agency, shall remain in effect, insofar as such regulations are consistent with the provisions of this part, until such regulations are modified or rescinded.

70.19 - Requests for records.

   (a) To whom to direct requests. Requests under this subpart for a record of the Department of Labor must be in writing. A request should be sent to the component that maintains the record at its proper address and both the envelope and the request itself should be clearly marked ``Freedom of Information Act Request.'' (Appendix A of this part lists the components of the Department of Labor and their addresses.) The functions of each component are summarized in the United States Government Manual which is issued annually and is available from the Superintendent of Documents. This initial list of responsible officials has been included for informational purposes only, and the officials may be changed through appropriate designation. Regional, district and field office addresses have been included in Appendix A to assist requesters in identifying the disclosure officer who is most likely to have custody of the records sought. Requesters who need guidance in defining a request or determining the proper component to which the request should be addressed, may write to the Assistant Secretary for Administration and Management, 200 Constitution Avenue NW., Washington, DC 20210.

   (b) Description of information requested. Each request shall reasonably describe the record or records sought; i.e., in sufficient detail to permit identification and location thereof with a reasonable amount of effort. So far as practicable, the request should specify the subject matter of the record, the date or approximate date when made, the place where made, the person or office that made it, and any other pertinent identifying details.

   (c) Deficient descriptions. If the description is insufficient so that a professional employee who is familiar with the subject area of the request cannot locate the record with a reasonable amount of effort, the officer processing the request will notify the requester and indicate any additional information required. Every reasonable effort shall be made to assist a requester in the identification and location of the record or records sought.

   (d) Classified records. Any request for classified records which are in the custody of the Department of Labor shall be referred to the classifying agency under the provisions of 70.20 (c) and (d).

   (e) Agreement to pay fees. The filing of a request under this subpart shall be deemed to constitute an agreement by the requester to pay all applicable fees charged under this part, up to $25.

70.20 - Responses by components to requests.

   (a) In general. (1) Except as otherwise provided in this section, when a request for a record is received, the component having custody of the requested record shall ordinarily be responsible for responding to the request.

   (2) However, when another component or agency is better able to determine the disclosability of a record, that component or agency shall be responsible for responding to the request.

   (3) The time for responding to a request begins to run when it is received by the department or component responsible for making the determination on disclosure.

   (b) Authority to grant or deny requests. The disclosure officer, or his or her designee, is authorized to grant or deny any request for a record in his or her custody.

   (c) Determination that request has been received by the proper component.    (1) When a component receives a request for a record, the component shall promptly determine whether another component or another agency of the Government is better able to determine whether the record is exempt to any extent from mandatory disclosure under the FOIA.

   (2) If the receiving component determines that it is the component and agency better able to determine whether or not to disclose the record requested, that component shall respond to the request.

   (3) If the receiving component believes that another component or agency is better able to determine whether the requested record is exempt from mandatory disclosure under the FOIA, the receiving component shall refer the request to the component or agency that it believes should handle the request.

   (4) If the receiving component determines that it is the component and agency better able to determine whether part of the requested records is exempt from disclosure, and another component or agency has primary responsibility with respect to other parts of the requested record, the receiving component shall either:

   (i) Respond to the request after consulting with the appropriate component or agency concerning the records for which that component or agency has primary responsibility, or

   (ii) Respond to the part of the request for which it has primary responsibility and refer the other portion or portions of the request to the appropriate component or agency.

   (d) Notice of referral. Whenever a component refers all or any part of the responsibility for responding to a request to another component or to another agency, it shall notify the requester of the referral and inform the requester of the name and address of each component or agency to which the request has been referred and the portions of the request so referred.

   (e) Processing of requests that are not properly addressed. (1) A request that is not properly addressed as specified in 70.7(a) of this subpart shall be forwarded to the appropriate component, if known, or to the Office of the Assistant Secretary for Administration and Management (OASAM), which shall make reasonable efforts to determine the appropriate component and, if able to do so, shall forward the request to the appropriate component or components for processing. A request not addressed to the appropriate component will be deemed not to have been received by the Department of Labor until OASAM has forwarded the request to the appropriate component and that component has received the request, or until the request would have been so forwarded and received with the exercise of reasonable diligence by Department personnel.

   (2) A component receiving an improperly addressed request forwarded by OASAM shall notify the requester of the date on which it received the request.

   (f) Date for determining responsive records. In determining records responsive to a request, a component will include only those records existing as of the date of its receipt of the request as that date is determined in accordance with paragraph (c).

70.21 - Form and content of component responses.

   (a) Form of notice granting a request. After a component has made a determination to grant a request in whole or in part, the component shall so notify the requester in writing. The notice shall describe the manner in which the record will be disclosed, whether by providing a copy of the record to the requester or by making a copy of the record available to the requester for inspection at a reasonable time and place. The procedure for such an inspection shall not unreasonably disrupt the operations of the component. The component shall inform the requester in the notice of any fees to be charged in accordance with the provisions of subpart C.

   (b) Form of notice denying a request. A disclosure officer denying a request in whole or in part shall so notify the requester in writing. The notice must be signed by the disclosure officer or his designee, and shall include:

   (1) The name and title or position of the disclosure officer and if applicable, of the designee.

   (2) A brief statement of the reason or reasons for the denial, including the FOIA exemption or exemptions which the component has relied upon in denying the request.

   (3) A statement that the denial may be appealed under 70.22 and a description of the requirements of that subsection.

   (c) Record cannot be located or has been destroyed. If a requested record cannot be located from the information supplied, or is known or believed to have been destroyed or otherwise disposed of, the component shall so notify the requester in writing.

70.22 - Appeals from denial of requests.

   When a request for access to records or for a waiver of fees has been denied in whole or in part, where a requester disputes matters relating to the assessment of fees, or when a component fails to respond to a request within the time limits set forth in the FOIA, the requester may appeal the denial of the request to the Solicitor of Labor. The appeal must be filed within 90 days of:

   (a) The denial, actual or constructive, of the request, including a denial of a request for a fee waiver,

   (b) An agency's response on a dispute of matters relating to the assessment of fees, or

   (c) In the case of a partial denial, 90 days from the date the material was received by the requester.

The appeal shall state, in writing, the grounds for appeal, including any supporting statements or arguments. To facilitate processing, the appeal should include copies of the initial request and the response of the disclosure officer. The appeal shall be addressed to the Solicitor of Labor, Department of Labor, 200 Constitution Avenue NW., Washington, DC 20210. Both the envelope and the letter of appeal itself must be clearly marked: ``Freedom of Information Act Appeal.''

[54 FR 23144, May 30, 1989; 54 FR 25204, June 13, 1989]

70.23 - Action on appeals.

   The Solicitor of Labor, or his designee, shall review the appellant's supporting papers and make a determination de novo whether the denial specified in 70.22 was proper and in accord with the applicable law.

70.24 - Form and content of action on appeals.

   The disposition of an appeal shall be in writing. A decision affirming in whole or in part the denial of a request shall include a brief statement of the reason or reasons for the affirmance, including each FOIA exemption relied upon and its relation to each record withheld, and a statement that judicial review of the denial is available in the United States District Court for the judicial district in which the requester resides or has his principal place of business, the judicial district in which the requested records are located, or the District of Columbia. If it is determined on appeal that a record should be disclosed, the record should be provided promptly in accordance with the decision on appeal.

70.25 - Time limits and order in which requests and appeals shall be processed.

   Components of the Department of Labor shall comply with the time limits required by the FOIA for responding to and processing requests and appeals, unless there are exceptional circumstances within the meaning of 5 U.S.C. 552(a)(6)(C). A component shall notify a requester whenever the component is unable to respond to or process the request or appeal within the time limits established by the FOIA.

70.26 - Predisclosure notification to submitters of confidential commercial information.

   (a) In general. FOIA requests for confidential commercial information provided to the Department by business submitters shall be processed in accordance with this section.

   (b) Designation of confidential commercial information. Business submitters of information to the Department, at the time of submission or within a reasonable time thereafter, may designate specific information as confidential commercial information subject to the provisions of this section. Such a designation may be made for information which the submitter claims could reasonably be expected to cause substantial competitive harm. The designation must be in writing and whenever possible, the submitter's claim of confidentiality shall be supported by a statement or certification by an officer or authorized representative of the submitter that the identified information in question is, in fact, confidential commercial or financial information and has not been disclosed to the public.

   (c) Notice to submitters of confidential commercial information. A component shall provide a business submitter with prompt written notice of a request encompassing its business information whenever required under paragraph (d) of this section, and except as is provided in paragraph (g) of this section. Such written notice shall either describe the nature of the confidential commercial information requested or provide copies of the relevant records or portions thereof.

   (d) When notice is required. (1) For confidential commercial information submitted to the Department prior to January 1, 1988, the component shall provide a business submitter with notice of a request whenever:

   (i) Less than 10 years have passed since the date the information was received by the Department and the information is subject to prior express commitment of confidentiality given by the component to the business submitter, or

   (ii) The component has reason to believe that disclosure of the information could reasonably be expected to cause substantial competitive harm.

   (2) For confidential commercial information submitted to the Department on or after January 1, 1988, the component shall provide a business submitter with notice of a FOIA request whenever:

   (i) The business submitter has in good faith previously designated the information as commercially or financially sensitive information, or

   (ii) The component has reason to believe that disclosure of the information could reasonably be expected to cause substantial competitive harm.

Notice of a request for confidential commercial information falling within paragraph (d)(2)(i) of this section shall be required for a period of not more than ten years after the date of submission. The business submitter may request a specific notice period of greater duration. The submitter should provide a justification for such a request. In such a case, the Department may, in its discretion, provide for an extended notice period.

   (e) Opportunity to object to disclosure. Through the notice described in paragraph (c) of this section, a component shall afford a business submitter a reasonable period within which to provide the component with a detailed statement of any objection to disclosure. Such statement shall specify all grounds for withholding any of the information under Exemption 4 of the Freedom of Information Act, and shall demonstrate the basis for the contention that the information is a trade secret or commercial or financial information that is privileged or confidential. Information provided by a business submitter pursuant to this paragraph may itself be subject to disclosure under the FOIA.

   (f) Notice of intent to disclose. A component shall consider a business submitter's objections and specific grounds for nondisclosure prior to determining whether to disclose business information which has been designated by the submitter as confidential commercial information. Whenever a component decides to disclose such information over the objection of a business submitter or designee, the component shall notify the business submitter in writing. Such notice shall include:

   (1) A description of the information to be disclosed;

   (2) A specified disclosure date;

   (3) A statement of why the submitter's objections were not sustained.

   Such notice of intent to disclose shall to the extent permitted by law be forwarded a resonable number of days prior to the specified date upon which disclosure is intended. The requester shall be provided with a copy of the notice of intent to disclose.

   (g) Exceptions to notice requirements. The notice requirements of this section shall not apply if:

   (1) The component determines that the information should not be disclosed;

   (2) The information has been lawfully published or has been officially made available to the public; or

   (3) Disclosure of the information is required by law (other than 5 U.S.C. 552).

   (4) The disclosure is required by a rule that

   (i) Was adopted pursuant to notice and public comment;

   (ii) Specifies narrow classes of records submitted to the agency that are to be released under the Freedom of Information Act; and

   (iii) Provides in exceptional circumstances for notice when the submitter provides written justification, at the time the information is submitted or a reasonable time thereafter, that disclosure of the information could reasonably be expected to cause substantial competitive harm.

   (5) The information requested has not been designated by the submitter as in accordance with paragraph (b) of this Section, and the submitter had an opportunity to do so at the time of submission of the information or a reasonable time thereafter, unless the component has reason to believe that disclosure of the information would result in substantial competitive harm; or

   (6) The designation made by the submitter in accordance with these regulations appears obviously frivolous; except that in such case, the component must provide the submitter with written notice of any final administrative disclosure determination within a reasonable number of days prior to the specified disclosure date.

   (h) Notice of FOIA lawsuit. Whenever a requester brings suit seeking to compel disclosure of confidential commercial information covered by paragraph (b) of this section, the component shall promptly notify the business submitter.

   (i) Notice requirements. The component shall fulfill the notice requirements of this section by addressing the notice to the business submitter or its legal successor at the address indicated on the records, or the last known address. If the notice is returned, the component shall make a reasonable effort to locate the business submitter or its legal successor. Where notification of a voluminous number of submitters is required, such notification may be accomplished by posting and publishing the notice in a place reasonably calculated to accomplish notification.

70.38 - Definitions.

   The following definitions apply to the terms of this subpart.

   (a) The term a statute specifically providing for setting the level of fees for particular types of records (See 5 U.S.C. 552(a)(4)(A)(vi)), means any statute other than FOIA that specifically requires a Government agency to establish a fee schedule for particular types of records. An example of such a statute is section 205(c) of the Labor-Management Reporting and Disclosure Act, as amended, 29 U.S.C. 435(c). Statutes such as the User Fee Statute which only provide a general discussion of fees without explicitly requiring that an agency set and collect fees for particular documents are not within the meaning of this term.

   (b) The term direct costs means those expenditures which an agency actually incurs in searching for and duplicating (and in the case of a commercial requester, reviewing) documents to respond to an FOIA request. Direct costs includes the salary of the employee performing the work and the cost of operating duplicating machinery, and when appropriate the cost of the medium in which the information is made available.

   (c) The term duplication means 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, microform, audio-visual materials or machine-readable documentation (e.g., magnetic tape or disk), among others.

   (d) The term search means the process of looking for material that is responsive to a FOIA request; including page-by-page or line-by-line identification of materials within documents or, when available, use of an existing computer program. Searches do not include the review of material, as defined in 70.38(e), which is performed to determine whether material is exempt from disclosure.

   (e) The term review means the process of examining documents located in response to a request that is for a commercial use, as defined in 70.38 (f), to determine whether any portion of the document located is exempt from disclosure, and accordingly may be withheld. It also includes the act of preparing materials for disclosure, i.e. 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.

   (f) The term commercial use request means a request from one who seeks information for a use or purpose that furthers the commercial, trade or profit interests of the requester or the person or entity on whose behalf the request was submitted. When a request is submitted by a commercial entity or its representative and from the nature of the information sought it appears the request is to further the objective of that entity, the request will be treated as a commercial use request unless the requester indicates that the information is being sought for a non-commercial purpose. Where a requester indicates that the information is being sought for a non-commercial purpose, the disclosure officer will evaluate the requester's submission and determine how the request is to be treated. While requests by non-profit organizations would normally fall outside the commercial use category, when the disclosure officer determines that a request by such an entity or one acting on its behalf does further the entity's commercial interests, he or she may treat the request as a commercial use request.

   (g) The term educational institution means:

   (1) An institution which is a preschool, a public or private elementary or secondary school, an institution of undergraduate higher education, an institution of graduate higher education, an institution of professional education, or an institution of vocational education, and

   (2) Operates a program or programs of scholarly research. To qualify under this definition, the program of scholarly research in connection with which the information is sought must be carried out under the auspices of the academic institution itself as opposed to the individual scholarly pursuits of persons affiliated with an institution. For example, a request from a professor to assist him or her in writing a book independent of his or her institutional responsibilities would not qualify under this definition, whereas a request predicated upon research funding granted to the institution would meet its requirements. Likewise, a request from a student enrolled in an individual course of study at an educational institution would not qualify as a request from the institution.

   (h) The term non-commercial scientific institute means an institution that is not operated on a commercial basis as that term is defined in 70.38(f), 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) 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 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 requested 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 fee need be charged. Under normal circumstances, fees which do not exceed $5.00 need not be collected.

   (c) Reformulating requests. When the estimated reproduction costs are likely to exceed $25.00, the requester may be notified of the estimated amount of fees, unless the requester has indicated in advance its willingness to pay fees as high as those anticipated. Such notice may invite the requester to reformulate the request to satisfy his or her needs at a lower cost.

70.42 - Ancillary considerations.

   (a) Costs assessed when no records are disclosed. The costs of searching for and, in the case of a commercial use request, reviewing records may be assessed even where ultimately no documents are disclosed or located.

   (b) Aggregating requests. A requester may not file multiple requests, each seeking portions of a document or documents in order to avoid the payment of fees. When there is reason to believe that a requester or a group of requesters acting in concert, is attempting to break a request down into a series of requests for the purpose of evading the assessment of fees, any such requests may be aggregated and the requesters charged as if there were only a single request.

   (c) Advance payments. An advance payment before work is commenced or continued on a request, may not be required unless:

   (1) It is estimated or determined that the allowable charge that a requester may be required to pay are likely to exceed $250. When a determination is made that the allowable charges are likely to exceed $250, the requester shall be notified of the likely cost and be required to provide satisfactory assurance of full payment where the requester has a history of prompt payment of FOIA fees, or be required to tender advance payment of at least 50% of 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 charged in a timely fashion (i.e., within 30 days of the date of the billing) in which case the requester may be required:

   (i) To pay the full amount owed plus any applicable interest as provided in 70.41(e), when an outstanding balance is due and owing, and

   (ii) To make an advance payment of the full amount of the estimated fee before the component begins to process a new request.

   (3) In any case, the payment of outstanding fees may be required before responsive materials are actually disclosed to a requester.

   (d) Time limits to respond extended when advance payments requested. When an advance payment of fees in accordance with paragraph (c) of this section has been requested the administrative time limits prescribed in subsection (a)(6) of the FOIA, 5 U.S.C. 552(a)(6), will only begin to run after such advance payment has been received by the agency.

   (e) Interest charges. Interest charges on an unpaid bill may be assessed starting on the 31st day following the day on which the billing was sent. Interest shall be at the rate prescribed in section 3717 of title 31 U.S.C. and shall accrue from the date of the billing.

   (f) Authentication of copies_(1) Fees. The Freedom of Information Act does not require certification or attestation under seal of copies of records furnished in accordance 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 may be made where such services are requested:

   (i) For certification of true copies, each $1.

   (ii) For attestation under the seal of the Department, each $3.

   (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.

   (g) Transcripts. All transcripts shall be made available in accordance with the terms set forth in 70.40.

70.53 - Office of Labor-Management Standards.

   (a) The following documents in the custody of the Office of Labor-Management Standards are public information available for inspection and/or purchase of copies in accordance with paragraphs (b) and (c) of this section.

   (1) Data and information contained in any report or other document filed pursuant to sections 201, 202, 203, 211, and 301 of the Labor-Management Reporting and Disclosure Act of 1959 (73 Stat. 524-28, 530, 79 Stat. 888, 29 U.S.C. 431-433, 441, 461).

   (2) Data and information contained in any report or other document filed pursuant to the reporting requirements of part 458 of this title, which are the regulations implementing the standards of conduct provisions of the Civil Service Reform Act of 1978, 5 U.S.C. 7120, and the Foreign Service Act of 1980, 22 U.S.C. 4117. The reporting requirements are found in 29 CFR 458.3.

   (b) The above documents are available from: U.S. Department of Labor, Office of Labor-Management Standards, Public Documents Room, N-5616, 200 Constitution Avenue, NW., Washington, DC 20210. Documents are also available from the OLMS area or district office in whose geographic jurisdiction the reporting organization or individual is located. The addresses of these offices are listed in appendix A of this part.

   (c) Pursuant to 29 U.S.C. 435(c) which provides that the Secretary shall by regulation provide for the furnishing of copies of the above documents, upon payment of a charge based upon the cost of the service, these documents are available at a cost of .15 per page of record copies furnished. Authentication of copies is available in accordance with the fee schedule established in section 70.42(f). In accordance with 5 U.S.C. 552(a)(4)(A)(vi), the provisions for fees, fee waivers and fee reductions in subpart C do not supersede the above charges for these documents.

   (d) Upon request of the Governor of a State for copies of any reports or documents filed pursuant to sections 201, 202, 203, or 211 of the Labor-Management Reporting and Disclosure Act of 1959 (73 Stat. 524-528, 79 Stat. 888; 29 U.S.C. 431-441), or for information contained therein, which have been filed by any person whose principal place of business or headquarters is in such State, the Office of Labor-Management Standards shall:

   (1) Make available without payment of a charge to the State agency designated by law or by such Governor, such requested copies of information and data, or

   (2) Require the person who filed such reports and documents to furnish such copies or information and data directly to the State agency thus designated.

70.54 - Pension and Welfare Benefits Administration.

   The following documents are in the custody of the Pension and Welfare Benefits Administration at the address indicated below, and the right of inspection and copying provided in this part may be exercised at such offices: Copies of summary plan descriptions, and annual reports, statements and other documents filed pursuant to the Employee Retirement Income Security Act, title I, part I, except that information described in sections 105(a) and 105(c) with respect to a participant may be disclosed only to the extent that information respecting that participant's benefits under title II of the Social Security Act may be disclosed under such Act.

   Address: U.S. Department of Labor, Pension and Welfare Benefits Administration, Public Documents Room N-5507, 200 Constitution Avenue, NW., Washington, DC 20210.

[Continue to Appendix A to Part 70--Disclosure Officers]

[Continue to Appendix B to Part 70--Freedom of Information/Privacy Act Coordinators]

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