[Federal Register Volume 60, Number 36 (Thursday, February 23, 1995)]
[Rules and Regulations]
[Pages 10006-10013]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-4347]



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OFFICE OF GOVERNMENT ETHICS

5 CFR Part 2604

RIN 3209-AA17


Freedom of Information Act Rules and Schedule of Fees for the 
Production of Public Financial Disclosure Reports

AGENCY: Office of Government Ethics (OGE).

ACTION: Final rule.

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SUMMARY: The Office of Government Ethics is issuing a final rule which 
establishes procedures for the implementation of the Freedom of 
Information Act (FOIA). The rule also establishes a schedule of fees 
which will be charged for the reproduction and mailing of public 
financial disclosure reports (SF 278s).

EFFECTIVE DATE: March 27, 1995.

FOR FURTHER INFORMATION CONTACT: Janet K. Roell, Office of Government 
Ethics, telephone (202) 523-5757, FAX (202) 523-6325.

[[Page 10007]] SUPPLEMENTARY INFORMATION: In this rulemaking document, 
the Office of Government Ethics is adopting final rules under the 
Freedom of Information Act (FOIA), 5 U.S.C. 552, and for fees for 
copies of SF 278 reports requested under the Ethics in Government Act. 
As noted in OGE's proposed rules published at 59 FR 50171-50179 
(October 3, 1994), this FOIA regulation, being codified at 5 CFR part 
2604, will incorporate many of OGE's existing practices for the 
implementation of the FOIA and follows applicable guidance of the 
Department of Justice and the Office of Management and Budget. The 
regulation will also set separate schedules of fees for FOIA requests 
and for larger SF 278 requests.
    The proposed rules provided a 60-day comment period and invited 
comments by agencies and the public. Only one comment was received. 
That comment did not suggest any specific changes to the regulations as 
proposed, but rather recommended more disclosure of certain activities 
of Federal officials. With respect to disclosure of activities, OGE 
believes that the existing system of public financial disclosure 
reporting of high-level officials under title I of the Ethics Act, as 
implemented for the executive branch by OGE's regulation at 5 CFR part 
2634, as well as other pertinent laws and regulations adequately 
address that separate subject matter. Therefore, in adopting the 
proposed rules as final, the Office of Government Ethics is not making 
any substantive changes. The only changes reflect correction of a 
couple of minor typographical errors (including indication of the 
correct March 1 due date for annual FOIA reports) and clarification of 
two passages --Sec. 2604.102(c) to expressly indicate that a requester 
can opt for regular FOIA processing in lieu of alternative access for 
OGE items also available via the Government Printing Office or the 
National Information Technical Service of the Department of Commerce 
and Sec. 2604.302(c) to state that OGE will generally provide nonexempt 
responsive records in existing formats to FOIA requesters.

Executive Order 12866

    In promulgating this final rule, the Office of Government Ethics 
has adhered to the regulatory philosophy and the applicable principles 
of regulations set forth in section 1 of Executive Order 12866, 
Regulatory Planning and Review. This regulation has been reviewed by 
the Office of Management and Budget under that Executive order.

Regulatory Flexibility Act

    As Director of the Office of Government Ethics, I certify under the 
Regulatory Flexibility Act (5 U.S.C. chapter 6) that this regulation 
will not have a significant economic impact on a substantial number of 
small entities.

Paperwork Reduction Act

    The Paperwork Reduction Act (44 U.S.C. chapter 35) does not apply 
to this regulation because it does not contain information collection 
requirements that require the approval of the Office of Management and 
Budget.

List of Subjects in 5 CFR Part 2604

    Administrative practice and procedure, Archives and records, 
Confidential business information, Conflict of interests, Freedom of 
Information, Government employees.

    Approved: January 11, 1995.
Stephen D. Potts,
Director, Office of Government Ethics.

    Accordingly, for the reasons set forth in the preamble, the Office 
of Government Ethics is amending subchapter A of chapter XVI of title 5 
of the Code of Federal Regulations by adding the text of and an 
authority citation for part 2604, previously reserved, and by revising 
the title thereof to read as follows:

PART 2604--FREEDOM OF INFORMATION ACT RULES AND SCHEDULE OF FEES 
FOR THE PRODUCTION OF PUBLIC FINANCIAL DISCLOSURE REPORTS

Subpart A--General Provisions

Sec.
2604.101  Purpose.
2604.102  Applicability.
2604.103  Definitions.
Subpart B--Public Reading Room and Index Identifying Information for 
the Public
Sec.
2604.201  Public reading room.
2604.202  Index identifying information for the public.

Subpart C--Production and Disclosure of Records Under FOIA

Sec.
2604.301  Requests for records.
2604.302  Response to requests.
2604.303  Form and content of responses.
2604.304  Appeal of denials.
2604.305  Time limits.

Subpart D--Exemptions Under FOIA

Sec.
2604.401  Policy.
2604.402  Business information.

Subpart E--Schedule of Fees

Sec.
2604.501  Fees to be charged--general.
2604.502  Fees to be charged--categories of requesters.
2604.503  Limitations on charging fees.
2604.504  Miscellaneous fee provisions.

Subpart F--Annual Report to Congress

Sec.
2604.601  Submission of report.
2604.602  Contents of the report.
Subpart G--Fees for the Reproduction and Mailing of Public Financial 
Disclosure Reports
Sec.
2604.701  Policy.
2604.702  Charges.

    Authority: 5 U.S.C. 552; 5 U.S.C. App. (Ethics in Government Act 
of 1978); E.O. 12600, 52 FR 23781, 3 CFR, 1987 Comp., p. 235.

Subpart A--General Provisions


Sec. 2604.101  Purpose.

    This part contains the regulations of the Office of Government 
Ethics (OGE) implementing the Freedom of Information Act (FOIA) and 
Executive Order 12600. It describes how any person may obtain records 
from OGE under the FOIA. It also implements section 105(b)(1) of the 
Ethics in Government Act of 1978, as amended, which authorizes an 
agency to charge reasonable fees to cover the cost of reproduction and 
mailing of public financial disclosure reports requested by any person.


Sec. 2604.102  Applicability.

    (a) General. The FOIA and this rule apply to all OGE records. 
However, if another law sets forth procedures for the disclosure of 
specific types of records, such as section 105 of the Ethics in 
Government Act of 1978, 5 U.S.C. appendix, OGE will process a request 
for those records in accordance with the procedures that apply to those 
specific records. See 5 CFR 2634.603 and subpart G of this part. If 
there is any record which is not required to be released under those 
provisions, OGE will consider the request under the FOIA and this rule, 
provided that the special Ethics Act access procedures cited must be 
complied with as to any record within the scope thereof.
    (b) The relationship between the FOIA and the Privacy Act of 1974. 
The Privacy Act of 1974, 5 U.S.C. 552a, applies to records that are 
about individuals, but only if the records are in a system of records 
as defined in the Privacy Act. Requests from individuals for records 
about themselves which are contained in an OGE system of records will 
be processed under the provisions [[Page 10008]] of the Privacy Act as 
well as the FOIA. OGE will not deny access by a first party to a record 
under the FOIA or the Privacy Act unless the record is not available to 
that individual under both the Privacy Act and the FOIA.
    (c) Records available through routine distribution procedures. When 
the record requested includes material published and offered for sale 
(e.g., by the Superintendent of Documents, Government Printing Office) 
or which is available to the public through an established distribution 
system (such as that of the National Technical Information Service of 
the Department of Commerce), OGE will explain how the record may be 
obtained through those channels. If the requester, after having been 
advised of such alternative access, asks for regular FOIA processing 
instead, OGE will provide the record in accordance with its usual FOIA 
procedures under this part.


Sec. 2604.103  Definitions.

    As used in this part,
    Agency has the meaning given in 5 U.S.C. 551(1) and 5 U.S.C. 
552(f).
    Business information means trade secrets or other commercial or 
financial information, provided to the Office by a submitter, which 
arguably is protected from disclosure under Exemption 4 of the Freedom 
of Information Act.
    Business submitter means any person who provides business 
information, directly or indirectly, to the Office and who has a 
proprietary interest in the information.
    Commercial use means, when referring to a request, that the request 
is 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 of a person on whose behalf the request is made. Whether a 
request is for a commercial use depends on the purpose of the request 
and the use to which the records will be put. When a request is from a 
representative of the news media, a purpose or use supporting the 
requester's news dissemination function is not a commercial use.
    Direct costs means those expenditures actually incurred in 
searching for and duplicating (and, in the case of commercial use 
requesters, reviewing) records to respond to a FOIA request. Direct 
costs include the salary of the employee performing the work and the 
cost of operating duplicating machinery. Not included in direct costs 
are overhead expenses such as costs of space and heating or lighting of 
the facility in which the records are stored.
    Duplication means the process of making a copy of a record. Such 
copies include paper copy, microform, audio-visual materials, and 
magnetic tapes, cards, and discs.
    Educational institution means a preschool, elementary or secondary 
school, institution of undergraduate or graduate higher education, or 
institute of professional or vocational education, which operates a 
program of scholarly research.
    Freedom of Information Act or FOIA means 5 U.S.C. 552.
    General Counsel means the General Counsel of the Office of 
Government Ethics. The General Counsel may delegate any of his 
responsibilities in handling FOIA requests in this part to a designee 
on OGE's staff.
    He, his and him include she, hers and her.
    Noncommercial scientific institution means an institution that is 
not operated solely for purposes of furthering its own or someone 
else's business, trade, or profit interests, and that is operated for 
purposes of conducting scientific research the results of which are not 
intended to promote any particular product or industry.
    Office or OGE means the United States Office of Government Ethics.
    Person has the meaning given in 5 U.S.C. 551(2).
    Records means any handwritten, typed, or printed documents (such as 
memoranda, books, brochures, studies, writings, drafts, letters, 
transcripts, and minutes) and documentary material in other forms (such 
as punchcards, magnetic tapes, cards or discs, paper tapes, audio or 
video recordings, maps, photographs, slides, microfilm and motion 
pictures) that are either created or obtained by the Office and are 
under Office control. It does not include objects or articles such as 
exhibits, models, equipment, and duplication machines or audiovisual 
processing materials.
    Representative of the news media means a person actively gathering 
information for an entity organized and operated to publish or 
broadcast news to the public. News media entities include television 
and radio broadcasters, publishers of periodicals who distribute their 
products to the general public or who make their products available for 
purchase or subscription by the general public, and entities that may 
disseminate news through other media, such as electronic dissemination 
of text. Freelance journalists will be considered as representatives of 
a news media entity if they can show a solid basis for expecting 
publication through such an entity. A publication contract is such a 
basis, and the requester's past publication record may show such a 
basis.
    Request means any request for records made pursuant to 5 U.S.C. 
552(a)(3).
    Requester means any person who makes a request for records to OGE.
    Review means the process of initially, or upon appeal (see 
Sec. 2604.501(b)(3)), examining documents located in a response to a 
request to determine whether any portion of any document is permitted 
to be withheld. It also includes processing documents for disclosure, 
such as redacting portions which may be withheld. Review does not 
include time spent resolving general legal and policy issues regarding 
the application of exemptions.
    Search means the time spent looking for material that is responsive 
to a request, including page-by-page or line-by-line identification of 
material within documents.
    Working days means calendar days, excepting Saturdays, Sundays, and 
legal public holidays.

Subpart B--Public Reading Room and Index Identifying Information 
for the Public


Sec. 2604.201  Public reading room.

    (a) Location of public reading room. The Office of Government 
Ethics maintains a public reading room at its offices located at 1201 
New York Avenue, NW., Suite 500, Washington, DC 20005-3917. Persons 
desiring to utilize the reading room should contact the Office, in 
writing or by telephone at (202) 523-5757 or FAX (202) 523-6325, to 
arrange a time to inspect the materials available there.
    (b) Records available. The Office of Government Ethics public 
reading room contains OGE records which are required by 5 U.S.C. 
552(a)(2) to be made available for public inspection and copying, 
including:
    (1) Any final opinions, as well as orders, made in the adjudication 
of cases;
    (2) Any statements of policy and interpretation which have been 
adopted by the agency and are not published in the Federal Register;
    (3) Any 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; and
    (4) Current indexes providing identifying information for the 
public as to any matter which was issued, adopted or promulgated after 
July 4, 1967, and is required by 5 U.S.C. 552(a)(2) to be made 
available or published.
    (c) Copying. The cost of copying information available in OGE's 
public [[Page 10009]] reading room shall be imposed on a requester in 
accordance with the provisions of subpart E of this part.


Sec. 2604.202  Index identifying information for the public.

    (a) The Office of Government Ethics will maintain and make 
available for public inspection and copying a current index of the 
materials available at its public reading room which are required to be 
indexed under 5 U.S.C. 552(a)(2).
    (b) The Director of the Office of Government Ethics has determined 
that it is unnecessary and impracticable to publish quarterly or more 
frequently and distribute (by sale or otherwise) copies of each index 
and supplements thereto, as provided in 5 U.S.C. 552(a)(2). The Office 
will provide copies of such indexes upon request, at a cost not to 
exceed the direct cost of duplication and mailing, if sending records 
by other than ordinary mail.

Subpart C--Production and Disclosure of Records Under FOIA


Sec. 2604.301  Requests for records.

    (a) Addressing requests. Requests for copies of records may be made 
in person or by telephone, (202) 523-5757, during normal business hours 
at the Office of Government Ethics, 1201 New York Avenue, NW., Suite 
500, Washington, DC 20005-3917 or by mail addressed to the General 
Counsel of OGE. Although oral requests may be honored, a requester 
generally will be asked to submit his request under the FOIA in 
writing. In the case of a written request, the envelope containing the 
request and the letter itself should both clearly indicate that the 
subject is a Freedom of Information Act request.
    (b) Description of records. Each request must reasonably describe 
the desired records in sufficient detail to enable Office personnel to 
locate the records with a reasonable amount of effort. A request for a 
specific category of records will be regarded as fulfilling this 
requirement if it enables responsive records to be identified by a 
technique or process that is not unreasonably burdensome or disruptive 
of Office operations.
    (1) Wherever possible, a request should include specific 
information about each record sought, such as the date, title or name, 
author, recipient, and subject matter of the record.
    (2) If the General Counsel determines that a request does not 
reasonably describe the records sought, he will either advise the 
requester what additional information is needed to locate the record, 
or otherwise state why the request is insufficient. The General Counsel 
will also extend to the requester an opportunity to confer with Office 
personnel with the objective of reformulating the request in a manner 
which will meet the requirements of this section.
    (c) Agreement to pay fees. The filing of a request under this 
subpart will be deemed to constitute an agreement by the requester to 
pay all applicable fees charged under subpart E of this part, up to 
$25.00, unless a waiver of fees is sought. The request may also specify 
a limit on the amount the requester is willing to spend, or may 
indicate a willingness to pay an amount greater than $25.00, if 
applicable. In cases where a requester has been notified that actual or 
estimated fees may amount to more than $25.00, the request will be 
deemed not to have been received until the requester has agreed to pay 
the anticipated total fee.
    (d) Requests for records relating to corrective actions. No record 
developed pursuant to the authority of 5 U.S.C. app. (Ethics in 
Government Act of 1978, section 402(f)(2)) concerning the investigation 
of an employee for a possible violation of any provision relating to a 
conflict of interest shall be made available pursuant to this part 
unless the request for such information identifies the employee to whom 
the records relate and the subject matter of any alleged violation to 
which the records relate. Nothing in this subsection shall affect the 
application of subpart D of this part to any record so identified.


Sec. 2604.302  Response to requests.

    (a) Response to initial request. The General Counsel is authorized 
to grant or deny any request for a record and to determine appropriate 
fees.
    (b) Referral to another agency. When a requester seeks records that 
originated in another Government agency, OGE will normally refer the 
request to the other agency for response. If OGE refers the request to 
another agency, it will notify the requester of the referral. If 
release of certain records may adversely affect United States relations 
with foreign governments, the Office will usually consult with the 
Department of State. A request for any records classified by some other 
agency will be referred to that agency for response.
    (c) Creating records. If a person seeks information from OGE in a 
format that does not currently exist, OGE will not ordinarily reformat 
the information for the purpose of responding to the request. OGE will 
advise the requester that it does not have the record in the format 
sought, but will provide whatever nonexempt records in existing formats 
that would reasonably respond to the request. Additionally, OGE will 
not generally develop a new record of information to satisfy a request.
    (d) Record cannot be located. If a requested record cannot be 
located from the information supplied, the General Counsel will so 
notify the requester in writing.


Sec. 2604.303  Form and content of responses.

    (a) Form of notice granting a request. After the General Counsel 
has made a determination to grant a request in whole or in part, the 
requester will be notified in writing. The notice shall describe the 
manner in which the record will be disclosed, whether by providing a 
copy of the record with the response or at a later date, 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 may not 
unreasonably disrupt the operations of the Office. The response letter 
will also inform the requester in the response of any fees to be 
charged in accordance with the provisions of subpart E of this part.
    (b) Form of notice denying a request. When the General Counsel 
denies a request in whole or in part, he will so notify the requester 
in writing. The response will be signed by the General Counsel and will 
include:
    (1) The name and title or position of the person making the denial;
    (2) A brief statement of the reason or reasons for the denial, 
including the FOIA exemption or exemptions which the General Counsel 
has relied upon in denying the request; and
    (3) A statement that the denial may be appealed under Sec. 2604.304 
of this subpart, and a description of the requirements of that section.


Sec. 2604.304  Appeal of denials.

    (a) Right of appeal. If a request has been denied in whole or in 
part, the requester may appeal the denial to the Deputy Director of the 
Office of Government Ethics, 1201 New York Avenue, NW., Suite 500, 
Washington, DC 20005-3917.
    (b) Letter of appeal. The appeal must be in writing and must be 
sent within 30 days of receipt of the denial letter. An appeal should 
include a copy of the initial request, a copy of the letter denying the 
request in whole or in part, and a statement of the circumstances, 
reasons or arguments advanced in support of disclosure of the request 
for the record. Both the envelope and the letter of appeal must be 
clearly marked ``Freedom of Information Act Appeal.''
    (c) Action on appeal. The disposition of an appeal will be in 
writing and will [[Page 10010]] constitute the final action of the 
Office on a request. A decision affirming in whole or in part the 
denial of a request will include a brief statement of the reason or 
reasons for affirmance, including each FOIA exemption relied on. If the 
denial of a request is reversed in whole or in part on appeal, the 
request will be processed promptly in accordance with the decision on 
appeal.
    (d) Judicial review. If the denial of the request for records is 
upheld in whole or in part, the Office will notify the person making 
the request of his right to seek judicial review under 5 U.S.C. 
552(a)(4).


Sec. 2604.305  Time limits.

    (a) Initial request. Following receipt of a request for records, 
the General Counsel will determine whether to comply with the request 
and will notify the requester in writing of his determination within 10 
working days.
    (b) Appeal. A written determination on an appeal submitted in 
accordance with Sec. 2604.304 will be issued within 20 working days 
after receipt of the appeal.
    (c) Extension of time limits. The time limits specified in either 
paragraph (a) or (b) of this section may be extended in unusual 
circumstances up to a total of 10 working days, after written notice to 
the requester setting forth the reasons for the extension and the date 
on which a determination is expected to be made.
    (d) For the purposes of paragraph (c) of this section, unusual 
circumstances means that there is a need to:
    (1) Search for and collect records from archives;
    (2) Search for, collect, and appropriately examine a voluminous 
amount of separate and distinct records which are demanded in a single 
request; or
    (3) Consult with another agency having a substantial interest in 
the determination of the request, or consult with various OGE 
components that have substantial subject matter interest in the records 
requested.

Subpart D--Exemptions Under FOIA


Sec. 2604.401  Policy.

    (a) Policy on application of exemptions. Section 552(b) of the 
Freedom of Information Act contains nine exemptions to the mandatory 
disclosure of records. A requested record will not be withheld from 
inspection or copying unless it comes within one of the classes of 
records exempted by 5 U.S.C. 552. In making its determination on 
withholding, OGE will consider whether another statute, Executive order 
or regulation prohibits release or, if not, whether there is a need in 
the public interest to withhold material which is otherwise exempt 
under FOIA.
    (b) Pledge of confidentiality. Information obtained from any 
individual or organization, furnished in reliance on a provision for 
confidentiality authorized by applicable statute, Executive order or 
regulation, will not be disclosed to the extent it can be withheld 
under one of the exemptions. However, this paragraph does not itself 
authorize the giving of any pledge of confidentiality by any officer or 
employee of the Office of Government Ethics.
    (c) Exception for law enforcement information. The Office may treat 
records compiled for law enforcement purposes as not subject to the 
requirements of the Freedom of Information Act when:
    (1) The investigation or proceeding involves a possible violation 
of criminal law;
    (2) There is reason to believe that the subject of the 
investigation or proceeding is unaware of its pendency; and
    (3) The disclosure of the existence of the records could reasonably 
be expected to interfere with the enforcement proceedings.
    (d) Partial application of exemptions. Any reasonably segregable 
portion of a record will be provided to any person requesting the 
record after deletion of the portions which are exempt under this 
subpart.


Sec. 2604.402  Business information.

    (a) In general. Business information provided to the Office of 
Government Ethics by a submitter will not be disclosed pursuant to a 
Freedom of Information Act request except in accordance with this 
section.
    (b) Designation of business information. Submitters of business 
information should use good-faith efforts to designate, by appropriate 
markings, either at the time of submission or at a reasonable time 
thereafter, those portions of their submissions which they deem to be 
protected under exemption 4 of the FOIA (5 U.S.C. 552(b)(4)). Any such 
designation will expire 10 years after the records were submitted to 
the Government, unless the submitter requests, and provides reasonable 
justification for, a designation period of longer duration.
    (c) Predisclosure notification. The General Counsel will provide a 
submitter with prompt written notice of a FOIA request regarding its 
business information if:
    (1) The information has been designated by the submitter as 
information deemed protected from disclosure under Exemption 4 of the 
FOIA; or
    (2) The General Counsel has reason to believe that the information 
may be protected from disclosure under Exemption 4 of the FOIA. Such 
written notice shall either describe the exact nature of the business 
information requested or provide copies of the records containing the 
business information. The requester also shall be notified that notice 
and an opportunity to object are being provided to a submitter.
    (d) Opportunity to object to disclosure. A submitter has five 
working days from receipt of the predisclosure notification to provide 
a written statement of any objection to disclosure. Such statement 
shall specify all the grounds for withholding any of the information 
under any exemption of the FOIA and, in the case of Exemption 4, shall 
demonstrate why the information is deemed to be a trade secret or 
commercial or financial information that is privileged or confidential. 
Information provided by a submitter pursuant to this paragraph may 
itself be subject to disclosure under the FOIA.
    (e) Notice of intent to disclose. The General Counsel will consider 
all objections raised by a submitter and specific grounds for 
nondisclosure prior to determining whether to disclose business 
information. Whenever the General Counsel decides to disclose business 
information over the objection of a submitter, he will send the 
submitter a written notice at least 10 working days before the date of 
disclosure containing:
    (1) A statement of the reasons why the submitter's objections were 
not sustained;
    (2) A copy of the records which will be disclosed or a written 
description of the records; and
    (3) A specified disclosure date. The requester shall also be 
notified of the General Counsel's determination to disclose records 
over a submitter's objections.
    (f) Notice of FOIA lawsuit. Whenever a requester brings suit 
seeking to compel disclosure of business information, the General 
Counsel shall promptly notify the submitter.
    (g) Exceptions to predisclosure notification. The notice 
requirements in paragraph (c) of this section do not apply if:
    (1) The General Counsel determines that the information should not 
be disclosed; [[Page 10011]] 
    (2) The information has been published previously or has been 
officially made available to the public;
    (3) Disclosure of the information is required by law (other than 5 
U.S.C. 552); or
    (4) The designation made by the submitter in accordance with 
paragraph (b) of this section appears obviously frivolous; except that, 
in such a case, the General Counsel will provide the submitter with 
written notice of any final decision to disclose business information 
within a reasonable number of days prior to a specified disclosure 
date.

Subpart E--Schedule of Fees


Sec. 2604.501  Fees to be charged--general.

    (a) Policy. Fees shall be assessed according to the schedule 
contained in paragraph (b) of this section and the category of 
requesters described in Sec. 2604.502 for services rendered in 
responding to and processing requests for records under subpart C of 
this part. All fees shall be charged to the requester, except where the 
charging of fees is limited under Sec. 2604.503(a) and (b) or where a 
waiver or reduction of fees is granted under Sec. 2604.503(c). 
Requesters shall pay fees by check or money order made payable to the 
Treasury of the United States.
    (b) Types of charges. The types of charges that may be assessed in 
connection with the production of records in response to a FOIA request 
are as follows:
    (1) Searches--(i) Manual searches for records. Whenever feasible, 
the Office will charge at the salary rate (i.e., basic pay plus 16%) of 
the employee making the search. However, where a homogeneous class of 
personnel is used exclusively in a search (e.g., all clerical time or 
all professional time) the Office will charge $10.00 per hour for 
clerical time and $20.00 per hour for professional time. Charges for 
search time will be billed by fifteen minute segments.
    (ii) Computer searches for records. Requesters will be charged the 
actual direct cost of conducting a search using existing programming. 
These direct costs shall include the cost of operating a central 
processing unit for that portion of operating time that is directly 
attributable to searching for records responsive to a request, as well 
as the cost of operator/programmer salary apportionable to the search. 
The Office will not alter or develop programming to conduct a search.
    (iii) Unproductive searches. The Office will charge search fees 
even if no records are found which are responsive to the request, or if 
the records found are exempt from disclosure.
    (2) Duplication. 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 associated with the review of documents, as 
defined in Sec. 2604.104(q), will be charged at the salary rate (i.e., 
basic pay plus 16%) of the employee conducting the review. Except as 
noted below, charges may be assessed only 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 a 
particular record or portion of the records. A requester will not be 
charged for review at the administrative appeal level concerning the 
applicability of an exemption already applied at the initial level. 
However, when a record has been withheld pursuant to an exemption which 
is subsequently determined not to apply and the record is reviewed 
again at the appeal level to determine the potential applicability of 
other exemptions, the costs of such additional review may be assessed.
    (4) Other services and materials. Where the Office elects, as a 
matter of administrative discretion, to comply with a request for a 
special service or materials, such as certifying that records are true 
copies or sending records by special methods, the actual direct costs 
of providing the service or materials will be charged.


Sec. 2604.502  Fees to be charged--categories of requesters.

    (a) Fees for various requester categories. The paragraphs below 
state, for each category of requester, the type of fees generally 
charged by the Office. However, for each of these categories, the fees 
may be limited, waived or reduced in accordance with the provisions set 
forth in Sec. 2604.503. In determining whether a requester belongs in 
any of the following categories, the Office will determine the use to 
which the requester will put the documents requested. If the Office has 
reasonable cause to doubt the use to which the requester will put the 
records sought, or where the use is not clear from the request itself, 
the Office will seek clarification before assigning the request to a 
specific category.
    (b) Commercial use requester. The Office will charge the full costs 
of search, review, and duplication. Commercial use requesters are not 
entitled to two hours of free search time or 100 free pages of 
reproduction as described in Sec. 2604.503(a); however, the de minimis 
fees provision of Sec. 2604.503(b) does apply to such requesters.
    (c) Educational and noncommercial scientific institutions and news 
media. If the request is from an educational institution or a 
noncommercial scientific institution, operated for scholarly or 
scientific research, or a representative of the news media, and the 
request is not for a commercial use, the Office will charge only for 
duplication of documents, excluding charges for the first 100 pages.
    (d) All other requesters. If the request is not one described in 
paragraph (b) or (c) of this section, the Office will charge the full 
and direct costs of searching for and reproducing records that are 
responsive to the request, excluding the first 100 pages of duplication 
and the first two hours of search time.


Sec. 2604.503  Limitations on charging fees.

    (a) In general. Except for requesters seeking records for a 
commercial use as described in Sec. 2604.502(b), the Office will 
provide, without charge, the first 100 pages of duplication and the 
first two hours of search time, or their cost equivalent.
    (b) De minimis fees. The Office will not assess fees for individual 
requests if the total charge would be $10.00 or less.
    (c) Waiver or reduction of fees. Records responsive to a request 
under 5 U.S.C. 552 will be furnished without charge or at a reduced 
charge where the Office determines, based upon information provided by 
a requester in support of a fee waiver request, that 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 is not primarily in the commercial 
interest of the requester. Requests for a waiver or reduction of fees 
will be considered on a case-by-case basis.
    (1) In determining whether disclosure is in the public interest 
because it is likely to contribute significantly to public 
understanding of the operations or activities of the Government, the 
Office 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 matter of the requested records, in the context 
of [[Page 10012]] the request, must specifically and directly concern 
identifiable operations or activities of the Federal Government. 
Furthermore, the records must be sought for their informative value 
with respect to those Government operations or activities;
    (ii) The informative value of the information to be disclosed: 
Whether the information is likely to contribute to an understanding of 
Government operations or activities. The disclosable portions of the 
requested records must be meaningfully informative on specific 
Government operations or activities in order to hold potential for 
contributing to increased public understanding of those operations and 
activities. The disclosure of information which is already in the 
public domain, in either a duplicative or substantially identical form, 
would not be likely to contribute to such understanding, as nothing new 
would be added to the public record;
    (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 the public at large, 
as opposed to the individual understanding of the requester or a narrow 
segment of interested persons. A requester's identity and 
qualifications--e.g., expertise in the subject area and ability and 
intention to convey information to the general public--will be 
considered; and
    (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 matter in question, as compared to the 
level of public understanding existing prior to the disclosure, must be 
likely to be significantly enhanced by the disclosure.
    (2) In determining whether disclosure of the requested information 
is not primarily in the commercial interest of the requester, the 
Office 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 Office will consider all commercial interests 
of the requester, or any person on whose behalf the requester may be 
acting, which would be furthered by the requested disclosure. In 
assessing the magnitude of identified commercial interests, 
consideration will be given to the effect that the information 
disclosed would have on those commercial interests; and
    (ii) 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. A 
fee waiver or reduction is warranted only where the public interest can 
fairly be regarded as greater in magnitude than the requester's 
commercial interest in disclosure. The Office will ordinarily presume 
that, where a news media requester has satisfied the public interest 
standard, the public interest will be served primarily by disclosure to 
that requester. Disclosure to data brokers and others who compile and 
market Government information for direct economic return will not be 
presumed to primarily serve the public interest.
    (3) Where only a portion of the requested record satisfies the 
requirements for a waiver or reduction of fees under this paragraph, a 
waiver or reduction shall be granted only as to that portion.
    (4) A request for a waiver or reduction of fees must accompany the 
request for disclosure of records, and should include:
    (i) A clear statement of the requester's interest in the documents;
    (ii) The proposed use of the documents and whether the requester 
will derive income or other benefit from such use;
    (iii) A statement of how the public will benefit from release of 
the requested documents; and
    (iv) If specialized use of the documents is contemplated, a 
statement of the requester's qualifications that are relevant to the 
specialized use.
    (5) A requester may appeal the denial of a request for a waiver or 
reduction of fees in accordance with the provisions of Sec. 2604.304.


Sec. 2604.504  Miscellaneous fee provisions.

    (a) Notice of anticipated fees in excess of $25.00. Where the 
Office determines or estimates that the fees to be assessed under this 
section may amount to more than $25.00, the Office shall notify the 
requester as soon as practicable of the actual or estimated amount of 
fees, unless the requester has indicated in advance his willingness to 
pay fees as high as those anticipated. Where a requester has been 
notified that the actual or estimated fees may exceed $25.00, the 
request will be deemed not to have been received until the requester 
has agreed to pay the anticipated total fee. A notice to the requester 
pursuant to this paragraph will include the opportunity to confer with 
Office personnel in order to reformulate the request to meet the 
requester's needs at a lower cost.
    (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. Where there is reason to believe that a 
requester or group of requesters acting in concert, is attempting to 
divide a request into a series of requests for the purpose of evading 
the assessment of fees, the Office may aggregate the requests and 
charge accordingly. The Office will presume that multiple requests of 
this type made within a 30-day period have been made in order to evade 
fees. Multiple requests regarding unrelated matters will not be 
aggregated.
    (c) Advance payments. An advance payment before work is commenced 
or continued will not be required unless:
    (1) The Office estimates or determines that the total fee to be 
assessed under this section is likely to exceed $250.00. When a 
determination is made that the allowable charges are likely to exceed 
$250.00, the requester will be notified of the likely cost and will be 
required to provide satisfactory assurance of full payment where the 
requester has a history of prompt payment of FOIA fees, or will be 
required to submit 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 charged in a 
timely fashion (i.e., within 30 days of the date of the billing). In 
such cases the requester may be required to pay the full amount owed 
plus any applicable interest as provided by paragraph (e) of this 
section, and to make an advance payment of the full amount of the 
estimated fee before the Office begins to process a new request.
    (3) When the Office requests an advance payment of fees, the 
administrative time limits described in subsection (a)(6) of the FOIA 
will begin to run only after the Office has received the advance 
payment.
    (d) Billing and payment. Normally the Office will require a 
requester to pay all fees before furnishing the requested records. 
However, the Office may send a bill along with, or following the 
furnishing of records, in cases where the requester has a history of 
prompt payment.
    (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 
[[Page 10013]] 31 U.S.C. 3717 and shall accrue from the date of 
billing. To collect unpaid bills, the Office will follow the provisions 
of the Debt Collection Act of 1982, as amended (96 Stat. 1749 et seq.) 
including the use of consumer reporting agencies, collection agencies, 
and offset.

Subpart F--Annual Report to Congress


Sec. 2604.601  Submission of report.

    On or before March 1 of each calendar year, a report of OGE's 
activities over the preceding year relating to the Freedom of 
Information Act will be submitted to the Speaker of the House of 
Representatives and the President of the Senate.


Sec. 2604.602  Contents of the report.

    The annual report to Congress will include for the relevant 
reporting period:
    (a) The number of FOIA requests made to OGE, determinations made by 
OGE not to comply with requests for records made to it under the FOIA 
and the reasons for each such determination;
    (b) The number of appeals made by persons under the FOIA, the 
results of such appeals, and the reasons for the action by OGE upon 
each appeal that results in a denial of information;
    (c) The names and titles or positions of each person responsible 
for the denial of records requested under the FOIA;
    (d) The results of each proceeding conducted pursuant to subsection 
(a)(4)(F) of the FOIA, including a report of the disciplinary action 
taken against the officer or employee who was primarily responsible for 
improperly withholding records or an explanation of why disciplinary 
action was not taken;
    (e) A copy of every rule made by OGE regarding the FOIA;
    (f) A copy of the fee schedule and the total amount of fees 
collected by OGE for making records available under the FOIA; and
    (g) Such other information as indicates efforts by OGE to 
administer fully the FOIA.

Subpart G--Fees for the Reproduction and Mailing of Public 
Financial Disclosure Reports


Sec. 2604.701  Policy.

    Fees for the reproduction and mailing of public financial 
disclosure reports (SF 278s) requested pursuant to section 105 of the 
Ethics in Government Act of 1978, as amended, and Sec. 2634.603 of this 
chapter shall be assessed according to the schedule contained in 
Sec. 2604.702. Requesters shall pay fees by check or money order made 
payable to the Treasury of the United States. Except as provided in 
Sec. 2604.702(d), nothing concerning fees in subpart E of this part 
supersedes the charges set forth in this subpart for records covered in 
this subpart.


Sec. 2604.702  Charges.

    (a) Duplication. Except as provided in paragraph (c) of this 
section, copies of public financial disclosure reports (SF 278s) 
requested pursuant to section 105 of the Ethics in Government Act of 
1978, as amended, and Sec. 2634.603 of this chapter will be provided 
upon payment of $.03 per page furnished.
    (b) Mailing. Except as provided in paragraph (c) of this section, 
the actual direct cost of mailing public financial disclosure reports 
will be charged for all forms requested. Where the Office elects to 
comply, as a matter of administrative discretion, with a request for 
special mailing services, the actual direct cost of such service will 
be charged.
    (c) De minimis fees. The Office will not assess fees for individual 
requests if the total charge would be $10.00 or less.
    (d) Miscellaneous fee provisions. The miscellaneous fee provisions 
set forth in Sec. 2604.504 apply to requests for public financial 
disclosure reports pursuant to Sec. 2634.603 of this chapter.

[FR Doc. 95-4347 Filed 2-22-95; 8:45 am]
BILLING CODE 6345-01-U