[Federal Register Volume 66, Number 143 (Wednesday, July 25, 2001)]
[Proposed Rules]
[Pages 38594-38600]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-18296]


=======================================================================
-----------------------------------------------------------------------

NATIONAL LABOR RELATIONS BOARD

29 CFR Part 102


Proposed Revisions of Freedom of Information Act Regulations and 
Implementation of Electronic Freedom of Information Act Amendments of 
1996

AGENCY: National Labor Relations Board.

[[Page 38595]]


ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: The National Labor Relations Board proposes to amend its 
regulations under the Freedom of Information Act (FOIA) governing the 
public disclosure of information to reflect changes in FOIA as a result 
of the enactment of the Electronic Freedom of Information Act 
Amendments of 1996 (E-FOIA). Among other things, this proposed rule 
implements expedited FOIA processing procedures; implements the 
processing deadlines and appeal rights created by E-FOIA; and describes 
the expanded range of records available to the public through the 
NLRB's Public Reading Room and the NLRB's Internet World Wide Web page.

DATES: Comments must be received on or before August 24, 2001.

ADDRESSES: Comments should be submitted in writing to Office of 
Executive Secretary, National Labor Relations Board, 1099 14th Street, 
NW., Room 11602, Washington, DC 20570-0001.

FOR FURTHER INFORMATION CONTACT: John J. Toner, Executive Secretary, 
(202) 273-1936.

SUPPLEMENTARY INFORMATION: This document describes proposed revisions 
by the National Labor Relations Board of its regulations under the 
Freedom of Information Act which include new provisions to implement 
the Electronic Freedom of Information Act Amendments of 1996 (Pub. L. 
104-231). New provisions implementing the amendments are found at 
Secs. 102.117 (a)(2) (electronic reading rooms), 102.117(c)(2)(i) and 
(ii) (timing of responses and expedited processing), 102.117(c)(2)(iii) 
(deletion marking and volume estimation), and 102.117(c)(2)(vi) 
(unusual circumstances). For specific sections and subsections of the 
regulations implementing the Electronic Freedom of Information Act 
Amendments of 1996, the following effective dates apply: 
102.117(a)(2)--electronic reading rooms--November 1, 1997; 
102.117(c)(2)(ii) and (c)(2)(vi)--processing requests with expedited 
treatment, and under unusual circumstances--October 2, 1997; and 
102.117(c)(2)(iii)--volume estimation--October 2, 1997.

Regulatory Flexibility Act

    The National Labor Relations Board, in accordance with the 
Regulatory Flexibility Act (5 U.S.C. 606(b)), has reviewed these 
regulations and by approving it certifies that they will not have a 
significant economic impact on a substantial number of small entities. 
Under the Freedom of Information Act, agencies may recover only the 
direct costs of searching for, reviewing, and duplicating the records 
processed for requesters. Thus, fees assessed by the Agency are 
nominal. Further, the ``small entities'' that make FOIA requests, as 
compared with individual requesters and other requesters, are 
relatively few in number.

Executive Order 12866

    The regulatory review provisions of Executive Order 12866 do not 
apply to independent regulatory agencies. However, because the Office 
of Management and Budget has determined that this rule is a 
``significant regulatory action'' under Executive Order 12866, section 
3(f), Regulatory Planning and Review, we have consulted with that 
Office prior to issuing this proposed rule.

Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by State, local, and 
tribal governments, in the aggregate, or by the private sector, of $ 
100,000,000 or more in any one year, and it will not significantly or 
uniquely affect small governments. Therefore, no actions were deemed 
necessary under the provisions of the Unfunded Mandates Reform Act of 
1995.

Small Business Regulatory Enforcement Fairness Act of 1996

    This rule is not a major rule as defined by section 804 of the 
Small Business Regulatory Enforcement Fairness Act of 1996. This rule 
will not result in an annual effect on the economy of $100,000,000 or 
more; a major increase in costs or prices; or significant adverse 
effects on competition, employment, investment, productivity, 
innovation, or on the ability of United States based companies to 
compete with foreign-based companies in domestic and export markets.

Paperwork Reduction Act

    This part does not impose any reporting or record keeping 
requirements under the Paperwork Reduction Act of 1995.

List of Subjects in 29 CFR Part 102

    Administrative practice and procedure, Freedom of Information.
    For the reasons set forth in the preamble, the National Labor 
Relations Board proposes to amend 29 CFR Chapter I, Part 102, as 
follows:

PART 102--RULES AND REGULATIONS, SERIES 8

    1. The authority citation for part 102 continues to read as 
follows:

    Authority: Sec. 6, National Labor Relations Act, as amended (29 
U.S.C. 151, 156). Section 102.117 also issued under sec. 
552(a)(4)(A) of the Freedom of Information Act, as amended (5 U.S.C. 
552(a)(4)(A)), and section 442a(j) and (k) of the Privacy Act (5 
U.S.C. 55a(j) and (k)). Sections 102.143 through 102.155 also issued 
under sec. 504(c)(1) of the Equal Access to Justice Act as amended 
(5 U.S.C. 504(c)(1)).


    2. Section 102.117 is amended by revising paragraphs (a) through 
(d) to read as follows:


Sec. 102.117  Board materials and formal documents available for public 
inspection and copying; requests for described records; time limit for 
response; appeal from denial of request; fees for document search and 
duplication; files and records not subject to inspection.

    (a)(1) This subpart contains the rules that the National Labor 
Relations Board follows in processing requests for records under the 
Freedom of Information Act (FOIA), 5 U.S.C. 552. Information routinely 
provided to the public as part of a regular Agency activity (for 
example, press releases issued by the Division of Information) may be 
provided to the public without following this subpart. Such records may 
also be made available in the Agency's reading room in paper form, as 
well as electronically to facilitate public access. As a matter of 
policy, the Agency will consider making discretionary disclosures of 
records or information exempt under the FOIA whenever disclosure would 
not foreseeably harm an interest protected by a FOIA exemption, but 
this policy does not create any right enforceable in court.
    (2) The following materials are available to the public for 
inspection and copying during normal business hours:
    (i) All final opinions and orders made in the adjudication of 
cases;
    (ii) Statements of policy and interpretations that are not 
published in the Federal Register;
    (iii) Administrative staff manuals and instructions that affect any 
member of the public (excepting those establishing internal operating 
rules, guidelines, and procedures for investigation, trial, and 
settlement of cases);
    (iv) A current index of final opinions and orders in the 
adjudication of cases;
    (v) A record of the final votes of each Member of the Board in 
every Agency proceeding;

[[Page 38596]]

    (vi) Records which have been released and which the Agency 
determines, because of their subject matter, have become or are likely 
to become the subject of subsequent requests for substantially the same 
records; and
    (vii) A general index of records referred to in paragraph 
(a)(2)(vi) of this section. Items in paragraphs (a)(2)(i) through (vii) 
of this section are available for inspection and copying during normal 
business hours at the Board's offices in Washington, DC. Item in 
paragraph (a)(2)(iii) of this section is also available for inspection 
and copying during normal business hours at each Regional, Subregional, 
and Resident Office of the Board. Final opinions and orders made by 
Regional Directors in the adjudication of representation cases pursuant 
to the delegation of authority from the Board under section 3(b) of the 
Act are available to the public for inspection and copying in the 
original office where issued. Records encompassed within paragraphs 
(a)(2)(i) through (a)(2)(vii) of this section created on or after 
November 1, 1996, will be made available by November 1, 1997, to the 
public by computer telecommunications or, if computer 
telecommunications means have not been established by the Agency, by 
other electronic means. The Agency shall maintain and make available 
for public inspection and copying a current subject matter index of all 
reading room materials which shall be updated regularly, at least 
quarterly, with respect to newly included records. Copies of the index 
are available upon request for a fee of the direct cost of duplication. 
The index of FOIA-processed records referred to in paragraph 
(a)(2)(vii) of this section will be available by computer 
telecommunications by December 31, 1999.
    (3) Copies of forms prescribed by the board for the filing of 
charges under section 10 alleging violations of the Act under section 
8, or petitions under section 9, may be obtained without charge from 
any Regional, Subregional, or Resident Office of the Board. These forms 
are available electronically through the Agency's World Wide Web site 
(which can be found at http://www.nlrb.gov).
    (4) The Agency shall, on or before February 1, 1998, and annually 
thereafter, submit a FOIA report covering the preceding fiscal year to 
the Attorney General of the United States. The report shall include 
those matters required by 5 U.S.C. 552(e), and shall be made available 
electronically.
    (b)(1) The formal documents constituting the record in a case or 
proceeding are matters of official record and, until officially 
destroyed pursuant to applicable statutory authority, are available to 
the public for inspection and copying during normal business hours at 
the appropriate Regional Office of the Board or at the Board's office 
in Washington, DC, as the case may be. If the case or proceeding has 
been closed for more than 2 years, the appropriate Regional Office of 
the Board or the Board's office in Washington, DC, upon request, will 
contact the Federal Records Center to obtain the records.
    (2) The Executive Secretary shall certify copies of all formal 
documents upon request made a reasonable time in advance of need and 
payment of lawfully prescribed costs.
    (c)(1) Requests for the inspection and copying of records other 
than those specified in paragraphs (a) and (b) of this section must be 
in writing and must reasonably describe the record in a manner to 
permit its identification and location. The envelope and the letter, or 
the cover sheet of any fax transmittal, should be clearly marked to 
indicate that it contains a request for records under the Freedom of 
Information Act (FOIA). The request must contain a specific statement 
assuming financial liability in accordance with paragraph (d)(2) of 
this section for the direct costs of responding to the request. If the 
request is made for records in a Regional or Subregional Office of the 
Agency, it should be made to that Regional or Subregional Office; if 
for records in the Office of the General Counsel and located in 
Washington, DC, it should be made to the Freedom of Information 
Officer, Office of the General Counsel, Washington, DC; if for records 
in the offices the Board or the Inspector General in Washington, DC, to 
the Executive Secretary of the Board, Washington, DC. Requests made to 
other than the appropriate office will be forwarded to that office by 
the receiving office, but in that event the applicable time limit for 
response set forth in paragraph (c)(2)(i) of this section shall be 
calculated from the date of receipt by the appropriate office. 
Requesters may be given an opportunity to discuss their request so that 
requests may be modified to meet the requirements of this section. In 
the case of records generated by the Inspector General and in 
possession of another office, or in the possession of the Inspector 
General but generated by another office of the Agency, the request may 
be referred to the generating office for decision. If the Agency 
determines that a request does not reasonably describe records, it may 
contact the requester to inform the requester either what additional 
information is needed or why the request is insufficient. Similar 
referrals may, in the Agency's discretion, be made between other 
offices.
    (2)(i) The Agency ordinarily shall respond to requests according to 
their order of receipt. Effective October 2, 1997, an initial response 
shall be made within 20 working days( i.e. exempting Saturdays, 
Sundays, and legal public holidays) after the receipt of a request for 
a record under this part by the Freedom of Information Officer or his 
designee. An appeal under paragraph (c)(2)(v) of this section shall be 
decided within 20 days (excepting Saturdays, Sundays, and legal public 
holidays) after the receipt of such an appeal by the Office of Appeals 
or the Chairman of the Board. Because the Agency has been able to 
process its requests without a backlog of cases, the Agency will not 
institute a multitrack processing system.
    (ii) Requests and appeals will be taken out of order and given 
expedited treatment whenever it is determined that they involve: 
Circumstances in which the lack of expedited treatment could reasonably 
be expected to pose an imminent threat to the life or physical safety 
of an individual; an urgency to inform the public about an actual or 
alleged federal government activity, if made by a person primarily 
engaged in disseminating information; the loss of substantial due 
process rights; or a matter of widespread and exceptional media 
interest in which there exist possible questions about the government's 
integrity which affect public confidence. A request for expedited 
processing may be made at the time of the initial request for records 
or at any later time. A requester who seeks expedited processing must 
submit a statement, certified to be true and correct to the best of 
that person's knowledge and belief, explaining in detail the basis for 
requesting expedited processing. The formality of certification may be 
waived as a matter of administrative discretion. Within ten calendar 
days of its receipt of a request for expedited processing, the Agency 
shall decide whether to grant it and shall notify the requester of the 
decision. Once the determination has been made to grant expedited 
processing, the request shall be given priority and shall be processed 
as soon as practicable. If a request for expedited processing is 
denied, the Agency shall act expeditiously on any appeal of that 
decision.
    (iii) Within 20 working days after receipt of a request by the 
appropriate office of the Agency a determination shall be made whether 
to comply with such request, and the person making the

[[Page 38597]]

request shall be notified in writing of that determination. In the case 
of requests made to the Executive Secretary for Inspector General 
Records, that determination shall be made by the Inspector General. In 
the case of all other requests, that determination shall be made by the 
General Counsel's office, the Regional or Subregional Office, or the 
Executive Secretary's office, as the case may be. If the determination 
is to comply with the request, the records shall be made promptly 
available to the person making the request and, at the same time, a 
statement of any charges due in accordance with the provisions of 
paragraph (d) (2) of this section will be provided. If the 
determination is to deny the request in any respect, the requester 
shall be notified in writing of that determination. Adverse 
determinations, or denials of requests, consist of: A determination to 
withhold any requested record in whole or in part; a determination that 
a requested record does not exist or cannot be located; a determination 
that what has been requested is not a record subject to the Act; a 
determination on any disputed fee matter, including a denial of a 
request for a fee waiver or reduction or placement in a particular fee 
category; and a denial of a request for expedited treatment. For a 
determination to deny a request in any respect, the notification shall 
set forth the reasons therefor and the name and title or position of 
each person responsible for the denial, shall provide an estimate of 
the volume of records or information withheld, in number of pages or in 
some other reasonable form of estimation (this estimate does not need 
to be provided if the volume is otherwise indicated through deletions 
on records disclosed in part, or if providing an estimate would harm an 
interest protected by an applicable exemption), and shall notify the 
person making the request of the right to appeal the adverse 
determination under provisions of paragraph (c)(2)(v) of this section.
    (iv) Business information obtained by the Agency from a submitter 
will be disclosed under the FOIA only consistent with the procedures 
established in this section.
    (A) For purposes of this section:
    (1) Business information means commercial or financial information 
obtained by the Agency from a submitter that may be protected from 
disclosure under Exemption 4 of the FOIA.
    (2) Submitter means any person or entity from whom the Agency 
obtains business information, directly or indirectly. The term includes 
corporations; state, local, and tribal governments; and foreign 
governments.
    (B) A submitter of business information will use goodfaith efforts 
to designate, by appropriate markings, either at the time of submission 
or at a reasonable time thereafter, any portions of its submission that 
it considers to be protected from disclosure under Exemption 4. These 
designations will expire ten years after the date of the submission 
unless the submitter requests, and provides justification for, a longer 
designation period. The Agency shall provide a submitter with prompt 
written notice of a FOIA request or administrative appeal that seeks 
its business information wherever required under paragraph 
(c)(2)(iv)(C) of this section, except as provided in paragraph 
(c)(2)(iv)(F) of this section, in order to give the submitter an 
opportunity to object to disclosure of any specified portion of that 
information under paragraph (c)(2)(iv)(D) of this section. The notice 
shall either describe the business information requested or include 
copies of the requested records or record portions containing the 
information. When notification of a voluminous number of submitters is 
required, notification may be made by posting or publishing the notice 
in a place reasonably likely to accomplish notification.
    (C) Notice shall be given to a submitter wherever: the information 
has been designated in good faith by the submitter as information 
considered protected from disclosure under Exemption 4; or the Agency 
has reason to believe that the information may be protected from 
disclosure under Exemption 4.
    (D) The Agency will allow a submitter a reasonable time to respond 
to the notice described in paragraph (c)(2)(iv)(B) of this section. If 
a submitter has any objection to disclosure, it is required to submit a 
detailed written statement. The statement must specify all grounds for 
withholding any portion of the information under any exemption of the 
FOIA and, in the case of Exemption 4, it must show why the information 
is a trade secret or commercial or financial information that is 
privileged or confidential. In the event that a submitter fails to 
respond to the notice within the time specified in it, the submitter 
will be considered to have no objection to disclosure of the 
information. Information provided by a submitter under this paragraph 
may itself be subject to disclosure under the FOIA.
    (E) The Agency shall consider a submitter's objections and specific 
grounds for nondisclosure in deciding whether to disclose business 
information. Whenever the Agency decides to disclose business 
information over the objection of a submitter, the Agency shall give 
the submitter written notice, which shall include: A statement of the 
reason(s) why each of the submitter's disclosure objections was not 
sustained; a description of the business information to be disclosed; 
and a specified disclosure date, which shall be a reasonable time 
subsequent to the notice.
    (F) The notice requirements of paragraphs (c)(2)(iv)(B) and (E) of 
this section shall not apply if: The Agency determines that the 
information should not be disclosed; the information lawfully has been 
published or has been officially made available to the public; 
disclosure of the information is required by statute (other than the 
FOIA) or by a regulation issued in accordance with the requirements of 
Executive Order 12600 (3 CFR, 1988 Comp., p. 235); or the designation 
made by the submitter under paragraph (c)(2)(iv)(B) of this section 
appears obviously frivolous-except that, in such a case, the Agency 
shall, within a reasonable time prior to a specified disclosure date, 
give the submitter written notice of any final decision to disclose the 
information.
    (G) Whenever a requester files a lawsuit seeking to compel the 
disclosure of business information, the Agency shall promptly notify 
the submitter.
    (H) Whenever the Agency provides a submitter with notice and an 
opportunity to object to disclosure under paragraph (c)(2)(iv)(B) of 
this section, the Agency shall also notify the requester(s). Whenever 
the Agency notifies a submitter of its intent to disclose requested 
information under paragraph (c)(2)(iv)(E) of this section, the Agency 
shall also notify the requester(s). Whenever a submitter files a 
lawsuit seeking to prevent the disclosure of business information, the 
Agency shall notify the requester(s).
    (v) An appeal from an adverse determination made pursuant to 
paragraph (c)(2)(iii) of this section must be filed within 20 working 
days of the receipt by the person making the request of the 
notification of the adverse determination where the request is denied 
in its entirety; or, in the case of a partial denial, within 20 working 
days of the receipt of any records being made available pursuant to the 
request. If the adverse determination was made in a Regional Office, a 
Subregional Office, or by the Freedom of Information Officer, Office of 
the General Counsel, the appeal shall be filed with the General Counsel 
in Washington, DC. If the adverse determination was made by the

[[Page 38598]]

Executive Secretary of the Board or the Inspector General, the appeal 
shall be filed with the Chairman of the Board in Washington, DC. Within 
20 working days after receipt of an appeal the General Counsel or the 
Chairman of the Board, as the case may be, shall make a determination 
with respect to such appeal and shall notify the person making the 
request in writing. If the determination is to comply with the request, 
the record shall be made promptly available to the person making the 
request upon receipt of payment of any charges due in accordance with 
the provisions of paragraph (d)(2) of this section. If on appeal the 
denial of the request for records is upheld in whole or in part, the 
person making the request shall be notified of the reasons for the 
determination, the name and title or position of each person 
responsible for the denial, and the provisions for judicial review of 
that determination under the provisions of 5 U.S.C. 552(4)(B). Even 
though no appeal is filed from a denial in whole or in part of a 
request for records by the person making the request, the General 
Counsel or the Chairman of the Board may, without regard to the time 
limit for filing of an appeal, sua sponte initiate consideration of an 
adverse determination under this appeal procedure by written 
notification to the person making the request. In such event the time 
limit for making the determination shall commence with the issuance of 
such notification. An adverse determination by the General Counsel or 
the Chairman of the Board, as the case may be, will be the final action 
of the Agency. If the requester wishes to seek review by a court of any 
adverse determination, the requester must first appeal it under this 
section.
    (vi) In unusual circumstances as specified in this paragraph, the 
time limits prescribed in either paragraph (c)(2)(i) or (iv) of this 
section may be extended by written notice to the person requesting the 
record setting forth the reasons for such extension and the date on 
which a determination is expected to be dispatched. No such notice or 
notices shall specify a date or dates that would result in an extension 
or extensions totaling more than 10 working days with respect to a 
particular request, except as set forth below in this paragraph. As 
used in this paragraph, unusual circumstances means, but only to the 
extent reasonably necessary to the proper processing of the particular 
request:
    (A) The need to search for and collect the requested records from 
field facilities or other establishments that are separate from the 
office processing the request;
    (B) The need to search for, collect, and appropriately examine a 
voluminous amount of separate and distinct records which are demanded 
in a single request;
    (C) The need for consultation, which shall be conducted with all 
practicable speed, with another agency having a substantial interest in 
the determination of the request or with two or more components of the 
Agency having a substantial subject matter interest in the request. 
Where the extension is for more than ten working days, the Agency shall 
provide the requester with an opportunity either to modify the request 
so that it may be processed within the time limits or to arrange an 
alternative time period for processing the request or a modified 
request.
    (vii) The Agency shall preserve all correspondence pertaining to 
the requests that it receives under this subpart, as well as copies of 
all requested records, until disposition or destruction is authorized 
by title 44 of the United States Code or the National Archives and 
Records Administration's General Records Schedule 14. Records will not 
be disposed of while they are the subject of a pending request, appeal, 
or lawsuit under the FOIA.
    (d)(1) For purposes of this section, the following definitions 
apply:
    (i) Direct costs means those expenditures which are actually 
incurred in searching for and duplicating and, in the case of 
commercial use requests, reviewing documents to respond to a FOIA 
request.
    (ii) Search refers to the process of looking for and retrieving 
records or information responsive to a request.
    It includes page-by-page or line-by-line identification of material 
within documents and also includes reasonable efforts to locate and 
retrieve information from records maintained in electronic form or 
format. The Agency shall ensure that searches are done in the most 
efficient and least expensive manner reasonably possible.
    (iii) Duplication refers to the process of making a copy of a 
record, or the information contained in it, necessary to respond to a 
FOIA request. Such copies can take the form of paper, microfilm, 
videotape, audiotape, or electronic records (e.g., magnetic tape or 
disk), among others. The Agency shall honor a requester's specified 
preference of form or format of disclosure if the record is readily 
reproducible with reasonable efforts in the requested form or format by 
the office responding to the request.
    (iv) Review refers to the process of examining documents located in 
response to a request that is for commercial use to determine whether 
any portion of it is exempt from disclosure. It includes processing any 
documents for disclosure, e.g., doing all that is necessary to redact 
and prepare them for disclosure. Review time includes time spent 
considering any formal objection to disclosure made by a business 
submitter under paragraph (c)(2)(iv) of this section, but does not 
include time spent resolving general legal or policy issues regarding 
the application of exemptions.
    (v) Commercial use request refers to a request from or on behalf of 
a person who seeks information for a use or purpose that furthers the 
commercial, trade, or profit interests of the requester or the person 
on whose behalf the request is made, which can include furthering those 
interests through litigation.
    (vi) Educational institution refers to 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, that operates a program of scholarly research. To be in this 
category, a requester must show that the request is authorized by and 
is made under the auspices of a qualifying institution and that the 
records are not sought for a commercial use but are sought to further 
scholarly research.
    (vii) Representative of the news media refers to any person 
actively gathering news for an entity that is organized and operated to 
publish or broadcast news to the public. The term news means 
information that is about current events or that would be of current 
interest to the public. Examples of news media entities include 
television or radio stations broadcasting to the public at large and 
publishers of periodicals (but only in instances where they can qualify 
as disseminators of ``news'') who make their products available for 
purchase or subscription by the general public. For ``freelance'' 
journalists to be regarded as working for a news organization, they 
must demonstrate a solid basis for expecting publication through that 
organization. A publication contract would be the clearest proof, but 
the Agency shall also look to the past publication record of a 
requester in making this determination. To be in this category, a 
requester must not be seeking the requested records for commercial use. 
However, a request for records supporting the news dissemination 
function of the requester

[[Page 38599]]

shall not be considered to be for a commercial use.
    (viii) Working days, as used in this paragraph, means calendar days 
excepting Saturdays, Sundays, and legal holidays.
    (2) Persons requesting records from this Agency shall be subject to 
a charge of fees for the full allowable direct costs of document 
search, review, and duplicating, as appropriate, in accordance with the 
following schedules, procedures, and conditions:
    (i) Schedule of charges:
    (A) For each one-quarter hour or portion thereof of clerical time * 
* * $3.10
    (B) For each one-quarter hour or portion thereof of professional 
time * * * $9.25
    (C) For each sheet of duplication (not to exceed 8 1/2 by 14 
inches) of requested records * * * $0.12
    (D) All other direct costs of preparing a response to a request 
shall be charged to the requester in the same amount as incurred by the 
Agency. Such costs shall include, but not be limited to: Certifying 
that records are true copies; sending records to requesters or 
receiving records from the Federal records storage centers by special 
methods such as express mail; and, where applicable, the cost of 
conducting computer searches for information and for providing 
information in electronic format.
    (ii) Fees incurred in responding to information requests are to be 
charged in accordance with the following categories of requesters:
    (A) Commercial use requesters will be assessed charges to recover 
the full direct costs for searching for, reviewing for release, and 
duplicating the records sought. Requesters must reasonably describe the 
records sought.
    (B) Educational institution requesters will be assessed charges for 
the cost of reproduction alone, excluding charges for the first 100 
pages. To be eligible for inclusion in this category, requesters must 
show that the request is being made under the auspices of a qualifying 
institution and that the records are not sought for commercial use, but 
are sought in furtherance of scholarly research. Requesters must 
reasonably describe the records sought.
    (C) Requesters who are representatives of the news media will be 
assessed charges for the cost of reproduction alone, excluding charges 
for the first 100 pages. To be eligible for inclusion in this category, 
a requester must meet the criteria in paragraph (d)(1)(vii) of this 
section, and the request must not be made for commercial use. In 
reference to this class of requester, a request for records supporting 
the news dissemination function of the requester shall not be 
considered to be a request that is for commercial use. Requesters must 
reasonably describe the records sought.
    (D) All other requesters, not elsewhere described, will be assessed 
charges to recover the full reasonable direct cost of searching for and 
reproducing records that are responsive to the request, except that the 
first 100 pages of reproduction and the first 2 hours of search time 
shall be furnished without charge. Requesters must reasonably describe 
the records sought.
    (E) Absent a reasonably based factual showing that a requester 
should be placed in a particular user category, fees will be imposed as 
provided for in the commercial use requester category.
    (iii)(A) In no event shall fees be imposed on any requester when 
the total charges are less than $5, which is the Agency's cost of 
collecting and processing the fee itself.
    (B) If the Agency reasonably believes that a requester or a group 
of requesters acting together is attempting to divide a request into a 
series of requests for the purpose of avoiding fees, the Agency may 
aggregate those requests and charge accordingly. The Agency may presume 
that multiple requests of this type made within a 30-day period have 
been made in order to avoid fees. Where requests are separated by a 
longer period, the Agency will aggregate them only where there exists a 
solid basis for determining that aggregation is warranted under all the 
circumstances involved. Multiple requests involving unrelated matters 
will not be aggregated.
    (iv) Documents are to be furnished without charge or at reduced 
levels if disclosure of the information is in the public interest 
because it is likely to contribute significantly to public 
understanding of the operations or activities of the Government and is 
not primarily in the commercial interest of the requester. Disclosure 
to data brokers or others who merely compile and market government 
information for direct economic return shall not be presumed to 
primarily serve the public interest. A fee waiver or reduction is 
justified where the public interest standard is satisfied and that 
public interest is greater in magnitude than that of any identified 
commercial interest in disclosure. Where only some of the requested 
records satisfy the requirements for a waiver of fees, a waiver shall 
be granted for those records.
    (v) If a requester fails to pay chargeable fees that were incurred 
as a result of the Agency's processing of the information request, 
beginning on the 31st day following the date on which the notification 
of charges was sent, the Agency may assess interest charges against the 
requester in the manner prescribed in 31 U.S.C. 3717. Where 
appropriate, other steps permitted by federal debt collection statutes, 
including disclosure to consumer reporting agencies, use of collection 
agencies, and offset, will be used by the Agency to encourage payment 
of amounts overdue.
    (vi) Each request for records shall contain a specific statement 
assuming financial liability, in full or to a specified maximum amount, 
for charges, in accordance with paragraphs (d)(2)(i) and (ii) of this 
section, which may be incurred by the Agency in responding to the 
request. If the anticipated charges exceed the maximum limit stated by 
the person making the request or if the request contains no assumption 
of financial liability or charges, the person shall be notified and 
afforded an opportunity to assume financial liability. In either case, 
the request for records shall not be deemed received for purposes of 
the applicable time limit for response until a written assumption of 
financial liability is received. The Agency may require a requester to 
make an advance payment of anticipated fees under the following 
circumstances:
    (A) If the anticipated charges are likely to exceed $250, the 
Agency shall notify the requester of the likely cost and obtain 
satisfactory assurance of full payment when the requester has a history 
of prompt payment of FOIA fees, or require an advance payment of an 
amount up to the full estimated charges in the case of requesters with 
no history of payment.
    (B) If a requester has previously failed to pay fees that have been 
charged in processing a request within 30 days of the date of the 
notification of fees was sent, the requester will be required to pay 
the entire amount of fees that are owed, plus interest as provided for 
in paragraph (d)(2)(v) of this section, before the Agency will process 
a further information request. In addition, the Agency may require 
advance payment of fees that the Agency estimates will be incurred in 
processing the further request before the Agency commences processing 
that request. When the Agency acts under paragraph (d)(2)(vi)(A) or (B) 
of this section, the administrative time limits for responding to a 
request or an appeal from initial denials will begin to run only after 
the Agency has received the fee payments required above.

[[Page 38600]]

    (vii) Charges may be imposed even though the search discloses no 
records responsive to the request, or if records located are determined 
to be exempt from disclosure.
* * * * *

    Dated, Washington, DC, July 18, 2001.

    By direction of the Board.
John J. Toner,
Executive Secretary, National Labor Relations Board.
[FR Doc. 01-18296 Filed 7-24-01; 8:45 am]
BILLING CODE 7545-01-P