Revision of the Department of Labor Freedom of Information Act Regulations and Implementation of Electronic Freedom of Information Act Amendments of 1996, 30762-30775 [06-4885]

Agencies

• Office of the Secretary
• DEPARTMENT OF LABOR

[Federal Register Volume 71, Number 103 (Tuesday, May 30, 2006)]
[Rules and Regulations]
[Pages 30762-30775]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-4885]



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Part III





Department of Labor





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Office of the Secretary



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29 CFR Part 70



Revision of the Department of Labor Freedom of Information Act 
Regulations and Implementation of Electronic Freedom of Information Act 
Amendments of 1996; Final Rule

Federal Register / Vol. 71, No. 103 / Tuesday, May 30, 2006 / Rules 
and Regulations

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DEPARTMENT OF LABOR

Office of the Secretary

29 CFR Part 70

RIN 1290-AA17


Revision of the Department of Labor Freedom of Information Act 
Regulations and Implementation of Electronic Freedom of Information Act 
Amendments of 1996

AGENCY: Office of the Secretary, Labor.

ACTION: Notice of final rulemaking.

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SUMMARY: This document sets forth final Department's procedural 
regulations under the Freedom of Information Act (FOIA). This final 
rule is not intended to change any rights under the FOIA. The final 
rule is intended as a routine updating of the Department's procedures, 
to streamline the existing procedures based on experience, to reflect 
certain changes in the procedural requirements of the FOIA since the 
current regulations were issued, and to make the Department's 
procedures easier for the public to understand.

DATES: Effective Date: This rule is effective on June 29, 2006.

FOR FURTHER INFORMATION CONTACT: Joseph J. Plick, Counsel for FOIA/
FACA/Privacy Act, Division of Management and Administrative Legal 
Services, Room N-2428, 200 Constitution Avenue, NW., Washington, DC 
20210, telephone (202) 693-5527.

SUPPLEMENTARY INFORMATION: 

A. Background

    On March 30, 2004, the Department of Labor published a proposed 
rule in the Federal Register revising the Department's procedural 
regulations under the Freedom of Information Act. These proposed 
revisions were not intended to change any rights under the FOIA. The 
proposed revisions were intended in part as a routine updating of the 
Department's procedures--to streamline the existing procedures based on 
experience, to reflect certain changes in the procedural requirements 
of the FOIA since the current regulations were issued, and to make the 
Department's procedures easier for the public to understand.
    In addition, the proposed revisions added new provisions to 
explicitly implement the Electronic Freedom of Information Act 
Amendments of 1996 (Pub. L. 104-231). The Department has been operating 
in compliance with the amendments, and based on its experience is now 
updating the regulations to reflect these changes in the law. These new 
provisions implementing the amendments are found at Sec.  70.4(d)(2) 
(electronic reading rooms); Sec.  70.21(a) (format of disclosure); 
Sec.  70.21(b)(3) (deletion marking and volume estimation); Sec.  70.25 
(timing of responses); and Sec.  70.38(d) (electronic searches).
    The final rule also updates the Department's fee schedule. 
Revisions of the Department's fee schedule can be found at Sec.  
70.40(d)(1) and (3). The duplication charge will remain the same at 
fifteen cents per page, while document search and review charges will 
increase to $5 and $10 per quarter hour for clerical and professional 
or supervisory time, respectively. The amount at or below which the 
Department will not charge a fee will increase from $5 to $15 at Sec.  
70.43(a). The final rule also clarifies the application of fees with 
respect to administrative appeals.
    The final rule allows for the submission of e-mail FOIA requests 
and e-mail appeals to the Department. The final rule creates e-mail 
addresses where all FOIA e-mail requests and e-mail appeals must be 
directed. Requests submitted to any other e-mail address will not be 
accepted. Sec.  70.19(b).
    The Department presumes that since the E-FOIA amendments have been 
operative now for several years, most of those interested in commenting 
on the Department's implementation of those provisions will be familiar 
with the subject. However, those interested in consulting additional 
resources on any of the procedural requirements of the FOIA, and the E-
FOIA amendments in particular, can readily find detailed information at 
the U.S. Department of Justice Web site. For example, a copy of the 
FOIA can be located at https://www.usdoj.gov/04foia/foiastat.htm; the 
current (May 2004) edition of the Department of Justice FOIA Reference 
Guide can be located at https://www.usdoj.gov/oip/foi-act.htm; and 
specific information about the E-FOIA amendments of 1996 can be located 
at https://www.usdoj.gov/oip/foia_updates/Vol_XVII_4/page1.htm.

B. Changes From the Proposal/Publication in Final

    This final rule adds additional disclosure officers, deletes some 
disclosure officers, updates various mailing addresses for the 
disclosure officers, updates a title, and clarifies, at Sec.  
70.40(d)(2), that copying costs cover standard 8\1/2\ x 11 or 11 x 14 
inch black and white copies. In addition, it expands Sec.  70.21(b)(2) 
to state that the disclosure officer, when denying a request for 
records, should indicate deletions at the place in the record where the 
deletion is made. Section 70.22(c) is expanded to authorize the filing 
of appeals by e-mail at the designated e-mail address. Section 70.22(c) 
is expanded to authorize the filing of appeals by submitting an e-mail 
at the designated e-mail address. Finally, a minor citation error is 
corrected at Sec.  70.40(b)(2).

C. Analysis of Comment Received

Comment Received

    The Department received only one comment. The commenter wanted to 
know when the proposed rule would be made final.

Agency Response

    This rule will become effective on June 29, 2006.

Regulatory Flexibility Act

    The Deputy Secretary of Labor, in accordance with the Regulatory 
Flexibility Act (5 U.S.C. 601-612), has reviewed this final rule and 
has certified to the Chief Counsel for Advocacy of the Small Business 
Administration that it will not have a significant economic impact on a 
substantial number of small entities.
    The Department of Labor makes a tremendous amount of public 
information readily available to small entities on its Web site 
pursuant to the FOIA and other public disclosure requirements, and is 
committed to expanding this resource to assist small businesses and 
other members of the public. In this regard, the Department, consistent 
with the E-FOIA amendments, now maintains an electronic reading room. 
This electronic reading room provides ready access to many materials of 
interest to small entities that were previously available only at 
selected physical sites around the country--e.g., administrative staff 
manuals used by the Department. In addition, the Department makes ``hot 
FOIAs'' available to the public on this Web site pursuant to the 
requirements of the law. The Department has established a direct link 
on the Home page of its Web site https://www.dol.gov/dol/foia/main.htm 
to its FOIA resources. In addition to the information in the electronic 
reading room, a copy of the statute, the Department's procedural 
regulations, up-to-date information about DOL disclosure officers, 
links to Department of Justice resources, and a variety of other useful 
information can be found on this site.
    Small entities, like any other individual or entity, may request 
information in the Department's files

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that has not been generally made available to the public. One of the 
major purposes of revising the Department's FOIA regulations is to make 
it simpler for small entities and others to understand where and how to 
seek information from the Department, and to ensure that they receive 
disclosable information (and an appropriate explanation of why any 
information has been deemed non-disclosable) in a timely way. Like 
other requesters, small entities seeking information must in some cases 
pay fees. The FOIA establishes a fee structure to cover the direct 
costs of the government in searching for, reviewing, and duplicating 
requested records. The Department's final rule is fully consistent with 
these requirements. For example, consistent with the statute, the rule 
provides that no fees will be charged in specified circumstances, 
establishes uniform fees to cover the time expended by professional and 
clerical employees, and includes provisions for fee waivers. Moreover, 
in fully implementing the provisions of the E-FOIA Act, the final rule 
will ensure that small entities have the opportunity to obtain 
information in the format of their choice (including electronic 
formats) when it is feasible for the Department to produce the 
information in the requested manner.

Executive Order 12866

    This rule has been drafted and reviewed in accordance with 
Executive Order 12866, section 1(b), Principles of Regulation. This 
Department and the Office of Management and Budget have determined that 
this rule is not a ``significant regulatory action'' under Executive 
Order 12866, section 3(f), Regulatory Planning and Review. Accordingly, 
there is no requirement for an assessment of potential costs and 
benefits under section 6(a)(3) of that order, nor has the rule been 
reviewed by the Office of Management and Budget.

Unfunded Mandates Reform Act of 1995

    This rule will not result in the expenditure by State, local, and 
tribal governments or by the private sector, in the aggregate, 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.

Congressional Review Act

    Consistent with the Congressional Review Act, 5 U.S.C. 801, et 
seq., the Department will submit to Congress and to the Comptroller 
General of the United States, a report regarding the issuance of this 
Final Rule prior to the effective date set forth at the outset of this 
document.
    OMB has determined that this rule is not a ``major rule'' as 
defined by the Congressional Review Act (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.

Federalism

    The Department has reviewed this final rule in accordance with 
Executive Order 13132 regarding federalism, and has determined that it 
does not have ``federalism implications.'' The rule will not ``have 
substantial direct effects on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government.''

Paperwork Reduction Act

    The Department has reviewed the final rules with reference to the 
Paperwork Reduction Act and has concluded that they do not involve any 
``collection of information'' within the requirements of the Act.
    The rule would not require any person to fill out a form or 
otherwise provide specific information (other than self-identification 
and appropriate certifications) to the Department in order to make a 
FOIA request or administrative appeal for records. Pursuant to 
regulations of the Office of Management and Budget implementing the 
Paperwork Reduction Act, affidavits, oaths, affirmations, 
certifications, receipts, changes of address, consents or 
acknowledgments are not ``information collections'' under the law (5 
CFR 1320.3(h)(1)).
    Consistent with the FOIA, the final rule requires those seeking fee 
waivers to address certain specific requirements set forth by the law; 
and consistent with the law and Executive Order 12600, the final rules 
require submitters of information who wish to protect that information 
to address certain specific requirements toward that end.

List of Subjects in 29 CFR Part 70

    Administrative practice and procedure, Freedom of Information.

0
For the reasons stated in the preamble, the Department of Labor revises 
29 CFR Part 70 to read as follows:

PART 70--PRODUCTION OR DISCLOSURE OF INFORMATION OR MATERIALS

Subpart A--General
Sec.
70.1 Purpose and scope.
70.2 Definitions.
70.3 Policy.
70.4 Public reading rooms.
70.5 Compilation of new records.
70.6 Disclosure of originals.
70.7-70.18 [Reserved]
Subpart B--Procedures for Disclosure of Records Under the Freedom of 
Information Act
70.19 Requests for records.
70.20 Responsibility for responding to requests.
70.21 Form and content of 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 must be processed.
70.26 Business information.
70.27 Preservation of records.
70.28-70.37 [Reserved]
Subpart C--Costs for Production 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 Consent to pay fees.
70.43 Payment of fees.
70.44 Other rights and services.
70.45-70.52 [Reserved]
Subpart D--Public Records and Filings
70.53 Office of Labor-Management Standards.
70.54 Employee Benefits Security Administration.
Appendix A to Part 70--Disclosure Officers
Appendix B to Part 70--[Reserved]

    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, 3 CFR, 1988 Comp., p. 235.

Subpart A--General


Sec.  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, the Employee Retirement Income Security Act 
of 1974 (ERISA), 29 U.S.C. 1026 (106), and the Federal Advisory

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Committee Act (FACA), 5 U.S.C. app. 11. 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.


Sec.  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 definitions 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 a component who has 
authority to disclose or withhold records under the FOIA and to whom 
requests to inspect or copy records in his/her custody should be 
addressed. Department of Labor disclosure officers are listed in 
Appendix A to this part.
    (d) The Secretary means the Secretary of Labor.
    (e) The Department means the Department of Labor.
    (f) Request means any written request for records made pursuant to 
5 U.S.C. 552(a)(3) and which meets the requirements of this Part.
    (g) Requester means any person who makes a request.
    (h) Record means information in any format, including electronic 
format.
    (i) Search means to seek, manually or by automated means, 
Department records for the purpose of locating records in response to a 
request.
    (j) Business information means commercial or financial information 
received or obtained by the Department from a submitter, directly or 
indirectly, that arguably may be protected from disclosure under 
Exemption 4 of the FOIA.
    (k) Submitter means any person or entity from whom the Department 
receives or obtains commercial or financial information, directly or 
indirectly. The term submitter includes, but is not limited to 
corporations, labor organizations, non-profit organizations, and local, 
state, tribal and foreign governments.


Sec.  70.3  Policy.

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


Sec.  70.4  Public reading rooms.

    (a) To the extent required by 5 U.S.C. 552(a)(2), each component 
within the Department will make the materials listed in this section 
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;
    (3) Administrative staff manuals and instructions to staff that 
affect a member of the public except to the extent that such records or 
portions thereof are exempt from disclosure under section 552(b) of the 
FOIA; and
    (4) Copies of all records, regardless of form or format, which have 
been released to any person under 5 U.S.C. 552(a)(3) and which, because 
of the nature of their subject matter, the agency determines have 
become or are likely to become the subject of subsequent requests for 
substantially the same records.
    (5) A general index of the records referred to in paragraph (a) (4) 
of this section.
    (b) Each component of the Department will maintain and make 
available, including through the Department's Internet/World Wide Web 
site [https://www.dol.gov], 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 will publish and make available 
for distribution copies of such indexes and their supplements 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 will provide copies of any index 
upon request at a cost not to exceed the direct cost of duplication.
    (c) A component may exclude information from records made available 
to the public pursuant to paragraphs (a)(1), (a)(2) and (a)(3) of this 
section where release of such information would constitute a clearly 
unwarranted invasion of privacy and may also exclude identifying 
details from records made available to the public pursuant to paragraph 
(a)(4) of this section when disclosure would be harmful to an interest 
protected by an exemption. When making a deletion for such purposes, 
the component will explain the reason for the deletion. Also, a 
component will describe the extent of the deletion and must, if 
technically feasible, identify the exact location where the deletion 
was made.
    (d) Records described in this section are available for examination 
or copying without the submission of a formal FOIA request. All records 
covered by this section are available through public reading rooms, 
and, to the extent indicated in this paragraph, through the 
Department's Internet/World Wide Web site [https://www.dol.gov].
    (1) Some components have public reading rooms only in Washington, 
DC, while other components provide reading rooms in area, district or 
regional offices throughout the United States. A disclosure officer in 
the appropriate component listed in Appendix A to this part should be 
contacted to find out where the public reading room is located. If the 
appropriate component is unknown, inquiries can be directed to the 
Office of the Solicitor, Division of Management and Administrative 
Legal Services, 200 Constitution Avenue, NW., Room N-2428, Washington, 
DC 20210. Fees for reproduction of records in public reading rooms are 
charged consistent with Sec.  70.40.
    (2) To the extent feasible, components are required to place copies 
of any records covered by this section and which were created on or 
after November 1, 1996 on the Internet/World Wide Web. In particular, 
when records are required to be made available to the public pursuant 
to the requirements of paragraph (a)(4) of this section, the component 
will also place on the Internet/World Wide Web, if technically 
feasible, any records that are released in the response to a FOIA 
decision. The Department's Internet home page may be searched to obtain 
these documents. The Department will make available to the public by 
electronic or other appropriate media any documents covered by this 
section that cannot be feasibly placed on the Internet/World Wide Web.


Sec.  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 in order to respond to a request for 
records. A component must, however, make reasonable efforts to search 
for records that already exist in electronic form or format, except

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when such efforts would significantly interfere with the operation of 
the component's automated information systems. The component will 
determine what constitutes a reasonable effort on a case-by-case basis.


Sec.  70.6  Disclosure of originals.

    (a) No original record or file in the custody of the Department of 
Labor, or of any component or official thereof, will on any occasion be 
given to any agent, attorney, or other person not officially connected 
with the Department without the written consent of the Secretary, the 
Solicitor of Labor or the Inspector General.
    (b) The individual authorizing the release of the original record 
or file must ensure that a copy of the document or file is retained in 
the component that had custody and/or control when an original document 
or file is released pursuant to this subpart.


Sec. Sec.  70.7-70.18  [Reserved]

Subpart B--Procedures for Disclosure of Records Under the Freedom 
of Information Act


Sec.  70.19  Requests for records.

    (a) How to make a request. Requests under this subpart for a record 
of the Department of Labor must be written and received by mail, 
delivery service/courier, facsimile or e-mail.
    (b) To whom to direct requests. A request should be sent to the 
appropriate official/officer for the component that maintains the 
records at its proper address. The request as well as the envelope 
itself should be clearly marked ``Freedom of Information Act Request.'' 
If the request is made by e-mail, it must be sent to 
foiarequest@dol.gov. Requests submitted to any other e-mail address 
will not be accepted as a request made under this Part.
    (1) The functions of each major Department of Labor component are 
summarized in the United States Government Manual which is issued 
annually. The manual is available in print from the Superintendent of 
Documents, Washington, DC 20402-9328, and electronically at the 
Government Printing Office's World Wide Web site, https://
www.access.gpo.gov/su_docs. Appendix A of this part lists the 
disclosure officers of each component by title and address. This 
initial list has been included for information purposes only, and the 
disclosure officers may be changed through appropriate designation. 
Regional, district and field office addresses have been included in 
Appendix A to this part to assist requesters in identifying the 
disclosure officer who is most likely to have custody of the records 
sought.
    (2) Requesters who cannot determine the proper disclosure officer 
to whom the request should be addressed may direct the request to the 
Office of the Solicitor, Division of Management and Administrative 
Legal Services, 200 Constitution Avenue, NW., Room N-2428, Washington, 
DC 20210 or by e-mail to foiarequest@dol.gov. Note, pursuant to Sec.  
70.25(a), the time for the component to respond to a request begins to 
run when the request is received by the proper disclosure officer.
    (c) Description of information requested. Each request must 
reasonably describe the record or records sought. The descriptions must 
be sufficiently detailed to permit the identification and location of 
the requested records with a reasonable amount of effort. So far as 
practicable, the request should specify the subject of the record, the 
date or approximate date when made, the place where made, the person or 
office that created it, and any other pertinent identifying details.
    (d) Deficient descriptions. If the description is insufficient, so 
that a knowledgeable employee who is familiar with the subject area of 
the request cannot locate the record with a reasonable amount of 
effort, the component processing the request should notify the 
requester and describe what additional information is needed to process 
the request. Every reasonable effort will be made to assist a requester 
in the identification and location of the record or records sought. Any 
amended request must be confirmed in writing and meet the requirements 
for a request under this Part.
    (e) 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 this part, up to $25.


Sec.  70.20  Responsibility for responding to requests.

    (a) In general. Except as stated in paragraph (b) of this section, 
the disclosure officer who receives a request for a record and has 
possession of that record is the disclosure officer responsible for 
responding to the request. When it is determined that records 
responsive to a request may be located in multiple components of the 
Department, the Office of the Solicitor, Division of Management and 
Administrative Legal Services, will provide any necessary coordination 
of the Department's response. If the Office of the Solicitor deems a 
consolidated response appropriate, it will issue such a response on 
behalf of the Department.
    (b) Consultations and referrals. When a disclosure officer receives 
a request for a record, the disclosure officer will determine whether 
another disclosure officer of the component, the Department, or of the 
Federal Government, is better able to determine whether the record can 
be disclosed or is exempt from disclosure under the FOIA. If the 
receiving disclosure officer determines that he or she is not best able 
to process the record, then the receiving disclosure officer will 
either:
    (1) Respond to the request after consulting with the component or 
agency best able to determine whether to disclose it and with any other 
component or agency that has a substantial interest in it; or
    (2) Refer the responsibility for responding to the request 
regarding that record to the component best able to determine whether 
to disclose it, or to another agency that originated the record (but 
only if that entity is subject to the FOIA). Ordinarily, the component 
or agency that originated the record will be presumed to be best able 
to determine whether to disclose it.
    (c) Notice of referral. Whenever a disclosure officer refers all or 
any part of the responsibility for responding to a request to another 
component or agency, the disclosure officer will notify the requester 
of the referral and inform the requester of the name of each component 
or agency to which the request has been referred.
    (d) Classified records. Any request for classified records which 
are in the custody of the Department of Labor will be referred to the 
classifying agency under paragraphs (b) and (c) of this section.


Sec.  70.21  Form and content of responses.

    (a) Form of notice granting a request. (1) After a disclosure 
officer has made a determination to grant a request in whole or in 
part, the disclosure officer will notify the requester in writing. The 
notice will describe the manner in which the record will be disclosed. 
The disclosure officer will provide the record in the form or format 
requested if the record is readily reproducible in that form or format, 
provided the requester has agreed to pay and/or has paid any fees 
required by Subpart C of this part. The disclosure officer will 
determine on a case-by-case basis what constitutes a readily 
reproducible format. Each component should make reasonable efforts to 
maintain its records in commonly reproducible forms or formats.

[[Page 30766]]

    (2) Alternatively, a disclosure officer may make a copy of the 
releasable portions of the record available to the requester for 
inspection at a reasonable time and place. The procedure for such an 
inspection will not unreasonably disrupt the operations of the 
component.
    (b) Form of notice denying a request. A disclosure officer denying 
a request in whole or in part must notify the requester in writing. The 
notice must be signed by the disclosure officer and will include:
    (1) The name and title or position of the disclosure officer.
    (2) A brief statement of the reason or reasons for the denial, 
including the FOIA exemption or exemptions relied upon in denying the 
request. Deletions should be indicated at the place in the record where 
the deletion is made.
    (3) An estimate of the volume of records of 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.
    (4) A statement that the denial may be appealed under Sec.  70.22 
and a description of the requirements of that section.
    (c) Record cannot be located or has been destroyed. If a requested 
record cannot be located from the information supplied, or it is known 
or believed to have been destroyed or otherwise disposed of, the 
disclosure officer will so notify the requester in writing and this 
determination may be appealed as described in Sec.  70.22.
    (d) Date for determining responsive records. When responding to a 
request, a component will ordinarily include only those records 
existing as of the date the component begins its search for them. If 
any other date is used, the component will inform the requester of that 
date.


Sec.  70.22  Appeals from denial of requests.

    (a) When a request for access to records has been denied in whole 
or in part; where a requester disputes a determination that records 
cannot be located or have been destroyed; where a requester disputes a 
determination by a disclosure officer concerning the assessment or 
waiver 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 
to the Solicitor of Labor. The appeal must be filed within 90 days of 
the date of the action being appealed.
    (b) The appeal will state in writing the grounds for appeal, and it 
may include any supporting statements or arguments, but such statements 
are not required. In order to facilitate processing of the appeal, the 
appeal should include the appellant's mailing address and daytime 
telephone number, as well as copies of the initial request and the 
disclosure officer's response. The envelope and the letter of appeal 
should be clearly marked: ``Freedom of Information Act Appeal.'' Any 
amendment to the appeal must be in writing and received prior to a 
decision on the appeal.
    (c) The appeal should be addressed to the Solicitor of Labor, 
Division of Management and Administrative Legal Services, U.S. 
Department of Labor, 200 Constitution Avenue, NW., Room N-2428, 
Washington, DC 20210. Appeals also may be submitted by e-mail to 
foiaappeal@dol.gov. Appeals submitted to any other e-mail address will 
not be accepted.


Sec.  70.23  Action on appeals.

    The Solicitor of Labor, or designee, will review the appellant's 
appeal and make a determination de novo whether the action of the 
disclosure officer was proper and in accordance with the applicable 
law.


Sec.  70.24  Form and content of action on appeals.

    The disposition of an appeal will be issued by the Solicitor of 
Labor or designee in writing. A decision affirming, in whole or in 
part, the decision below will include a brief statement of the reason 
or reasons for the affirmance, including the FOIA exemption or 
exemptions 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 maintains his or her 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 in accordance with 
the decision on appeal. If it is determined that records should be 
denied in whole or in part, the appeal determination will include 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.


Sec.  70.25  Time limits and order in which requests must be processed.

    (a) Time limits. Components of the Department of Labor will 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 
will 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.
    (b) Multitrack processing. (1) A component may use two or more 
processing tracks by distinguishing between simple and more complex 
requests based on the amount of work and/or time needed to process the 
request, including through limits based on the number of pages 
involved. If a component does so, it will advise requesters in its 
slower track(s) of the limits of its faster track(s).
    (2) A component using multitrack processing may provide requesters 
in its slower track(s) with an opportunity to limit the scope of their 
requests in order to qualify for faster processing within the specified 
limits of the component's faster track(s). A component doing so will 
contact the requester either by telephone or by letter, whichever is 
more efficient in each case.
    (c) Unusual circumstances. (1) Where the statutory time limits for 
processing a request cannot be met because of ``unusual 
circumstances,'' as defined in the FOIA, and the component determines 
to extend the time limits on that basis, the component will as soon as 
practicable notify the requester in writing of the unusual 
circumstances and of the date by which processing of the request can be 
expected to be completed. Where the extension is for more than ten 
working days, the component will 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 with 
the component for processing the request or a modified request.
    (2) Where a component reasonably believes that multiple requests 
submitted by a requester, or by a group of requesters acting in 
concert, constitute a single request that would otherwise involve 
unusual circumstances, and the requests involve clearly related 
matters, they may be aggregated. Multiple requests involving unrelated 
matters will not be aggregated.
    (d) Expedited processing. (1) Requests and appeals will be taken 
out of order and given expedited treatment

[[Page 30767]]

whenever it is determined that they involve:
    (i) 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;
    (ii) An urgency to inform the public about an actual or alleged 
federal government activity, if made by a person primarily engaged in 
disseminating information;
    (iii) The loss of substantial due process rights; or
    (iv) A matter of widespread and exceptional media interest in which 
there exists possible questions about the government's integrity which 
affect public confidence.
    (2) A request for expedited processing may be made at the time of 
the initial request for records or at any later time. For a prompt 
determination, a request for expedited processing must be received by 
the proper component. Requests based on the categories in paragraphs 
(d)(1)(i), (ii), (iii), and (iv) of this section must be submitted to 
the component that maintains the records requested.
    (3) 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. For example, a requester within the 
category in paragraph (d)(1)(ii) of this section, if not a full-time 
member of the news media, must establish that he or she is a person 
whose main professional activity or occupation is information 
dissemination, though it need not be his or her sole occupation. A 
requester within the category in paragraph (d)(1)(ii) of this section 
also must establish a particular urgency to inform the public about the 
government activity involved in the request, beyond the public's right 
to know about government activity generally. The formality of 
certification may be waived as a matter of administrative discretion.
    (4) Within ten calendar days of its receipt of a request for 
expedited processing, the proper component will decide whether to grant 
it and will notify the requester of the decision. If a request for 
expedited treatment is granted, the request will be given priority and 
will be processed as soon as practicable. If a request for expedited 
processing is denied, any appeal of that decision will be acted on 
expeditiously.


Sec.  70.26  Business information.

    (a) In general. Confidential business information will be disclosed 
under the FOIA only in accordance with this section.
    (b) Designation of business information. A submitter of business 
information will use good-faith 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.
    (c) Notice to submitters. A component will provide a submitter with 
prompt written notice of a FOIA request that seeks its business 
information whenever required under paragraph (d) of this section, 
except as provided in paragraph (g) of this section, in order to give 
the submitter an opportunity to object in writing to disclosure of any 
specified portion of that information under paragraph (e) of this 
section. The notice will either describe the business information 
requested or include copies of the requested records or record portions 
containing the information. When notification to a voluminous number of 
submitters is required, notification may be made by posting or 
publishing notice reasonably likely to accomplish such notification.
    (d) When notice is required. Notice will be given to a submitter 
whenever:
    (1) The information requested under the FOIA has been designated in 
good faith by the submitter as information considered protected from 
disclosure under Exemption 4; or
    (2) A component has reason to believe that the information 
requested under the FOIA may be protected from disclosure under 
Exemption 4.
    (e) Opportunity to object to disclosure. A component will allow a 
submitter a reasonable time to respond to the notice described in 
paragraph (c) of this section. If a submitter has any objection to 
disclosure, it is required to submit a detailed written statement. The 
statement 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, 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.
    (f) Notice of intent to disclose. A component will consider a 
submitter's timely objections and specific grounds for non-disclosure 
in deciding whether to disclose business information. Whenever a 
disclosure officer decides to disclose business information over the 
objection of a submitter, the component will give the submitter written 
notice, which will include:
    (1) A statement of the reason(s) why each of the submitter's 
disclosure objections was not sustained;
    (2) A description of the business information to be disclosed; and
    (3) A specified disclosure date, which will be a reasonable time 
subsequent to the notice.
    (g) Exceptions to notice requirements. The notice requirements of 
paragraphs (c) and (f) of this section will not apply if:
    (1) The disclosure officer determines that the information should 
not be disclosed;
    (2) The information lawfully has been published or has been 
officially made available to the public;
    (3) 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
    (4) The designation made by the submitter under paragraph (b) of 
this section appears obviously frivolous or such a designation would be 
unsupportable--except that, in such a case, the component will, within 
a reasonable time prior to a specified disclosure date, give the 
submitter written notice of any final decision to disclose the 
information.
    (h) Notice of a FOIA lawsuit. Whenever a requester files a lawsuit 
seeking to compel the disclosure of business information, the component 
will promptly notify the submitter.
    (i) Corresponding notice to requesters. Whenever a component 
provides a submitter with notice and an opportunity to object to 
disclosure under paragraphs (d) and (e) of this section, the component 
will also notify the requester(s). Whenever a component notifies a 
submitter of its intent to disclose requested information under 
paragraph (f) of this section, the component will also notify the 
requester(s). Whenever a submitter files a lawsuit seeking to prevent 
the disclosure of business information, the component will notify the 
requester(s).
    (j) Notice requirements. The component will 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 will make a reasonable effort to locate the business

[[Page 30768]]

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.


Sec.  70.27  Preservation of records.

    Each component will preserve all correspondence relating to the 
requests it receives under this part, and all records processed 
pursuant to such requests, until disposition or destruction of such 
correspondence and records is authorized by Title 44 of the United 
States Code or the National Archives and Records Administration's 
General Records Schedule 14. Under no circumstances will records be 
destroyed while they are the subject of a pending request, appeal, or 
lawsuit under the Act.


Sec.  70.28-70.37  [Reserved]

Subpart C--Costs for Production of Records


Sec.  70.38  Definitions.

    The following definitions apply to this subpart:
    (a) Request, in this subpart, includes any request, as defined by 
Sec.  70.2(f), as well as any appeal filed in accordance with Sec.  
70.22.
    (b) Direct costs means those expenditures which a component 
actually incurs in searching for and duplicating (and in the case of 
commercial use requests, reviewing) records to respond to a FOIA 
request. Direct costs include, for example, the salary of the Federal 
employee performing work (the basic rate of pay for the Federal 
employee plus 16 percent of that rate to cover benefits) and the cost 
of operating duplication machinery. Not included in direct costs are 
overhead expenses such as costs of space, heating or lighting the 
facility in which the records are kept.
    (c) Reproduction means the process of making a copy of a record 
necessary to respond to a request. Such copy can take the form of 
paper, microform, audio-visual materials or electronic records (e.g., 
magnetic tape or disk).
    (d) Search means the process of looking for and retrieving records 
or information that is responsive to a FOIA request. It includes page-
by-page or line-by-line identification of information within records 
and also includes reasonable efforts to locate and retrieve information 
from records maintained in electronic form or format. Disclosure 
officers will ensure that searches are done in the most efficient and 
least expensive manner reasonably possible. A search does not include 
the review of material, as defined in paragraph (e) of this section, 
which is performed to determine whether material is exempt from 
disclosure.
    (e) Review means the process of examining records, including audio-
visual, electronic mail, etc., located in response to a request to 
determine whether any portion of the located record 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 
time includes time spent contacting any submitter, and considering and 
responding to any objections to disclosure made by a submitter under 
Sec.  70.26, but does not include time spent resolving general legal or 
policy issues regarding the application of exemptions.
    (f) Commercial use request means a request from or on behalf of a 
person who seeks information for a use or purpose that furthers his or 
her commercial, trade or profit interests, which can include furthering 
those interests through litigation. Components will determine, whenever 
reasonably possible, the use to which a requester will put the 
requested records. When it appears that the requester will put the 
records to a commercial use, either because of the nature of the 
request itself or because a component has reasonable cause to doubt a 
requester's stated use, the component will provide the requester a 
reasonable opportunity to submit further clarification.
    (g) Educational institution means an institution which:
    (1) Is a preschool, 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 of 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. 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) Non-commercial scientific institution means an institution that 
is not operated on a commercial basis and that is operated solely for 
the purpose of conducting scientific research, the results of which are 
not intended to promote any particular product or industry.
    (i) Representative of the news media means any person actively 
gathering news for an entity that is organized and operated to publish 
or broadcast news to the public.
    (1) Factors indicating such representation status include press 
accreditation, guild membership, a history of continuing publication, 
business registration, and/or Federal Communication Commission 
licensing, among others.
    (2) For purposes of this definition, news contemplates information 
that is about current events or that would be of current interest to 
the public.
    (3) A freelance journalist will be treated as a representative of 
the news media if the person can demonstrate a solid basis for 
expecting publication of matters related to the requested information 
through a qualifying news media entity. A publication contract with a 
qualifying news media entity satisfies this requirement. An 
individual's past publication record with such organizations is also 
relevant in making this determination. Examples of news media entities 
include television or radio stations broadcasting to the public at 
large, and publishers of periodicals including newsletters (but only in 
those instances where they can qualify as disseminators of news) who 
make their products available for purchase or subscription by the 
general public.


Sec.  70.39  Statutes specifically providing for setting of fees.

    This subpart will not apply to fees charged under any statute, 
other than the FOIA, that specifically requires an agency to set and 
collect fees for particular types of records.


Sec.  70.40  Charges assessed for the production of records.

    (a) General. There are three types of charges assessed in 
connection with the production of records in response to a request, 
charges for costs associated with:
    (1) Searching for or locating responsive records (search costs),
    (2) Reproducing such records (reproduction costs), and
    (3) Reviewing records to determine whether any materials are exempt 
(review costs).

[[Page 30769]]

    (b)(1) There are four types of requesters:
    (i) Commercial use requesters,
    (ii) Educational and non-commercial scientific institutions,
    (iii) Representatives of the news media, and
    (iv) All other requesters.
    (2) Depending upon the type of requester, as set forth in paragraph 
(b)(1) of this section, the charges outlined in paragraph (c) of this 
section may be assessed.
    (c) Types of charges that will be assessed for each type of 
request. (1) Commercial use request. When a requester makes a 
commercial use request, search costs, reproduction costs and review 
costs will be assessed in their entirety.
    (2) Educational or non-commercial scientific institution request. 
When an educational or non-commercial scientific institution makes a 
request, only reproduction costs will be assessed, excluding charges 
for the first 100 pages.
    (3) Request by representative of news media. When a representative 
of the news media makes a request, only reproduction costs will be 
assessed, excluding charges for the first 100 pages.
    (4) All other requests. Requesters making a request which does not 
fall within paragraphs (c)(1), (2), or (3) of this section will be 
charged search costs and reproduction costs, except that the first 100 
pages of reproduction and the first two hours of search time will be 
furnished without charge. Where computer searches are involved, the 
monetary equivalent of two hours of search time by a professional 
employee will be deducted from the total cost of computer processing 
time.
    (d) Charges for each type of activity. (1) Search costs. (i) When a 
search for records is performed by a clerical employee, a rate of $5.00 
per quarter hour will be applicable. When a search is performed by 
professional or supervisory personnel, a rate of $10.00 per quarter 
hour will be applicable. Components will charge for time spent 
searching even if they do not locate any responsive records or they 
withhold the records located as exempt from disclosure.
    (ii) For computer searches of records, requesters will be charged 
the direct costs of conducting the search, except as provided in 
paragraph (c)(4) of this section.
    (iii) If the search for requested records requires transportation 
of the searcher to the location of the records or transportation of the 
records to the searcher, all transportation costs in excess of $5.00 
may be added to the search cost.
    (2) Reproduction costs. The standard copying charge for records in 
black and white paper copy is $0.15 per page. This charge includes the 
operator's time to duplicate the record. When responsive information is 
provided in a format other than 8\1/2\ x 11 or 11 x 14 inch black and 
white paper copy, such as computer tapes, disks and color copies, the 
requester may be charged the direct costs of the tape, disk, audio-
visual or whatever medium is used to produce the information, as well 
as the direct cost of reproduction, including operator time. The 
disclosure officer may request that if a medium is requested other than 
paper, the medium will be provided by the requester.
    (3) Review costs. Costs associated with the review of records, as 
defined in ``70.38(e), will be charged for work performed by a clerical 
employee at a rate of $5.00 per quarter hour when applicable. When 
professional or supervisory personnel perform work, a rate of $10.00 
per quarter hour will be charged, when applicable. Except as noted in 
this paragraph, charges may only be assessed for review the first time 
the records are analyzed to determine the applicability of specific 
exemptions to the particular record or portion of the record. Thus a 
requester would not be charged for review at the administrative appeal 
level with regard to the applicability of an exemption already applied 
at the initial level. When, however, a record has been withheld 
pursuant to an exemption which is subsequently determined not to apply 
and is reviewed again at the appellate level to determine the potential 
applicability of other exemptions, the costs attendant to such 
additional review will be assessed.
    (4) Mailing cost. Where requests for copies are sent by mail, no 
postage charge will be made for transmitting by regular mail a single 
copy of the requested record to the requester, or for mailing 
additional copies where the total postage cost does not exceed $5.00. 
However, where the volume of paper copy or method of transmittal 
requested is such that transmittal charges to the Department are in 
excess of $5.00, the transmittal costs will be added.
    (e) Aggregating requests for purposes of assessing costs. (1) Where 
a disclosure officer reasonably believes that a requester or a group of 
requesters acting together is attempting to divide a request into a 
series of requests for the purpose of avoiding fees, the disclosure 
officer may aggregate those requests and charge accordingly.
    (2) Disclosure officers may presume that multiple requests of this 
type made within a 30-day period have been submitted in order to avoid 
fees. Where requests are separated by a longer period, disclosure 
officers will aggregate them only where a solid basis exists for 
determining that aggregation is warranted under all of the 
circumstances involved. Multiple requests involving unrelated matters 
will not be aggregated.
    (f) Interest charges. Disclosure officers will assess interest on 
an unpaid bill starting on the 31st day following the date of billing 
the requester. Interest charges will be assessed at the rate provided 
in 31 U.S.C. 3717 and will accrue from the date of the billing until 
payment is received by the component. Components will follow the 
provisions of the Debt Collection Act of 1982, (Pub. L. 97-365, 96 
Stat. 1749), as amended, and its administrative procedures, including 
the use of consumer reporting agencies, collection agencies, and 
offset.
    (g) Authentication of copies. (1) Fees. The FOIA does not require 
certification or attestation under seal of copies of records provided 
in accordance with its provisions. Pursuant to provisions of the 
general user-charger statute, 31 U.S.C. 9701 and Subchapter II of title 
29 U.S.C., the following charges will be made when, upon request, such 
services are nevertheless rendered by the agency in its discretion:
    (i) For certification of true copies, $10.00 each certification.
    (ii) For attestation under the seal of the Department, $10.00 each 
attestation under seal.
    (2) Authority and form for attestation under seal. Authority is 
hereby given to any officer or officers of the Department of Labor 
designated as authentication officer or officers of the Department to 
sign and issue attestations under the seal of the Department of Labor.
    (h) Transcripts. Fees for transcripts of an agency proceeding will 
be assessed in accordance with the provisions of this Subpart.
    (i) Privacy Act requesters. A request from an individual or on 
behalf of an individual for a record maintained by that individual's 
name or other unique identifier which is contained within a component's 
system of records will be treated under the fee provisions at 29 CFR 
71.6.


Sec.  70.41  Reduction or waiver of fees.

    (a) Requirements for waiver or reduction of fees. (1) Records 
responsive to a request will be furnished without charge or at a charge 
reduced below that established under paragraph (d) of Sec.  70.40 where 
a Disclosure Officer

[[Page 30770]]

determines, based on all available information, that the requester has 
demonstrated that:
    (i) Disclosure of the requested information is in the public 
interest because it is likely to contribute significantly to public 
understanding of the operations or activities of the government, and
    (ii) Disclosure of the information is not primarily in the 
commercial interest of the requester.
    (2) To determine whether the requirement of paragraph (a)(1)(i) of 
this section is met, components will consider the following factors:
    (i) The subject of the request: Whether the subject of the 
requested records concerns ``the operations or activities of the 
government.'' The subject of the requested records must concern 
identifiable operations or activities of the federal government, with a 
connection that is direct and clear, not remote or attenuated.
    (ii) The informative value of the information to be disclosed: 
Whether the disclosure is ``likely to contribute'' to an understanding 
of government operations or activities. The disclosable portions of the 
requested records must be meaningfully informative about government 
operations or activities in order to be ``likely to contribute'' to an 
increased public understanding of those operations or activities. The 
disclosure of information that already is in the public domain, in 
either a duplicative or a substantially identical form, would not be as 
likely to contribute to such understanding where nothing new would be 
added to the public's understanding.
    (iii) The contribution to an understanding of the subject by the 
public likely to result from disclosure: Whether disclosure of the 
requested information will contribute to ``public understanding.'' The 
disclosure must contribute to the understanding of a reasonably broad 
audience of persons interested in the subject, as opposed to the 
individual understanding of the requester. A requester's expertise in 
the subject area and ability and intention to effectively convey 
information to the public will be considered. It will be presumed that 
a representative of the news media will satisfy this consideration.
    (iv) The significance of the contribution to public understanding: 
Whether the disclosure is likely to contribute ``significantly'' to 
public understanding of government operations or activities. The 
public's understanding of the subject in question must be enhanced by 
the disclosure to a significant extent.
    (3) To determine whether the requirement of paragraph (a)(1)(ii) of 
this section is met, components will consider the following factors:
    (i) The existence and magnitude of a commercial interest: Whether 
the requester has a commercial interest that would be furthered by the 
requested disclosure. The Disclosure Officer will consider any 
commercial interest of the requester (with reference to the definition 
of ``commercial use request'' in Sec.  70.38(f)), or of any person on 
whose behalf the requester may be acting, that would be furthered by 
the requested disclosure. Requesters will be given an opportunity in 
the administrative process to provide explanatory information regarding 
this consideration.
    (ii) The primary interest in disclosure: Whether any 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 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. The Disclosure 
Officer ordinarily will presume that where a news media requester has 
satisfied the public interest standard, the public interest will be the 
interest primarily served by disclosure to that requester. Disclosure 
to data brokers or others who merely compile and market government 
information for direct economic return will not be presumed to 
primarily serve the public interest.
    (4) Where only some of the records to be released satisfy the 
requirements for a waiver of fees, a waiver will be granted only for 
those records.
    (5) Requests for the waiver or reduction of fees should address the 
factors listed in paragraph (a) of this section, insofar as they apply 
to each request.
    (b) Submission. Requests for waiver or reduction of fees must be 
submitted along with the request or before processing of the request 
has been commenced.
    (c) Appeal rights. The procedures for appeal under 70.22 and 70.23 
will control.


Sec.  70.42  Consent to Pay Fees.

    (a) 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 this part up to and including $25.00, unless the 
requester seeks a waiver of fees. When making a request, the requester 
may specify a willingness to pay a greater or lesser amount.
    (b) No request will be processed if a disclosure officer reasonably 
believes that the fees are likely to exceed the amount to which the 
requester has originally consented, absent supplemental written consent 
by the requester to proceed after being notified of this determination.
    (c) When the estimated costs are likely to exceed the amount of 
fees to which the requester has consented, the requester must be 
notified. Such notice may invite the requester to reformulate the 
request to satisfy his or her needs at a lower cost.


Sec.  70.43  Payment of fees.

    (a) De minimis costs. Where the cost of collecting and processing a 
fee to be assessed to a requester exceeds the amount of the fee which 
would otherwise be assessed,