[Federal Register: October 3, 2001 (Volume 66, Number 192)]
[Rules and Regulations]
[Page 50310-50315]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr03oc01-8]

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NATIONAL LABOR RELATIONS BOARD

29 CFR Part 102

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

AGENCY: National Labor Relations Board.

ACTION: Final rule.

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SUMMARY: The National Labor Relations Board is amending 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 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: Effective: October 3, 2001.

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

SUPPLEMENTARY INFORMATION: This document describes 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
Sec. 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 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 them 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

[[Page 50311]]

Executive Order 12866, section 3(f), Regulatory Planning and Review, we
consulted with that Office prior to issuing this 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 recordkeeping
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 is amending 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
(29U.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;
(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. Items in
paragraph (a)(2)(iii) of this section are 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
afterNovember 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 ../..).
(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.

[[Page 50312]]

(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 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 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. The Agency shall provide a submitter with prompt
written notice of a FOIA request or administrative appeal that seeks
its business information wherever required

[[Page 50313]]

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
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

[[Page 50314]]

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 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.

[[Page 50315]]

(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.
(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, September 28, 2001.

By direction of the Board.
John J. Toner,
Executive Secretary, National Labor Relations Board.
[FR Doc. 01-24739 Filed 10-2-01; 8:45 am]
BILLING CODE 7545-01-P