Page images

firmed in writing and should specify that such disclosure would be in the clearly the total time agreed upon. public interest. Such a record is consid

ered to be in the public interest if the 81.15 Failure to meet administrative benefit to the public in releasing the deadlines.

document outweighs any harm likely In the event an agency fails to meet to result from disclosure. either of the administrative deadlines set forth in $1.8, plus any extension au- $ 1.18 Annual report. thorized by $1.14, it shall notify the re

(a) Each agency of the Department quester, state the reasons for the

shall compile the following informadelay, and the date by which it expects

tion for each calendar year: to dispatch a determination. Although the requester may be deemed to have

(1) The number of determinations

made by such agency not to comply exhausted his or her administrative

with initial requests for records made remedies under 5 U.S.C. 552(a)(6)(C), the

to it under $1.6(a), and the reasons for agency shall continue processing the

each such determination; request as expeditiously as possible and dispatch the determination when it is

(2) The number of appeals made by reached in the same manner and form

persons under $1.8(d), the result of such as if it had been reached within the ap

appeals, and the reason for the action plicable deadline.

upon each appeal that results in a de

nial of information; $ 1.16 Fee schedule.

(3) The name and title or position of Pursuant to $2.75 of this title, the Di

each person responsible for the denial rector, Office of Finance and Manage- and the number of instances of partici

of records requested under this subpart ment, is delegated authority to pro

pation for each; mulgate regulations providing a uniform schedule of fees applicable to all

(4) The results of each proceeding agencies of the Department regarding 552(a)(4)(F), including a report of the

conducted pursuant to 5 U.S.C. requests for records under this subpart, following public notice and comment.

disciplinary action taken against the (See appendix A of this subpart.) Any

officer or employee who was primarily amendments thereto will be made pur responsible for improperly withholding suant to notice and opportunity for

records or an explanation of why discomment. Said regulations provide for

ciplinary action was not taken; recovery of direct costs for document (5) A copy of every rule made by the search, duplication, and review. The

agency regarding this subpart; regulations provide that documents

(6) The total amount of fees collected may be furnished without charge or at

by the agency for making records a reduced charge where the agency de

available under this subpart; and termines that waiver or reduction of (7) Such other information as indithe fee is in the public interest based cates efforts to administer fully this upon criteria set forth in section 6 of subpart. appendix A.

(b) Each agency shall compile the in

formation required by paragraph (a) of $1.17 Exemptions and discretionary this section for the preceding calendar release.

year into a report and submit this re(a) All agency records, except those port to the Director of Information, Ofspecifically exempted from mandatory fice of Governmental and Public Afdisclosure by one or more provisions of fairs, by February 1 of each year. 5 U.S.C. 552(b), shall be made promptly (c) The Director of Information shall available to any person submitting a combine the reports from the various request under this subpart.

agencies within USDA into a Depart(b) Except where disclosure is specifi- mental report, and shall arrange for cally prohibited by Executive Order, submission of this report to the Presistatute, or applicable regulations, an dent of the Senate and the Speaker of agency may release records exempt the House of Representatives by March from mandatory disclosure under 5 1 of each year in accordance with 5 U.S.C. 552(b) whenever it determines U.S.C. 552(d).

$ 1.19 Compilation of new records.

Nothing in 5 U.S.C. 552 or this subpart requires that any agency compile a new record in order to fulfill a request for records. Such compilation may be undertaken voluntarily if the agency determines this action to be in the public interest or the interest of USDA.

records processed pursuant to such requests, until such time as the destruction of such correspondence and records is authorized pursuant to title 44 of the United States Code, and to the General Records Schedule. Under no circumstances shall records be destroyed while they are the subject of a pending request, appeal, or lawsuit under the FOIA.


$ 1.20 Authentication.

When a request is received for an authenticated copy of a document which the agency determines to make available to the requesting party, the agency shall cause a correct copy to be prepared and sent to the Office of the General Counsel which shall certify the same and cause the seal of the Department to be affixed, except that the Hearing Clerk in the Office of Administrative Law Judges may authenticate copies of documents in the records of the Hearing Clerk and that the Director of the National Appeals Division may authenticate copies of documents in the records of the National Appeals Division.

[60 FR 67308, Dec. 29, 1995)

EFFECTIVE DATE NOTE: At 60 FR 67308, Dec. 29, 1995, $1.20 was revised, effective January 16, 1996. For the convenience of the reader, the superseded text is set forth below. $ 1.20 Authentication.

When a request is received for an authenticated copy of a document which the agency determines to make available to the requesting party, the agency shall cause a correct copy to be prepared and sent to the Office of the General Counsel which shall certify the same and cause the seal of the Department to be affixed, except that the Hearing Clerk may authenticate copies of documents in the records of the Hearing Clerk.

Section 1. General. This schedule sets forth fees to be charged for providing copies of documents including photographic reproductions, microfilm, maps and mosaics, and related services—under the Freedom of Information Act (FOIA). Records and related services are available at the locations specified by agencies in their FOLA implementing regulations. The fees set forth in this schedule are applicable to all agencies of the Department of Agriculture, and are based upon guidelines prescribed by the Office of Management and Budget (OMB) issued at 52 FR 10012 (March 27, 1987). No higher fees or charges in addition to those provided for in this schedule may be charged a party requesting services under the Freedom of Information Act. Section 2. Types of services for which fees may

be charged. Subject to the criteria set forth in section 5, fees may be assessed under the Freedom of Information Act on all requests involving such services as document search, duplication, and review. Fees may also be charged in situations involving special service to a request, such as in certifying that records requested are true copies, or in sending records by special methods such as express mail, etc. For services not covered by the FOIA or by this schedule, agencies may set their own fees in accordance with applicable law, or costs incurred will be assessed the requester at the actual cost to the Government. For example, where records are required to be shipped from one office to another by commercial carrier in order to timely answer a request, the actual freight charge will be assessed the requester.

8 1.22 Records in formal adjudication

proceedings. Records in formal adjudication proceedings are on file in the Hearing Clerk's office, Office of Administrative Law Judges, U.S. Department of Agriculture, Washington, DC 20250, and shall be made available to the public.

Section 3. Instances in which fees will not be

charged. (a) Except for requests seeking documents for a commercial use (as specified below in section 5), no charge shall be made for either: (1) The first 100 pages of duplicated information (842" x 14" or smaller-size paper); or (2) The first two hours of manual search time, or the equivalent value of computer search time as defined in section 4(e).

[blocks in formation]

(b) Also, no charge shall be madeeven to commercial use requesters—if the cost of collecting a fee would be equal to or greater than the fee itself. For USDA, this figure has been calculated to be $25.00.

(c) In addition, fees may not be charged for time spent by an agency employee in resolving legal or policy issues, or in monitoring a requester's inspection of agency records. No charge shall be made for normal postage costs.

(d) Documents shall also be furnished without charge under the following conditions:

(1) When filling requests from other Departments or Government agencies for official use, provided quantities requested are reasonable in number;

(2) When members of the public provide their own copying equipment, in which case no copying free will be charged (although search and review fees may still be assessed); or

(3) When any notices, decisions, orders, or other materials are required by law to be served on a party in any proceeding or matter before any Department agency. Section 4. Fees for records and related services.

(a) The fee for photocopies of pages 81/2" x 14" or smaller shall be $0.20 per page (per individual side of sheet).

(b) The fee for photocopies larger than 81/2" x 14" shall be $0.50 per linear foot of the longest side of the copy.

(c) The fee for other forms of duplicated information, such as microform, audio-visual materials, or machine-readable documentation (i.e., magnetic tape or disk), shall be the actual direct cost of producing the document(s).

(d) Manual searches shall be charged for in one of the two following manners in the given order:

(1) When feasible, at the salary rate of the employee conducting the search, plus 16 percent of the employee's basic pay; or

(2) Where a homogeneous class of personnel is used exclusively, at the rate of $10.00 per hour for clerical time, and $20.00 per hour for supervisory or professional time. Charges should be computed to the nearest quarter hour required for the search. A homogeneous class of personnel, for purposes of conducting manual searches and where more than one individual is involved, is a group of employees of like rank, grade, pay or position. A heterogeneous class of personnel is a group of employees of unlike rank, grade, pay, or position. If a heterogeneous class of personnel is involved in a search then the search shall be charged for at the salary rate of the individuals.

(e) Mainframe computer searches and services shall be charged for at the rates established in the Users Manual or Handbook published by the computer center at which the work will be performed. Where the rate has

not been established, the rate shall be $27.00 per minute. Searches using computers other than mainframes shall be charged for at the manual search rate.

(1) Other rates are published and may be examined at the following places: Fort Collins Computer Center Users Manual Fort Collins Computer Center, U.S. De

partment of Agriculture, 3825 East Mulberry Street (P.O. Box 1206), Fort Collins,

Colo. 80521. National Finance Center, Cost, Productivity

& Analysis Section, U.S. Department of Agriculture, 13800 Old Gentilly Road,

New Orleans, La. 70129. Kansas City Computer Center Users Manual Kansas City Computer Center, U.S. Depart

ment of Agriculture, 8930 Ward Parkway

(P.O. Box 205), Kansas City, MO. 64141. Washington Computer Center Users Hand

book: Washington Computer Center, U.S. Department of Agriculture, Room S-100, South Building, 12th Street and Independence Avenue, sw., Washington, DC

20250. St. Louis Computer Center, U.S. Department

of Agriculture, 1520 Market Street, St.

Louis, MO. 63103. (f) Charges for unsuccessful searches, or searches which fail to locate records or which locate records which are exempt from disclosure, shall be assessed at the same fee rate as searches which result in disclosure of records.

(8) The fee for providing review services shall be the hourly salary rate (i.e., basic pay plus 16 percent) of the employee conducting the review to determine whether any information is exempt from mandatory disclosure.

(h) The fee for Certifications shall be $5.00 each; Authentications under Department Seal (including aerial photographs), $10.00 each.

(i) All other costs incurred by USDA agencies will be assessed the requester at the actual cost to the Government.

(j) The fees specified in paragraphs (a) through (g) of this section apply to all requests for services under the FOLA, as amended (5 U.S.C. 552), unless no fee is to be charged, or the agency has determined to waive or reduce those fees pursuant to section 6. No higher fees or charges in addition to those provided for in this schedule may be charged for services under the FOLA.

(k) The fees specified in paragraphs (h) and (i) of this section and in section 17 of this schedule apply to requests for services other than those subject to the FOIA. The authority for establishment of these fees is at 31 U.S.C. 9701 (formerly 31 U.S.C. 483a) and other applicable laws.

(1) Except as provided in section 11 of this appendix, for services not subject to the FOIA, and not covered by paragraph (h) of

this section, agencies may set their own fees in accordance with applicable law. Section 5. Levels of fees for each category of

requesters. Under the FOIA, as amended, there are four categories of FOIA requesters: Commercial use requesters, educational and noncommercial scientific institutions; representatives of the news media; and all other requesters. The Act prescribes specific levels of fees for each category:

(a) Commercial use requesters-For commercial use requesters, agencies shall assess charges which recover the full direct costs of searching for, reviewing for release, and duplicating the records sought. Commercial use requesters are not entitled to the free search time or duplication referenced in section 3(a). Agencies may recover the cost of searching for and reviewing records for commercial use requesters even if there is ultimately no disclosure of records.

(1) A commercial use requester is defined as one 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.

(2) In determining whether a requester properly belongs in this category, agencies must determine whether the requester will put the documents to a commercial use. Where an agency has reasonable cause to doubt the use to which a requester will put the records sought, or where that use is not clear from the request itself, the agency may seek additional clarification from the requester.

(b) Educational and non-commercial scientific institution requesters-Fees for this category of requesters shall be limited to the cost of providing duplication service alone,

minus the charge for the first 100 reproduced | pages. No charge shall be made for search or

review services. To qualify for this category, requesters must show that the request is being made as authorized by and under the auspices of an eligible institution and that the records are not sought for a commercial use, but are sought in furtherance of scholarly research (if the request is from an educational institution) or scientific research (if the request is from a non-commercial scientific institution).

(1) The term educational institution refers to a preschool, a public or private elementary or secondary school, an institution of graduate higher education, an institution of undergraduate higher education, an institution of professional education, and an institution of vocational education, which operates a program or programs of scholarly research.

(2) The term non-commercial scientific institution refers to institution that is not operated on a “commercial" (see section 5(a)(1)) basis, and which is operated solely for the purpose of conducting scientific research the

results of which are not intended to promote any particular product or industry.

(c) Requesters who are representatives of the news media-Fees for this category of requesters shall also be limited to the cost of providing duplication service alone, minus the charge for the first 100 reproduced pages. No charge shall be made for providing search or review services. Requests in this category must not be made for a commercial use.

(1) The term 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.

(2) The term news means information that is about current events or that would be of current interest to the public.

(3) Examples of news media entities include television or radio stations broadcasting to the public at large, and publishers of periodicals which disseminate news and who make their products available for purchase or subscription by the general public.

(4) Freelance journalists may be regarded as working for a news organization if they can demonstrate a solid basis for expecting publication through that organization, even though not actually employed by it.

(d) All other requesters-Fees for requesters who do not fit into any of the above categories shall be assessed for the full reasonable direct cost of searching for and duplicating documents that are responsive to a request. No charge, however, shall be made to requesters in this category for: (1) The first 100 duplicated pages; or (2) the first two hours of manual search time, or the equivalent value of computer search time as defined in section 4(e).

Section 6. Fee waivers and reductions. (a) Agencies shall waive or reduce fees on requests for information if disclosure of the information is deemed to be in the public interest. A request is in the public interest if 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.

(1) In determining when fees shall be waived or reduced, agencies should consider the following six factors:

(i) The subject of the request, i.e., whether the subject of the requested records concerns "the operations or activities of the government";

(ii) The informative value of the information to be disclosed, i.e., whether the disclosure is “likely to contribute" to an understanding of government operations or activities;

(iii) The contribution to an understanding of the subject by the general public likely to result from disclosure, i.e., whether disclosure of the requested information will contribute to "public understanding'';

(iv) The significance of the contribution to public understanding, i.e., whether the disclosure is likely to contribute “significantly” to public understanding of government operations or activities;

(v) The existence and magnitude of a commercial interest, i.e., whether the requester has a commercial interest that would be furthered by the requested disclosure; and, if so,

(vi) The primary interest in disclosure, i.e., whether the magnitude of the identified commercial interest of the requester is sufficiently large, in comparison with the public interest in disclosure, that disclosure is “primarily in the commercial interest of the requester.”

(2) An agency may, in its discretion, waive or reduce fees associated with a request for disclosure, regardless of whether a waiver or reduction has been requested, if the agency determines that disclosure will primarily benefit the general public.

(3) Agencies may also waive or reduce fees under the following conditions:

(1) Where the furnishings of information or a service without charge or at a reduced rate is an appropriate courtesy to a foreign country or international organization, or where comparable fees are set on a reciprocal basis with a foreign country or an international organization;

(11) Where the recipient is engaged in a nonprofit activity designed for the public safety, health, or welfare; or

(iii) Where it is determined that payment of the full fee by a State or local government or nonprofit group would not be in the interest of the program involved.

(4) Fees shall be waived, however, without discretion in all circumstances where the amount of the fee is $25.00 or less.

Section 7. Restrictions regarding copies. (a) Agencies may restrict numbers of photocopies and directives furnished the public to one copy of each page. Copies of forms provided the public shall also be held to the minimum practical. Persons requiring any large quantities should be encouraged to take single copies to commercial sources for further appropriate reproduction.

(b) Single or multiple copies of transcripts, provided to the Department under a reporting service contract, may be obtained by the public from the contractor at a cost not to exceed the cost per page charged to the Department for extra copies. The contractor may add a postage charge when mailing orders to the public, but no other charge may be added.

[ocr errors]

should be made by requesters within 30 days of the date of the billing.

(b) Payments shall be made by check, draft, or money order made payable to the Treasury of the United States, although payments may be made in cash, particularly where services are performed in response to a visit to a Department office. All payments should be sent to the address indicated by the agency responding to the request.

(c) Where the estimated fees to be charged exceed $250.00, agencies may require an advance payment of an amount up to the full estimated charges (but not less than 50 percent) from the requester before any of the requested materials are reproduced.

(d) In instances where a requester has previously failed to pay a fee, an agency may require the requester to pay the full amount owed, plus any applicable interest as provided below, as well as the full estimated fee associated with any new request before the agency begins to process that new or subsequent request.

Section 9. Interest charges. On requests that result in fees being assessed, agencies may begin levying interest charges on an upaid bill starting on the 31st day following the day on which the billing was sent. Interest will be at the rate prescribed in section 3717 of title 31 U.S.C., and will accrue from the date of the billing.

Section 10. Effect of the Debt Collection Act on

fees. In attempting to collect fees levied under the FOIA, agencies shall abide by the provisions of 31 U.S.C. 3701, 3711-3719, in disclosing information to consumer reporting agencies and in the use of collection agencies, where appropriate, to encourage payment. Section 11. Photographic reproductions,

microfilm, mosaic and maps. Reproduction of such aerial or other photographic microfilm, mosaic and maps as have been obtained in connection with the authorized work of the Department may be sold at the estimated cost of furnishing such reproduction as prescribed in this schedule.

Section 12. Agencies which furnish

photographic reproductions. (a) Aerial photographic reproductions. The following agencies of the Department furnish aerial photographic reproductions: Agricultural Stabilization and Conservation

Service (ASCS), APFO, USDA-ASCS, 2222
West 2300 South, P.O. Box 30010, Salt

Lake City, Utah 84125.
Soil Conservation Service (SCS), USDA, Car-

tographic Division, Washington, DC 20250, or Cartographic Facility in nearest SCS Technical Service Center,

Section 8. Payments of fees and charges. (a) Payments should be billed for to the fullest extent possible at the time the requested materials are furnished. Payments

« PreviousContinue »