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Service (NTIS), to set the level of fees determine whether the material is exfor particular types of records, in order empt from disclosure (see paragraph (1)

of this section). Searches may be done (1) Serve both the general public and manually or by computer using existprivate sector organizations by conven- ing programming. iently making available government (e) The term duplication refers to the information;

process of making a copy of a docu(2) Ensure that groups and individ ment necessary to respond to a FOIA uals pay the cost of publications and request. Such copies can take the form other services which are for their spe of paper copy, microform, audio-visual cial use so that these costs are not materials, or machine readable docuborne by the general taxpaying public; mentation (e.g., magnetic tape or

(3) Operate an information dissemi- disk), among others. The copy provided nation activity on a self-sustaining must be in a form that is reasonably basis to the maximum extent possible; usable by requesters.

(1) The term review refers to the proc(4) Return revenue to the Treasury ess of examining documents located in for defraying, wholly or in part, appro- response to a request that is for a compriated funds used to pay the cost of mercial use (see paragraph (g) of this disseminating government informa section) to determine whether any portion. Statutes, such as the User Feetion of any document located is perStatute, which only provide a general mitted to be withheld. It also includes discussion of fees without explicitly re- processing any documents for discloquiring that an agency set and collect sure, e.g., doing all that is necessary to fees for particular documents do not excise them and otherwise prepare supersede the Freedom of Information them for release. Review does not inAct under section (a)(4)(A)(vi) of that clude time spent resolving general statute.

legal or policy issues regarding the ap(c) The term direct costs means those plication of exemptions. expenditures which an agency actually (g) The term 'commercial use' request incurs in searching for and duplicating refers to a request from or on behalf of (and in the case of commercial request one who seeks information for a use or ers, reviewing) documents to respond purpose that furthers the commercial, to a FOIA request. Direct costs in- trade, or profit interests of the reclude, for example, the salary of the quester or the person on whose behalf employee performing work (the basic the request is made. In determining rate of pay for the employee plus 16 whether a requester properly belongs percent of that rate to cover benefits) in this category, NSF shall determine and the cost of operating duplicating the use to which a requester will put machinery. Not included in direct costs the documents requested. Moreover, are overhead expenses such as costs of where NSF has reasonable cause to space, and heating or lighting the facil doubt the use to which a requester will ity in which the records are stored. put the records sought, or where that

(d) The term search includes all time use is not clear from the request itself, spent looking for material that is re- NSF shall seek additional clarification sponsive to a request, including page before assigning the request to a speby-page or line-by-line identification of cific category. material within documents. NSF shall (h) The term educational institution ensure that searching for material is refers to a preschool, a public or pridone in the most efficient and least ex- vate elementary or secondary school, pensive manner so as to minimize costs an institution of graduate higher edufor both the agency and the requester. cation, an institution of professional For example, NSF shall not engage in education, and an institution of vocaline-by-line search when merely dupli- tional education, which operates a procating an entire document would prove gram or programs of scholarly rethe less expensive and quicker method search. of complying with a request. "Search" (i) The term non-commercial scientific should be distinguished, moreover, institution refers to an institution that from “review" of material in order to is not operated on a "commercial"

basis as that term is referenced in FOIA provides that it alone may disparagraph (g) of this section, and which charge, such as determining the appliis operated solely for the purpose of cability of an exemption, or determinconducting scientific research the re ing whether to waive or reduce fees. In sults of which are not intended to pro- addition, NSF shall ensure that when mote any particular product or indus- documents that would be responsive to try.

a request are maintained for distribu(j) The term representative of the news tion by agencies operating statutorymedia refers to any person actively based fee schedule programs (see defigathering news for an entity that is or nition in $612.9(b), such as the NTIS, ganized and operated to publish or they inform requesters of the steps broadcast news to the public. The term necessary to obtain records from those news means information that is about sources. current events or that would be of cur (a) Manual searches for records. rent interest to the public. Examples of Whenever feasible, NSF shall charge at news media entities include television the salary rate(s) (i.e., basic pay plus 16 or radio stations broadcasting to the percent) of the employee(s) making the public at large, and publishers of peri

search. However, where a homogeneous odicals (but only in those instances

class of personnel is used exclusively when they can qualify as disseminators

(e.g., all administrative/clerical, or all of "news") who make their products

professional/executive), NSF may esavailable for purchase or subscription tablish an average rate for the range of by the general public. These examples

grades typically involved. Thus, for are not intended to be all-inclusive.

each one-quarter hour after the first Moreover, as traditional methods of

quarter hour, for search of a record by news delivery evolve (e.g., electronic

clerical personnel, the charge is $2.50. dissemination of newspapers through

For a nonroutine, nonclerical search by telecommunications services), such al

professional personnel, for example, ternative media would be included in

where the task of determining which this category. In the case of “free

records fall within a request and search lance" journalists, they may be re

requires professional or managerial garded as working for a news organiza

time, the charge is $7.50 for each one tion if they can demonstrate a solid

quarter hour spent in excess of the first basis for expecting publication through

quarter hour. that organization, even though not ac

(b) Computer searches for records. NSF tually employed by it. A publication

shall charge at the actual direct cost of contract would be the clearest proof,

providing the service. This will include but NSF may also look to the past pub

the cost of operating the central proclication record of a requester in mak

essing unit (CPU) for that portion of ing this determination.

operating time that is directly attrib(52 FR 43074, Nov. 9, 1987)

utable to searching for records respon

sive to a FOIA request and operator/ 1612.10 Fees to be charged-general.

programmer salary apportionable to NSF shall charge fees that recoup the the search. When NSF can establish a full allowable direct costs they incur. reasonable agency-wide average rate Moreover, NSF shall use the most effi- for CPU operating costs and operator/ cient and least costly methods to com- programmer salaries involved in FOIA ply with requests for documents made searches, the Foundation will do so and under the FOIA. NSF will contract charge accordingly. with private sector services to locate, (c) Review of records. Only requesters reproduce and disseminate records in who are seeking documents for comresponse to FOIA requests when that is mercial use may be charged for time the most efficient and least costly NSF spends reviewing records to determethod. When doing so, however, NSF mine whether they are exempt from shall ensure that the ultimate cost to mandatory disclosure. It should be the requester is no greater than it noted that charges may be assessed would be if NSF itself had performed only for the initial review; i.e., the rethese tasks. In no case will NSF con- view undertaken the first time NSF tract out responsibilities which the analyzes the applicability of a specific

exemption to a particular record or portion of a record. NSF may not charge for review at the administrative appeal level of an exemption already applied. However, records or portions of records withheld in full under an exemption which is subsequently determined not to apply may be reviewed again to determine the applicability of other exemptions not previously considered. The costs for such a subsequent review would be properly assessable. Where a single class of reviewers is typically involved in the review process, NSF may establish a reasonable agency-wide average and charge accordingly.

(d) Duplication of records. NSF shall establish an average agency-wide, perpage charge for paper copy reproduction of documents. This charge shall represent the reasonable direct costs of making such copies, taking into account the salary of the operators as well as the cost of the reproduction machinery. For copies prepared by computer, such as tapes or printouts, NSF shall charge the actual cost, including operator time, of production of the tape or printout. For other methods of reproduction or duplication, NSF shall charge the actual direct costs of producing the document(s). For photocopies of documents, $0.25 per copy per page will be charged. In practice, if NSF estimates that duplication charges are likely to exceed $25, it shall notify the requester of the estimated amount of fees, unless the requester has indicated in advance his willingness to pay fees as high as those anticipated. Such a notice shall offer a requester the opportunity to confer with agency personnel with the object of reformulating the request to meet his or her needs at a lower cost.

(e) Other charges. It should be noted that complying with requests for special services such as those listed below is entirely at the discretion of NSF. Neither the FOIA nor its fee structure cover these kinds of services. NSF shall recover the full costs of providing services such as those enumerated below to the extent that it elects to provide them:

(1) Certifying that records are true copies;

(2) Sending records by special methods such as express mail.

(1) Restrictions on assessing fees. With the exception of requesters seeking documents for a commercial use, section (4)(A)(iv) of the Freedom of Information Act, as amended, requires NSF to provide the first 100 pages of duplication and the first two hours of search time without charge. Moreover, this section prohibits NSF from charging fees to any requester, including commercial use requesters, if the cost of collecting a fee would be equal to or greater than the fee itself. These provisions work together, so that except for commercial use requesters, NSF would not begin to assess fees until after they had provided the free search and reproduction. For example, for a request that involved two hours and ten minutes of search time and resulted in 105 pages of documents, NSF will determine the cost of only 10 minutes of search time and only five pages of reproduction. If this cost was equal to or less that the cost to the agency of billing the requester and processing the fee collected, no charges would result. The elements to be considered in determining the "cost of collecting a fee," are the administrative costs to the NSF of receiving and recording a requester's remittance, and processing the fee for deposit in the Treasury Department's special account (or the NSF's account if the agency is permitted to retain the fee). The pertransaction cost to the Treasury to handle such remittances is negligible and shall not be considered in the NSF's determination. For purposes of these restrictions on assessment of fees, the word "pages" refers to paper copies of a standard agency size which will normally be “81/2 x 11" or "11 by 14.” Thus, requesters would not be entitled to 100 microfiche or 100 computer disks, for example. A microfiche containing the equivalent of 100 pages or 100 pages of computer printout, however, might meet the terms of the restriction. Similarly, the term "search time" in this context has as its basis manual search. To apply this term to searches made by computer, NSF shall determine the hourly cost of operating the central processing unit and the operator's hourly salary plus 16 percent. When the cost of the search (including the operator time and the cost of operating the computer to process a request) equals the equivalent dollar amount of two hours of the salary of the person performing the search, i.e., the operator, NSF shall begin assessing charges for computer search. (52 FR 43074, Nov. 9, 1987, as amended at 56 FR 47417, Sept. 19, 1991) 8612.11 Fees to be charged-cat.

egories of requesters. There are four categories of FOIA requesters: Commercial use requesters; educational and non-commercial scientific institutions; representatives of the news media; and all other requesters. The Act prescribes specific levels of fees for each of these categories:

(a) Commercial use requesters. When a request for documents for commercial use is received, NSF shall assess charges which recover the full direct cost of searching for, reviewing for release, and duplicating the records sought. Requesters must reasonably describe the records sought. Commercial use requesters are not entitled to two hours of free search time nor 100 free pages of reproduction of documents. NSF may recover the cost of searching for and reviewing records even if there is ultimately no disclosure of records (see 8612.12(b) of this

100 pages. To be eligible for inclusion in this category a requester must meet the criteria in 8612.9(j) of this part, and his request must not be made for a 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. NSF shall charge requesters who do not fit into any of the categories above fees which 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 two hours of search time shall be furnished without charge. Moreover, requests from record subjects for records about themselves filed in NSF's systems of records will continue to be treated under the fee provisions of the Privacy Act of 1974 which permit fees only for reproduction. Requesters must reasonably describe the records sought. (52 FR 43075, Nov. 9, 1987, as amended at 56 FR 47417, Sept. 19, 1991)

Dart).

(b) Educational and non-commercial scientific institution requesters. NSF shall provide documents to requesters in this category 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 as authorized by and under the auspices of a qualifying institution and that the records are not sought for a commercial use, but are sought in furtherance of scholarly (if the request is from an educational institution) or scientific (if the request is from a noncommercial scientific institution) research. Requesters must reasonably describe the records sought.

(c) Requesters who are representatives of the news media. NSF shall provide documents to requesters in this category for the cost of reproduction alone, excluding charges for the first

$612.12 Administrative actions to im

prove assessment and collection of

fees. NSF shall ensure that procedures for assessing and collecting fees are applied consistently and uniformly by all components. To do so, NSF amends its FOIA regulations to conform to the provisions of this Fee Schedule and Guidelines, especially including the following elements:

(a) Charging interest-notice and rate. NSF may begin assessing interest charges on an unpaid bill starting on the 31st day following the day on which the billing was sent. NSF shall ensure that their accounting procedures are adequate to properly credit a requester who has remitted the full amount within the time period. The fact that the fee has been received by the agency, even if not processed, will suffice to stay the accrual of interest. 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.

(b) Charges for unsuccessful search. NSF may assess charges for time spent

searching, even if NSF fails to locate charges in the case of requesters with the records or if records located are de- no history of payment; or termined to be exempt from disclosure. (2) A requester has previously failed In practice, if NSF estimates that to pay a fee charged in a timely fashion search charges are likely to exceed $25, (i.e. within 30 days of the date of the it shall notify the requester of the esti- billing), NSF may require the requester mated amount of fees, unless the re- to pay the full amount owed plus any quester has indicated in advance his applicable interest as provided above willingness to pay fees as high as those or demonstrate that he has, in fact, anticipated. Such a notice shall offer paid the fee, and to make an advance the requester the opportunity to confer payment of the full amount of the estiwith agency personnel with the object mated fee before the NSF begins to of reformulating the request to meet process a new request or a pending rehis or her needs at a lower cost.

quest from that requester. (c) Aggregating requests. Except for re- (e) When NSF acts under paragraph quests that are for a commercial use, (d) (1) or (2) of this section, the adminNSF shall not charge for the first two

istrative time limits prescribed in subhours of search time or for the first 100 section (a)(6) of the FOIA (i.e., 10 workpages of reproduction. However, a re ing days from receipt of initial requester may not file multiple requests

quests and 20 working days from reat the same time, each seeking por- ceipt of appeals from initial denial, tions of a document or documents,

plus permissible extensions of these solely in order to avoid payment of

time limits) will begin only after NSF fees. When NSF reasonably believes

has received fee payments described that a requester or, on rare occasions,

above. a group of requesters acting in concert, (52 FR 43076, Nov. 9, 1987) is attempting to break a request down into a series of requests for the purpose 8612.13 Waivers or reductions. of evading the assessment of fees, NSF (a) Employees of the National may aggregate any such requests and Science Foundation are encouraged to charge accordingly. One element to be waive fees whenever the statutory fee considered in determining whether a waiver standard is met. However, embelief would be reasonable is the time ployees are expected to respect the balperiod in which the requests have oc- ance drawn in the statute, safeguardcurred. For example, it would be rea- ing federal funds by granting waivers sonable to presume that multiple re or reductions only where it is deterquests of this type made within a rel- mined that the following statutory atively short period had been made to standard is satisfied: avoid fees. For requests made over a longer period, however, such a pre

Documents shall be furnished without any

charge or at a charge reduced below the fees sumption becomes harder to sustain

established under clause (ii) if disclosure of and NSF should have a basis for deter

the information is in the public interest bemining that aggregation is warranted cause it is likely to contribute significantly in such cases.

to public understanding of the operations or (d) Advance payments. NSF shall not activities of the government and is not prirequire a requester to make an advance

marily in the commercial interest of the repayment, i.e., payment before work is

quester. commenced or continued on a request, (b) NSF will employ the following six unless:

factors in determining when FOIA fees (1) The NSF estimates or determines should be waived or reduced: that allowable charges that a requester (1) The subject of the request: Whethmay be required to pay are likely to er the subject of the requested records exceed $250. Then, NSF should notify concerns “the operations or activities the requester of the likely cost and ob- of the government”; tain satisfactory assurance of full pay- (2) The informative value of the inment where the requester has a history formation to be disclosed: whether the of prompt payment of FOIA fees, or re- disclosure is "likely to contribute" to quire an advance payment of an an understanding of government operamount up to the full estimated ations or activities;

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