(ii) Advise the requester that a search for responsive records will not be initiated until the requester indicates a willingness to pay assessable costs for the category determined by the naval activity.

(2) Requesters must submit a fee declaration appropriate for these categories:

(i) Commercial requesters must indicate a willingness to pay all search, review, and duplication costs.

(ii) Educational or non-commercial scientific institution or news media representatives. Requesters must indicate a willingness to pay duplication charges in excess of 100 pages, if more than 100 pages of records are desired.

(iii) All others. Requesters must indicate a willingness to pay assessable search and duplication costs if more than 2 hours of search effort or 100 pages of records are desired and the resultant fees will exceed the $15 fee waiver threshold.

(3) If the above conditions are not met, then the request need not be processed and the requester shall be so informed within 10 working days.

(4) As described above, naval activities must be prepared to provide an estimate of assessable fees to the requester. While searches vary among naval activities and an estimate is often difficult prior to an actual search, requesters desiring estimates are entitled to them before committing to a willingness to pay. Should naval activity costs exceed the amount of the estimate or the amount agreed to by the requester, the amount in excess of the estimate or the amount agreed to shall not be charged without the requester's agreement.

(5) A naval activity may not require advance payment of any fee (i.e., payment before work is commenced or continued on a request) unless the requester previously failed to timely pay fees or the agency determined that the fee exceeds $250. A timely fashion is 30 calendar days from the date of billing by the naval activity.

(6) Where a naval activity estimates or determines that allowable charges that a requester may be required to pay are likely to exceed $250, the naval activity should notify the requester of the likely cost and obtain satisfactory

assurance of full payment where the requester has a history of prompt payments, or require an advance payment of an amount up to the full estimated charges for requesters without a history of payment.

(7) Where a requester has previously failed to pay a fee charged in a timely fashion (i.e., within 30 calendar days from the date of the billing), the naval activity may require the requester to pay the full amount owed, plus any applicable interest, or demonstrate that the fee had been paid, and to make an advance payment of the full amount of the estimated fee before the naval activity begins to process a new or pending request. Interest will be at the rate prescribed in 31 U.S.C. 3717 and confirmed with respective accounting and finance offices.

(8) After all work is completed on a request and the documents are ready for release, naval activities may request payment prior to forwarding the documents if there is no payment history on the requester or if the requester has previously failed to pay a fee in a timely fashion (i.e., within 30 calendar days of the billing). If the requester fails to pay in a timely fashion, paragraph (b)(7) of §701.45 applies. Naval activities may not hold documents ready for release pending payment from requesters with a history of prompt payment.

(9) When naval activities act under § 701.45 number (b)(1) through (7), FOIA time limits (10 working days from receipt of initial requests and 20 working days from receipt of appeals, plus permissible extensions of time) begin after the naval activity has received a willingness to pay fees or fee payments, if appropriate.

(10) Naval activities may charge for time spent in searching for records, even if that search fails to locate records responsive to the request. Naval activities may also charge search and review (in the case of commercial requesters) time if records located are determined to be exempt from disclosure. In practice, if the naval activity estimates that search charges are likely to exceed $25, it

shall notify the requester of the estimated amount of fees, unless the requester has indicated in advance a willingness to pay fees up to the estimated amount. Such notice shall offer the requester the opportunity to confer with the naval activity with the object of reformulating the request to meet his or her needs at a lower cost.

§ 701.46 Aggregating requests.

Except for commercial requesters, a naval activity may not charge for the first 2 hours of search time or for the first 100 pages of reproduction. A requester may not file multiple requests at the same time each seeking portions of a document or documents to avoid payment of fees. When a naval activity reasonably believes that a requester or, a group of requesters acting in concert is attempting to break a request into a series of requests to evade fees, the naval activity may aggregate the requests and charge accordingly. In determining whether it is reasonable to aggregate the requests, consider the time period of the requests. For example, it would be reasonable to presume that multiple requests of this type made within a 30-day period had been made to avoid fees. It is harder to make that presumption for requests over a longer time period. Before aggregating requests from more than one requester, naval activities must have a concrete basis to conclude that the requesters are acting in concert to avoid payment of fees. Naval activities may not aggregate multiple requests from one requester on unrelated subjects.

$701.47 Effect of the Debt Collection Act of 1982 (Pub. L. 97-365).

The Debt Collection Act of 1982 (Pub. L. 97-365) provides for a minimum annual rate of interest on overdue debts to the Federal Government. Naval activities may charge an interest penalty for fees outstanding 30 days from the date of billing (the first demand notice). The interest rate shall be as prescribed in 31 U.S.C. 3717. Naval activities should verify the current interest rate with respective accounting and finance offices. After one demand letter has been sent and 30 calendar days have lapsed with no payment, naval activities may submit the debt to the re

(e) Audiovisual documentary materials. Compute search costs as for any other record. Duplication cost is the actual direct cost of reproducing the material, including the wage of the person doing the work. Audiovisual materials provided to a requester need not be in reproducible format or quality.

(f) Other records. Compute direct search and duplication cost for any record not described above as described for audiovisual documentary material.

(g) Costs for special services. Complying with requests for special services is at the discretion of the naval activity. FOIA and its fee structure do not cover these kinds of services. Naval activities may recover the costs of special services asked for by the requester after agreement has been obtained from the requester to pay for one or more of the following services:

(1) Certifying that records are true copies.

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

§ 701.51 FOIA fee remittance/receipt controls.

(a) Naval activities shall implement procedures to track FOIA fee remittances. At a minimum, the tracking system should include the name of the requester, company (if applicable), amount of fee charged (identify by total and breakdown, i.e., $250: $100 search, $50.00 review, $100 reproduction), date and serial number of correspondence to the requester which seeks the fee remittance, date remittance received, number of check, date sent to local disbursing office, and copy of NAVCOMPT Form 2277. This tracking system can be manual or automated and should be designed to iden

tify outstanding FOIA remittances so that follow-up letters can be sent advising the requester that his/her account requires prompt action.

(b) Naval activities shall advise requesters to make their check/money order payable to the Treasurer of the United States. Upon receipt of a check/ money order, the receiving activity shall submit a NAVCOMPT Form 2277, Voucher for Disbursement and/or Collection, and the check/money order to the local disbursing office for processing. "FOIA Receipt Account Number be 3210" shall annotated on the NAVCOMPT Form 2277 when processing all FOIA fees, except those received by Defense Business Operating Fund (DBOF) and non-appropriated funded (NAF) activities.

(c) Remittances received by DBOF activities shall be made payable to the activity and the requester should indicate on the check "FOIA Remittance." The remittance shall be deposited in the DBOF activity account.

(d) Remittances received by NAF activities shall be made payable to the activity and the requester should indicate on the check "FOIA Remittance." The remittance shall be deposited in the NAF activity account.

[56 FR 66574, Dec. 24, 1991, as amended at 59 FR 29723, June 9, 1994]

§ 701.52 Technical data fees.

(a) General. Technical data, recorded information, regardless of the form or method of the recording, of a scientific or technical nature (including computer software documentation). This term does not include computer software or data incidental to contract administration, such as financial and/or management information. information. Technical data requiring release under FOIA, shall be released after the requester pays all reasonable costs for search, duplication, and review of the records to be released.

(b) Definition. Technical data means recorded information, regardless of the form of method of the recording of a scientific or technical nature (including computer software documentation). This term does not include computer software or data incidental to contract administration, such as financial and/ or management information.

(c) Retention of funds. Naval activities shall retain fees received from releasing technical data. The funds shall be available for the same purpose and the same time period as the appropriation from which the costs were incurred in complying with the request. Reasonable costs are the full costs to the Government of rendering the service, or fair market value of the service, whichever is greater. Fair market value shall be determined by commercial rates in the local geographical area. In the absence of a known market value, charges shall be based on recovery of full costs to the Government. The full cost includes all direct and indirect costs to conduct the search and to duplicate records responsive to the request. This cost is different from the direct costs allowable under the FOIA.

(d) Waiver. Naval activities shall waive the payment of costs for technical data when greater than the costs required for release of this same information under FOIA, if:

(1) The request is made by a United States citizen or a United States corporation who certifies that the technical data requested is needed to submit an offer, or determine capability of submitting an offer. The technical data must relate to the product which will be provided to the United States or a contractor with the United States. However, naval activities may require the citizen or corporation to pay a deposit of not more than the cost of complying with the request, which will be refunded upon submission of an offer by the citizen or corporation;

(2) The release of technical data is requested to comply with an international agreement; or,

(3) The naval activity determines that waiver is in the interest of the United States.

(e) Fee rates. (1) Search time is computed as follows:

(i) Manual Search.

Professional and Executive hourly rate of fees are established at actual hourly rate prior to search. A minimum

Subpart E-Indexing, Public In

spection, and Federal Register Publication of Department of the Navy Directives and Other Documents Affecting the Public

SOURCE: 59 FR 46760, Sept. 12, 1994, unless otherwise noted.

§ 701.61 Purpose.

This subpart implements 5 U.S.C. 552(a)(1) and (2) and provisions of Department of Defense Directive 5400.7, May 13, 1988 (32 CFR part 286, 55 FR 53104); Department of Defense Directive 5400.9, December 23, 1974 (32 CFR part 336, 40 FR 4911); and the Regulations of the Administrative Committee of the Federal Register (1 CFR chaps. I and II) by delineating responsibilities and prescribing requirements, policies, criteria, and procedures applicable to:

(a) Publishing the following Department of the Navy documents in the FEDERAL REGISTER:

(1) Certain classes of regulatory, organizational, policy, substantive, and procedural documents required to be published for the guidance of the public;

(2) Certain classes of proposed regulatory documents required to be published for public comment prior to issuance; and

(3) Certain public notices required by law or regulation to be published;

(b) Making available, for public inspection and copying, certain classes of documents having precedential effect on decisions concerning members of the public;

(c) Maintaining current indexes of documents having precedential effect on decisions concerning members of the public, and publishing such indexes or making them available by other means;

(d) Receiving and considering petitions of members of the public for the issuance, revision, or cancellation of regulatory documents of some classes; and

(e) Distributing the FEDERAL REGISTER for official use within the Department of the Navy.

§701.62 Scope and applicability.

This subpart prescribes actions to be executed by, or at the direction of, Navy Department [as defined in $700.104(c) of this chapter] components and specified headquarters activities for apprising members of the public of Department of the Navy regulations, policies, substantive and procedural rules, and decisions which may affect them, and for enabling members of the public to participate in Department of the Navy rulemaking processes in matters of substantial and direct concern to the public. This subpart complements subpart A, which implements Navy-wide requirements for furnishing documents to members of the public upon request. That a document may be published or indexed and made available for public inspection and copying under this instruction does not affect the possible requirement under subpart A for producing it for examination, or furnishing a copy, in response to a request made under that subpart.

§ 701.63 Policy.

In accordance with the spirit and intent of 5 U.S.C. 552, the public has the right to the maximum information concerning the organization and functions of the Department of the Navy. This includes information on the policies and the substantive and procedural rules used by the Department of the Navy in its dealings with the public. In accordance with Department of Defense policy described in 32 CFR part 336, 40 FR 4911, moreover, the public is encouraged to participate in Department of the Navy rulemaking when the proposed rule would substantially and directly affect the public.

§ 701.64 Publication of adopted regulatory documents for the guidance of the public.

(a) Classes of documents to be published. Subject to the provisions of 5 U.S.C. 552(b) which exempt specified matters from requirements for release to the public [see subpart B of this part], the classes of Department of the Navy documents required to be published on a current basis in the FEDERAL REGISTER are listed below.

(1) Naval organization and points of contact-descriptions of the central