Title 29
SECTION 4901.31
4901.31 Charges for services.
§ 4901.31 Charges for services.(a) Generally. Pursuant to the provisions of FOIA, as amended, charges will be assessed to cover the direct costs of searching for, reviewing, and/or duplicating records requested under FOIA from the PBGC, except where the charges are limited or waived under paragraph (b) or (d) of this section, according to the fee schedule in § 4901.32 of this part. No charge will be assessed if the costs of routine collection and processing of the fee would be equal to or greater than the fee itself. Except as provided in paragraph (e) of this section, no charge for searching (or in the case of a requester described under 5 U.S.C. 552(a)(4)(A)(ii)(II), for duplication) will be assessed if PBGC has failed to comply with any time limit under 5 U.S.C. 552(a)(6).
(1) Direct costs means those expenditures which the PBGC actually incurs in searching for and duplicating (and in the case of commercial requesters, reviewing) documents to respond to a request under FOIA and this part. Direct costs include, for example, the salary of the employee performing work (i.e., the basic rate of pay plus benefits) or an established average pay for a homogeneous class of personnel (e.g., all administrative/clerical or all professional/executive), and the cost of operating duplicating machinery. Not included in direct costs are overhead expenses such as costs of space, and heating or lighting the facility in which the records are stored.
(2) Search means all time spent looking for material that is responsive to a request under FOIA and this part, including page-by-page or line-by-line identification of materials within a document, if required, and may be done manually or by computer using existing programming. “Search should be distinguished from “review” which is defined in paragraph (a)(3) of this section.
(3) Review means the process of examining documents located in response to a request under FOIA and this part to determine whether any portion of any document located is permitted or required to be withheld. It also includes processing any documents for disclosure, e.g., doing all that is necessary to excise them and otherwise prepare them for release. Review does not include time spent resolving general legal or policy issues regarding the application of exemptions.
(4) Duplication means the process of making a copy of a document necessary to respond to a request under FOIA and this part, in a form that is reasonably usable by the requester. Copies can take the form of paper copy, microform, audio-visual materials, or machine readable documentation (e.g., magnetic tape or disk), among others.
(b) Categories of requesters. Requesters who seek access to records under FOIA and this part are divided into four categories: commercial use requesters, educational and noncommercial scientific institutions, representatives of the news media, and all other requesters. The PBGC will determine the category of a requester and charge fees according to the following rules.
(1) Commercial use requesters. When records are requested for commercial use, the PBGC will assess charges, as provided in this subpart, for the full direct costs of searching for, reviewing for release, and duplicating the records sought. Fees for search and review may be charged even if the record searched for is not found or if, after it is found, it is determined that the request to inspect it may be denied under the provisions of subsection (b) of FOIA and this part.
(i) “Commercial use” request means a request from or on behalf of 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.
(ii) In determining whether a request properly belongs in this category, the PBGC will look to the use to which a requester will put the documents requested. Moreover, where the PBGC 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 PBGC will require the requester to provide clarification before assigning the request to this category.
(2) Educational and noncommercial scientific institution requesters. When records are requested by an educational or noncommercial scientific institution, the PBGC will assess charges, as provided in this subpart, for the full direct cost of duplication only, excluding charges for the first 100 pages.
(i) Educational institution means 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.
(ii) Noncommercial scientific institution means an institution that is not operated on a “commercial” basis as that term is defined in paragraph (b)(1)(i) of this section, 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.
(iii) 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.
(3) Requesters who are representatives of the news media. When records are requested by representatives of the news media, the PBGC will assess charges, as provided in this subpart, for the full direct cost of duplication only, excluding charges for the first 100 pages.
(i) Representative of the news media means any person actively gathering news for an entity that is organized and operated to publish or broadcast news to the public. 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 those instances when they can qualify as disseminators of “news”) who make their products available for purchase or subscription by the general public. These examples are not intended to be all-inclusive. “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.
(ii) To be eligible for inclusion in this category, the request must not be made for a commercial use. A request for records supporting the news dissemination function of the requester who is a representative of the news media shall not be considered to be a request that is for a commercial use.
(4) All other requesters. When records are requested by requesters who do not fit into any of the categories in paragraphs (b)(1) through (b)(3) of this section, the PBGC will assess charges, as provided in this subpart, for the full direct cost of searching for and duplicating the records sought, with the exceptions that there will be no charge for the first 100 pages of duplication and the first two hours of manual search time (or its cost equivalent in computer search time). Notwithstanding the preceding sentence, there will be no charge for search time in the event of requests under the Privacy Act of 1974 from subjects of records filed in the PBGC's systems of records for the disclosure of records about themselves. Search fees, where applicable, may be charged even if the record searched for is not found.
(c) Aggregation of requests. If the PBGC reasonably believes that a requester or group of requesters is attempting to break a request down into a series of requests for the purpose of evading the assessment of fees, the PBGC will aggregate any such requests and charge accordingly. In no case will the PBGC aggregate multiple requests on unrelated subjects from one requester.
(d) Waiver or reduction of charges. Circumstances under which searching, review, and duplication facilities or services may be made available to the requester without charge or at a reduced charge are set forth in § 4901.34 of this part.
(e) Unusual or exceptional circumstances. Notwithstanding paragraph (a) of this section, if PBGC fails to comply with a time limit under 5 U.S.C. 552(a)(6), PBGC may nevertheless assess a charge for searching (or in the case of a requester described under 5 U.S.C. 552(a)(4)(A)(ii)(II), for duplication) if either paragraph (e)(1) or (2) of this section applies:
(1) PBGC has determined that unusual circumstances apply and that more than 5,000 pages are necessary to respond to the request, provided that:
(i) PBGC has provided timely written notice of this determination to the requester; and
(ii) PBGC has discussed with the requester - or made three or more good-faith attempts to do so - via written mail, electronic mail, or telephone how the requester could effectively limit the scope of the request.
(2) A court has determined that exceptional circumstances exist (as defined in 5 U.S.C. 552(a)(6)(C)) and has issued an order excusing PBGC's failure to comply with the time limit.
[61 FR 34123, July 1, 1996, as amended at 82 FR 26992, June 13, 2017]