[Federal Register Volume 78, Number 40 (Thursday, February 28, 2013)]
[Proposed Rules]
[Pages 13570-13575]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-04480]


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FEDERAL TRADE COMMISSION

16 CFR Part 4


Freedom of Information Act

AGENCY: Federal Trade Commission (FTC).

ACTION: Proposed rule.

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SUMMARY: The Federal Trade Commission proposes to amend its Rules of 
Practice to update its fee schedule for provision of services in 
disseminating information and records to the public to reflect changes 
in the types of services that are provided, changes in the costs of 
providing services, and to add other fees for new services.

DATES: Comments must be submitted on or before March 29, 2013.

ADDRESSES: Interested parties may file a comment online or on paper, by 
following the instructions in the Request for Comment part of the 
SUPPLEMENTARY INFORMATION section below. Write ``Fee Schedule 
Rulemaking, 16 CFR Part 4.8, Project No. P122102'' on your comment, and 
file your comment online at https://ftcpublic.commentworks.com/ftc/feeschedule, by following the instructions on the web-based form. If 
you prefer to file your comment on paper, mail or deliver your comment 
to the following address: Federal Trade Commission, Office of the 
Secretary, Room H-113 (Annex T), 600 Pennsylvania Avenue NW., 
Washington, DC 20580.

FOR FURTHER INFORMATION CONTACT: G. Richard Gold, Attorney, Office of 
the General Counsel, Federal Trade Commission, 600 Pennsylvania Avenue

[[Page 13571]]

NW., Washington, DC 20580, (202) 326-3355.

SUPPLEMENTARY INFORMATION: The Commission has determined that it is 
necessary to update its fee schedule for provision of services to the 
public, which was last changed in 1998. Since then, the Freedom of 
Information Act (``FOIA'') was amended once in late 2007 by the 
Openness Promotes Effectiveness in our National Government Act of 2007, 
Public Law 110-175, 121 Stat. 2524 (``2007 FOIA Amendments''). The 
Commission proposes to change its fee schedule to implement the 2007 
FOIA Amendments as appropriate. There have also been changes in 
technology and to the costs of providing services over the last decade, 
necessitating revisions to reflect both new and discontinued services 
that the FTC offers the public. The proposed changes will also be 
useful in providing additional notice to the public and to the FTC's 
professional and administrative staff about the procedures governing 
how the agency responds to FOIA requests. The additional guidance will 
supplement and restate the information available at the FOIA page on 
the FTC Web site, http://www.ftc.gov/foia/index.shtm.
    As required by the FOIA, the Commission seeks public comment on the 
proposed revisions to its fee regulations set forth in this document. 
See 5 U.S.C. 552(a)(4)(A)(i). In a separate document published in 
today's Federal Register, the Commission has published final 
regulations to make other related administrative rule changes that do 
not require public comment. For example, those Rule amendments 
establish a new category of public record materials; provide additional 
contact information for the filing of initial FOIA requests; set out 
agency procedures for acknowledging the receipt of a request, the 
proper filing of a request, and the ``cut-off'' date for searches; and 
allow additional time to file FOIA appeals in unusual circumstances.

Request for Comments

    You can file a comment online or on paper. For the Commission to 
consider your comment, we must receive it on or before March 29, 2013. 
Write ``FOIA Fee Rulemaking, 16 CFR Part 4.8, Project No. P122102'' on 
your comment. Your comment--including your name and your state--will be 
placed on the public record of this proceeding, including, to the 
extent practicable, on the public Commission Web site, at http://www.ftc.gov/os/publiccomments.shtm. As a matter of discretion, the 
Commission tries to remove individuals' home contact information from 
comments before placing them on the Commission Web site.
    Because your comment will be made public, you are solely 
responsible for making sure that your comment does not include any 
sensitive personal information, like anyone's Social Security number, 
date of birth, driver's license number or other state identification 
number or foreign country equivalent, passport number, financial 
account number, or credit or debit card number. You are also solely 
responsible for making sure that your comment does not include any 
sensitive health information, like medical records or other 
individually identifiable health information. In addition, do not 
include any ``trade secret or any commercial or financial information 
which is obtained from any person and which is privileged or 
confidential,'' as provided in Section 6(f) of the FTC Act, 15 U.S.C. 
46(f). See also FTC Rule 4.10(a)(2), 16 CFR 4.10(a)(2). In particular, 
do not include competitively sensitive information such as costs, sales 
statistics, inventories, formulas, patterns, devices, manufacturing 
processes, or customer names.
    If you want the Commission to give your comment confidential 
treatment, you must file it in paper form, with a request for 
confidential treatment, and you have to follow the procedure explained 
in FTC Rule 4.9(c), 16 CFR 4.9(c).\1\ Your comment will be kept 
confidential only if the FTC General Counsel, in his or her sole 
discretion, grants your request in accordance with the law and the 
public interest.
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    \1\ In particular, the written request for confidential 
treatment that accompanies the comment must include the factual and 
legal basis for the request, and must identify the specific portions 
of the comment to be withheld from the public record. See 16 CFR 
4.9(c).
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    Postal mail addressed to the Commission is subject to delay due to 
heightened security screening. As a result, we encourage you to submit 
your comments online. To make sure that the Commission considers your 
online comment, you must file it at https://ftcpublic.commentworks.com/ftc/feeschedule, by following the instructions on the web-based form. 
If this Notice appears at http://www.regulations.gov, you also may file 
a comment through that Web site.
    If you file your comment on paper, write FOIA Fee Rulemaking, 16 
CFR Part 4.8, Project No. P122102 on your comment and on the envelope, 
and mail or deliver it to the following address: Federal Trade 
Commission, Office of the Secretary, Room H-113 (Annex T), 600 
Pennsylvania Avenue NW., Washington, DC 20580. If possible, submit your 
paper comment to the Commission by courier or overnight service.
    Visit the Commission Web site at http://www.ftc.gov to read this 
Notice and the news release describing it. The FTC Act and other laws 
that the Commission administers permit the collection of public 
comments to consider and use in this proceeding as appropriate. The 
Commission will consider all timely and responsive public comments that 
it receives on or before March 29, 2013. You can find more information, 
including routine uses permitted by the Privacy Act, in the 
Commission's privacy policy, at http://www.ftc.gov/ftc/privacy.htm.

Proposed Changes to Fee Regulation

    The Freedom of Information Reform Act of 1986 (``FOIA Reform Act'') 
charged the Office of Management and Budget (``OMB'') with 
responsibility for promulgating, pursuant to notice and comment, 
guidelines containing a uniform schedule of fees for individual 
agencies to follow when promulgating their FOIA fee regulations. 5 
U.S.C. 552(a)(4)(A)(i). On March 27, 1987, the OMB issued its Uniform 
Freedom of Information Act Fee Schedule and Guidelines (``OMB Fee 
Guidelines'').\2\ OMB issued guidance therein as directed but also 
concluded that issuance of a government-wide fee schedule was precluded 
by language of FOIA Reform Act requiring ``each agency's fees to be 
based upon its direct reasonable operating costs of providing FOIA 
services.'' See 52 FR at 10015. The FOIA Reform Act mandated that 
agencies conform their fee schedules to these guidelines. The 
guidelines specifically direct that ``[a]gencies should charge fees 
that recoup the full allowable direct costs they incur.'' Id. at 10018.
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    \2\ Office of Management and Budget: The Freedom of Information 
Reform Act of 1986; Uniform Freedom of Information Act Fee Schedule 
and Guidelines, 52 FR 10012 (March 27, 1987).
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    In Rule 4.8(a)(2), 16 CFR 4.8(a)(2), the Commission proposes to 
clarify that the term ``duplication'' includes the process of 
converting paper to electronic format (if requested by the requester 
and readily reproducible in that form). The Commission also proposes to 
clarify that allowable ``direct costs,'' like operator time, can be 
charged in all instances for commercial requesters, and in some 
instances for other types of requesters, but only after the amount 
actually converted from paper to electronic format exceeds the 
equivalent of 100 free pages that those requesters are

[[Page 13572]]

entitled to receive under the OMB Guidelines.
    In Rule 4.8(a)(3), 16 CFR 4.8(a)(3), the Commission proposes to add 
that review costs are recoverable even if a record ultimately is not 
disclosed.
    In Rule 4.8(a)(4), 16 CFR 4.8(a)(4), the Commission proposes to 
expand the definition of ``direct costs'' to incorporate pre-existing 
guidance from the OMB Fee Guidelines.
    In Rule 4.8(b), 16 CFR 4.8(b), the Commission proposes to clarify 
that the fee charges set out in this section apply unless the requester 
establishes the applicability of a public interest fee waiver pursuant 
to Sec.  4.8(e). The Commission also includes a chart summarizing the 
types of charges that apply to requester categories set out later in 
paragraphs (b)(1)-(b)(3).
    In Rule 4.8(b)(2), 16 CFR 4.8(b)(2), the Commission proposes to 
amend the definitions for ``representative of the news media'' to 
implement the definition codified at 5 U.S.C. 552(a)(4)(A)(ii) by the 
2007 FOIA Amendments. The Commission also proposes amending the 
definition of ``educational institution'' to more closely comport with 
Section 6(h) of the 1987 OMB Fee Guidelines: 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 of the 
institution, not an individual goal.
    In Rule 4.8(b)(4), 16 CFR 4.8(b)(4), the Commission proposes 
revising the waiver of small charges section from those that do not 
exceed $14 to those under $25. Under the Federal Claims Collection 
Standards, 31 CFR 900-904, the Commission is obligated to refer FOIA 
fee debts that are overdue more than 180 days to the Financial 
Management Services (``FMS'') at the Department of Treasury. However, 
FMS does not typically pursue repayment for any debts that are under 
$25 except for certain situations set out by FMS regulations.\3\ The 
Commission believes that the FTC should not charge any fees that the 
Department of Treasury will not attempt to collect.
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    \3\ See 31 CFR 285.12(c)(4), which reads as follows:
    Agencies are not required to transfer to FMS debts which are 
less than $25 (including interest, penalties, and administrative 
costs), or such other amount as FMS may determine. Agencies may 
transfer debts less than $25 to FMS if the creditor agency, in 
consultation with FMS, determines that transfer is important to 
ensure compliance with the agency's policies or programs. Agencies 
may combine individual debts of less than $25 owed by the same 
debtor for purposes of meeting the $25 threshold.
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    In Rule 4.8(b)(5), 16 CFR 4.8(b)(5), the Commission proposes to 
clarify that this section's reference to materials that are not subject 
to the fee provisions of Rule 4.8 and that are available without charge 
are public record materials.
    Rule 4.8(b)(6), 16 CFR 4.8(b)(6), contains the Commission's uniform 
schedule of fees that applies to records held by all constituent units 
of the Commission and to all requests made for materials on the public 
record and those made under the FOIA and the Privacy Act of 1974, 5 
U.S.C. 552a. Periodically, the Commission reviews that rule to update 
those fees to reflect its current costs. The Commission proposes 
changes to update the schedule to reflect current costs and types of 
products and services provided.
    The Commission proposes adding new fee categories for the provision 
of compact discs (``CDs''), DVDs, and videotape cassettes, which are 
now used more extensively in sending data to FOIA requesters. The 
Commission has also discontinued providing most microfiche services, 
and the section relating to those fees is being revised to reflect 
this. For example, the Commission no longer converts paper records into 
electronic fiche format. The Commission's Consumer Response Center no 
longer converts microfiche records into paper. However, the 
Commission's Library currently has two microfiche/film reader/printers, 
and patrons may photocopy or print from these machines at the rate of 
$0.14 per page.
    Most of the microfiche/film files are stored and managed off-site 
by two contractors, Iron Mountain Archival Services and the National 
Archive and Records Administration's Washington National Records 
Center. The fees that the FTC charges the public for the conversion of 
such files into paper are in accordance with the terms of the FTC's two 
contracts, which were awarded after open and transparent General 
Services Administration bidding processes. The OMB Fee Guidelines 
encourage gencies ``to contract with private sector services to locate, 
reproduce and disseminate records in response to FOIA Requests when 
that is the most efficient and least costly method. When doing so * * * 
agencies should ensure that the ultimate cost to the requester is no 
greater than it would be if the agency itself had performed these 
tasks.'' See 52 FR at 10018. The Commission has determined that the 
fees incurred by the requesters are no greater for the services that 
Iron Mountain performs than they would be if the Commission staff 
itself performed these tasks.
    Additionally, the Commission proposes to update fees for Express 
Mail delivery services and certification services to reflect current 
actual costs. Section 7(e) of the OMB Fee Guidelines indicates that 
``[n]either the FOIA nor its fee structure cover these kinds of 
services [and] [a]gencies should recover the full costs of providing 
services * * * to the extent that they elect to provide them.'' See 52 
FR at 10018. Postal Service rates tend to change frequently. Therefore, 
the proposed rule would no longer list a specific Postal Service rate, 
but would instead state that current U.S. Postal Service market rates 
will be charged for Express Mail delivery. Fees for certification 
services, which authenticate documents as being true and proper 
Commission records, would be raised under the proposed rule to cover 
the increased costs of attorney and clerical staff time in preparing 
such records for certification.
    In Rule 4.8(b)(6), 16 CFR 4.8(b)(6), the Commission proposes 
further clarifying that duplication costs include the quarterly hour 
time that staff spends operating the duplicating machinery that 
converts paper to electronic format by scanning or other means. 
Commercial requesters are charged the direct costs associated with 
converting paper copies to electronic format. Other categories of 
requesters are charged the direct costs after they receive records 
equal to 100 pages of paper (e.g., a computer disc with 100 pages of 
information).
    In Rule 4.8(b)(7), to be codified as 16 CFR 4.8(b)(7), the 
Commission proposes inserting the FOIA statutory mandate that certain 
search fees will not be assessed for responses that fail to comply with 
the time limits in which to respond to a FOIA request, provided at 5 
U.S.C. 552(a)(4)(A)(viii) and 16 CFR 4.11(a)(1)(ii).
    In Rule 4.8(c)-(e), 16 CFR 4.8(c) through (e), the Commission 
proposes to add language that merely clarifies the information needed 
to determine fees, to establish an agreement to pay fees, and the 
standards for public interest fee waivers. In particular, the 
Commission proposes to clarify in Rule 4.8(c), the procedures for 
appealing fee category and fee waiver determinations.
    In Rule 4.8(d), 16 CFR 4.8(d), relating to procedures for 
establishing an agreement to pay fees, if the agreement is absent and 
the estimated fees exceed $25.00, the requester will be advised of the 
estimated fees and the request will not be processed until the 
requester agrees to pay such fees. If the requester does not respond to 
the notification that the estimated fees exceed $25.00 within

[[Page 13573]]

10 days from the date of the notification, the request will be closed.
    Lastly, the Commission proposes to revise Rule 4.8(k), 16 CFR 
4.8(k), to reflect amendments made by the Debt Collection Improvements 
Act of 1996 (Pub. L. 104-134), which require agencies under the Federal 
Claims Collection Standards cited earlier to attempt to collect 
administratively established debts, such as FOIA fees, when bills are 
more than 30 days and up to 180 days past due. Also, the FCSS does not 
limit the agency's ability to pursue other authorized remedies such as 
alternative dispute resolutions and arbitration, and the Commission is 
including provisions for such remedial procedures. As previously noted, 
the Debt Collection Improvement Act of 1996 requires the Commission to 
forward all such debts, with certain exceptions, that are still unpaid 
after 180 days to the Department of Treasury for further debt 
collection efforts.

Proposed Change to Fee Section in Rule 4.11

    There is a proposed new insert for Rule 4.11(a)(3)(i)(A)(3), which 
provides the explicit right to appeal fee waiver determinations and 
includes a clear deadline for filing the appeal.
    The Commission believes that the proposed Rule amendments do not 
require an initial regulatory analysis under the Regulatory Flexibility 
Act because the amendments will not have a significant economic impact 
on a substantial number of small entities. See 5 U.S.C. 605(b). Most 
requests for access to FTC records are filed by individuals, who are 
not ``small entities'' within the meaning of that Act, 5 U.S.C. 601(6), 
and, in any event, the economic impact of the rule changes on all 
requesters is expected to be minimal, if any. Moreover, these proposed 
rule amendments are matters of agency practice and procedure that are 
exempt from notice-and-comment requirements of the Administrative 
Procedure Act, 5 U.S.C. 553(b), which also exempts the proposed 
amendments from the analysis requirements of the Regulatory Flexibility 
Act. Likewise, the proposed amendments do not contain information 
collection requirements within the meaning of the Paperwork Reduction 
Act, 44 U.S.C. 3501-520. The Commission nonetheless solicits comments 
on any economic and regulatory impact of the proposed rule; paperwork 
requirements, if any, that commenters believe the amendments are 
believed to impose upon private persons; and possible regulatory 
alternatives to reduce the amendments' economic impact, if any, while 
fully implementing the statutory mandate. The Commission will consider 
any such comments before promulgating the amendments in final form.

List of Subjects in 16 CFR Part 4

    Administrative practice and procedure, Freedom of Information Act.

    For the reasons set forth in the preamble, the Federal Trade 
Commission proposes to amend Title 16, Chapter I, Subchapter A of the 
Code of Federal Regulations as follows:

PART 4--MISCELLANEOUS RULES

0
1. The authority citation for part 4 continues to read as follows:

    Authority: Sec. 6, 38 Stat. 721; 15 U.S.C. 46.
0
2. Amend Sec.  4.8 by revising paragraphs (a)(2) through (4), (b) 
introductory text, (b)(2) through (6), by adding paragraph (b)(7), and 
by revising paragraphs (c) through (f) and (k) to read as follows:


Sec.  4.8  Costs for obtaining Commission records.

    (a) * * *
    (2) The term duplication refers to the process of making a copy of 
a document for the purpose of releasing that document in response to a 
request for Commission records. Such copies can take the form of paper 
copy, microform, audio-visual materials, or machine readable 
documentation such as magnetic tape or computer disc. For copies 
prepared by computer and then saved to a computer disc, the Commission 
charges the direct costs, including operator time, of production of the 
disc or printout if applicable. Where paper documents must be scanned 
in order to comply with a requester's preference to receive the records 
in an electronic format, the requester shall pay the direct costs 
associated with scanning those materials. As set out in paragraph (b) 
of this section, certain requesters do not pay for direct costs 
associated with duplicating the first 100 pages.
    (3) The term review refers to the examination of documents located 
in response to a request to determine whether any portion of such 
documents may be withheld, and the redaction or other processing of 
documents for disclosure. Review costs are recoverable from commercial 
use requesters even if a record ultimately is not disclosed. Review 
time includes time spent considering formal objections to disclosure 
made by a business submitter but does not include time spent resolving 
general legal or policy issues regarding the release of the document.
    (4) The term direct costs means expenditures that the Commission 
actually incurs in processing requests. Direct costs include the salary 
of the employee performing work (the basic rate of pay for the employee 
plus 16 percent of that rate to cover benefits) and the cost of 
operating duplicating machinery. Not included in direct costs are 
overhead expenses such as costs of document review facilities or the 
costs of heating or lighting such a facility or other facilities in 
which records are stored. The direct costs of specific services are set 
forth in paragraph (b)(6) of this section.
    (b) Fees. User fees pursuant to 31 U.S.C. 9701 and 5 U.S.C. 552(a) 
shall be charged according to this paragraph, unless the requester 
establishes the applicability of a public interest fee waiver pursuant 
to paragraph (e) of this section. The chart summarizes the types of 
charges that apply to requester categories set out in paragraphs (b)(1) 
through (3) of this section.

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                                    Fee charged for all  Fee charged for all
       Requester categories             search time          review time              Duplication charges
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Commercial.......................  Fee.................  Fee................  Fee charged for all duplication.
Educational, Non-commercial        No charge...........  No charge..........  No charge for first 100 pages.
 Scientific Institution, or News
 Media.
Other (General Public)...........  Fee after two hours.  No charge..........  No charge for first 100 pages.
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* * * * *
    (2) Educational requesters, non-commercial scientific institution 
requesters, and representative of the news media. Requesters in these 
categories will be charged for the direct costs to duplicate documents, 
excluding charges for the first 100 pages.

[[Page 13574]]

    (i) An educational institution is 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. 
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 sought to further the scholarly 
research of the institution and are not sought for a commercial or an 
individual use or goal.
    (ii) A non-commercial scientific institution is an institution that 
is not operated on a commercial basis as that term is referenced in 
paragraph (b)(1) of this section, and that is operated solely to 
conduct scientific research the results of which are not intended to 
promote any particular product or industry.
    (iii) A representative of the news media is any person or entity 
that gathers information of potential interest to a segment of the 
public, uses its editorial skills to turn the raw materials into a 
distinct work, and distributes that work 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 where 
they can qualify as disseminators of news) who make their products 
available for purchase by or subscription by the general public or free 
distribution to the general public. These examples are not intended to 
be all-inclusive. As traditional methods of news delivery evolve (e.g., 
electronic dissemination of newspapers through telecommunications 
services), such alternative media shall be considered to be news-media 
entities. A freelance journalist shall be regarded as working for a 
news-media entity if the journalist can demonstrate a solid basis for 
expecting publication through that entity, whether or not the 
journalist is actually employed by the entity. A publication contract 
would provide a solid basis for such an expectation, but the past 
publication record of a requester may also be considered in making such 
a determination.
    (3) Other requesters. Other requesters not described in paragraphs 
(b)(1) or (2) will be charged for the direct costs to search for and 
duplicate documents, except that the first 100 pages of duplication and 
the first two hours of search time shall be furnished without charge.
    (4) Waiver of small charges. Notwithstanding the provisions of 
paragraphs (b)(1), (2), and (3) of this section, charges will be waived 
if the total chargeable fees for a request are under $25.00.
    (5) Materials available without charge. These provisions do not 
apply to recent Commission decisions and other public materials that 
may be made available to all requesters without charge while supplies 
last.
    (6) Schedule of direct costs. The following uniform schedule of 
fees applies to records held by all constituent units of the 
Commission:

------------------------------------------------------------------------
 
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Duplication:
    Paper to paper copy (up    $0.14 per page.
     to 8.5 x
     14).
    Converting paper into      Quarterly hour rate of operator
     electronic format          (Clerical, Other Professional, Attorney/
     (scanning).                Economist).
Electronic Services:
    Preparing electronic       $10.00 per qtr. hour.
     records and media.
    Compact disc (CD)........  $3.00 per disc.
    DVD......................  $3.00 per disc.
    Videotape cassette.......  $2.00 per cassette.
Microfilm Services:
    Conversion of existing     $0.14 per page.
     fiche/film to paper.
Other Fees:
    Certification............  $25.00 each.
    Express Mail.............  U.S. Postal Service Market Rates.
    Records maintained at      Contract Rates.
     Iron Mountain or
     Washington National
     Records Center
     facilities (records
     retrieval, refiling, et
     cetera).
    Other Services as they     Market Rates.
     arise.
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    Note to paragraph (b)(6): Search, review and duplication fees. 
Agency staff is divided into three categories: clerical, attorney/
economist, and other professional. Fees for search and review 
purposes, as well the costs of operating duplication machinery such 
as converting paper to electronic format (scanning), are assessed on 
a quarter-hourly basis, and are determined by identifying the 
category into which the staff member(s) conducting the search or 
review or duplication procedure belong(s), determining the average 
quarter-hourly wages of all staff members within that category, and 
adding 16 percent to reflect the cost of additional benefits 
accorded to government employees. The exact fees are calculated and 
announced periodically and are available from the Consumer Response 
Center, Federal Trade Commission, 600 Pennsylvania Avenue NW., 
Washington, DC 20580; (202) 326-2222.

    (7) Untimely responses. Search fees will not be assessed for 
responses that fail to comply with the time limits in which to respond 
to a Freedom of Information Act request, provided at 5 U.S.C. 
552(a)(4)(A)(viii) and Sec.  4.11(a)(1)(ii), and if there are no 
unusual or exceptional circumstances, as those terms are defined by 5 
U.S.C. 552(a)(6) and Sec.  4.11(a)(1)(ii). Duplication fees will not be 
assessed for an untimely response, where there are no unusual or 
exceptional circumstances, made to a requester qualifying for one of 
the fee categories set forth in paragraph (b)(2) of this section.
    (c) Information to determine fees. Each request for records shall 
set forth whether the request is made for non-commercial purposes or 
whether the requester is an educational institution, a noncommercial 
scientific institution, or a representative of the news media. The 
deciding official (as designated by the General Counsel) will use this 
information, any additional information provided by the requester, and 
any other relevant information to determine the appropriate fee 
category in which to place the requester. See Sec.  4.11(a)(3)(i)(A)(3) 
of this chapter for procedures on appealing fee category and fee waiver 
determinations.
    (d) Agreement to pay fees. (1) Each request that does not contain 
an application for a fee waiver as set forth in Sec.  paragraph (e) of 
this section shall specifically indicate that the requester will 
either:

[[Page 13575]]

    (i) Pay, in accordance with paragraph (b) of this section, whatever 
fees may be charged for processing the request; or
    (ii) Pay such fees up to a specified amount, whereby the processing 
of the request would cease once the specified amount has been reached.
    (2) Each request that contains an application for a fee waiver 
shall specifically indicate whether the requester, in the case that the 
fee waiver is not granted, will:
    (i) Pay, in accordance with paragraph (b) of this section, whatever 
fees may be charged for processing the request;
    (ii) Pay fees up to a specified amount, whereby the processing of 
the request would cease once the specified amount has been reached; or
    (iii) Not pay fees, whereby the processing of the request will 
cease at the point fees are to be incurred in accordance with paragraph 
(b) of this section.
    (3) If the agreement required by this section is absent, and if the 
estimated fees exceed $25.00, the requester will be advised of the 
estimated fees and the request will not be processed until the 
requester agrees to pay such fees. If the requester does not respond to 
the notification that the estimated fees exceed $25.00 within 10 
calendar days from the date of the notification, the request will be 
closed.
    (e) Public interest fee waivers. (1) Procedures. A requester may 
apply for a waiver of fees. The requester shall explain why a waiver is 
appropriate under the standards set forth in this paragraph. The 
application shall also include a statement, as provided by paragraph 
(d) of this section, of whether the requester agrees to pay costs if 
the waiver is denied. The deciding official (as designated by the 
General Counsel) will rule on applications for fee waivers. To appeal 
the deciding official's determination of the fee waiver, a requester 
must follow the procedures set forth in Sec.  4.11(a)(3).
    (2) Standards. (i) The first requirement for a fee waiver is that 
disclosure will likely contribute significantly to public understanding 
of the operations or activities of the government. This requirement 
shall be met if the requester establishes that:
    (A) The subject matter of the requested information concerns the 
operations or activities of the Federal government;
    (B) The disclosure is likely to contribute to an understanding of 
these operations or activities;
    (C) The understanding to which disclosure is likely to contribute 
is the understanding of the public at large, as opposed to the 
understanding of the individual requester or a narrow segment of 
interested persons; (e.g., by providing specific information about the 
requester's expertise in the subject area of the request and about the 
ability and intention to disseminate the information to the public); 
and
    (D) The likely contribution to public understanding will be 
significant.
    (ii) The second requirement for a fee waiver is that the request 
not be primarily in the commercial interest of the requester. This 
requirement shall be met if the requester shows either:
    (A) That the requester does not have a commercial interest that 
would be furthered by the requested disclosure; or
    (B) If the requester does have a commercial interest that would be 
furthered by the requested disclosure, that the public interest in 
disclosure outweighs the identified commercial interest of the 
requester that the disclosure is not primarily in the requester's 
commercial interest.
    (f) Searches that do not yield responsive records. Charges may be 
assessed for search time even if the agency fails to locate any 
responsive records or if it locates only records that are determined to 
be exempt from disclosure.
* * * * *
    (k) Effect of the Debt Collection Act of 1982 (Pub. L. 97-365), as 
amended by the Debt Collection Improvement Act of 1996 (Pub. L. 104-
134). The Commission will pursue repayment, where appropriate, by 
employing the provisions of the Debt Collection Act of 1982, as amended 
by the Debt Collection Improvement Act of 1996, the Federal Claims 
Collection Standards (FCSS), 31 CFR 900-904, and any other applicable 
authorities in collecting unpaid fees assessed under this section, 
including disclosure to consumer reporting agencies and use of 
collection agencies. The FCSS does not limit the agency's ability to 
pursue other authorized remedies such as alternative dispute resolution 
and arbitration.
0
3. In Sec.  4.11, add paragraph (a)(3)(i)(A)(3) to read as follows:


Sec.  4.11.  Disclosure requests.

    (a) * * *
    (3) * * *
    (i) * * *
    (A) * * *
    (3) If an initial request for a fee waiver or reduction is denied, 
the requester may, within 30 days of the date of the letter notifying 
the requester of that decision, appeal such denial to the General 
Counsel. In unusual circumstances, the time to appeal may be extended 
by the General Counsel or his or her designee.
* * * * *

    By direction of the Commission, Chairman Leibowitz not 
participating.
Donald S. Clark,
Secretary.
[FR Doc. 2013-04480 Filed 2-27-13; 8:45 am]
BILLING CODE 6750-01-P