[Federal Register Volume 78, Number 40 (Thursday, February 28, 2013)]
[Proposed Rules]
[Pages 13570-13575]
From the Federal Register Online via the Government Publishing 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