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Federal Register / Vol. 86, No. 18 / Friday, January 29, 2021 / Rules and Regulations
85 FR 21118. CPSC received two comments on the NPR. After reviewing the comments, the CSPC is finalizing this rule with modifications.
B. Response to Comments The CPSC received two comments regarding the NPR. The National Archives and Records Administration NARA suggested that paragraphs f and g of 1015.9 should be clarified to further distinguish between the terms fee categories and fee waivers, by removing language that could unintentionally lead to the mistaken inference that agencies have the discretion to waive fees based on requester categories. The CPSC agrees, and therefore, incorporated those comments into 1015.9f and g, by distinguishing between fee waivers and references to free services. The consumer advocacy group, Kids in Danger, in relevant part, recommended that the CPSC should not charge duplication fees for pages redacted in full. The CPSC agrees, and therefore, incorporated those comments into 1015.9e1iv, by noting that CPSC
will not charge a duplication fee for pages redacted in full. Other Kids in Danger comments included a request for CPSC to provide more digital delivery methods, and to provide a faster turnaround for final responses; these comments were not incorporated.
Digital delivery and response turnaround times are outside the scope of this rule; although it should be noted that CPSC already has a digital delivery service that every requester can opt into.

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C. Description of the Final Rule A. Amendments Regarding Fees Direct Costs. The FOIA authorizes agencies to charge certain fees to recover the direct costs of providing FOIA
services. 5 U.S.C. 552a4A. Fee schedules must provide for the recovery of only the direct costs of search, duplication, or review. 5 U.S.C.
552a4Aiv. Under the FOIA, agencies must: Promulgate regulations, pursuant to notice and public comment, specifying the schedule of fees applicable to processing FOIA requests;
establish procedures and guidelines for determining when such fees should be waived or reduced; and conform their fee schedules to the OMB Fee Guidelines. 5 U.S.C. 552a4Ai.
Pursuant to the OMB Fee Guidelines, agencies should charge fees that recoup the full allowable direct costs they incur and shall use the most efficient and least costly methods to comply with requests for documents made under the FOIA. 52 FR 10018.

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Duplication Fees. The final rule amends 1015.9e1 regarding the current regulations on fees that the agency charges for reproducing documents, to reflect CPSC staffs review and the assessment of certain known costs of producing FOIA records for Fiscal Year 2019, and based on current CPSC practices. The OMB Fee Guidelines require agencies to establish an average agency-wide, perpage charge for paper copy reproduction of documents, which shall represent the reasonable direct costs of making such copies, taking into account the salary of the operator as well as the cost of the reproduction machinery. 52 FR
10018. For copies prepared by computer, the OMB Fee Guidelines require agencies to charge the actual cost, including operator time of production of the printout. Id. For other methods of duplication, the OMB Fee Guidelines require agencies to charge the actual direct costs of producing the documents. Id.
Currently, 16 CFR 1015.9e1 sets forth the amount charged for reproducing documents on a standard photocopying machine at $0.10 per page. The final rule amends 1015.9e1 to specify a charge of $0.15 per page for manual photocopies and for computer printouts that are sent from a computer to a printer or photocopier machine. We calculated the fee for manual photocopies and computer printouts using the 2019 basic hourly pay rate of the average grade and step of staff members from the Office of the General Counsel, Division of the Secretariat GCOS, who charged hours for FOIA projects in Fiscal Year 2019
GS 12/4, or $33.52/staff hour, plus 16
percent for the allowable OMB benefit rate; multiplying that amount by the total staff hours within the GCOS that we estimated to be attributable to FOIA
duplication in Fiscal Year 2019 486.45
staff hours; adding the estimated cost of paper and toner used by GCOS staff for computer printouts in Fiscal Year 2019
$9,826; and dividing that number by the corresponding number of pages printed 196,820 pages. CPSC staff estimated the total hours spent by GCOS
staff attributable to FOIA duplication in Fiscal Year 2019, by taking a poll of the FOIA specialists, whose most common response was that they spent 5 percent of their time on duplication.
The final rule amends 1015.9e to clarify that CPSC will not charge a duplication fee for producing records provided to requesters in electronic format. Because converting an electronic file, such as a file in portable document format PDF, and sending it to requesters via electronic mail or the
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FOIA online portal requires minimal operator time and computer and software costs, the agencys actual costs of duplicating these records are de minimis. The final rule also clarifies how the fees for duplication costs will be assessed when records are available only in paper format and must be scanned to comply with a requesters preference to receive records in an electronic format.
Search Fees. The final rule amends 1015.9e2 regarding the current regulations on fees that the agency charges for searches. Pursuant to the OMB Fee Guidelines, for manual searches, whenever feasible, agencies should charge at the salary rate of the employee making the search, consisting of basic pay, plus 16 percent for the allowable OMB benefit rate; however, where a homogenous class of personnel is used exclusively, agencies may establish an average rate for the range of grades typically involved in searching for records. 52 FR 10018. For computer searches, agencies should charge the actual direct cost of providing the service, plus central processing unit CPU time that is directly attributable to searching for responsive records to a FOIA request.
Alternatively, if agencies can do so, they can establish a reasonable agency-wide rate for operator, programmer, and CPU
costs involved in FOIA searches, and charge accordingly. Id.
Currently, 1015.9e2 and3 divide searches into two categories: 1
Searches conducted by clerical staff;
and 2 searches conducted by nonclerical, professional, or managerial staff. The current regulations charge $3.00 per quarter-hour for clerical searches, and $4.90 per quarter-hour for non-clerical searches.
The final rule amends 1015.9e2
to remove the set dollar figures for search fees enumerated in the regulation, and in their place, states that search fees are based on the average grade and step of certain employees who charged hours in this category.
CPSC staff concluded that this revision eliminates the need to update continuously the CPSCs published FOIA fee regulations in accord with General Schedule pay adjustments. This approach is similar to the FOIA fee regulations at several other agencies, such as the Federal Communications Commission and the Securities and Exchange Commission.
Additionally, due to organizational changes in the CPSCs FOIA Office, and how requests are processed, clerical staff members rarely perform searches.
Therefore, the final rule eliminates the category of clerical search fees.

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