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Federal Register / Vol. 86, No. 18 / Friday, January 29, 2021 / Rules and Regulations Consistent with this recommendation, and consistent with the OMB Fee Guidelines, the final rule distinguishes between manual and computer-based searches.
CPSC will charge manual search fees on a per-quarter-hour basis, and annually calculate and publish on the FOIA web page the exact rate, using the basic hourly pay rate of the average grade and step of CPSC program staff who worked outside of the FOIA Office and who charged hours for FOIA
projects in Fiscal Year 2019 GS 14/7, plus 16 percent for the allowable OMB
benefit rate.
CPSC will charge computer search fees on a per-quarter-hour basis, and annually calculate and publish the exact rate, using the basic hourly pay rate of the average grade and step of GCOS staff who charged hours for FOIA projects in Fiscal Year 2019 GS 12/4, plus 16
percent for the allowable OMB benefit rate. CPSC program staff who work outside of the FOIA Office often conduct FOIA computer searches. The Commission determined that the average grade and step of staff who charged hours for FOIA projects represents a reasonable agency-wide rate for operator costs in this category.
The final rule computer search fee does not include CPU costs, because any agency software or hardware costs directly attributable to searching for responsive records would be difficult to quantify, and likely would be de minimis.
Review Fees. The final rule amends 1015.9e3 regarding fees that the agency charges for the initial review of documents to determine whether any portion of any document may be withheld. The OMB Fee Guidelines permit agencies to establish a reasonable agency-wide average for such costs, where a single class of reviewers is typically involved in the review process. 52 FR 10018.
Currently, 1015.9e4 sets forth the amount charged for review at $4.90 per quarter-hour. The final rule removes the set dollar figure review fee enumerated in the regulation. Instead, CPSC will charge the review fee on a per-quarterhour basis, and annually calculate and publish the exact rate, using the basic hourly pay rate of the average grade and step of GCOS staff who charged hours for FOIA review GS 12/9, plus 16
percent for the allowable OMB benefit rate.
Obsolete Formats. The FOIA requires agencies to provide records in any format requested, if the record is readily reproducible by the agency in that form or format. 5 U.S.C. 552a3B.
Currently, CPSC routinely produces
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records in one of three formats: 1
Computer printout, if under 250 pages;
2 compact disc CD, if more than 250
pages; and 3 electronic files, such as PDF. The final rule clarifies that requesters may request records in paper, CD, or electronic format. The final rule also removes the fee for producing records on microfiche, because this format is obsolete and not routinely produced by the CPSC.
Annual Publication of Fees. The final rule states that CPSC will annually calculate and publish the exact perquarter-hour rates for searching and reviewing records, using the most recent General Schedule table published by the Office of Personnel Management OPM.
In addition, CPSC will annually calculate and publish the actual cost of CDs, DVDs, and other similar media.
CPSC will make exact rates and costs available to the public on the CPSCs FOIA web page. The public can also request information on exact rates and costs from GCOS. The CPSC will annually publish on its FOIA web page the salaries of CPSC employees associated with FOIA searches and reviews, consistent with the FOIA feeposting practice at several other agencies.
Fee Waivers and Fee Categories. The FOIA requires agencies to provide free search and duplication fees for certain categories of requesters in increments of the first 100 pages of duplication and the first 2 hours of search, rather than in dollar amounts. 5 U.S.C.
552a4Aiv. The final rule incorporates more clearly this statutory requirement into 1015.9g, consistent with the OMB Fee Guidelines. 52 FR
10016. Section 1015.9g2 specifies that CPSC will provide for free the first 100 pages of duplication for all noncommercial requesters, consistent with the FOIA and the OMB Fee Guidelines.
The final rule amends 1015.9g3
to specify that CPSC will provide at no cost, the first 2 hours of search time for all requesters to whom search fees apply, except commercial requesters.
Notice of Anticipated Fees. The OMB
Fee Guidelines require agencies to implement procedures for notifying requesters when fees are estimated or determined to exceed $25, and provide those requesters an opportunity to confer with agency staff with the objective of reformulating their request to meet their needs at a lower cost. 52
FR 10018. The CPSCs current FOIA fee regulations lack procedures for providing requesters with notice of anticipated fees in excess of $25 and an opportunity to confer with agency staff.
The final rule amends 1015.9f to provide notice of anticipated fees
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greater than $25, along with the opportunity to confer with staff on costs. The final rule also provides that requesters must commit in writing to pay the actual or estimated fees, or must designate in writing the amount of fees the requester is willing to pay, before the FOIA Office will do further work on a FOIA request.
Restrictions on Assessing Fees. The FOIA and the OMB Fee Guidelines prohibit agencies from charging a fee if the costs of collecting and processing that fee are likely to equal or exceed the fee. 5 U.S.C. 552a4Aiv; 52 FR
1001819. Currently, 1015.9g5
states that the CPSC will not request payment if the requesters total bill is less than $9.00. CPSC staff estimates that the current cost to the agency of collecting and processing a fee is $25.
Accordingly, the final rule deletes 1015.9g5, and adds 1015.9g7, which provides that no fee will be charged when the total fee is equal to or less than $25.
Advance Payment of Fees. The final rule adds 1015.9i, which sets forth provisions for requiring advance payment in certain cases before the production of records. The OMB Fee Guidelines instruct agencies that they cannot require a requester to make an advance payment unless: 1 The agency estimates that the allowable charges the requester may be required to pay are likely to exceed $250, in which case, the agency should notify the requester of the likely cost, and obtain satisfactory assurance of full payment, where the requester has a history of prompt payment of FOIA fees, or require payment of an amount up to the full estimated charges in the case of requesters with no history of payment;
or 2 a requester has previously failed to pay a fee charged in a timely fashion, in which case the agency may require the requester to pay the full amount owed, plus any applicable interest, and to make an advance payment of the full amount of the estimated fee before the agency begins to process a new or pending request. 52 FR 10020.
Currently, 1015.9g3 provides that before the Commission begins processing a request or discloses any information, it will require advance payment if charges are estimated to exceed $250.00 and the requester has no history of payment and cannot provide satisfactory assurance that payment will be made; or a requester failed to pay the Commission for a previous Freedom of Information Act request within 30 days of the billing date. The final rule reflects the language used in the OMB Fee Guidelines. See 52 FR 10020. The final rule also codifies the CPSCs current
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