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Federal Register / Vol. 86, No. 185 / Tuesday, September 28, 2021 / Rules and Regulations decision that upholds the FMCSs determination in whole or in part must contain a statement that identifies the reasons for the affirmance, including any FOIA exemptions applied. The decision must provide the requester with notification of the statutory right to file a lawsuit and will inform the requester of the dispute resolution services offered by the OGIS as a nonexclusive alternative to litigation. If the decision is remanded or modified on appeal, the Deputy Director will notify the requester of that determination in writing. The Office of General Counsel will then further process the request in accordance with that appeal determination and will respond directly to the requester. Alternatively, the Deputy Director may decide to modify the decision and decide the appeal on its merits in a single step.
d Engaging in dispute resolution services provided by OGIS. Dispute resolution is a voluntary process. If the Agency agrees to participate in the dispute resolution services provided by OGIS, the Deputy Director or designee will participate on behalf of the FMCS.
e When appeal is required. Before seeking review by a court of the Agencys adverse determination, a requester generally must first submit a timely administrative appeal.
1401.28

Preservation of records.

The FMCS must preserve all correspondence pertaining to the requests that it receives under this subpart, as well as copies of all requested records, until final disposition of the request case: No sooner than 91 days after the final response is sent to the requester to allow for a timely appeal. The Agency must not dispose of or destroy records while they are the subject of a pending request, appeal, or lawsuit under the FOIA.
1401.29

Fees.

a In general. 1 The FMCS will charge for processing requests under the FOIA in accordance with the provisions of this section and with the OMB
Guidelines. For purposes of assessing fees, the FOIA establishes three categories of requesters:
i Commercial use requesters;
ii Non-commercial scientific or educational institutions or news media requesters; and iii All other requesters.
2 Different fees are assessed depending on the category. Requesters may seek a fee waiver. The Agency will consider requests for fee waivers in accordance with the requirements in subsection k of the FOIA. To resolve
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any fee issues that arise under this section, the FMCS may contact a requester for additional information.
The Agency is to conduct searches, review, and duplication in an efficient and cost-effective manner. The FMCS
ordinarily will collect all applicable fees before sending copies of records to a requester. Requesters must pay fees by check or money order made payable to the Treasury of the United States, or by another method as determined by the Agency.
b Definitions. For purposes of this section:
Commercial use request is a request that asks for information for a use or a purpose that furthers a commercial, trade, or profit interest, which can include furthering those interests through litigation. The FMCSs decision to place a requester in the commercial use category will be made on a case-bycase basis based on the requesters intended use of the information. The Agency will notify requesters of their placement in this category.
Direct costs are those expenses that an agency incurs in searching for and duplicating and, in the case of commercial use requests, reviewing records in order to respond to a FOIA
request. For example, direct costs include the salary of the employee performing the work i.e., the basic rate of pay for the employee, plus 16 percent of that rate to cover benefits and the cost of operating electronic equipment, such as photocopiers and scanners.
Direct costs do not include overhead expenses such as the costs of space, and of heating or lighting a facility.
Duplication is reproducing a copy of a record, or of the information contained in it, necessary to respond to a FOIA
request. Copies can take the form of paper, audiovisual materials, or electronic records, among others.
Educational institution is any school that operates a program of scholarly research. A requester in this fee category must show that the request is made in connection with the requesters role at the educational institution. The FMCS
may seek verification from the requester that the request is in furtherance of scholarly research and will advise requesters of their placement in this category.
Noncommercial scientific institution is an institution that is not operated on a commercial basis, as defined in this paragraph b and that is operated solely for the purpose of conducting scientific research the results of which are not intended to promote any particular product or industry. A requester in this category must show that the request is authorized by and is made under the
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auspices of a qualifying institution and that the records are sought to further scientific research and are not for a commercial use. The FMCS will advise requesters of their placement in this category.
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 an audience. 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 that broadcast news to the public at large and publishers of periodicals that disseminate news and make their products available through a variety of means to the general public, including news organizations that disseminate solely on the internet. A
request for records supporting the newsdissemination function of the requester will not be considered to be for a commercial use. Freelance journalists who demonstrate a solid basis for expecting publication through a news media entity will be considered as a representative of the news media. A
publishing contract would provide the clearest evidence that publication is expected. However, the Agency can also consider a requesters past publication record in making this determination.
The Agency will advise requesters of their placement in this category.
Review is the examination of a record located in response to a request in order to determine whether any portion of it is exempt from disclosure. Review time includes processing any record for disclosure, such as doing all that is necessary to prepare the record for disclosure, including the process of redacting the record and marking the appropriate exemptions. Review costs are properly charged even if a record ultimately is not disclosed. Review time also includes time spent both obtaining and considering any formal objection to disclosure made by a confidential commercial information submitter under 1401.26, but it does not include time spent resolving general legal or policy issues regarding the application of exemptions.
Search is the process of looking for and retrieving records or information responsive to a request. Search time includes page-by-page or line-by-line identification of information within records and the reasonable efforts expended to locate and retrieve information from electronic records.
c Charging fees. In responding to FOIA requests, the Agency will charge
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