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Federal Register / Vol. 86, No. 185 / Tuesday, September 28, 2021 / Rules and Regulations
the following fees unless a waiver or reduction of fees has been granted under paragraph k of this section. Because the fee amounts provided in paragraphs c1 through 3 of this section already account for the direct costs associated with a given fee type, the FMCS will not add any additional costs to charges calculated under this section.
1 Search. i Requests made by educational institutions, noncommercial scientific institutions, or representatives of the news media are not subject to search fees. The FMCS will charge search fees for all other requesters, subject to the restrictions of paragraph d of this section. The Agency may properly charge for time spent searching even if it does not locate any responsive records or if the Agency determines that the records are entirely exempt from disclosure.
ii For each quarter hour spent by personnel searching for requested records, including electronic searches that do not require new programming, the fees will be charged as follows:
A The Agency will charge the direct costs associated with conducting any search that requires the creation of a new computer program to locate the requested records. The Agency will notify the requester of the costs associated with creating such a program, and the requester must agree to pay the associated costs before the costs may be incurred.
B For requests that require the retrieval of records stored by the Agency at a Federal records center operated by the National Archives and Records Administration NARA, the Agency will charge additional costs in accordance with the Transactional Billing Rate Schedule established by NARA.
2 Duplication. The FMCS will charge duplication fees to all requesters, subject to the restrictions of paragraph d of this section. The Agency must honor a requesters preference for receiving a record in a particular form or format where the Agency can readily reproduce it in the form or format requested. Where photocopies are supplied, the Agency will provide one copy per request at cost $0.05 per page. For copies of records produced on tapes, disks, or other media, the FMCS will charge the direct costs of producing the copy, including operator time. Where paper documents must be scanned in order to comply with a requesters preference to receive the records in an electronic format, the requester must also pay the direct costs associated with scanning those materials. For other forms of
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duplication, the Agency will charge the direct costs.
3 Review. The Agency will charge review fees to requesters who make commercial use requests. Review fees will be assessed in connection with the initial review of the record, i.e., the review conducted to determine whether an exemption applies to a particular record or portion of a record. No charge will be made for review at the administrative appeal stage of exemptions applied at the initial review stage. However, if a particular exemption is deemed to no longer apply, any costs associated with the Agencys re-review of the records in order to consider the use of other exemptions may be assessed as review fees. Review fees will be charged at the same rates as those charged for a search under paragraph c1ii of this section.
d Restrictions on charging fees. 1
When the FMCS determines that a requester is an educational institution, non-commercial scientific institution, or representative of the news media, and the records are not sought for commercial use, it will not charge search fees.
2 FMCS cannot charge fees:
i If the Agency fails to comply with the FOIAs time limits in which to respond to a request, it may not charge search fees or, in the instances of requests from requesters described in paragraph d1 of this section, may not charge duplication fees, except as described in paragraphs d2ii through iv of this section.
ii If the Agency has determined that unusual circumstances as defined by the FOIA apply and the Agency provided timely written notice to the requester in accordance with the FOIA, a failure to comply with the time limit shall be excused for an additional 10 days.
iii If the Agency has determined that unusual circumstances, as defined by the FOIA, apply and more than 5,000
pages are necessary to respond to the request, the Agency may charge search fees or, in the case of requesters described in paragraph d1 of this section, may charge duplication fees, if the following steps are taken. The Agency must have provided timely written notice of unusual circumstances to the requester in accordance with the FOIA, and the Agency must have discussed with the requester via written mail, email, or telephone or made not less than three good-faith attempts to do so how the requester could effectively limit the scope of the request in accordance with 5. U.S.C. 552a6, Bii. If the exception in this paragraph d2iii is satisfied, the Agency may
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charge all applicable fees incurred in the processing of the request.
iv If a court has determined that exceptional circumstances exist as defined by the FOIA, a failure to comply with the time limits shall be excused for the length of time provided by the court order.
3 No search or review fees will be charged for a quarter-hour period unless more than half of that period is required for search or review.
4 Except for requesters seeking records for a commercial use, the FMCS
will provide without charge:
i The first 100 pages of duplication or the cost equivalent for other media;
and ii The first two hours of search.
5 No fee will be charged when the total fee, after deducting the 100 free pages or its cost equivalent and the first two hours of search, is equal to or less than $25.00.
e Notice of anticipated fees in excess of $25.00. 1 When the FMCS
determines or estimates that the fees to be assessed in accordance with this section will exceed $25.00, the Agency must notify the requester of the actual or estimated amount of the fees, including a breakdown of the fees for search, review, or duplication, unless the requester has indicated a willingness to pay fees as high as those anticipated. If only a portion of the fee can be estimated readily, the Agency will advise the requester accordingly. If the request is for noncommercial use, the notice will specify that the requester is entitled to the statutory entitlements of 100 pages of duplication at no charge and, if the requester is charged search fees, two hours of search time at no charge, and the notice will advise the requester whether those entitlements have been provided.
2 If the Agency notifies the requester that the actual or estimated fees are in excess of $25.00, the request will not be considered received and further work will not be completed until the requester commits in writing to pay the actual or estimated total fee, or designates some amount of fees the requester is willing to pay, or in the case of a noncommercial use requester who has not yet been provided with the requesters statutory entitlements, designates that the requester seeks only that which can be provided by the statutory entitlements. The requester must provide the commitment or designation in writing and must, when applicable, designate an exact dollar amount the requester is willing to pay.
The FMCS is not required to accept payments in installments.

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