Freedom of Information Act, 13570-13575 [2013-04480]

Download as PDF 13570 Federal Register / Vol. 78, No. 40 / Thursday, February 28, 2013 / Proposed Rules srobinson on DSK4SPTVN1PROD with PROPOSALS an interest in these issues may request an opportunity to make an oral presentation. Such persons may handdeliver requests to speak, along with a computer diskette or CD in WordPerfect, Microsoft Word, PDF, or text (ASCII) file format to Ms. Brenda Edwards at the address shown in the ADDRESSES section at the beginning of this notice between 9:00 a.m. and 4:00 p.m. Monday through Friday, except Federal holidays. Requests may also be sent by mail to the address shown in the ADDRESSES section or email to Brenda.Edwards@ee.doe.gov. Persons requesting to speak should briefly describe the nature of their interest in this rulemaking and provide a telephone number for contact. DOE requests persons selected to be heard to submit an advance copy of their statements at least two weeks before the public meeting. At its discretion, DOE may permit any person who cannot supply an advance copy of their statement to participate, if that person has made advance alternative arrangements with the Building Technologies Program. The request to give an oral presentation should ask for such alternative arrangements. C. Conduct of Public Meeting DOE will designate a DOE official to preside at the public meeting and may also employ a professional facilitator to aid discussion. The meeting will not be a judicial or evidentiary-type public hearing, but DOE will conduct it in accordance with section 336 of EPCA. (42 U.S.C. 6306) A court reporter will record the proceedings and prepare a transcript. DOE reserves the right to schedule the order of presentations and to establish the procedures governing the conduct of the public meeting. After the public meeting, interested parties may submit further comments on the proceedings as well as on any aspect of the rulemaking until the end of the comment period. The public meeting will be conducted in an informal conference style. DOE will present summaries of comments received before the public meeting, allow time for presentations by participants, and encourage all interested parties to share their views on issues affecting this rulemaking. Each participant will be allowed to make a prepared general statement (within DOE-determined time limits) prior to the discussion of specific topics. DOE will permit other participants to comment briefly on any general statements. At the end of all prepared statements on a topic, DOE will permit participants to clarify their statements briefly and comment on statements made by others. VerDate Mar<15>2010 16:47 Feb 27, 2013 Jkt 229001 Participants should be prepared to answer questions from DOE and other participants concerning these issues. DOE representatives may also ask questions of participants concerning other matters relevant to this rulemaking. The official conducting the public meeting will accept additional comments or questions from those attending, as time permits. The presiding official will announce any further procedural rules or modification of the above procedures that may be needed for the proper conduct of the public meeting. A transcript of the public meeting will be posted on the DOE Web site and will also be included in the docket, which can be viewed as described in the Docket section at the beginning of this notice. In addition, any person may buy a copy of the transcript from the transcribing reporter. D. Submission of Comments DOE will accept comments, data, and other information regarding this rulemaking before or after the public meeting, but no later than the date provided at the beginning of this notice. Please submit comments, data, and other information as provided in the ADDRESSES section. Submit electronic comments in WordPerfect, Microsoft Word, PDF, or text (ASCII) file format and avoid the use of special characters or any form of encryption. Comments in electronic format should be identified by the Docket Number EERE–2010–BT– STD–0043 and/or RIN 1904–AC36 and, wherever possible, carry the electronic signature of the author. No telefacsimiles (faxes) will be accepted. Pursuant to 10 CFR 1004.11, any person submitting information that he or she believes to be confidential and exempt by law from public disclosure should submit two copies: One copy of the document including all the information believed to be confidential and one copy of the document with the information believed to be confidential deleted. DOE will make its own determination as to the confidential status of the information and treat it according to its determination. Factors of interest to DOE when evaluating requests to treat submitted information as confidential include: (1) A description of the items; (2) whether and why such items are customarily treated as confidential within the industry; (3) whether the information is generally known by or available from other sources; (4) whether the information has previously been made available to others without obligation concerning its confidentiality; (5) an explanation of the competitive injury to PO 00000 Frm 00022 Fmt 4702 Sfmt 4702 the submitting person which would result from public disclosure; (6) a date upon which such information might lose its confidential nature due to the passage of time; and (7) why disclosure of the information would be contrary to the public interest. V. Approval of the Office of the Secretary The Secretary of Energy has approved publication of this notice of public meeting. Issued in Washington, DC, on February 20, 2013. Kathleen B. Hogan, Deputy Assistant Secretary for Energy Efficiency, Energy Efficiency and Renewable Energy. [FR Doc. 2013–04672 Filed 2–27–13; 8:45 am] BILLING CODE 6450–01–P FEDERAL TRADE COMMISSION 16 CFR Part 4 Freedom of Information Act AGENCY: Federal Trade Commission (FTC). ACTION: Proposed rule. 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 SUMMARY: E:\FR\FM\28FEP1.SGM 28FEP1 Federal Register / Vol. 78, No. 40 / Thursday, February 28, 2013 / Proposed Rules 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. srobinson on DSK4SPTVN1PROD with PROPOSALS 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 VerDate Mar<15>2010 16:47 Feb 27, 2013 Jkt 229001 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. 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 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). PO 00000 Frm 00023 Fmt 4702 Sfmt 4702 13571 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. 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 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). E:\FR\FM\28FEP1.SGM 28FEP1 13572 Federal Register / Vol. 78, No. 40 / Thursday, February 28, 2013 / Proposed Rules 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 § 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. srobinson on DSK4SPTVN1PROD with PROPOSALS 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. VerDate Mar<15>2010 16:47 Feb 27, 2013 Jkt 229001 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. PO 00000 Frm 00024 Fmt 4702 Sfmt 4702 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 E:\FR\FM\28FEP1.SGM 28FEP1 Federal Register / Vol. 78, No. 40 / Thursday, February 28, 2013 / Proposed Rules 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 1. The authority citation for part 4 continues to read as follows: ■ Authority: Sec. 6, 38 Stat. 721; 15 U.S.C. 46. 2. Amend § 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: ■ § 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, 13573 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. Fee charged for all search time Fee charged for all review time Duplication charges Commercial ........................................ srobinson on DSK4SPTVN1PROD with PROPOSALS Requester categories Fee ..................................................... Fee ..................................................... Educational, Non-commercial Scientific Institution, or News Media. Other (General Public) ....................... No charge .......................................... No charge .......................................... Fee after two hours ........................... No charge .......................................... Fee charged for all duplication. No charge for first 100 pages. No charge for first 100 pages. * * * * * (2) Educational requesters, noncommercial scientific institution VerDate Mar<15>2010 16:47 Feb 27, 2013 Jkt 229001 requesters, and representative of the news media. Requesters in these categories will be charged for the direct PO 00000 Frm 00025 Fmt 4702 Sfmt 4702 costs to duplicate documents, excluding charges for the first 100 pages. E:\FR\FM\28FEP1.SGM 28FEP1 13574 Federal Register / Vol. 78, No. 40 / Thursday, February 28, 2013 / Proposed Rules (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: Duplication: Paper to paper copy (up to 8.5″ x 14″) ........................................................................................................ Converting paper into electronic format (scanning) ..................................................................................... srobinson on DSK4SPTVN1PROD with PROPOSALS Electronic Services: Preparing electronic records and media ...................................................................................................... Compact disc (CD) ....................................................................................................................................... DVD .............................................................................................................................................................. Videotape cassette ....................................................................................................................................... Microfilm Services: Conversion of existing fiche/film to paper .................................................................................................... Other Fees: Certification ................................................................................................................................................... Express Mail ................................................................................................................................................. Records maintained at Iron Mountain or Washington National Records Center facilities (records retrieval, refiling, et cetera). Other Services as they arise ........................................................................................................................ 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. VerDate Mar<15>2010 16:47 Feb 27, 2013 Jkt 229001 (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 § 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 § 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- PO 00000 Frm 00026 Fmt 4702 Sfmt 4702 $0.14 per page. Quarterly hour rate of operator (Clerical, Other Professional, Attorney/Economist). $10.00 per qtr. hour. $3.00 per disc. $3.00 per disc. $2.00 per cassette. $0.14 per page. $25.00 each. U.S. Postal Service Market Rates. Contract Rates. Market Rates. 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 § 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 § paragraph (e) of this section shall specifically indicate that the requester will either: E:\FR\FM\28FEP1.SGM 28FEP1 srobinson on DSK4SPTVN1PROD with PROPOSALS Federal Register / Vol. 78, No. 40 / Thursday, February 28, 2013 / Proposed Rules (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 § 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 VerDate Mar<15>2010 16:47 Feb 27, 2013 Jkt 229001 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. ■ 3. In § 4.11, add paragraph (a)(3)(i)(A)(3) to read as follows: § 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 PO 00000 Frm 00027 Fmt 4702 Sfmt 4702 13575 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 DEPARTMENT OF THE TREASURY Internal Revenue Service 26 CFR Part 54 [REG–120391–10] RIN 1545–BJ60 Coverage of Certain Preventive Services Under the Affordable Care Act; Correction Internal Revenue Service (IRS), Treasury. AGENCY: ACTION: Correction to proposed rules. This document contains a correction to proposed rules (REG– 120391–10) that was published in the Federal Register on Wednesday, February 6, 2013 (77 FR 8456). The proposed rules propose amendments to rules regarding coverage for certain preventive services under section 2713 of the Public Health Service Act, as added by the Patient Protection and Affordable Care Act, as amended, and incorporated into the Employee Retirement Income Security Act of 1974 and the Internal Revenue Code. SUMMARY: FOR FURTHER INFORMATION CONTACT: Karen Levin at (202) 927–9639 (not a toll free number). SUPPLEMENTARY INFORMATION: Background The proposed rules (REG–120391–10) that is the subject of these corrections is under Section 2713 of the Public Health Service Act. Need for Correction As published, the proposed rules (REG–120391–10) contains an error that may prove to be misleading and is in need of clarification. Correction of Publication Accordingly, the proposed rules (REG–120391–10), that was the subject of FR Doc. 2013–02420, is corrected as follows: E:\FR\FM\28FEP1.SGM 28FEP1

Agencies

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

----------------------------------------------------------------------------------------------------------------
                                    Fee charged for all  Fee charged for all
       Requester categories             search time          review time              Duplication charges
----------------------------------------------------------------------------------------------------------------
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.
----------------------------------------------------------------------------------------------------------------

* * * * *
    (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:

------------------------------------------------------------------------
 
------------------------------------------------------------------------
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.
------------------------------------------------------------------------


    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