§  0.470   Assessment of fees.

   (a)(1) Commercial use requesters. (i) When the Commission receives a
   request for documents for commercial use, it will assess charges that
   recover the full direct cost of searching for, reviewing and
   duplicating the records sought pursuant to § 0.466 and § 0.467.

   (ii) Commercial use requesters shall not be assessed search fees if the
   Commission fails to comply with the time limits under § 0.461(g), except
   as provided in paragraph (a)(1)(iii) of this section.

   (iii) Commercial requesters may still be assessed search fees when the
   Commission fails to comply with the time limits under § 0.461(g) if the
   Commission determines that unusual circumstances apply and more than
   5,000 pages are necessary to respond to the request, so long as the
   Commission has provided a timely written notice to the requester and
   has discussed with the requester (or made not less than three
   good-faith attempts to do so) how the requester could effectively limit
   the scope of the request. Additionally, if a court has determined that
   exceptional circumstances exist, a failure to comply with a time limit
   under § 0.461(g) will be excused for the length of time provided by the
   court order.

   (2) Educational and non-commercial scientific institution requesters
   and requesters who are representatives of the news media. (i) The
   Commission shall provide documents to requesters in these categories
   for the cost of duplication only, pursuant to § 0.465 above, excluding
   duplication charges for the first 100 pages, provided however, that
   requesters who are representatives of the news media shall be entitled
   to a reduced assessment of charges only when the request is for the
   purpose of distributing information.

   (ii) Educational requesters or requesters who are representatives of
   the news media shall not be assessed fees for the cost of duplication
   if the Commission fails to comply with the time limits under § 0.461(g),
   except as provided in paragraph (a)(2)(iii) of this section.

   (iii) Educational requesters or requesters who are representatives of
   the news media may still be assessed duplication fees when the
   Commission fails to comply with the time limits under § 0.461(g) if the
   Commission determines that unusual circumstances apply and more than
   5,000 pages are necessary to respond to the request, so long as the
   Commission has provided a timely written notice to the requester and
   has discussed with the requester (or made not less than three
   good-faith attempts to do so) how the requester could effectively limit
   the scope of the request. Additionally, if a court has determined that
   exceptional circumstances exist, a failure to comply with a time limit
   under § 0.461(g) will be excused for the length of time provided by the
   court order.

   (3) All other requesters. (i) The Commission shall charge requesters
   who do not fit into any of the categories above fees which cover the
   full, reasonable direct cost of searching for and duplicating records
   that are responsive to the request, pursuant to § 0.465 and § 0.467,
   except that the first 100 pages of duplication and the first two hours
   of search time shall be furnished without charge.

   (ii) All other requesters shall not be assessed search fees if the
   Commission fails to comply with the time limits under § 0.461(g), except
   as provided in paragraph (a)(3)(iii) of this section.

   (iii) All other requesters may still be assessed search fees when the
   Commission fails to comply with the time limits under § 0.461(g) if the
   Commission determines that unusual circumstances apply and more than
   5,000 pages are necessary to respond to the request, so long as the
   Commission has provided a timely written notice to the requester and
   has discussed with the requester (or made not less than three
   good-faith attempts to do so) how the requester could effectively limit
   the scope of the request. Additionally, if a court has determined that
   exceptional circumstances exist, a failure to comply with a time limit
   under § 0.461(g) will be excused for the length of time provided by the
   court order.

   (b)(1) The 100 page restriction on assessment of duplication fees in
   paragraphs (a)(2) and (3) of this section refers to 100 paper copies of
   a standard size, which will normally be 81/2 '' x 11'' or 11'' x 14''.

   (2) When the agency reasonably believes that a requester or group of
   requesters is attempting to segregate a request into a series of
   separate individual requests for the purpose of evading the assessment
   of fees, the agency will aggregate any such requests and assess charges
   accordingly.

   (c) When a requester believes he or she is entitled to a waiver
   pursuant to paragraph (e) of this section, the requester must include,
   in his or her original FOIA request, a statement explaining with
   specificity, the reasons demonstrating that he or she qualifies for a
   fee waiver. Included in this statement should be a certification that
   the information will not be used to further the commercial interests of
   the requester.

   (d) If the Commission reasonably believes that a commercial interest
   exists, based on the information provided pursuant to paragraph (c) of
   this section, the requester shall be so notified and given an
   additional ten business days to provide further information to justify
   receiving a reduced fee. See § 0.467(e)(2).

   (e)(1) Copying, search and review charges shall be waived or reduced by
   the General Counsel when "disclosure of the information is in the
   public interest because it is likely to contribute significantly to
   public understanding of the operations or activities of the government
   and is not primarily in the commercial interest of the requester." 5
   U.S.C. 552(a)(4)(A)(iii). Simply repeating the fee waiver language of
   section 552(a)(4)(A)(iii) is not a sufficient basis to obtain a fee
   waiver.

   (2) The criteria used to determine whether disclosure is in the public
   interest because it is likely to contribute significantly to public
   understanding of the operations or activities of the government
   include:

   (i) Whether the subject of the requested records concerns the
   operations or activities of the government;

   (ii) Whether the disclosure is likely to contribute to an understanding
   of government operations or activities; and

   (iii) Whether disclosure of the requested information will contribute
   to public understanding as opposed to the individual understanding of
   the requester or a narrow segment of interested persons.

   (3) The criteria used to determine whether disclosure is primarily in
   the commercial interest of the requester include:

   (i) Whether the requester has a commercial interest that would be
   furthered by the requested disclosure; and, if so

   (ii) Whether the magnitude of the identified commercial interest of the
   requester is sufficiently large, in comparison with the public interest
   in disclosure, that disclosure is primarily in the commercial interest
   of the requester.

   (4) This request for fee reduction or waiver must accompany the initial
   request for records and will be decided under the same procedures used
   for record requests.

   (5) If no fees or de minimis fees would result from processing a FOIA
   request and a fee waiver or reduction has been sought, the General
   Counsel will not reach a determination on the waiver or reduction
   request.

   (f) Whenever Commission staff determines that the total fee calculated
   under this section likely is less than the cost to collect and process
   the fee, no fee will be charged.

   (g) Review of initial fee determinations under § 0.467 through § 0.470
   and initial fee reduction or waiver determinations under paragraph (e)
   of this section may be sought under § 0.461(j).

   [ 82 FR 4196 , Jan. 13, 2017]

   

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