Rule2024-19527
Freedom of Information Act: Revised Fee Schedule
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
September 10, 2024
Effective
October 10, 2024
Issuing agencies
Defense Nuclear Facilities Safety Board
Abstract
This final rule revises the Defense Nuclear Facilities Safety Board's (DNFSB or Board) Freedom of Information Act (FOIA or Act) fee schedule and makes conforming amendments to two related provisions of its FOIA regulations.
Full Text
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<title>Federal Register, Volume 89 Issue 175 (Tuesday, September 10, 2024)</title>
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[Federal Register Volume 89, Number 175 (Tuesday, September 10, 2024)]
[Rules and Regulations]
[Pages 73258-73260]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-19527]
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DEFENSE NUCLEAR FACILITIES SAFETY BOARD
10 CFR Part 1703
[Docket No. DNFSB-2024-01]
RIN 3155-AA03
Freedom of Information Act: Revised Fee Schedule
AGENCY: Defense Nuclear Facilities Safety Board.
ACTION: Final rule.
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SUMMARY: This final rule revises the Defense Nuclear Facilities Safety
Board's (DNFSB or Board) Freedom of Information Act (FOIA or Act) fee
schedule and makes conforming amendments to two related provisions of
its FOIA regulations.
DATES: This rule is effective October 10, 2024.
FOR FURTHER INFORMATION CONTACT: Tayrn L. Gude, Director, Division of
Operational Services, Office of the General Manager, Defense Nuclear
Facilities Safety Board, 625 Indiana Avenue NW, Suite 700, Washington,
DC 20004-2901, (202) 694-7000 (Toll Free (800) 788-4016.)
SUPPLEMENTARY INFORMATION:
I. Background
The Freedom of Information Act permits Federal agencies to recover
certain costs they incur in processing requests filed under its
authority. 5
[[Page 73259]]
U.S.C. 552(a)(4)(A)(i). To do so, they are required to publish a
schedule of the fees charged for those costs in accordance with
guidelines issued by the Office of Management and Budget, (52 FR 10012
(March 27, 1987), revised 85 FR 81955 (Dec. 17, 2020)). The rules
governing DNFSB's collection of fees appear in its FOIA regulations at
10 CFR 1703.107(b)(6), and on November 15, 2023, DNFSB issued a notice
of proposed rulemaking (NPR) to amend the rules to use the actual
salary rate(s) (i.e., basic hourly rate of pay plus an additional 16%)
of personnel searching for and reviewing records in response to FOIA
requests as the basis for calculating fees.
II. Summary of Final Rule
With today's action, DNFSB amends the following subsections of its
regulation governing fees charged for responding to requests for
records (10 CFR 1703.107):
A. 10 CFR 1703.107(b)(1): Changes the definition of ``Direct
Costs'' by replacing the phrase ``average salary and projected benefits
costs of agency employees'' with ``the hourly salary and projected
benefits costs of agency personnel.''
B. 10 CFR 1703.107(b)(2)(i): Changes the description of the fees
charged to commercial use requesters by replacing the phrase ``average
salary and projected benefits costs of agency employees'' with ``the
hourly salary and projected benefits costs of agency personnel.''
C. 10 CFR 1703.107(b)(2)(ii): Changes the phrase ``the Board's
charges'' to ``the DNFSB's charges'' and restores the last sentence of
the paragraph, which was inadvertently omitted from the proposed notice
of rulemaking, i.e., ``[T]here shall be no charge for the first 100
pages of duplication.''
D. 10 CFR 1703.107(b)(2)(iii): Changes the description of the fees
charged to ``other'' requesters, i.e., those who are not commercial
requesters nor representatives of the news media or educational or
noncommercial scientific institutions, by replacing the phrase
``average hourly pay rate for Board employees, plus the average hourly
projected benefits cost'' with ``hourly salary and projected benefits
costs of the agency personnel who search for records in response to a
request.''
E. 10 CFR 1703.107(b)(6)(i): Replaces the existing paragraph, which
requires publication of an annual update of a schedule of FOIA fees
that includes a statement of the average hourly pay rates and average
hourly projected benefit costs of agency employees, with a new
paragraph that lists the FOIA response costs DNFSB may seek to recover
and bases the calculation of personnel costs on the hourly pay rate
(plus 16% to cover benefits costs). DNFSB has replaced the words
``employee'' and ``employees'' with the word ``personnel'' to ensure
that it is able to recover the cost of document search and review time
spent by contract workers as well as federal employees, in accordance
with the OMB Uniform Freedom of Information Act Fee Schedule and
Guidelines, 52 FR 10012, 10018, 7. Fees To Be Charged-General. The
replacement of the word ``employee'' to ``personnel'' in the final rule
so that it includes contractors is in keeping with the purpose of the
proposed rule to align the fees with the direct costs incurred by
DNFSB.
III. Response to Comments
DNFSB received two sets of comments on its proposed rulemaking.
One commenter noted that the proposed amendment to 10 CFR
1703.107(b)(2)(ii) failed to include the last sentence of the existing
regulation barring the agency from charging the covered requesters for
the costs of the first 100 pages of duplication. This comment was well
taken: the omission of the sentence containing the exemption from
duplicating costs was unintentional, and as noted above, the sentence
has been reincorporated in the final text of the regulation published
today.
The second commenter expressed concern that the proposed amendments
did not explicitly take account of the statutory prohibition from
seeking fees for responses to requests that are not made within the
statutory time limit. 5 U.S.C. 552(a)(4)(A)(viii). DNFSB agrees with
the commenter's assertion that the regulations must take account of
FOIA's prohibition of fees for responses made out of time. It does not
agree, however, that the changes to the proposal suggested by the
commenter are necessary because the regulations already contain a
provision barring the collection of fees for untimely responses.
Specifically, 10 CFR 1703.107(b)(2)(iv) states that: ``The Board will
not assess any fees if it has failed to meet its deadlines in Sec.
1703.108,'' which sets out the time limits within which the agency is
to respond to perfected FOIA requests.
IV. Regulatory Analysis
Regulatory Flexibility Act
This final rule pertains to the Board's policies and practices for
processing FOIA requests and does not impose any new requirements on
small entities. Therefore, no analysis is required by the Regulatory
Flexibility Act.
Unfunded Mandates Reform Act of 1995
This rule will not result in the expenditure by State, local, and
tribal governments, in aggregate, or by the private sector, of
$100,000,000 or more in any one year, and it will not significantly or
uniquely affect small governments. Therefore, no actions are deemed
necessary under the provisions of the Unfunded Mandates Reform Act of
1995.
Small Business Regulatory Enforcement Fairness Act of 1996
This rule is not a major rule as defined by section 251 of the
Small Business Regulatory Enforcement Fairness Act of 1996, as amended,
5 U.S.C. 804. It will not result in: an annual effect on the economy of
$100,000,000 or more; a major increase in costs or prices; or
significant adverse effects on competition, employment, investment,
productivity, innovation, or on the ability of United States-based
companies to compete with foreign-based companies in domestic and
export markets.
Paperwork Reduction Act
This update to the Board's FOIA regulations contains no new
reporting or recordkeeping requirements under the Paperwork Reduction
Act (PRA) of 1995, 44 U.S.C. 3501 et seq., and it does not require or
request information from members of the public. As a result, this
rulemaking is not covered by the restrictions of the PRA.
Executive Order 12988--Civil Justice Reform
These regulations meet the applicable standards set forth in
Executive Order 12988.
Executive Order 13132--Federalism
According to Executive Order 13132, agencies must state in clear
language the preemptive effect, if any, of new regulations. These
amendments to the Board's FOIA regulations affect only how the Board
responds to requests for information and have no preemptive effect on
state, tribal, or local government laws or otherwise have federalism
implications.
Congressional Review Act
This is a rule under the Congressional Review Act. The Board will
send a copy of this rulemaking to Congress and the Government
Accountability Office pursuant to 5 U.S.C. 801(a)(1)(A). The Office of
Information and Regulatory Affairs has designated this rule as not a
major rule, as defined by 5 U.S.C. 804(2).
[[Page 73260]]
List of Subjects in 10 CFR Part 1703
Freedom of Information.
For the reasons discussed in the preamble, the Defense Nuclear
Facilities Safety Board amends section 1703.107 of the Code of Federal
Regulations to read as follows:
0
1. The authority citation for part 1703 continues to read:
Authority: 5 U.S.C. 301, 552; 31 U.S.C. 9701; 42 U.S.C. 2286b.
0
2. Amend Sec. 1703.107 by revising by:
0
a. In paragraph (b)(1), revising the definition of ``Direct costs'';
and
0
b. Revising paragraphs (b)(2)(i), (ii), (iii), and (b)(6).
The revisions read as follows:
Sec. 1703.107 Fees for Record Requests.
* * * * *
(b) * * *
(1) * * *
* * * * *
Direct costs mean those expenditures which DNFSB incurs in search,
review, and duplication, as applicable to different categories of
requesters, to respond to requests under Sec. 1703.105. Direct costs
include, for example, the hourly salary and projected benefits costs of
agency personnel who search for, review, or duplicate records in
response to a request. Overhead expenses such as cost of space, and
heating or lighting the facility in which DNFSB records are stored are
not included in direct costs.
* * * * *
(2) * * *
(i) If documents are requested for commercial use, DNFSB shall
charge the hourly salary and projected benefits costs of agency
personnel who search for and review records in response to a request,
and for the costs of duplication as set out in subsection (b)(6) of
this section.
(ii) If documents are not sought for commercial use and the request
is made by an educational or noncommercial scientific institution,
whose purpose is scholarly or scientific research, or a representative
of the news media, DNFSB's charges shall be limited to the direct costs
of duplication as set out in subsection (b)(6) of this section. There
shall be no charge for the first 100 pages of duplication.
(iii) For a request not described in paragraphs (b)(2) (i) or (ii)
of this section, DNFSB shall charge the hourly salary and projected
benefits costs of the agency's personnel who search for records in
response to a request and the direct costs of duplication as set out in
subsection (b)(6) of this section. There shall be no charge for
document review time, and the first 100 pages of reproduction and the
first two hours of search time will be provided without charge.
* * * * *
(6) Schedule of Fees. To the extent authorized by these
regulations, DNFSB is authorized to seek the following fees to recover
costs incurred in responding to FOIA requests:
(i) Document search charges. (A) Manual: Salary rate(s) (basic
hourly pay plus 16%) of personnel performing records search or review.
(B) Electronic: Salary rate(s) (basic hourly pay plus 16%) of
personnel performing search or review.
(C) Document Review Charges: Salary rate(s) (basic hourly pay plus
16%) of personnel performing search or review.
(iii) Commercial requests. DNFSB will charge requesters who seek
records for commercial purposes for the cost of reviewing them to
determine whether they are exempt from mandatory disclosure. The agency
will assess these charges only when the records are first analyzed to
determine the applicability of a specific exemption to a record or
portion thereof. DNFSB will not charge for the review of an exemption
previously applied at the administrative review level. If a record or
portion thereof was withheld in full under an exemption that is
subsequently found inapplicable, it may be reviewed again to determine
the applicability of other exemptions not previously considered. DNFSB
may charge for the cost of such review.
(iv) Copying charges. (1) Paper: $.05 per page, if done in-house,
or generally available commercial rate, approximately $0.10 per page.
(2) Electronic media: Direct cost, including operator time (basic
hourly pay plus 16%).
(3) Audio and video cassette: Actual commercial rates.
(4) Duplication of CD or DVD: Direct cost, including operator time
(basic hourly pay plus 16%).
(5) Large documents, e.g., maps or diagrams: Actual commercial
rates.
Dated: August 22, 2024.
Joyce Connery,
Chair.
[FR Doc. 2024-19527 Filed 9-9-24; 8:45 am]
BILLING CODE 3670-01-P
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</html>Indexed from Federal Register on September 10, 2024.
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