[Federal Register Volume 68, Number 131 (Wednesday, July 9, 2003)]
[Rules and Regulations]
[Pages 40768-40770]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-17224]


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DEPARTMENT OF THE TREASURY

Internal Revenue Service

26 CFR Part 301

[TD 9070]
RIN 1545-BB22


Authority To Charge Fees for Furnishing Copies of Exempt 
Organizations' Material Open to Public Inspection

AGENCY: Internal Revenue Service (IRS), Treasury.

ACTION: Temporary regulations.

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SUMMARY: These temporary regulations amend the existing regulations 
regarding fees for copies of exempt organizations' material the IRS 
must make available to the public under section 6104 of the Internal 
Revenue Code (Code), to provide that copying fees shall be no more than 
under the fee schedule promulgated pursuant to the Freedom of 
Information Act (FOIA) by the Commissioner of Internal Revenue 
(Commissioner) (the ``IRS'' FOIA fee schedule''). The existing 
regulations authorize the IRS to charge fees for such copies, but do 
not stipulate the amount of the fees. These temporary regulations also 
make a conforming amendment to

[[Page 40769]]

the existing regulation concerning the fees that an exempt organization 
may charge for furnishing copies of such material when required to do 
so, to provide that these fees shall be no more than the per-page 
copying fee--without regard to any otherwise applicable fee exclusion 
for the first 100 pages--under the IRS' FOIA fee schedule. The text of 
these temporary regulations also serves as the text of the proposed 
regulations set forth in the notice of proposed rulemaking on this 
subject in the Proposed Rules section of this issue of the Federal 
Register.

DATES: These temporary regulations are effective July 9, 2003.

FOR FURTHER INFORMATION CONTACT: Sarah Tate, 202-622-4590 (not a toll-
free number).

SUPPLEMENTARY INFORMATION:

Background

    The IRS' obligation under section 6104 of the Code to make certain 
information open to public inspection is satisfied by making the 
information available to the public at such times and places as the IRS 
shall reasonably prescribe. The existing regulations provide that 
copies of the information that the IRS must make open to public 
inspection shall be available to members of the public upon written 
request. Currently, Sec.  301.6104(a)-6(d) provides that the IRS will 
charge a ``fee'' for copies of material available to the public under 
section 6104(a)(1) of the Code, including approved applications for 
recognition of tax-exempt status and supporting papers. Currently, 
Sec.  301.6104(b)-1(d)(4) provides that the Commissioner may prescribe 
a ``reasonable fee'' for copies of material available to the public 
under section 6104(b) of the Code, including certain information 
furnished on exempt organization annual information returns.
    These temporary regulations amend the existing regulations to 
clarify that any fee assessed by the IRS in the exercise of its 
discretion, whether in the case of requests for photocopies, or for 
special media (e.g., computer printouts, transcripts, CD-ROM 
reproductions), shall be no more than the fee under the IRS' FOIA fee 
schedule. For paper copies, the IRS' FOIA fee schedule, at 26 CFR 
601.702(f)(3)(iv), grants the first 100 pages free of charge to 
requesters other than commercial use requesters, but otherwise sets a 
per-page copying fee applicable to all requesters. The IRS' FOIA fee 
schedule, at 26 CFR 601.702(f)(5)(iii)(B), also authorizes fees based 
on the actual costs of non-paper products, such as computer disks.
    Currently, Sec.  301.6104(d)-1(d)(3)(i) provides that an exempt 
organization required to furnish copies to a requester may charge a 
copying fee corresponding to that which the IRS may charge. These 
temporary regulations amend existing regulation Sec.  301.6104(d)-
1(d)(3)(i) to make clear that an exempt organization may charge the 
applicable per-page copying fee--for any number of pages--under the 
IRS' FOIA fee schedule. An exempt organization need not provide the 
first 100 pages of copies free of charge to requesters other than 
commercial use requesters as the IRS does.
    Through December 18, 2002, the IRS' FOIA fee schedule set fees of 
$1.00 for the first page and $.15 for each subsequent page of exempt 
organization returns and related documents. 26 CFR 
601.702(f)(5)(iv)(B). Effective December 19, 2002, the fees are to be 
established by the Commissioner from time to time. 26 CFR 601.702(f) as 
updated at 67 FR 69673, 69682. Currently, the Commissioner has 
established fees of $.20 per page, up to 8 \1/2\ by 14 inches, made by 
photocopy or similar process, and actual cost for other types of 
duplication. 31 CFR 1.7(g)(1)(i), (ii) and (iii).

Explanation of Provisions

    These temporary regulations amend Sec.  301.6104(a)-6(d) and Sec.  
301.6104(b)-1(d)(4) to provide that the fees the IRS charges for 
furnishing copies of materials available to the public under Sec.  
301.6104(a)-6(d) and Sec.  301.6104(b)-1(d)(4) shall be no more than 
under the IRS' FOIA fee schedule.
    These temporary regulations also amend Sec.  301.6104(d)-1(d)(3)(i) 
to make clear that an exempt organization may charge the applicable 
per-page copying fee under the IRS' FOIA fee schedule--without regard 
to any otherwise applicable fee exclusion for the first 100 pages.

Special Analyses

    It has been determined that this Treasury Decision is not a 
significant regulatory action as defined in Executive Order 12866. 
Therefore, a regulatory assessment is not required. It has also been 
determined that section 553(b) of the Administrative Procedure Act (5 
U.S.C. chapter 5) does not apply to these temporary regulations. For 
applicability of the Regulatory Flexibility Act (5 U.S.C. chapter 6) 
please refer to the cross-reference notice of proposed rulemaking 
published elsewhere in this issue of the Federal Register. Pursuant to 
section 7805(f) of the Code, these temporary regulations will be 
submitted to the Chief Counsel of the Small Business Administration for 
comment on their impact on small businesses.

Drafting Information

    The principal author of these temporary regulations is Sarah Tate, 
Office of Associate Chief Counsel (Procedure & Administration), 
Disclosure & Privacy Law Division.

Adoption of Amendments to the Regulations

0
Accordingly, 26 CFR part 301 is amended as follows:

PART 301--PROCEDURE AND ADMINISTRATION

0
1. The authority citation for part 301 is amended by adding entries in 
numerical order to read in part as follows:

    Authority: 26 U.S.C. 7805 * * *
    Section 301.6104(a)-6(d) is also issued under 5 U.S.C. 552.
    Section 301.6104(b)-1(d)(4) is also issued under 5 U.S.C. 552.
    Section 301.6104(d)-1(d)(3)(i) is also issued under 5 U.S.C. 
552. * * *


0
2. In Sec.  301.6104(a)-6(d), the fourth sentence is revised to read as 
follows:


Sec.  301.6104(a)-6  Procedural rules for inspection.

* * * * *
    (d) * * * Any fees the Internal Revenue Service may charge for 
furnishing copies under this section shall be no more than under the 
fee schedule promulgated pursuant to section (a)(4)(A)(i) of the 
Freedom of Information Act, 5 U.S.C. 552, by the Commissioner from time 
to time. * * *

0
3. In Sec.  301.6104(b)-1(d)(4), the last sentence is revised to read 
as follows:


Sec.  301.6104(b)-1  Publicity of information on certain information 
returns.

* * * * *
    (d) * * * Any fees the Internal Revenue Service may charge for 
furnishing copies under this section shall be no more than under the 
fee schedule promulgated pursuant to section (a)(4)(A)(i) of the 
Freedom of Information Act, 5 U.S.C. 552, by the Commissioner from time 
to time.

0
4. In Sec.  301.6104(d)-1(d)(3)(i), the second sentence is revised to 
read as follows:


Sec.  301.6104(d)-1  Public inspection and distribution of applications 
for tax exemption and annual information returns of tax-exempt 
organizations.

* * * * *
    (d) * * * A fee is reasonable only if it is no more than the total 
of the applicable per-page copying charge prescribed by the fee 
schedule

[[Page 40770]]

promulgated pursuant to section (a)(4)(A)(i) of the Freedom of 
Information Act, 5 U.S.C. 552, by the Commissioner from time to time, 
and the actual postage costs incurred by the organization to send the 
copies. The applicable per-page copying charge shall be determined 
without regard to any applicable fee exclusion provided in the fee 
schedule for an initial or de minimis number of pages (e.g. the first 
100 pages). * * *

Robert E. Wenzel,
Deputy Commissioner of Internal Revenue.
    Approved: July 1, 2003.
Gregory Jenner,
Deputy Assistant Secretary of the Treasury.
[FR Doc. 03-17224 Filed 7-8-03; 8:45 am]
BILLING CODE 4830-01-P