[Federal Register Volume 72, Number 4 (Monday, January 8, 2007)]
[Proposed Rules]
[Pages 694-697]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-22574]


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CENTRAL INTELLIGENCE AGENCY

32 CFR Part 1900


FOIA Processing Fees

AGENCY: Central Intelligence Agency.

ACTION: Proposed rule.

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SUMMARY: Consistent with the Freedom of Information Act (FOIA) and 
Executive Order 13392, the Central Intelligence Agency (CIA) has 
undertaken and completed a zero-based review of its public FOIA 
regulations governing fees associated with the processing of FOIA 
requests. As a result of this review, the Agency proposes to revise its 
fee-related regulations to eliminate unnecessary restrictions on FOIA 
requesters and to consolidate all regulatory requirements regarding 
FOIA fees in one subsection of the Code of Federal Regulations. As 
required by the FOIA, the Agency is providing an opportunity for 
interested persons to submit comments on these proposed regulations.

DATES: Submit comments on or before February 7, 2007.

ADDRESSES: Submit comments in writing to the Chief of Information 
Management Services, Central Intelligence Agency, Washington, DC 20505, 
or by fax to 703-613-3007.

FOR FURTHER INFORMATION CONTACT: Scott A. Koch, Information and Privacy 
Coordinator, Central Intelligence Agency, Washington, DC 20505 or by 
telephone, 703-613-1287.

SUPPLEMENTARY INFORMATION: Consistent with the FOIA and Executive Order 
13392, the CIA has undertaken and completed a zero-based review of its 
public FOIA regulations governing fees associated with the processing 
of FOIA requests. As a result of this review, the Agency proposes to 
revise its fee-related regulations to eliminate unnecessary

[[Page 695]]

restrictions on FOIA requesters and to simplify its fee schedule. The 
proposed regulations remove the unnecessary restrictions on the 
categories of FOIA requesters that are included in the CIA's current 
regulations. Under the proposed regulations, the CIA would not charge 
any FOIA requester, regardless of fee category, for a review fee in 
connection with the processing of a FOIA request.
    The proposed regulations would not affect any requester submitting 
a request from a federal, state, or local penitentiary or correctional 
facility. Under both current CIA regulations and the proposed CIA 
regulations, the CIA will continue to place any requester submitting a 
request from a federal, state, or local penitentiary or correctional 
facility in the ``All Other'' fee category and will bill them for 
search fees and for duplication fees (with the first two hours of 
search and the first one hundred pages free of charge), unless the CIA 
grants a fee waiver.
    Under the proposed regulations, the CIA would bill any requester 
not submitting a request from a federal, state, or local penitentiary 
or correctional facility, regardless of their fee category, only for 
the duplication costs (with the first one hundred pages free of charge) 
associated with the request, unless the CIA grants a fee waiver. The 
CIA would not bill these requesters for any search fee in connection 
with the processing of their request.
    The proposed regulations would establish a maximum amount the CIA 
could bill for search fees and a maximum amount the CIA could bill for 
duplication fees.
    The criteria the CIA would apply to fee waiver requests would 
remain unchanged.

List of Subjects in 32 CFR Part 1900

    Classified information, Freedom of information.

    As stated in the preamble, the CIA proposes to amend 32 CFR part 
1900 as follows:

PART 1900--PUBLIC ACCESS TO CIA RECORDS UNDER THE FREEDOM OF 
INFORMATION ACT

    1. The authority citation for part 1900 is revised to read as 
follows:

    Authority: 5 U.S.C. 552.


Sec.  1900.02  [Amended]

    2. In Sec.  1900.02, remove and reserve paragraphs (e) and (h).


Sec.  1900.12  [Amended]

    3. In Sec.  1900.12, remove and reserve paragraph (b).


Sec.  1900.13  [Removed]

    4. Remove Sec.  1900.13.


Sec.  1900.14  [Removed]

    5. Remove Sec.  1900.14.
    6. Add Sec.  1900.20 to read as follows:


Sec.  1900.20  Fees.

    This section governs fees and fee waivers associated with Freedom 
of Information Act requests the CIA receives.
    (a) Categories of FOIA Requesters.
    (1) Commercial Use Requester means any requester who seeks 
information, on his or her own behalf or on the behalf of another, for 
a use or purpose that furthers his or her commercial, trade, or profit 
interests.
    (2) Non-Commercial Educational or Scientific Institution means any 
requester that is professionally affiliated with either an accredited 
educational institution at any academic level or an institution engaged 
in research concerning the social, biological, or physical sciences.
    (3) Representative of the News Media means any requester actively 
gathering information of current interest to the public, for an 
organization that is organized and operated to publish or broadcast 
news to the general public.
    (4) All Other Requesters means any requester who does not fall 
within one of the other categories.
    (b) Required Fee Commitment. The Agency will not accept any FOIA 
request unless the requester has agreed in writing to pay all 
applicable fees.
    (1) Providing this written agreement shall not preclude a requester 
from seeking a fee waiver in accordance with this section.
    (2) The Agency will promptly advise any requester who has purported 
to submit a FOIA request for information without the required written 
agreement of this requirement and hold the request in abeyance for 
thirty calendar days from the date of the Agency's notice to the 
requester. If the Agency has not received the required written 
agreement, upon expiration of the thirty calendar days, the Agency will 
close the case and take no further action on the FOIA request. This 
action does not prevent the requester from re-submitting the request 
with the required fee agreement at a subsequent date.
    (c) Outstanding Fees. The Agency will not accept a FOIA request or 
administrative appeal from any requester who has outstanding fees for 
information services at any federal agency.
    (d) Requests Processed Under Both the FOIA and the Privacy Act. The 
CIA will not bill for fees for any request for information processed 
under the provisions of the Privacy Act of 1974.
    (e) Special Services. The CIA will bill any FOIA requester for the 
actual costs associated the CIA's provision of special services 
requested by a requester, such as certification that records are true 
copies or use of other than ordinary mail. The CIA will notify the 
requester of those costs before providing any special services.
    (f) Review Fees. The CIA will not bill any FOIA requester for a 
review fee in connection with the processing of a FOIA request.
    (g) Search Fees. Except as provided in this subsection, the CIA 
will not bill a FOIA requester for a search fee in connection with the 
processing of a FOIA request.
    (1) Unless otherwise waived by the CIA in accordance with paragraph 
O below, the CIA will bill any requester submitting a FOIA request from 
a federal, state, or local penitentiary or correctional facility for 
search fees.
    (2) Search means the process of looking for and retrieving 
information and records in response to a FOIA request and determining 
whether such information and records are responsive to that request.
    (3) Search rates reflect the costs incurred by the Agency in 
searching for records in connection with a FOIA request, including but 
not limited to, the salary of the individual performing the work and 
the cost of operating any machinery, such as a central processing unit, 
needed to conduct the search. The Agency will bill requesters subject 
to search fees at the following rates:

------------------------------------------------------------------------
    Completed search time in minutes                  Charge
------------------------------------------------------------------------
1 through 120...........................  Free.
121 through 150.........................  Flat Rate: $30.00.
151 through 180.........................  Flat Rate: $60.00.
181 through 210.........................  Flat Rate: $90.00.
211 through 240.........................  Flat Rate: $120.00.
241 through 270.........................  Flat Rate: $150.00.
271 through 300.........................  Flat Rate: $180.00.
301 through 330.........................  Flat Rate: $210.00.
331 through 360.........................  Flat Rate: $240.00.
Over 361................................  Flat Rate: $300.00.
------------------------------------------------------------------------

    (4) The CIA will execute its searches in the most efficient and 
least expensive manner reasonably possible.
    (5) Unless otherwise waived by the CIA in accordance with paragraph 
O below, the CIA will bill requesters subject to search fees for the 
time spent searching even if it does not locate any responsive 
information, or even if any or all of the responsive information 
located is exempt from release.
    (h) Duplication Fees. Unless otherwise waived by the CIA in

[[Page 696]]

accordance with paragraph (o) of this section, the CIA shall bill all 
FOIA requesters for duplication fees.
    (1) Duplication means the making of a copy of information 
responsive to a FOIA request and deemed releasable by the Agency. 
Copies may be in paper form, microform, audiovisual materials, or 
electronic form, among others.
    (2) Requested Form or Format of Disclosure.
    (i) The Agency will honor a requester's specified preference of 
form or format of disclosure only if--
    (A) The Agency can readily reproduce the information in the 
requested form with a reasonable amount of effort; and
    (B) Providing the information in the requested form is consistent 
with national security or other U.S. Government interests; and
    (C) The requester prepays the fees billed by the Agency.
    (ii) If the Agency determines that it cannot honor a requester's 
specified preference of form or format of disclosure, the Agency will 
notify the requester.
    (3) Duplication rates reflect the costs incurred by the Agency in 
duplicating the nonexempt information responsive to a FOIA request, 
including the salary of the individual performing the duplication and 
the cost of operating duplication machinery.
    (4) For the duplication in paper form, the Agency will bill at the 
following rates:

------------------------------------------------------------------------
 Number of pages released to  requester               Charge
------------------------------------------------------------------------
1 through 100...........................  None.
101 through 150.........................  Flat Rate: $25.00.
151 through 200.........................  Flat Rate: $50.00.
201 through 250.........................  Flat Rate: $75.00.
251 through 300.........................  Flat Rate: $100.00.
301 through 350.........................  Flat Rate: $125.00.
351 through 400.........................  Flat Rate: $150.00.
401 through 450.........................  Flat Rate: $175.00.
451 through 500.........................  Flat Rate: $200.00.
501 through 550.........................  Flat Rate: $225.00.
551 through 600.........................  Flat Rate: $250.00.
601 through 1000........................  Flat Rate: $450.00.
Over 1000...............................  Flat Rate: $1000.00.
------------------------------------------------------------------------

    (5) For the duplication in electronic or other form, the Agency 
will bill at the rate of $100.00 per compact disc.
    (i) No Fees Billed. The CIA will not bill for fees when the cost of 
collecting the fee is equal to or greater than the fee itself. 
Therefore, the CIA will not bill for fees for any request for 
information when the total bill is twenty-five (25) dollars or less.
    (j) Interest. The CIA may charge interest on any unpaid bill 
starting on the 31st day following the date of the bill, and will 
assess interest at the rate provided in section 3717 of title 31 of the 
U.S. Code. Interest will accrue from the date of the bill until the 
Agency receives payment. The CIA will follow the provisions of the Debt 
Collection Act of 1982 (Pub. L. 97-365, 96 Stat. 1749), as amended, and 
its administrative procedures, including the use of consumer reporting 
agencies, collection agencies, and offset.
    (k) Aggregation. Where the CIA reasonably believes that a requester 
or group of requesters acting together is attempting to divide a 
request into a series of requests for a purpose of avoiding fees, the 
CIA may aggregate those requests and bill accordingly. This provision 
is not intended to limit the CIA's authority to aggregate the 
processing of multiple requests when necessary to protect national 
security or other U.S. Government interests.
    (l) Advance Payments. An advance payment is a payment made before 
the CIA begins or continues work on a FOIA request. The CIA may require 
an advance payment only as specified in this section.
    (1) The CIA may require a FOIA requester to make an advance payment 
of up to 100 percent of the total estimated fee only when--
    (i) The CIA estimates, at any time before or during the processing 
of a FOIA request, that the total fee will exceed $250.00; or
    (ii) The requester has previously failed to pay a fee in a timely 
fashion and the Agency did or could have charged the requester for 
interest in accordance with this section.
    (2) When the CIA requires an advance payment, the CIA will promptly 
notify the requester and hold the request in abeyance for thirty 
calendar days from the date of the Agency's notice to the requester. If 
the requester fails to remit the payment within the thirty days, the 
Agency will close the case and take no further action on the FOIA 
request. This action does not prevent the requester from re-submitting 
the request at a susequent date.
    (m) Prepayments. A prepayment is a payment made after the CIA has 
completed all the work on a FOIA request but has not forwarded the 
final response and the processed documents to the FOIA requester. The 
CIA may require any requester to pay up to the full amount of the 
billed fee before it provides the FOIA requester with the final 
response and the processed documents, particularly when the FOIA 
requester has no payment history or has previously failed to pay a fee 
within thirty calendar days of the bill.
    (n) Requests for Notification. Upon request, the Agency may notify 
a requester when the estimated costs of processing the FOIA request 
meet or exceed a certain threshold.
    (o) Fee Waivers.
    (1) In order to qualify for any fee waiver, a FOIA requester must 
first agree in writing to pay all applicable fees.
    (2) Requesters shall submit fee waiver requests in writing. The 
Agency will not consider any fee waiver request received by the Agency 
later than thirty calendar days of the date of the requester's FOIA 
request.
    (3) The CIA will furnish records to a FOIA requester at no charge, 
or at a reduced rate, whenever the CIA determines that, as a matter of 
administrative discretion, the interest of the U.S. Government would be 
served.
    (4) Public interest fee waivers. The CIA will furnish records to a 
FOIA requester at no charge, or at a reduced rate, whenever the CIA 
determines, based on all available information, that disclosure of the 
requested 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 
interests of the requester.
    (i) In order to determine whether the first public interest fee 
waiver requirement has been met (i.e., that disclosure of the requested 
information is in the public interest because it is likely to 
contribute significantly to public understanding of Government 
operations or activities), the Agency will consider the following four 
factors, in sequence:
    (A) Subject matter of the requested records. The subject of the 
requested records must specifically concern identifiable operations or 
activities of the federal Government, with a connection that is direct 
and clear, not remote or attenuated.
    (B) Informative value of the information to be disclosed. The 
disclosable portions of the requested information must be meaningfully 
informative about specific federal government activities or operations 
in order to be ``likely to contribute'' to an increased public 
understanding of those operations or activities. The disclosure of 
information that is already in the public domain, in either a 
duplicative or substantially identical form, would not be likely to 
contribute to such understanding where nothing new would be added to 
the public's understanding.
    (C) Contribution to public understanding. The disclosure must 
contribute to the understanding of the public at large, as opposed to 
the

[[Page 697]]

individual understanding of the requester or a narrow segment of 
interested persons. A requester's expertise in the subject area and 
ability and intention to effectively convey information to the public 
shall be considered. The CIA may presume that requesters subject to 
search fees under these regulations do not have the ability to 
effectively convey information to the public.
    (D) Significance of the contribution to public understanding. The 
disclosure must contribute ``significantly'' to public understanding of 
Government operations or activities. The public's understanding of the 
subject matter in question, as compared to the level of public 
understanding existing before the disclosure, must be enhanced by the 
disclosure to a significant extent.
    (ii) In order to determine whether the second public interest fee 
waiver requirement is met (i.e., that the disclosure of the information 
``is not primarily in the commercial interest of the requester''), the 
Agency will consider the following three factors, in sequence:
    (A) Existence of commercial interest. A ``commercial interest'' is 
one that furthers a commercial, trade, or profit interest. The Agency 
will consider any commercial interest of the requester or any person 
upon whose behalf the requester may be acting that would be furthered 
by the disclosure. Agency personnel may consider the requester's 
identity and the circumstances surrounding the request and draw 
reasonable inferences regarding the existence of a commercial interest.
    (B) Effects of disclosure on the commercial interest. If the 
requester has a commercial interest, the CIA will determine whether and 
to what extent disclosure of the requested information would further 
that interest.
    (C) Primary interest in disclosure. The Agency will determine 
whether the public interest in disclosure asserted by the requester is 
greater in magnitude than the requester's commercial interest.
    (5) If the Agency denies a request for a public interest fee 
waiver, it shall provide the requester with written notice of his or 
her administrative appeal rights. Requesters shall have the right to 
file an administrative appeal of the denial of a request for a public 
interest fee waiver provided the appeal is submitted in writing and is 
received by the Agency within forty-five calendar days of the date of 
the denial decision.
    (6) The Chair of the Agency Release Panel shall adjudicate all 
appeals of denials of requests for public interest fee waivers.


Sec.  1900.23  [Amended]

    7. Revise the heading of Sec.  1900.23, to read ``Sec.  1900.23 
Notification of Decision and Right of Appeal.''
    8. In Sec.  1900.23, remove and reserve paragraph (a).
    9. Amend Sec.  1900.42 by revising paragraph (a) to read as 
follows:


Sec.  1900.42  Right of appeal and appeal procedures.

    (a) Right of Appeal. A right of administrative appeal exists 
whenever access to any requested record or any portion thereof is 
denied or no records are located in response to a request. The Agency 
will apprise all requesters in writing of their right to appeal such 
decisions to the CIA Agency Release Panel through the Coordinator. 
Appeals of denials of requests for fee waivers shall be governed by 32 
CFR 1900.20.
* * * * *

    Dated: December 28, 2006.
Edmund Cohen,
Chief of Information Management Services.
 [FR Doc. E6-22574 Filed 1-5-07; 8:45 am]
BILLING CODE 6310-02-P