[Federal Register Volume 88, Number 219 (Wednesday, November 15, 2023)]
[Proposed Rules]
[Pages 78249-78251]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-25074]


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DEFENSE NUCLEAR FACILITIES SAFETY BOARD

10 CFR Part 1703

[Docket No. DNFSB-2024-01]


Freedom of Information Act Fee Schedule

AGENCY: Defense Nuclear Facilities Safety Board.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Defense Nuclear Facilities Safety Board (DNFSB or Board) 
is proposing to revise its Freedom of Information Act (FOIA) fee 
schedule and to make conforming amendments to two related provisions of 
its FOIA regulations.

DATES: To be considered, comments must be submitted by December 15, 
2023.

ADDRESSES: You may submit written comments by either of the following 
methods:
     Email: Send comments to [email protected]. Please include 
``FOIA Fee Revision'' in the subject line of your email.
     Mail or Hand Delivery: Send hard copy comments to the 
Defense Nuclear Facilities Safety Board, Attn: General Manager, 625 
Indiana Avenue NW, Suite 700, Washington, DC 20004-2901.

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 requires Federal agencies to which 
it applies to publish a schedule of the costs that they may charge for 
the expenditures incurred in responding to requests for their records. 
Guidelines published by the Office of Management and Budget assist 
agencies in meeting that requirement and provide a structure for its 
consistent implementation across the Executive Branch, 5 U.S.C. 
552(a)(4)(A)(i), and ``Uniform Freedom of Information Act Fee Schedules 
and Guidelines,'' 52 FR 10012 (March 27, 1987), Revised 85 FR 81955 
(Dec. 17,

[[Page 78250]]

2020), respectively. In accordance with those authorities, the Board's 
FOIA regulations require it to publish and regularly update a schedule 
identifying the expenditures it might seek to recover and the cost 
associated with each request. 10 CFR 1703.107(b)(6).
    Since implementing its FOIA program, 56 FR 21261, May 8, 1991, 
DNFSB has calculated the fees charged for document search and review 
time based on the average hourly pay rate of its employees, plus the 
average hourly projected benefit cost. DNFSB has charged the costs of 
reproducing records directly to the requester either at the actual cost 
to the agency, or the amount charged by a commercial service. As of its 
most recent update, 80 FR 52174, Aug. 28, 2015, DNFSB's schedule of 
fees is as follows:

Search or Review Charge: $85.00 per hour
Copy Charge:
    Paper: $.05 per page, if done in-house, or generally available 
commercial rate, approximately $0.10 per page
    Electronic Media: $5.00 per electronic media
    Audio and Video Cassettes: Actual commercial rates
    Duplication CD or DVD: $25.00 for each individual DVD; $16.50 for 
each duplicate DVD
    Large Documents, e.g., maps or diagrams: Actual commercial rates

II. Overview of Proposed Rule

    In this action, DNFSB is proposing the following changes to the 
FOIA fee schedule:
    1. Incorporating a schedule of fees in DNFSB's FOIA fee regulation 
(at 10 CFR 1703.107(b)(6)), rather than publishing the fees in a 
separate, non-codified Federal Register publication;
    2. Separating the fee schedule for both manual and electronic 
record searches; and
    3. Including the direct cost of computer time into the cost of 
electronic record searches; and,
    4. Changing the basis used for calculating the cost of the time 
spent by employees searching for and/or reviewing records in response 
to FOIA requests.
    Pursuant to this proposal, those costs will be calculated using the 
actual salary rate(s) (i.e., basic hourly rate of pay plus an 
additional 16 percent for benefit costs) of the employee(s) performing 
the work. DNFSB currently uses the average of all employees' hourly pay 
rates plus average projected benefit costs as the basis for determining 
fees. DNFSB finds that the methodology should be changed for several 
reasons. First, basing costs on the salary of the employee performing 
the work is more precise than basing them on an agency-wide average pay 
rate. Second, basing costs on the salary of the employee accurately 
reflects the actual costs incurred by the agency in searching for and 
reviewing responsive documents. Finally, it will eliminate the need to 
annually republish the FOIA fee schedule to account for the changed 
amount of the average employee salary resulting from Congressional 
changes to rates of pay, the number of agency employees, and their job 
classifications.
    In this action, DNFSB is also announcing a proposal to amend the 
following four subsections of its FOIA fee regulation, 10 CFR 1703.107, 
to reflect the agency's adoption of actual salary cost(s) of the 
employee(s) performing document search and review activities for 
calculating response costs to be charged to requesters:

1. Sec.  1703.107(b)(1) ``Direct Costs''
2. Sec.  1703.107(b)(2)(i) ``Fees'' (commercial use requests)
3. Sec.  1703.107(b)(2)(iii) ``Fees'' (``other'' requesters)
4. Sec.  1703.107(b)(6) ``Annual adjustment of fees''

II. Regulatory Analysis

Regulatory Flexibility Act

    Under the Regulatory Flexibility Act, 5 U.S.C. 601-612, agencies 
must consider the impact of their rulemakings on ``small entities'' 
(small businesses, small organizations, and local governments) when 
publishing regulations subject to the notice and comment requirements 
of the Administrative Procedure Act. These proposed regulations pertain 
to the Board's policies and practices for processing FOIA requests, and 
do 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. This rule 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 rule contains no new reporting or recordkeeping requirements 
under the Paperwork Reduction Act (PRA) of 1995, 44 U.S.C. 3501 et seq. 
This update to the Board's FOIA regulations does not require or request 
information from members of the public. Therefore, this rulemaking is 
not covered by the restrictions of the PRA.

Executive Order 12988--Civil Justice Reform

    These proposed 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. The 
amendments to the Board's FOIA regulations affect only how the Board 
responds to requests for information and have no effect on preemption 
of 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).

List of Subjects in 10 CFR Part 1703

    Freedom of Information.

    For the reasons discussed in the preamble, the Defense Nuclear 
Facilities Safety Board proposes to amend 10 CFR part 1703 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 paragraphs (b)(1), (b)(2)(i), (ii), 
(iii), and (b)(6) to read as follows:


Sec.  1703.107  Fees for record requests.

* * * * *
    (b) * * *
    (1) * * *
* * * * *
    Direct costs mean those expenditures which DNFSB incurs in search, 
review,

[[Page 78251]]

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 
employees 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) Fees. (i) If documents are requested for commercial use, DNFSB 
shall charge the hourly salary and projected benefits costs of agency 
employees 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.
    (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 employee(s) 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. (1) 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 percent) of 
employee(s) performing records search or review.
    (B) Electronic: Salary rate(s) (basic hourly pay plus 16 percent) 
of employee(s) performing search or review.
    (ii) Document Review Charges: Salary rate(s) (basic hourly pay plus 
16 percent) of employee(s) performing search or review.
    (2) 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.
    (3) Copying Charges
    (i) Paper: $.05 per page, if done in-house, or generally available 
commercial rate, approximately $0.10 per page.
    (ii) Electronic Media: Direct cost, including operator time 
(employee's basic hourly pay plus 16 percent).
    (iii) Audio and Video Cassette: Actual commercial rates.
    (iv) Duplication of CD or DVD: Direct cost, including operator time 
(employee's basic hourly pay plus 16 percent).
    (v) Large Documents, e.g., maps or diagrams: Actual commercial 
rates.

    Dated: November 8, 2023.
Joyce Connery,
Chair.
[FR Doc. 2023-25074 Filed 11-14-23; 8:45 am]
BILLING CODE 3670-01-P