[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 [www.gpo.gov]
[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