Freedom of Information Act: Revised Fee Schedule

AGENCY:

Defense Nuclear Facilities Safety Board.

ACTION:

Final rule.

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.

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 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), revised85 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 § 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).

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:

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.

2. Amend § 1703.107 by revising by:

a. In paragraph (b)(1), revising the definition of “Direct costs”; and

b. Revising paragraphs (b)(2)(i), (ii), (iii), and (b)(6).

The revisions read as follows:

[FR Doc. 2024-19527 Filed 9-9-24; 8:45 am]

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