E7-20082. Search Fees in Freedom of Information Act Cases

AGENCY:

State Department.

ACTION:

Final rule.

SUMMARY:

This rule makes final the Department's proposed rule published on June 20, 2007. The rule revises the regulations on fees to be charged for searching for information responsive to requests made under the Freedom of Information Act. The existing regulations proved to be unworkable, particularly in terms of ascertaining the costs of electronic searches.

DATES:

Effective Date: This rule is effective October 11, 2007.

ADDRESSES:

Persons having questions with respect to these regulations should address such questions to: Margaret P. Grafeld, Director, Office of Information Programs and Services, [phone], U.S. Department of State, SA-2, 515 22nd St., NW., Washington, DC 20522-6001; FAX: [phone]. E-mail [e-mail]. Persons with access to the Internet may view this rule online at http://www.regulations.gov/​index.cfm.

FOR FURTHER INFORMATION CONTACT:

Margaret P. Grafeld, Director, Office of Information Programs and Services, [phone], U.S. Department of State, SA-2, 515 22nd St., NW., Washington, DC 20522-6001; FAX: [phone].

SUPPLEMENTARY INFORMATION:

The Department's proposed rule was published as Public Notice 5835 at 72 FR 33932-33933 on June 20, 2007 with a 90-day comment period. The Department received one comment discussed under Analysis of Comments. Although the current version of the search fee provision was promulgated in 2004, based largely on previous long-standing regulations, experience has shown that the previous, as well as the current, regulation could not, in fact, be given full effect because the cost of computer searches could not be fully ascertained and because of the difficulties in determining the salary costs attributable to individuals doing manual searches, particularly at overseas posts where Foreign Service Nationals have a different and more frequently changing pay scale. By using average salary costs of the categories of individuals involved in a search (i.e., clerical, professional, executive) instead of the actual salary of each such individual, the proposed revision will permit computer calculation of the fees that should be as accurate as the current method and should not result in any substantial increase or diminution of search fees charged or collected.

Analysis of Comments: The proposed rule was published for comments on June 20, 2007. The comment period closed September 18, 2007. The one public comment received by the Department recommends that in calculating the salary rates for those performing the searches, all employee benefits they receive be included. To the extent it is possible to quantify such benefits, the Department plans to include them in the calculation of the salary rates of those performing the searches.

Regulatory Findings

Administrative Procedure Act. The Department is publishing this regulation as a final rule after it was published as a proposed rule June 20, 2007.

Regulatory Flexibility Act. The Department, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this rule and, by approving it, certifies that this rule will not have significant economic impact on a substantial number of small entities.

Unfunded Mandates Act of 1995. This rule will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of 100 million or more in any 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 804 of the Small Business Regulatory Enforcement Act of 1996. This rule will not result in an annual effect on the economy of 100 million 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 import markets.

Executive Order 12866. The Department does not consider this rule to be a “significant regulatory action” under Executive Order 12866, section 3(f), Regulatory Planning and Review. In addition, the Department is exempt from Executive Order 12866 except to the extent that it is promulgating regulations in conjunction with a domestic agency that are significant regulatory actions. The Department has nevertheless reviewed the regulation to ensure its consistency with the regulatory philosophy and principles set forth in that Executive Order.

Executive Order 13132. This regulation will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order 13132, it is determined that this rule does not have sufficient federalism implications to require consultations or warrant the preparation of a federalism summary impact statement.

Paperwork Reduction Act. This rule does not impose any new reporting or record-keeping requirements subject to the Paperwork Reduction Act, 44 U.S.C. Chapter 35.

List of Subjects in 22 CFR Part 171

• Administrative practice and procedure
• Fees for searches in Freedom of Information Act cases

For the reasons set forth in the preamble, 22 CFR part 171 is amended as follows:

PART 171—AVAILABILITY OF INFORMATION AND RECORDS TO THE PUBLIC

1. The authority citation for part 171 continues to read as follows:

Authority: 22 U.S.C. 552, 552a; Ethics in Government Act of 1978, Pub. L. 95-521, 92 Stat. 1824, as amended; E.O. 12958, as amended, 60 FR 19825, 3 CFR, 1995 Comp., p. 333; E.O. 12600, 52 FR 23781, 3 CFR, 1987 Comp., p. 235.

2. Section 171.14 is amended by adding a new sentence at the end of paragraph (a) introductory text to read as follows:

§ 171.14

Fees to be charged—general.

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(a) * * * For both manual and computer searches, the Department shall charge the estimated direct cost of each search based on the average current salary rates of the categories of personnel doing the searches. Further information on search fees is available by clicking on “FOIA” at the Department's Web site at http://www.state.gov or directly at the FOIA home page at http://foia.state.gov.

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Dated: October 2, 2007.

Llewellyn Hedgbeth,

Deputy Assistant Secretary, Department of State.