E7-16233. NARA Reproduction Fees

AGENCY:

National Archives and Records Administration (NARA).

ACTION:

Final rule.

SUMMARY:

NARA is revising its fees for reproduction of records and other materials in the custody of the Archivist of the United States. This rule covers reproduction of Federal records created by other agencies that are in the National Archives of the United States, donated historical materials, Presidential records, Nixon Presidential historical materials, and records filed with the Office of the Federal Register. The fees are being changed to reflect current costs of providing the reproductions. This rule will affect the public and Federal agencies.

DATES:

Effective date: October 1, 2007.

FOR FURTHER INFORMATION CONTACT:

Jennifer Davis Heaps at 301-837-1850 or fax at 301-837-0319.

SUPPLEMENTARY INFORMATION:

The proposed rule was originally published in the February 26, 2007, Federal Register (72 FR 8327) for a sixty day comment period. We notified several listservs and researcher organizations about this proposed rule and its availability on regulations.gov. We also posted a notice about the rule on our Web site, http://www.archives.gov,, and in our research rooms. NARA received 1,281 timely comments on the proposed rule. We received 1,198 timely comments via regulations.gov and 83 timely comments by letter, fax, communications forwarded from Congressional offices, or other means. Comments received on or before 11:59 p.m. on April 27, 2007, were considered timely. NARA electronically scanned all comments submitted outside of www.regulations.gov and posted them to the proposed rule docket (NARA-07-0001) at www.regulations.gov for public viewing.

In this SUPPLEMENTARY INFORMATION section, we provide a summary of the provisions of the final rule with an explanation of the changes we have made in response to the comments on the proposed rule. We then summarize the public comments and the reasons for adopting or not adopting the recommendations in those comments in the section “Summary of Public Comments.”

Changes Made in This Final Rule

In response to public comments, we re-evaluated some of the assumptions used when preparing the proposed rule. Doing so allowed us to alter the formulas for calculating the costs for fixed fee reproductions and enabled us to lower the fee for copies of Civil War pension files from the proposed $125 for a full file regardless of page count to $75 for up to 100 pages. In cases where the number of pages in a pension file exceeds 100, NARA reference staff will contact the customer to advise on the number of remaining pages in the file and offer to produce a price quote for those pages at $0.65 (65 cents) per page. The customer then has the option of remitting payment for the remaining pages or declining to order them. These fees will also apply to post-Civil War pension files.

We selected 100 pages as the limit for the $75 fee based on a further analysis of Civil War pension file reproduction orders over the last several years. Orders averaged 106 pages because of the wide range in number of pages per individual order; however, more than 65% percent of the files ordered were 100 pages or less. Setting the number of pages at 100 allows the fee to cover the complete file for a majority of orders while minimizing the cost risk to NARA. We are able to reduce the per-page fee for copies beyond the first 100 pages because some of the overhead in making copies of the additional pages is avoided.

We also lowered the fee for copies of pre-Civil War pension files from $60 to $50 regardless of page count. Pre-Civil War pension files are much more consistent in page count, particularly Revolutionary War pension files; we would be more likely to recover costs with a $50 fixed fee. The changed cost elements that contributed to our ability to reduce the pension file fixed fees were elimination of certain National Archives Trust Fund (Trust Fund) support for existing order fulfillment systems, curtailed savings for fulfillment system replacement, and adjustment to projected copy contractor costs.

We received relatively few comments about other fixed fees, such as for land records or pension packets. We also received few comments on the other fee changes in the proposed rule. On that basis, we have made no other fee adjustments in this final rule.

Summary of Public Comments Received

Of the commenters who identified their profession or interest in NARA reproductions, about half identified themselves as genealogists or as researchers of their family history. Some of the latter individuals cited their affiliation with historical societies or hereditary organizations dependent on copies of certain NARA records to obtain new members or fulfill their mission. Almost every responsive comment objected to at least one of the proposed fees. The majority of comments protested the proposed fee for Civil War pension files. We heard from only a few self-identified academic researchers and commercial firms, who objected to the self-service and NARA-made proposed fees for electrostatic copies.

Discussion of Adopted Comments for Fixed-Fee Reproductions

A majority of commenters criticized the proposed $125 fee for copies of Civil War pension files, as mentioned earlier. Because the Civil War full pension files require the largest portion of reproduction order resources, we re-allocated our costs for those files compared to other records accordingly. The public comments led us to reconsider the $125 price and lower the fee increase as previously described.

Comments Relating to NARA's Fixed-Fee Reproduction Costs

Commenters challenged the proposed fees by comparing the cost to obtain a copy of a record from commercial duplication facilities, local and state governments, or other institutions. On the basis of such comparisons, some commenters said that NARA was falsifying or exaggerating costs to supplement funding for the agency or raising fees in order to discourage the public from ordering copies of records. Commenters said that most files should not take long to copy.

NARA response: As indicated by preservation concerns stated in the proposed rule, the reproduction of archival materials cannot meaningfully be compared to the public use of automatic document feeder duplication equipment at high-volume commercial facilities. Furthermore, legal requirements relating to cost recovery and cost components at other institutions or local governments may vary considerably from those at NARA. The copying process for archival records, such as the 19th century pension files, includes separating documents having fasteners, placing non-standard sized documents on a copier's glass platen, generating legible copies, and staff time to transport the file from the archival stack area to the copying contractor and refiling files in their proper places.

We firmly reject allegations that the fees are being raised capriciously for the purpose of supplementing funding for the agency or reducing the number of reproduction orders received. The law does not permit the Archivist to make any profit from reproduction of records for the public. As explained in the proposed rule, the fees for reproduction of records in 36 CFR part 1258 are set under the Archivist's authority in 44 U.S.C. 2116(c):

“The Archivist may charge a fee set to recover the costs for making or authenticating copies or reproductions of materials transferred to his custody. Such fee shall be fixed by the Archivist at a level which will recover, so far as practicable, all elements of such costs, and may, in the Archivist's discretion, include increments for the estimated replacement cost of equipment. Such fees shall be paid into, administered, and expended as a part of the National Archives Trust Fund* * *.”

As we clearly state in our Strategic Plan, NARA's goal is to increase public access to our holdings, not artificially hold down the number of reproduction requests: “The records we hold belong to the public—our mission is to ensure the public can discover, use, and learn from the records of their Government.”

Comments Suggesting Digitization as an Alternative for Civil War Files

Some commenters said that NARA should provide digital copies of the Civil War pension files; some suggested that NARA digitize on demand and e-mail the copies, others that NARA provide online digital copies of all files. Commenters stressed that online digital copies would eliminate some of NARA's cost considerations because staff would no longer be involved in providing the copies and the public would use their own equipment, paper, and toner to print copies.

NARA Response: Digitization on demand would incur the same NARA costs as photocopying the records and NARA does not have funding for full-scale digitization of the many thousands of Civil War pension files. NARA has been exploring digitization partnerships over the past few years and considers the Civil War pension files prime candidates for digitization under a partnership. Nevertheless, the scope of such a project and the need to ensure appropriate archival handling of the fragile records during digitization means that there is no near-term alternative to the current process for fulfilling fixed-fee order requests for reproductions of Civil War pension files.

Comments Suggesting Fee Alternatives

We received numerous comments recommending alternate methods of recovering NARA's costs for fixed fee reproductions relating to the perception of fairness. Commenters who made such recommendations said that a $125 fee was unfair regardless of whether a Civil War pension file contained a few or 200 pages. Comments from those who mentioned digitization of the records are addressed in the previous section of this SUPPLEMENTARY INFORMATION and are not repeated here.

Per page pricing. Numerous commenters said that charging a price per page copied was the fairest method of devising fees. Relatively few commenters stipulated what the per-page price should be, but of those who did, the price ranged from $0.25 to $1.00.

Block pricing for a set number of pages. Although fewer in number, other commenters said that a set fee for up to a certain number of pages would be more equitable. If a file contained more pages than the set fee allotted for that file type, a per-page fee would apply to those extra pages if the customer requested all the pages in the file. This alternative pricing is the basis for the fixed fee for full Civil War pension files in this final rule.

Search fee. Several commenters said that NARA should charge a search fee for every reproduction request as a way to recover costs even when no file is found.

No increases. Quite a few commenters said that the current fees were high enough. Among the arguments against any fee increases was that the cost of living increases for Social Security benefits and the inflation rate fall short of the percentage increases NARA proposed.

No fee. Many of the commenters charged that their taxes already pay for NARA's staff and copies. Others said that their taxes should cover those costs or argued that their ancestors' military service and taxes already paid for the public's right to free copies. Some commenters said that there should be no charge for copies of records relating to their ancestors and expressed that free copies were an entitlement.

NARA Response: At first glance, fees set by a per page price seem the most fair. However, because NARA has to recover its costs regardless of pricing structure, the per page reproduction fee would rise above the $0.75 per page fee set out in the proposed rule. We calculated that if all the costs for our current fixed-fee records were allocated to the NARA-made costs, the per page price would exceed $1.00 per page. In other words, the fee for a Civil War pension file would likely rise to close to the $125 proposed fee for the majority of customers.

Searches for records are covered by appropriations and as such, cannot be counted among our recoverable costs.

Because of legal requirements regarding NARA's recovery of costs for providing reproductions, we rejected comments that stipulated no increases in fees or no fees at all. NARA cannot continue to provide reproductions at existing rates or for free. To choose either approach would lead to rapid insolvency of the Trust Fund and eliminate NARA's capability to provide reproductions.

Other Comments Relating to Fees

We also received comments that criticized various Federal government programs that commenters blamed for draining resources away from NARA; we considered these comments nonresponsive.

How do NARA's costs for reproduction services differ from costs for other NARA services to the public?

Some of NARA's costs for reproduction services cover the administration of the fee collection, as stated in the proposed rule. The Trust Fund, which has its own authorizing legislation (44 U.S.C. 2307) from the U.S. Congress, performs that function for reproductions of NARA's archival holdings. The Trust Fund pays for all copying equipment used to generate reproductions for the public and reimburses archival units for the staff time spent on the reproduction for records (including retrieval of records for copying). In order to continue to provide reproductions to the public, NARA must charge fees that cover these costs; otherwise, NARA cannot gain revenue to keep the Trust Fund operational.

Paperwork Reduction Act

NATF Forms 81 through 86 in this rule were previously approved by the Office of Management and Budget under the Paperwork Reduction Act and bear approval number 3095-0027 on the face of the forms. The proposed rule stated that NATF Form 85 required modification to separate Civil War pension file requests from those of other wars and that other forms are being modified only to update the stated fee, and invited public comment. All comments received addressed the fees, not the content or format of the forms. No comments were received on the information collection requirements. The forms expire April 30, 2008.

This rule is not a significant regulatory action for the purposes of Executive Order 12866 and has not been reviewed by the Office of Management and Budget. As required by the Regulatory Flexibility Act, I certify that this rule will not have a significant impact on a substantial number of small entities because it affects individual researchers. This regulation does not have any federalism implications. This rule is not a major rule as defined in 5 U.S.C. Chapter 8, Congressional Review of Agency Rulemaking.

List of Subjects in 36 CFR Part 1258

• Archives and records

For the reasons set forth in the preamble, NARA amends part 1258 of title 36, Code of Federal Regulations, as follows:

PART 1258—FEES

1. The authority citation for part 1258 continues to read as follows:

Authority: 44 U.S.C. 2116(c) and 2307.

2. Amend § 1258.4 by revising paragraph (d) to read as follows:

§ 1258.4

What reproductions are not covered by the NARA fee schedule?

* * * * *

(d) Reproduction of the following types of records using the specified order form:

Type of record	Order form	Fee
(1) Passenger arrival lists	NATF Form 81	$25.00
(2) Federal Census requests	NATF Form 82	25.00
(3) Eastern Cherokee applications to the Court of Claims	NATF Form 83	25.00
(4) Land entry records	NATF Form 84	40.00
(5) Full pension file more than 75 years old (Civil War and after), up to and including 100 pages	NATF Form 85	75.00
(6) Full pension file (pre-Civil War)	NATF Form 85	50.00
(7) Pension documents packet (selected records)	NATF Form 85	25.00
(8) Bounty land warrant application files	NATF Form 85	25.00
(9) Military service files more than 75 years old	NATF Form 86	25.00

* * * * *

3. Amend § 1258.10 by revising paragraph (a) to read as follows:

§ 1258.10

What is NARA's mail order policy?

(a) There is a minimum fee of $15.00 per order for reproductions that are sent by mail to the customer.

* * * * *

4. Revise § 1258.12 to read as follows:

§ 1258.12

NARA reproduction fee schedule.

(a) Certification: $15.00.

(b) Electrostatic copying (in order to preserve certain records that are in poor physical condition, NARA may restrict customers to photographic or other kinds of copies instead of electrostatic copies):

Service	Fee
Paper-to-paper copy made by the customer on a NARA self-service copier in the Washington, DC, area	$0.25
Paper-to-paper copy made by the customer on a NARA self-service copier outside the Washington, DC, area (regional archives and Presidential libraries)	0.20
Paper-to-paper copy made by NARA	0.75
Paper-to-paper copy made by NARA for full Civil War pension files (NATF Form 85) beyond the first 100 pages	0.65
Microfilm-to-paper copy made by the customer on a NARA self-service copier	0.50

(c) Unlisted processes: For reproductions not covered by this fee schedule, see also § 1258.4. Fees for other reproduction processes are computed upon request.

5. Revise § 1258.16 to read as follows:

§ 1258.16

Effective date.

The fees in this part are effective on October 1, 2007. If your order was received by NARA before this effective date, we will charge the fees in effect at the time the order was received.

Dated: August 13, 2007.

Allen Weinstein,

Archivist of the United States.