[Federal Register Volume 75, Number 171 (Friday, September 3, 2010)]
[Proposed Rules]
[Pages 54052-54056]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-21667]
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FEDERAL FINANCIAL INSTITUTIONS EXAMINATION COUNCIL
12 CFR Part 1101
Description of Office, Procedures, and Public Information
AGENCY: Federal Financial Institutions Examination Council.
ACTION: Notice of proposed rulemaking; request for comments.
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SUMMARY: The Federal Financial Institutions Examination Council
(Council or FFIEC), on behalf of its members, is proposing to update
its Freedom of Information Act (FOIA) regulations. The Council last
made changes to its FOIA regulations in 1988. Since that time
information relating to the Council has changed and there have been
several amendments to the FOIA, which need to be reflected in the
regulations. The proposed rules revise the procedures to be used by
members of the public in requesting records maintained by the Council,
the time limits in which the Council must make a determination on
disclosure in response to a request for records, the time period in
which a requester has the right to administratively appeal any adverse
determination made on a request for records, and provides procedures to
be used to request expedited processing of FOIA requests. The revisions
in the proposed rules are designed to improve access to records
maintained by the Council and to provide clearer guidance to requesters
on how to obtain records under the FOIA.
DATES: Comments must be submitted on or before October 4, 2010.
ADDRESSES: Because paper mail in the Washington, DC area and received
by the Council is subject to delay due to heightened security
precautions, commenters are encouraged to submit comments by the
Federal eRulemaking Portal, if possible. Please use the title ``FOIA
Comments'' to facilitate the organization and distribution of the
comments. You may submit comments by any of the following methods:
Federal eRulemaking Portal--``Regulations.gov'': Go to
http://www.regulations.gov, under the ``More Search Options'' tab click
next to the ``Advanced Docket Search'' option where indicated, select
``FFIEC'' from the agency drop-down menu, then click ``Submit.'' In the
``Docket ID'' column, select ``Docket Number FFIEC-2010-0001'' to
submit or view public comments, and to view supporting and related
materials for this notice of proposed rulemaking. The ``How to Use This
Site'' link on the Regulations.gov home page provides information on
using Regulations.gov, including instructions for submitting or viewing
public comments, viewing other supporting and related materials, and
viewing the docket after the close of the comment period.
Mail: Paul Sanford, Executive Secretary, Federal Financial
Institutions Examination Council, L. William Seidman Center, Mailstop:
B-7081a, 3501 Fairfax Drive, Arlington, Virginia 22226-3550.
Hand Delivery/Courier: Paul Sanford, Executive Secretary,
Federal Financial Institutions Examination Council, L. William Seidman
Center, Mailstop: B-7081a, 3501 Fairfax Drive, Arlington, Virginia
22226-3550.
Instructions: You must include ``FFIEC'' as the agency name and
``Docket Number FFIEC-2010-0001'' in your comment. In general, the
Council will enter all comments received into the docket and publish
them on the Regulations.gov Web site without change, including any
business or personal information that you provide such as name and
address information, e-mail addresses, or phone numbers. Comments
received, including attachments and other supporting materials, are
part of the public record and subject to public disclosure. Do not
include any information in your comment or supporting materials that
you consider confidential or inappropriate for public disclosure.
You may review comments and other related materials that pertain to
this notice of proposed rulemaking electronically by following these
instructions: Go to http://www.regulations.gov, under the ``More Search
Options'' tab click next to the ``Advanced Document Search'' option
where indicated, select ``FFIEC'' from the agency drop-down menu, then,
click ``Submit.'' In the ``Docket ID'' column, select ``Docket FFIEC-
2010-0001'' to view public comments for this rulemaking action.
Docket: You may also view or request available background documents
and project summaries using the methods described above.
FOR FURTHER INFORMATION CONTACT: Paul Sanford, Executive Secretary,
Federal Financial Institutions Examination Council, via telephone:
(703) 516-5590, or via e-mail: PaSanford@FDIC.gov.
SUPPLEMENTARY INFORMATION:
I. Background
The Council proposes a number of substantive and technical changes
to its regulations implementing the FOIA (5 U.S.C. 552, as amended)
that fall within two general categories. First, the Council proposes
modifying its existing regulations to reflect the amendments to the
FOIA contained in the Electronic Freedom of Information Act Amendments
of 1996, Public Law 104-231, 110 Stat. 3048, and the OPEN Government
Act, Public Law 110-175, 121 Stat. 2524. The Electronic Freedom of
Information Act Amendments increased the FOIA's basic time limit for
agency responses to FOIA requests, and provided for expedited
processing of FOIA requests under certain conditions, among other
procedural revisions. The OPEN Government Act also amended various FOIA
administrative procedures, such as when an agency may toll the
statutory time for responding to FOIA requests, and how to indicate
exemptions authorizing deletion of materials under the FOIA on a
responsive record.
Second, the Council proposes to revise its regulations to further
clarify its policies and procedures relating to the processing of FOIA
requests and the administration of its FOIA operations.
Accordingly, the Council proposes to revise its regulations
implementing the FOIA and put them out for public comment. The specific
amendments that the Council proposes to each section of 12 CFR Part
1101 are discussed hereafter in regulatory sequence.
II. Proposed Regulatory Revisions
In 12 CFR 1101.3(e), the Council proposes revising the paragraph by
[[Page 54053]]
providing the current address of the Council's offices.
In 12 CFR 1101.4(a), the Council proposes revising the paragraph by
providing the current address of the Council's offices and clarifying
that Council policies and interpretations may be withheld from
disclosure under exemptions to the FOIA.
In 12 CFR 1101.4(b), the Council proposes minor revisions to the
wording of the section heading.
In 12 CFR 1101.4(b)(1), the Council proposes minor revisions in the
wording of the paragraph to explain that Council records that are not
published in the Federal Register or available for inspection and
copying at the Council's offices are available to the public upon
request except to the extent that such records are exempt from
disclosure under the FOIA.
In 12 CFR 1101.4(b)(1)(i), the Council proposes capitalizing the
word ``Order'' when referring to an Executive Order.
In 12 CFR 1101.4(b)(1)(v), the Council proposes adding language to
protect from disclosure records of deliberations and meetings of the
Council, its committees, and staff, that are not subject to the
Government in the Sunshine Act, 5 U.S.C. 552b.
In 12 CFR 1101.4(b)(1)(vii), the Council proposes revising the
paragraph by substituting a reference to the statutory citation for
Exemption 7 of the FOIA, 5 U.S.C. 552(b)(7), for the list of the
specific substantive provisions of the exemption in the existing
regulation. In addition, the term ``state or federal'' has been
inserted to clarify that records of state financial regulatory agencies
in the possession of the Council are exempt from disclosure under
Exemption 7 as are the records of federal regulatory agencies.
In 12 CFR 101.4(b)(1)(viii), the Council proposes revising the
paragraph by eliminating a listing of the types of financial
institutions covered by Exemption 8 of the FOIA, 5 U.S.C. 552(b)(8),
and inserting the term ``state or federal'' to clarify that records of
state financial regulatory agencies in the possession of the Council
are exempt from disclosure under Exemption 8.
In 12 CFR 1101.4(b)(2), the Council proposes revising the heading
to reflect current FOIA terminology concerning discretionary releases
of exempt information.
In 12 CFR 1101.4(b)(3)(i), the Council proposes to revise the
paragraph to provide the current address of the Council's offices, to
allow the submission of FOIA requests by facsimile and e-mail, and to
require that requests reasonably describe the records sought.
In 12 CFR 1101.4 (b)(3)(ii) the Council proposes to revise the
paragraph to specify the information that a request must contain in
order to be considered a ``proper FOIA request'' (i.e., a request to
which a response is required). In addition, the Council proposes to
require a requester to identify whether the information sought by a
FOIA request is requested for commercial use and whether the requester
is an educational or noncommercial scientific institution, or news
media representative, and to address the payment of fees.
In 12 CFR 1101.4(b)(3)(iii), the Council proposes modifying the
language of the paragraph to clarify that the Council need not accept
or process a defective FOIA request and to provide that such a request
may be returned to the requester specifying the deficiency.
In 12 CFR 1101.4(b)(3)(iv), the Council proposes to add a procedure
to request the expedited treatment of FOIA requests. A requester
seeking to have the processing of a request expedited must show a
compelling need for expedited processing.
In 12 CFR 1101.4(b)(3)(v), the Council proposes revising its
procedures to increase the time limit in which the Council must respond
to a FOIA request from 10 working days to 20 working days in accordance
with the Electronic Freedom of Information Act Amendments and to
clarify what information the Council's response to a FOIA request must
contain.
In 12 CFR 1101.4(b)(3)(vi), the Council proposes to shorten the
time period in which an administrative appeal of a denied request may
be brought from 35 calendar days to 10 working days, to provide for the
filing of administrative appeals by facsimile, and to update the
mailing address of the Council.
In 12 CFR 1101.4(b)(3)(vii), the Council proposes to clarify that
the time in which the Council has to respond to an appeal runs from the
actual receipt of the appeal by the Executive Secretary of the Council.
In 12 CFR 1101.4(b)(4), the Council proposes to designate the
existing paragraph as paragraph 1101.4(b)(4)(i) and to make a minor
grammatical change to the language of the paragraph.
The Council proposes to add 12 CFR 1101.4(b)(4)(ii) to provide that
if the responsive records are to be delivered to the requester, they
will be mailed to the requester unless the Executive Secretary of the
Council determines that it is appropriate to send the records by some
other means.
The Council proposes to add 12 CFR 1101.4(b)(4)(iii) to indicate
that the Council will provide a copy of a responsive record in the
format requested by the requester if the record is ``readily
reproducible'' in that format.
The Council proposes to add 12 CFR 1101.4(b)(4)(iv) to permit
records to be provided electronically, and to provide that if the
information is subject to the Privacy Act, 5 U.S.C. 552a, it will not
be sent electronically unless ``reasonable security measures'' can be
established.
In 12 CFR 1101.4(b)(5)(i)(C), the Council proposes to revise the
definition of the term ``Duplication'' to provide examples of the forms
of document reproduction that may be used by the Council.
In 12 CFR 1101.4(b)(5)(i)(D), the Council proposes to make a minor
change to the wording of the paragraph replacing the character ``Sec.
'' with the word ``section''.
In 12 CFR 1101.4(b)(5)(i)(E), the Council proposes to add a
provision to allow the Executive Secretary of the Council to consider
the use to which the requester will put the records, and to seek
additional information on the use if necessary in order to determine
whether a particular FOIA request is a ``commercial use request''.
In 12 CFR 1101.4(b)(5)(i)(G), the Council proposes to make a minor
change to the wording of the paragraph replacing the character ``Sec.
'' with the word ``section''.
In 12 CFR 1101.4(b)(5)(i)(H), the Council proposes revising its
definition of ``Representative of the news media'' to reflect the
definition provided in the OPEN Government Act, 5 U.S.C
552(a)(4)(A)(ii).
In 12 CFR 1101.4(b)(5)(ii)(C)(2), the Council proposes to add
computer disks to the list of examples indicating the types of
materials for which a requester will be charged a fee.
In 12 CFR 1101.4(b)(5)(ii)(F), the Council proposes revising the
paragraph to provide examples of ``special services'' for which
additional fees may be charged.
In 12 CFR 1101.4(b)(5)(ii)(H), the Council proposes to revise the
procedures for requesting a waiver or reduction of fees. The proposed
revisions include eliminating the list of factors to be considered by
the Council in determining whether the public interest requirement is
met, requiring a requester to state a justification for a waiver or
reduction of fees, and providing a right to administratively appeal the
denial of a request for a waiver or reduction of fees.
In 12 CFR 101.4(b)(5)(iii)(A), the Council proposes to make a minor
grammatical change to the language of the paragraph.
[[Page 54054]]
In 12 CFR 101.4(b)(5)(iv), the Council proposes to make a minor
change to the statutory citation contained in the paragraph.
In 12 CFR 1101.4(b)(5)(vii)(B), the Council proposes to make a
minor change to the wording of the paragraph replacing the character
``Sec. '' with the word ``section''.
In 12 CFR 1101.4(b)(5)(vii)(C), the Council proposes to revise the
paragraph by replacing the character ``Sec. '' with the word
``section,'' and by increasing the limit stated in the parenthetical
phrase to 20 working days in accordance with subsection (a)(6) of the
FOIA 5 U.S.C. 552(a)(6).
In 12 CFR 1101.4(b)(6), the Council proposes revising the paragraph
to provide that referral or consultation with another agency is
appropriate whenever the requested record originated with or
incorporates the information of another state or federal agency.
III. Regulatory Analysis and Procedure
A. Regulatory Flexibility Act
In accordance with section 3(a) of the Regulatory Flexibility Act
(RFA), 5 U.S.C. 603(a), the Council must publish an initial regulatory
flexibility analysis with this proposed rulemaking or certify that the
proposed rule, if adopted, will not have a significant economic impact
on a substantial number of small entities. For purposes of the RFA
analysis or certification, financial institutions with total assets of
$175 million or less are considered to be ``small entities.'' The
Council hereby certifies that this proposed rule will not have a
significant economic impact on a substantial number of small entities.
B. Paperwork Reduction Act
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C.
3501 et seq.), an agency may not conduct or sponsor, and a person is
not required to respond to, a collection of information unless it
displays a currently valid OMB control number. These proposed changes
do not contain any information collection requirements that require the
approval of OMB.
C. Solicitation of Comments on Use of Plain Language
Section 722 of the Gramm-Leach-Bliley Act, Public Law 106-102, 113
Stat. 1338, 1471 (Nov. 12, 1999), requires the Federal banking agencies
to use plain language in all proposed and final rules published after
January 1, 2000. The Council invites your comments on how to make this
proposed regulation easier to understand. For example:
Has the Council organized the material to suit your needs?
If not, how could this material be better organized?
Are the requirements in the proposed regulation clearly
stated? If not, how could the proposed regulation be more clearly
stated?
Does the proposed regulation contain language or jargon
that is not clear? If so, which language requires clarification?
Would a different format (grouping and order of sections,
use of headings, paragraphing) make the proposed regulation easier to
understand? If so, what changes to the format would make the proposed
regulation easier to understand?
What else could the Council do to make the proposed
regulation easier to understand?
D. The Treasury and General Government Appropriations Act, 1999--
Assessment of Federal Regulations and Policies on Families
The Council has determined that the proposed rule will not affect
family well-being within the meaning of section 654 of the Treasury and
General Government Appropriations Act, enacted as part of the Omnibus
Consolidated and Emergency Supplemental Appropriations Act of 1999
(Pub. L. 105-277, 112 Stat. 2681).
Congressional Review Act
This proposed rule will be submitted to OMB for a determination as
to whether or not it constitutes a major rule under the Congressional
Review Act, 5 U.S.C. 801-808, 5 U.S.C 804(2), (3)(c), before it is
issued as a final rule.
Lists of Subjects in 12 CFR Part 1101
Freedom of information, FOIA exemptions, Schedule of fees, Waivers
or reductions of fees.
For the reasons set forth in the preamble, the Council proposes to
amend 12 CFR part 1101 as follows:
PART 1101--DESCRIPTION OF OFFICE, PROCEDURE, PUBLIC INFORMATION
1. The authority citation for part 1101 continues to read as
follows:
Authority: 5 U.S.C. 552; 12 U.S.C. 3307.
2. Section 1101.3 is amended by revising paragraph (e) to read as
follows:
Sec. 1101.3 Organization and methods of operation.
* * * * *
(e) Council address. Council offices are located at 3501 Fairfax
Drive, Room B-7081a, Arlington, VA 22226-3550.
3. Section 1101.4 is amended:
a. By revising paragraph (a);
b. By revising the heading for paragraph (b) and paragraphs (b)(1)
introductory text, (b)(1)(i), (v), (vii), and (viii);
c. By revising paragraphs (b)(2), (3), and (4);
d. By revising paragraphs (b)(5)(i)(C), (D), (E), (G), and (H) and
(b)(5)(ii)(C)(2), (F), and (H); and
e. By revising paragraphs (b)(5)(iii)(A), (b)(5)(iv),
(b)(5)(iv)(B), (C), and (b)(6).
The revisions read as follows:
Sec. 1101.4 Disclosure of information, policies, and records.
(a) Statements of policy published in the Federal Register or
available for public inspection and copying; indices. Under 5 U.S.C.
552(a)(1), the Council publishes general rules, policies and
interpretations in the Federal Register. Under 5 U.S.C. 552(a)(2),
policies and interpretations adopted by the Council, including
instructions to Council staff affecting members of the public, and an
index to the same, are available for public inspection and copying at
the office of the Executive Secretary of the Council, 3501 Fairfax
Drive, Room B-7081a, Arlington, VA 22226-3550, during regular business
hours. Policies and interpretations of the Council may be withheld from
disclosure under the principles stated in paragraph (b)(1) of this
section.
(b) Other records of the Council available to the public upon
request;procedures--(1) General rule and exemptions. Under 5 U.S.C.
552(a)(3), all other records of the Council are available to the public
upon request, except to the extent exempted from disclosure as provided
in this paragraph (b). Except as specifically authorized by the
Council, the following records, and portions thereof, are not available
to the public:
(i) A record, or portion thereof, which is specifically authorized
under criteria established by an Executive Order to be kept secret in
the interest of national defense or foreign policy and which is, in
fact, properly classified pursuant to such Executive Order.
* * * * *
(v) An intra-agency or interagency memorandum or letter that would
not be routinely available by law to a private party in litigation,
including, but not limited to, memoranda, reports, and other documents
prepared by the personnel of the Council or its constituent agencies,
and records of deliberations of the Council and discussions of meetings
of the Council, any Council Committee, or Council staff, that are not
subject to 5 U.S.C.
[[Page 54055]]
552b (the Government in the Sunshine Act).
* * * * *
(vii) Records or information compiled for law enforcement purposes,
to the extent permitted under 5 U.S.C. 552(b)(7), including records
relating to a proceeding by a financial institution's state or federal
regulatory agency for the issuance of a cease-and-desist order, or
order of suspension or removal, or assessment of a civil money penalty
and the granting, withholding, or revocation of any approval,
permission, or authority.
(viii) A record, or portion thereof, containing, relating to, or
derived from an examination, operating, or condition report prepared
by, or on behalf of, or for the use of any state or federal agency
directly or indirectly responsible for the regulation or supervision of
financial institutions.
* * * * *
(2) Discretionary Release of Exempt Information. Notwithstanding
the applicability of an exemption, the Council or the Council's
designee may elect, under the circumstances of a particular request, to
disclose all or a portion of any requested record where permitted by
law. Such disclosure has no precedential significance.
(3) Procedure for records request--(i) Initial request. Requests
for records shall be submitted in writing to the Executive Secretary of
the Council: (A) By sending a letter to: FFIEC, Attn: Executive
Secretary, 3501 Fairfax Drive, Room B-7081a, Arlington, VA 22226-3550.
Both the mailing envelope and the request should be marked ``Freedom of
Information Request,'' ``FOIA Request,'' or the like; or (B) By
facsimile clearly marked ``Freedom of Information Act Request,'' ``FOIA
Request,'' or the like to the Executive Secretary at (703) 562-6446; or
(C) By e-mail to the address provided on the FFIEC's World Wide Web
page, found at: http://www.ffiec.gov. Requests must reasonably describe
the records sought.
(ii) Contents of request. All requests should contain the following
information: (A) the name and mailing address of the requester, an
electronic mail address, if available, and the telephone number at
which the requester may be reached during normal business hours;
(B) A statement as to whether the information is intended for
commercial use, and whether the requester is an educational or
noncommercial scientific institution, or news media representative;
(C) A statement agreeing to pay all applicable fees, or a statement
identifying any desired fee limitation, or a request for a waiver or
reduction of fees that satisfies paragraph (5)(H)(ii) of this section.
(iii) Defective requests. The Council need not accept or process a
request that does not reasonably describe the records requested or that
does not otherwise comply with the requirements of this section. The
Executive Secretary may return a defective request specifying the
deficiency. The requester may submit a corrected request, which will be
treated as an initial request.
(iv) Expedited processing. (A) Where a person requesting expedited
access to records has demonstrated a compelling need for the records,
or where the Executive Secretary has determined to expedite the
response, the Executive Secretary shall process the request as soon as
practicable. To show a compelling need for expedited processing, the
requester shall provide a statement demonstrating that:
(1) Failure to obtain the records on an expedited basis could
reasonably be expected to pose an imminent threat to the life or
physical safety of an individual; or
(2) The requester is primarily engaged in information dissemination
as a main professional occupation or activity, and there is urgency to
inform the public of the government activity involved in the request.
(B) The requester's statement must be certified to be true and
correct to the best of the person's knowledge and belief and explain in
detail the basis for requesting expedited processing.
(C) The formality of the certification required to obtain expedited
treatment may be waived by the Executive Secretary as a matter of
administrative discretion.
(v) Response to initial requests. (A) Except where the Executive
Secretary has determined to expedite the processing of a request, the
Executive Secretary will respond by mail or electronic mail to all
properly submitted initial requests within 20 working days of receipt.
The time for response may be extended up to 10 additional working days,
as provided in 5 U.S.C. 552(a)(6)(B), or for other periods by agreement
between the requester and the Executive Secretary.
(B) In response to a request that reasonably describes the records
sought and otherwise satisfies the requirements of this section, a
search shall be conducted of records in existence and maintained by the
Council on the date of receipt of the request, and a review made of any
responsive information located. The Executive Secretary shall notify
the requester of:
(1) The Executive Secretary's determination of the response to the
request;
(2) The reasons for the determination;
(3) If the response is a denial of an initial request or if any
information is withheld, the Executive Secretary will advise the
requester in writing:
(i) If the denial is in part or in whole;
(ii) The name and title of each person responsible for the denial
(when other than the person signing the notification);
(iii) The exemptions relied on for the denial; and
(iv) The right of the requester to appeal the denial to the
Chairman of the Council within 10 working days following the date of
issuance of the notification, as specified in paragraph (b)(3)(vi) of
this section.
(vi) Appeals of responses to initial requests. If a request is
denied in whole or in part, the requester may appeal in writing, within
10 working days of the date of issuance of a denial determination.
Appeals shall be submitted to the Chairman of the Council: (A) By
sending a letter to: FFIEC, Attn: Executive Secretary, 3501 Fairfax
Drive, Room B-7081a, Arlington, VA 22226-3550. Both the mailing
envelope and the request should be marked ``Freedom of Information Act
Appeal,'' ``FOIA Appeal,'' or the like; or (B) By facsimile clearly
marked ``Freedom of Information Act Appeal,'' ``FOIA Appeal,'' or the
like to the Executive Secretary at (703) 562-6446. Appeals should refer
to the date and tracking number of the original request and the date of
the Council's initial ruling. Appeals should include an explanation of
the basis for the appeal.
(vii) Council response to appeals. The Chairman of the Council, or
another member designated by the Chairman, will respond to all properly
submitted appeals within 20 working days of actual receipt of the
appeal by the Executive Secretary. The time for response may be
extended up to 10 additional working days, as provided in 5 U.S.C.
552(a)(6)(B), or for other periods by agreement between the requester
and the Chairman or the Chairman's designee.
(4) Procedure for access to records if request is granted. (i) When
a request for access to records is granted, in whole or in part, a copy
of the records to be disclosed will be promptly delivered to the
requester or made available for inspection, whichever was requested.
Inspection of records, or duplication and delivery of copies of records
will be arranged so as not to interfere with their
[[Page 54056]]
use by the Council and other users of the records.
(ii) When delivery to the requester is to be made, copies of
requested records shall be sent to the requester by regular U.S. mail
to the address indicated in the request, unless the Executive Secretary
deems it appropriate to send the documents by another means.
(iii) The Council shall provide a copy of the record in any form or
format requested if the record is readily reproducible by the Council
in that form or format, but the Council need not provide more than one
copy of any record to a requester.
(iv) By arrangement with the requester, the Executive Secretary may
elect to send the responsive records electronically if a substantial
portion of the records is in electronic format. If the information
requested is subject to disclosure under the Privacy Act of 1974, 5
U.S.C. 552a, it will not be sent by electronic means unless reasonable
security measures can be established.
(5) * * *
(i) * * *
(C) Duplication means the process of making a copy of a document
necessary to respond to a FOIA request. Such copies can take the form
of paper copy, microfilm, audiovisual records, or machine readable
records (e.g., magnetic tape or computer disk).
(D) Review means the process of examining documents located in
response to a request that is for a commercial use (see section
1101.4(b)(5)(i)(E)) to determine whether any portion of any document
located is permitted to be withheld and processing such documents for
disclosure.
(E) Commercial use request means a request from or on behalf of one
who seeks information for a use or purpose that furthers the
commercial, trade, or profit interests of the requester or the person
on whose behalf the request is made. In determining whether a request
falls within this category, the Executive Secretary will determine the
use to which a requester will put the records requested and seek
additional information as the Executive Secretary deems necessary.
* * * * *
G) Noncommercial scientific institution means an institution that
is not operated on a ``commercial'' basis as that term is referenced in
section 1101.4(b)(5)(i)(E), and which is operated solely for the
purposes of conducting scientific research, the results of which are
not intended to promote any particular product or industry.
(H) Representative of the news media means any person or entity
that gathers information of potential interest to a segment of the
public, uses its editorial skills to turn the raw materials into a
distinct work, and distributes that work to an audience. In this
clause, the term ``news'' means information that is about current
events or that would be of current interest to the public. Examples of
news-media entities are television or radio stations broadcasting to
the public at large and publishers of periodicals (but only if such
entities qualify as disseminators of ``news'') who make their products
available for purchase by or subscription by or free distribution to
the general public. These examples are not all-inclusive. Moreover, as
methods of news delivery evolve (for example, the adoption of the
electronic dissemination of newspapers through telecommunications
services), such alternative media shall be considered to be news-media
entities. A freelance journalist shall be regarded as working for a
news-media entity if the journalist can demonstrate a solid basis for
expecting publication through that entity, whether or not the
journalist is actually employed by the entity. A publication contract
would present a solid basis for such an expectation; the Council may
also consider the past publication record of the requester in making
such a determination.
* * * * *
(ii) * * *
(C) * * *
(2 ) The fee for documents generated by computer is the hourly rate
for the computer operator (at GS 7, step 5, plus 16 percent for
benefits if clerical staff, and GS 13, step 5, plus 16 percent for
benefits if professional staff) plus the cost of materials (computer
paper, tapes, disks, labels, etc.).
* * * * *
(F) Other services. Complying with requests for special services
such as certifying records as true copies or mailing records by express
mail is entirely at the discretion of the Council. The Council will
recover the full costs of providing such services to the extent it
elects to provide them.
* * * * *
(H) Waiving or reducing fees. As part of the initial request for
records, a requester may ask that the Council waive or reduce fees if
disclosure of the records is in the public interest because it is
likely to contribute significantly to public understanding of the
operations or activities of the Council and is not primarily in the
commercial interest of the requester. The initial request for records
must also state the justification for a waiver or reduction of fees.
Determinations as to a waiver or reduction of fees will be made by the
Executive Secretary of the Council and the requester will be notified
in writing of his/her determination. A determination not to grant a
request for a waiver or reduction of fees under this paragraph may be
appealed to the Chairman of the Council pursuant to the procedure set
forth in paragraph (b)(3)(vi) of this section.
(iii) Categories of requesters. (A) Commercial use requesters. The
Council will assess fees for commercial use requesters sufficient to
recover the full direct costs of searching for, reviewing for release,
the duplicating the records sought.
* * * * *
(iv) Interest on unpaid fees. The Council may begin assessing
interest charges on an unpaid bill starting on the 31st day following
the day on which the bill was sent. Interest will be at the rate
prescribed in 31 U.S.C. 3717 and will accrue from the date of the
billing.
* * * * *
(B) A requester has previously failed to pay a fee charged in a
timely fashion. The Council may require the requester to pay the full
amount owed plus any applicable interest as provided in section
1101.4(b)(5)(iv) or demonstrate that he/she has, in fact, paid the fee,
and to make an advance payment of the full amount of the estimated fee
before the Council begins to process a new request or a pending request
from that requester.
(C) When the Council acts under section 1101.4(b)(5)(vii) (A) or
(B), the administrative time limits prescribed in subsection (a)(6) of
the FOIA (i.e., 20 working days from receipt of initial requests, plus
permissible extensions of these time limits) will begin only after the
Council has received the fee payments described.
(6) Records of another agency. If a requested record originated
with or incorporates the information of another state or federal agency
or department, upon receipt of a request for the record the Council
will promptly inform the requester of this circumstance and immediately
shall forward the request to the originating agency or department
either for processing in accordance with the latter's regulations or
for guidance with respect to disposition.
Dated at Arlington, Virginia, this 26th day of August 2010.
Federal Financial Institutions Examination Council.
Paul Sanford,
Executive Secretary.
[FR Doc. 2010-21667 Filed 9-2-10; 8:45 am]
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