[Federal Register Volume 82, Number 126 (Monday, July 3, 2017)]
[Rules and Regulations]
[Pages 30724-30730]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-13723]
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FEDERAL FINANCIAL INSTITUTIONS EXAMINATION COUNCIL
12 CFR Part 1101
[Docket No. FFIEC-2017-0002]
Description of Office, Procedures, and Public Information;
Correction
AGENCY: Federal Financial Institutions Examination Council (FFIEC).
ACTION: Interim final rule with request for comments; correcting
amendments.
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SUMMARY: The Federal Financial Institutions Examination Council (FFIEC
or Council) is correcting an interim final rule announcing revisions
and additions to its information disclosure regulations under the
Freedom of Information Act (FOIA Regulations). This interim final rule
replaces the interim final rule published in the Federal Register on
December 27, 2016. The Council invites comments on this interim final
rule revising its regulations implementing the Freedom of Information
Act (FOIA). These revisions implement recent statutory amendments to
the FOIA that are mandated by the FOIA Improvement Act of 2016, as well
as update the language of the Council's regulations to more closely
mirror the language of the FOIA and to reflect the Council's current
FOIA procedures. This interim final rule also corrects three
typographical errors that occurred when the Council's FOIA Regulations
were last amended by a final rule appearing in the Federal Register on
November 22, 2010.
DATES: Effective July 3, 2017. Comments must be received on or before
September 1, 2017.
ADDRESSES: Interested persons are invited to submit comments regarding
this interim final rule, identified by ``Federal Financial Institutions
Examination Council: Docket No. FFIEC-2017-0002,'' by any of the
following methods:
Electronic submission of comments: Interested persons may
submit comments electronically through the Federal eRulemaking Portal
at http://www.regulations.gov. Electronic submission of comments allows
the commenter maximum time to prepare and submit a comment, ensures
timely receipt, and enables the Council to make them available to the
public. Comments submitted electronically through the http://www.regulations.gov Web site can be viewed by other commenters and
interested members of the public. Commenters should follow the
instructions provided on that site to submit comments electronically.
Facsimile: (703) 562-6446.
Mail: Ms. Judith Dupre, Executive Secretary, FFIEC, Attn:
Executive Secretary, 3501 Fairfax Drive, Room B-7081a, Arlington, VA,
22226-3550.
Public Inspection of Comments: In general, the Council
will enter all comments received into the docket and publish them on
the www.regulations.gov Web site without change, including any business
or personal information that you provide such as name and address
information, email addresses, or phone numbers. Please be advised that
your comments, including attachments and other supporting materials,
are part of the public record and available for public inspection.
Please 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 the instructions at http://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Ms. Judith Dupre, Executive Secretary,
Federal Financial Institutions Examination Council, via telephone:
(703) 516-5590, or via email: [email protected].
SUPPLEMENTARY INFORMATION:
I. Background
The Council \1\ is publishing an interim final rule revising its
information disclosure regulations under the Freedom of Information Act
\2\ (FOIA Regulations). On June 30, 2016, the Freedom of Information
Act (FOIA) was amended by the FOIA Improvement Act of 2016 \3\ (FOIA
Improvement Act). Among other things, section 3 of the FOIA Improvement
Act required each Federal agency to revise its disclosure regulations
and procedures for processing FOIA requests in order to conform to the
substantive amendments made by section 2 of the FOIA Improvement Act by
December 27, 2016. Accordingly, the Council is implementing the
required substantive and procedural changes necessary to comply with
the FOIA Improvement Act's amendments (such as changing the appeal
deadline from 10 working days to 90 days and providing additional
limitations on the fees charged by the Council). In addition, the
Council is making certain changes to its FOIA Regulations to reflect
revisions brought about by prior amendments to the FOIA that were
incorporated into the Council's procedures and to make the FOIA process
easier for the public to navigate (such as providing an email address
where administrative appeals may be submitted electronically). In
drafting these amendments to the FOIA Regulations, the Council
consulted the ``Guidance for Agency FOIA Regulations'' issued by the
U.S.
[[Page 30725]]
Department of Justice's Office for Information Policy.
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\1\ The members of the Council are the Board of Governors of the
Federal Reserve System, the Consumer Financial Protection Bureau,
the Federal Deposit Insurance Corporation, the National Credit Union
Administration, the Office of the Comptroller of the Currency, and
the State Liaison Committee.
\2\ 5 U.S.C. 552.
\3\ Public Law 114-185, 130 Stat. 538 (June 30, 2016).
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The Council is also correcting technical and typographical errors
that occurred when the Council's FOIA Regulations were last revised and
published as a final rule in the Federal Register on November 22, 2010
(75 FR 71014). That publication resulted in the inadvertent duplication
of two provisions in the Council's FOIA Regulations and the inadvertent
omission of one provision. Accordingly, this interim final rule removes
the duplicative provisions and reinserts the provision that was
inadvertently deleted when the Council's FOIA Regulations were last
amended in 2010. The following is a section-by-section discussion of
the changes.
The Council initially published a final rule announcing the above
changes on December 27, 2016 (81 FR 94937), and is hereby correcting
that interim final rule to allow for a public comment period and to
implement the changes set forth below.
II. Section-by-Section Analysis
This interim final rule amends the Council's FOIA Regulations in 12
CFR 1101.4, as described below.
To implement the mandatory requirements made by the FOIA
Improvement Act, the Council is revising Sec. 1101.4(a) to clarify
that the Council records available for public inspection pursuant to 5
U.S.C. 552(a)(2) include records released for a FOIA request three or
more times or that are likely to become the subject of subsequent FOIA
requests, and that such records will be made available in electronic
format.
In accordance with the amendments made by the FOIA Improvement Act,
the Council is also revising Sec. 1101.4(b)(1) and (2) to reflect that
information will only be withheld if the Council reasonably foresees
that disclosure would harm an interest protected by a FOIA exemption or
if disclosure is prohibited by law, and to reflect that the
deliberative process privilege only protects records that were created
less than 25 years before the date when the records were requested.
In order to implement the recent amendments made by the FOIA
Improvement Act and prior amendments to the FOIA, the Council is
revising Sec. 1101.4(b)(3)(v)(A) to provide that, whenever the Council
extends the 20-day response time for a FOIA request by more than ten
working days due to unusual circumstances, the Council's FOIA Public
Liaison is available to assist the requester in modifying the scope of
their FOIA request and that the requester may seek dispute resolution
services from the Office of Government Information Services (``OGIS'')
or from the Council's FOIA Public Liaison.
The Council is revising Sec. 1101.4(b)(3)(v)(B)(3) to provide that
all determination letters from the Executive Secretary will advise
requesters of their right to seek assistance from the Council's FOIA
Public Liaison, which reflects a procedural change required by the FOIA
Improvement Act.
To implement the FOIA Improvement Act's amendments to the FOIA with
respect to appeals, the Council is revising Sec. 1101.4(b)(3)(v)(B)(4)
and (b)(3)(vi) to provide that, in the case of an adverse
determination, requesters must be informed of the right to seek dispute
resolution services from the Council's FOIA Public Liaison or OGIS, and
that requesters have 90 days to file an administrative appeal (extended
from the prior deadline of 10 working days). Relatedly, in order to
mirror the more expansive language of the FOIA and to reflect the
Council's current practice, the Council is updating the language in
Sec. 1101.4(b)(3)(v)(B)(4) and (b)(3)(vi) to clarify that a requester
has the right to administratively appeal any ``adverse determination''
(not just to appeal the denial or partial denial of a request for
records). The new language in paragraph (b)(3)(v)(B)(4) of this section
also provides examples of the adverse determinations that may be
appealed. In paragraph (b)(3)(vi) of this section, the Council is
adding language to inform members of the public that they have the
additional option to submit administrative appeals via email and
providing an email address for members of the public to use to send
such administrative appeals.
The Council is amending Sec. 1101.4(b)(4)(i) to reflect that
records will also be made available to requesters for public inspection
in electronic format as required by the FOIA Improvement Act's
amendments to the FOIA.
The FOIA Improvement Act's amendments to the FOIA restrict an
agency's ability to charge search or duplication fees in certain
circumstances. The Council is revising Sec. 1101.4(b)(5)(ii)
introductory text and (b)(5)(ii)(G) to reflect the statutory
restrictions on charging fees.
In Sec. 1101.4(b)(5)(ii)(E), the Council is replacing the words
``Council personnel'' with ``the Council's FOIA Public Liaison,'' in
order to identify a specific point of contact whom members of the
public can contact.
The Council is also correcting three technical errors that occurred
when the Council's FOIA Regulations were revised in 2010. Section
1101.4(b)(5)(iii)(A) and (b)(5)(iv) were both amended as published in a
final rule in the Federal Register on November 22, 2010 (75 FR
71014).\4\ However, both the original version and the revised version
of these paragraphs inadvertently remained in the final rule that
appeared in the Federal Register on November 22, 2010 (75 FR 71014).
Accordingly, the Council is deleting the first appearance of paragraph
(b)(5)(iii)(A), deleting the second appearance of paragraph (b)(5)(iv),
and making minor grammatical edits to the current paragraph
(b)(5)(iii)(A). In addition, the Council is reinserting Sec.
1101.4(b)(5)(v), which was inadvertently removed from the final rule
that appeared in the Federal Register on November 22, 2010 (75 FR
71014) due to a publication error.
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\4\ The amendments to Sec. 1101.4(b)(5)(iii)(A) and (b)(5)(iv)
were subject to public notice and comment in the notice of proposed
rulemaking that appeared in the Federal Register on September 3,
2010 (75 FR 54052).
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III. Request for Comments
The Committee invites comment on all aspects of the interim final
rule.
IV. Administrative Law Matters
A. Administrative Procedure Act
Pursuant to the Administrative Procedure Act, 5 U.S.C.
553(b)(3)(B), notice and comment are not required prior to the issuance
of a final rule if an agency, for good cause, finds that ``notice and
public procedure thereon are impracticable, unnecessary, or contrary to
the public interest.'' As discussed above, this interim final rule
implements the substantive amendments made by the FOIA Improvement Act.
Congress provided Federal agencies with no discretion in amending their
information disclosure regulations to comply with the statutory
amendments made to the FOIA, and required that such conforming
amendments become effective by December 27, 2016. Additionally, the
three revisions fixing prior publishing errors are merely technical
corrections to provisions that were already subject to public notice
and the opportunity to comment. The other revisions bring the language
of the Council's FOIA Regulations into alignment with the more
expansive language of the FOIA, reflect the Council's current
procedures, and provide the public with expanded benefits.
Given that the substantive amendments to the Council's FOIA
Regulations are mandated by the FOIA Improvement Act and were required
to
[[Page 30726]]
be implemented by December 27, 2016, and that the other amendments are
technical in nature or expand the rights of the public, the Council for
good cause finds that prior notice and comment on this rulemaking is
impracticable, unnecessary, and contrary to the public interest
pursuant to 5 U.S.C. 553(b)(3)(B). For these same reasons, the Council
finds good cause to dispense with the 30-day delayed effective date
otherwise required by 5 U.S.C. 553(d)(3). While the interim final rule
is effective immediately upon publication, the Council is inviting
public comment on the interim final rule during a 60-day period and
will consider all comments in developing a final rule.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act, 5 U.S.C. 601 et seq., applies only
to rules for which an agency publishes a general notice of proposed
rulemaking. Because the Council has determined for good cause that a
notice of proposed rulemaking for this rule is unnecessary, the
Regulatory Flexibility Act does not apply to this final rule. 5 U.S.C.
601(2).
C. Paperwork Reduction Act
The Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) is
inapplicable because this interim final rule does not create any new,
or revise any existing, information collection requirements under the
Paperwork Reduction Act.
D. 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 rules published after January 1,
2000. In light of this requirement, the Council has sought to present
the interim final rule in a simple, comprehensible, and straightforward
manner. The Council invites comment on whether the Council could take
additional steps to make the rule easier to understand.
List of Subjects in 12 CFR Part 1101
FOIA exemptions, Freedom of information, Schedule of fees, Waivers
or reductions of fees.
Authority and Issuance
For the reasons set forth in the preamble, the Council amends 12
CFR part 1101 as follows:
PART 1101--DESCRIPTION OF OFFICE, PROCEDURES, PUBLIC INFORMATION
0
1. The authority citation for part 1101 continues to read as follows:
Authority: 5 U.S.C. 552; 12 U.S.C. 3307.
0
2. Revise Sec. 1101.4 to 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 in an electronic format; indices. (1)
Under 5 U.S.C. 552(a)(l), the Council publishes general rules, policies
and interpretations in the Federal Register.
(2) 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 are available for public inspection in an
electronic format 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.
(3) Copies of all records, regardless of form or format, are
available for public inspection in an electronic format if they:
(i) Have been released to any person under paragraph (b) of this
section; and
(ii)(A) Because of the nature of their subject matter, the Council
determines that they have become or are likely to become the subject of
subsequent requests for substantially the same records; or
(B) They have been requested three or more times.
(4) An index of the records referred to in paragraphs (a)(1)
through (3) of this section is available for public inspection in an
electronic format.
(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 5 U.S.C. 552(b) and described in this paragraph (b)(1), or if
disclosure is prohibited by law. Unless specifically authorized by the
Council, or as set forth in paragraph (b)(2) of this section, 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.
(ii) A record, or portion thereof, relating solely to the internal
personnel rules and practices of an agency.
(iii) A record, or portion thereof, specifically exempted from
disclosure by statute (other than 5 U.S.C. 552b), provided that such
statute:
(A) Requires that the matters be withheld from the public in such a
manner as to leave no discretion on the issue; or
(B) Establishes particular criteria for withholding or refers to
particular types of matters to be withheld.
(iv) A record, or portion thereof, containing trade secrets and
commercial or financial information obtained from a person and
privileged or confidential.
(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. 552b (the Government in the Sunshine Act). In
applying this exemption, the Council will not withhold records based on
the deliberative process privilege if the records were created 25 years
or more before the date on which the records were requested.
(vi) A personnel, medical, or similar record, including a financial
record, or any portion thereof, the disclosure of which would
constitute a clearly unwarranted invasion of personal privacy.
(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-anddesist 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.
(ix) A record, or portion thereof, which contains or is related to
geological and geophysical information and data, including maps,
concerning wells.
(2) Discretionary release of exempt information. Notwithstanding
the applicability of an exemption, the Council will only withhold
records
[[Page 30727]]
requested under this paragraph (b) if the Council reasonably foresees
that disclosure would harm an interest protected by an exemption listed
in 5 U.S.C. 552(b) and described in paragraph (b)(1) of this section.
In addition, whenever the Council determines that full disclosure of a
requested record is not possible, the Council will consider whether
partial disclosure is possible and will take reasonable steps necessary
to segregate and release the nonexempt portion of a record. 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-708la, 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 email 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; and
(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 (b)(5)(ii)(H) 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
in unusual circumstances, as defined in 5 U.S.C. 552(a)(6)(B), where
the Council has provided written notice to the requester setting forth
the reasons for the extension and the date on which a determination is
expected to be dispatched. In addition, where the extension of the 20-
day time limit exceeds 10 working days, as described by the FOIA, the
requester shall be provided with an opportunity to modify the scope of
the FOIA request so that it can be processed within that time frame or
provided an opportunity to arrange an alternative time frame for
processing the request or a modified request. To aid the requester, the
Council's FOIA Public Liaison is available to assist the requester for
this purpose and in the resolution of any disputes between the
requester and the Council. The Council's FOIA Public Liaison's contact
information is available at http://www.ffiec.gov/foia.htm. The
requester may also seek dispute resolution services from the Office of
Government Information Services.
(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) The right of the requester to seek assistance from the
Council's FOIA Public Liaison; and
(4) When an adverse determination is made (including a
determination that the requested record is exempt, in whole or in part;
the request does not reasonably describe the records sought; the
information requested is not a record subject to the FOIA; the
requested record does not exist, cannot be located, or has been
destroyed; the requested record is not readily reproducible in the form
or format sought by the requester; a fee waiver request or other fee
categorization matter is denied; and a request for expedited processing
is denied), the Executive Secretary will advise the requester in
writing of that determination and will further advise the requester:
(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;
(iv) The right of the requester to appeal any adverse determination
to the Chairman of the Council within 90 days following the date of
issuance of the notification, as specified in paragraph (b)(3)(vi) of
this section; and
(v) The right of the requester to seek dispute resolution services
from the Council's FOIA Public Liaison or the Office of Government
Information Services.
(vi) Appeals of responses to initial requests. A requester may
appeal any adverse determination in writing, within 90 days of the date
of issuance of the adverse determination. 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. Appeals shall be submitted to the Chairman of the
Council:
[[Page 30728]]
(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; or
(C) By email with the subject line marked ``Freedom of Information
Act Appeal,'' ``FOIA Appeal,'' or the like to [email protected].
(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 in an electronic format,
whichever was requested. Inspection of records, or duplication and
delivery of copies of records, will be arranged so as not to interfere
with their 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) Fees for document search, review, and duplication; waiver and
reduction of fee--(i) Definitions--(A) Direct costs means those
expenditures which the Council actually incurs in searching for,
duplicating, and reviewing documents to respond to a FOIA request.
(B) Search means all time spent looking for material that is
responsive to a request, including page-by-page or line-by-line
identification of material within documents. Searches may be done
manually or by computer using existing programming.
(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 paragraph
(b)(5)(i)(E) of this section) 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.
(F) Educational institution means a preschool, an elementary or
secondary school, an institution of undergraduate higher education, an
institution of graduate higher education, an institution of
professional education, and an institution of vocational education,
which operates a program or programs of scholarly research.
(G) Noncommercial scientific institution means an institution that
is not operated on a ``commercial'' basis as that term is referenced in
paragraph (b)(5)(i)(E) of this section, 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
paragraph (b)(5)(i)(H), 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) Fees to be charged. The Council will charge fees that recoup
the full allowable direct costs it incurs, except that the charging of
search and/or duplication fees is subject to the restrictions of
paragraph (b)(5)(ii)(G) of this section. The Council may contract with
the private sector to locate, reproduce, and/or disseminate records.
Provided, however, that the Council has ensured that the ultimate cost
to the requester is no greater than it would be if the Council
performed these tasks. Fees are subject to change as costs change. In
no case will the Council contract out responsibilities which the FOIA
provides that it alone may discharge, such as determining the
applicability of an exemption, or determining whether to waive or
reduce fees.
(A) Manual searches and review. The Council will charge fees at the
following rates for manual searches for and review of records:
(1) If search/review is done by clerical staff, the hourly rate for
GS-7, step 5, plus 16 percent of the rate to cover benefits;
(2) If search/review is done by professional staff, the hourly rate
for GS-13, step 5, plus 16 percent of the rate to cover benefits.
(B) Computer searches. The Council will charge fees at the hourly
rate for GS-13, step 5, plus 16 percent of the rate to cover benefits,
plus the hourly cost of operating the computer for computer searches
for records.
(C) Duplication of records. (1) The per-page fee for paper copy
reproduction of a document is $.25;
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(2) The fee for records 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.).
(3) If any other method of duplication is used, the Council will
charge the actual direct cost of duplicating the records.
(D) Hourly rates. If search, duplication and/or review is provided
by personnel of member agencies of the Council, fees will reflect their
actual hourly rates, plus 16 percent for benefits.
(E) Fees to exceed $25. If the Council estimates that duplication
and/or search fees are likely to exceed $25, it will notify the
requester of the estimated amount of fees, unless the requester has
indicated in advance his/her willingness to pay fees as high as those
anticipated. In the case of such notification by the Council, the
requester will then have the opportunity to confer with the Council's
FOIA Public Liaison with the object of reformulating the request to
meet his/her needs at a lower cost.
(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.
(G) Restriction on assessing fees. (1) The Council will not charge
fees to any requester, including commercial use requesters, if the cost
of collecting a fee would be equal to or greater than the fee itself.
(2)(i) If the Council fails to comply with the time limits
specified in the FOIA in which to respond to a request, the Council
will not charge search fees, or, in the case of a requester described
in paragraph (b)(5)(iii)(B) of this section, will not charge
duplication fees, except as described in paragraphs
(b)(5)(ii)(G)(2)(ii) through (iv) of this section.
(ii) If the Council has determined that unusual circumstances apply
(as the term is defined in the FOIA) and the Council provided a timely
written notice to the requester in accordance with the FOIA, a failure
to comply with the time limit shall be excused for an additional 10
working days.
(iii) If the Council has determined that unusual circumstances
apply (as the term is defined in the FOIA) and more than 5,000 pages
are necessary to respond to the request, the Council may charge search
fees, or, in the case of requesters described in paragraph
(b)(5)(iii)(B) of this section, may charge duplication fees, if the
following steps are taken: The Council provided timely written notice
of unusual circumstances to the requester in accordance with the FOIA;
and The Council discussed with the requester via written mail, email
message, or telephone (or made not less than three good-faith attempts
to do so) how the requester could effectively limit the scope of the
request in accordance with 5 U.S.C. 552(a)(6)(B)(ii). If this exception
is satisfied, the Council may charge all applicable fees incurred in
the processing of the request.
(iv) If a court has determined that exceptional circumstances
exist, as defined by the FOIA, a failure to comply with the time limits
shall be excused for the length of time provided by the court order.
(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
(b)(5)(ii)(H) 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,
and duplicating the records sought. Commercial use requesters are not
entitled to two hours of free search time nor 100 free pages of
reproduction of documents.
(B) News media, educational and noncommercial scientific
institution requesters. Requesters who are representatives of the news
media, educational and noncommercial scientific institution requesters.
The Council shall provide documents to requesters in these categories
for the cost of reproduction alone, excluding fees for the first 100
pages.
(C) All other requesters. The Council shall charge requesters who
do not fit into any of the categories in paragraphs (b)(5)(iii)(A) and
(B) of this section fees which recover the full reasonable direct cost
of searching for and reproducing records that are responsive to the
request, except that the first 100 pages of reproduction and the first
two hours of search time shall be furnished without a fee.
(D) Description of records. All requesters must specifically
describe 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.
(v) Fees for unsuccessful search and review. The Council may assess
fees for time spent searching and reviewing, even if it fails to locate
the records or if records located are determined to be exempt from
disclosure.
(vi) Aggregating requests. A requester(s) may not file multiple
requests each seeking portions of a document or documents, solely in
order to avoid payment of fees. If this is done, the Council may
aggregate any such requests and charge accordingly. In no case will the
Council aggregate multiple requests on unrelated subjects from the same
requester.
(vii) Advance payment of fees. The Council will not require a
requester to make an assurance of payment or an advance payment unless:
(A) The Council estimates or determines that allowable charges that
a requester may be required to pay are likely to exceed $250. The
Council will notify the requester of the likely cost and obtain
satisfactory assurance of full payment where the requester has a
history of prompt payment of FOIA fees, or require an advance payment
of an amount up to the full estimated charges in the case of requesters
with no history of payment; or
(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 paragraph
(b)(5)(iv) of this section 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 paragraph (b)(5)(vii)(A) or (B) of
this section, 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
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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: June 26, 2017.
Federal Financial Institutions Examinations Council.
Judith E. Dupre,
Executive Secretary.
[FR Doc. 2017-13723 Filed 6-30-17; 8:45 am]
BILLING CODE 7535-01-P; 6714-01-P; 6210-01-P; 4810-33-P; 4810-AM-P