[Federal Register Volume 75, Number 171 (Friday, September 3, 2010)]
[Proposed Rules]
[Pages 54052-54056]
From the Federal Register Online via the Government Publishing 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: [email protected].

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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