[Federal Register Volume 75, Number 224 (Monday, November 22, 2010)]
[Rules and Regulations]
[Pages 71012-71016]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-29282]


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FEDERAL FINANCIAL INSTITUTIONS EXAMINATION COUNCIL

12 CFR Part 1101

[FFIEC-2010-0002]


Description of Office, Procedures, and Public Information

AGENCY: Federal Financial Institutions Examination Council.

ACTION: Final rule.

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SUMMARY: The Federal Financial Institutions Examination Council 
(Council or FFIEC), on behalf of its members, is amending its Freedom 
of Information Act (FOIA) regulations. Among other things, this final 
rule revises 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, and 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.

DATES: Effective November 22, 2010.

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: The Council is publishing a final rule 
revising its regulations implementing the FOIA. On September 3, 2010, 
the Council published for comment a notice of proposed rulemaking 
(NPRM) in the Federal Register that proposed revisions to the Council's 
regulations at 12 CFR part 1101, implementing the FOIA, 5 U.S.C. 552, 
as amended. 75 FR 54052, September 3, 2010. Interested persons were 
afforded an opportunity to participate in the rulemaking process 
through submission of written comments on the NPRM. The Council 
received no public comments. The Council has reviewed the proposed 
regulations and adopts them in this final rule.

I. Background

    The Council makes 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 modifies 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 revises its regulations to further clarify its 
policies and procedures relating to the processing of FOIA requests and 
the administration of its FOIA operations.

II. Section-by-Section Analysis

    In 12 CFR 1101.3(e), the Council revises the paragraph by providing 
the current address of the Council's offices.
    In 12 CFR 1101.4(a), the Council revises 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 revises the wording of the section 
heading.
    In 12 CFR 1101.4(b)(1), the Council revises 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 capitalizes the word 
``Order'' when referring to an Executive Order.
    In 12 CFR 1101.4(b)(1)(v), the Council adds 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 revises 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 revises 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.

[[Page 71013]]

    In 12 CFR 1101.4(b)(2), the Council revises the heading to reflect 
current FOIA terminology concerning discretionary releases of exempt 
information.
    In 12 CFR 1101.4(b)(3)(i), the Council revises 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 revises 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 revises the paragraph 
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 modifies 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 adds 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 revises 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 revises the paragraph 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 revises the paragraph 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)(i), the Council designates the existing 
paragraph, 12 CFR 1101.4(b)(4), as paragraph 1101.4(b)(4)(i), and makes 
a minor grammatical change to the language of the paragraph.
    The Council adds 12 CFR 1101.4(b)(4)(ii), which provides 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 adds 12 CFR 1101.4(b)(4)(iii), which indicates 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 adds 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 revises 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 makes 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 adds 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 makes 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 revises 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 adds 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 revises 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 revises the procedures 
for requesting a waiver or reduction of fees. The 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 makes a minor 
grammatical change to the language of the paragraph.
    In 12 CFR 101.4(b)(5)(iv), the Council makes a minor change to the 
statutory citation contained in the paragraph.
    In 12 CFR 1101.4(b)(5)(vii)(B), the Council makes 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 revises 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 revises 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. Analysis of Comments Received

    The Council received no comments on the proposed rules.

IV. Regulatory Analysis and Procedure

A. Regulatory Flexibility Act

    Pursuant to section 605(b) of the Regulatory Flexibility Act (5 
U.S.C. 601, et seq.) (RFA), the Council certifies that the final rule 
will not have a significant economic impact on a substantial number of 
small entities. The final rule addresses only the procedures to be 
followed to request records of the Council. Small entities, like any 
other individual or entity, may request information from the Council 
pursuant to the FOIA that has not been generally made available to the 
public. Under the FOIA, agencies may recover only the direct costs of 
searching for, reviewing, and duplicating the records processed for 
certain categories of requesters. The Council's fee structure is in 
accordance with Department of Justice and Office of Management and 
Budget (OMB) guidelines, and is based upon the category of requester. 
Thus, fees assessed by the Council are nominal and will not have a 
significant economic impact on a substantial number of small entities 
within the meaning of the RFA.

B. Paperwork Reduction Act

    The Council has determined that the Paperwork Reduction Act, 44 
U.S.C. 3501 et seq., does not apply because these rules do not contain 
any information collection requirements that require the approval of 
the OMB.

[[Page 71014]]

C. The Treasury and General Government Appropriations Act, 1999-- 
Assessment of Federal Regulations and Policies on Families

    The Council has determined that the final 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).

D. Small Business Regulatory Enforcement Fairness Act

    OMB has determined that the rule is not a ``major rule'' within the 
meaning of the relevant sections of the Small Business Regulatory 
Enforcement Act of 1996 (SBREFA) (5 U.S.C. 801 et seq.). As required by 
SBREFA, the Council will file the appropriate reports with Congress and 
the General Accounting Office so that the rule may be reviewed.

E. 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 received no comment on plain language. 
Nevertheless, the Council has sought to present the final rule in a 
simple, comprehensible, and straightforward manner.

Lists of Subjects in 12 CFR Part 1101

    Freedom of information, FOIA exemptions, Schedule of fees, Waivers 
or reductions of fees.

0
For the reasons set forth in the preamble, the Council amends 12 CFR 
part 1101 as follows:

PART 1101--DESCRIPTION OF OFFICE, PROCEDURE, 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. 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.

0
3. Section 1101.4 is amended:
0
a. By revising paragraph (a);
0
b. By revising the heading for paragraph (b) and paragraphs (b)(1) 
introductory text, (b)(1)(i), (v), (vii), and (viii);
0
c. By revising paragraphs (b)(2), (3), and (4);
0
d. By revising paragraphs (b)(5)(i)(C), (D), (E), (G), and (H) and 
(b)(5)(ii)(C)(2), (F), and (H); and
0
e. By revising paragraphs (b)(5)(iii)(A), (b)(5)(iv), (b)(5)(vii)(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. 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 (b)(5)(ii)(H) of this 
section.

[[Page 71015]]

    (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 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 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.
* * * * *
    (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

[[Page 71016]]

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.
* * * * *
    (vii) * * *
    (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 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, November 16, 2010.

Federal Financial Institutions Examination Council.
Paul Sanford,
Executive Secretary.
[FR Doc. 2010-29282 Filed 11-19-10; 8:45 am]
BILLING CODE P