[Federal Register Volume 76, Number 59 (Monday, March 28, 2011)]
[Proposed Rules]
[Pages 17038-17047]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-7005]


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FINANCIAL STABILITY OVERSIGHT COUNCIL

12 CFR Part 1301

RIN 4030-AA02


Implementation of the Freedom of Information Act

AGENCY: Financial Stability Oversight Council.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Financial Stability Oversight Council (the ``Council'' or 
``FSOC'') proposes regulations to implement the Freedom of Information 
Act (the ``FOIA''). This proposed rule would implement the requirements 
of the FOIA by setting forth procedures for requesting access to FSOC 
records. The Dodd-Frank Act, which established the Council, provides 
that FOIA applies to data or information submitted to the Council.

DATES: Comments must be received on or before May 27, 2011.

ADDRESSES: Interested persons are invited to submit comments regarding 
this notice of proposed rulemaking according to the instructions below. 
All submissions must refer to the document title. The Council 
encourages the early submission of comments.
    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.
    Mail: Send comments to Financial Stability Oversight Council, 1500 
Pennsylvania Avenue, NW., Washington, DC 20220.

    Note:  To receive consideration as public comments, comments 
must be submitted through the method specified above. Again, all 
submissions must refer to the title of the notice.

    Public Inspection of Public Comments. All properly submitted 
comments will be available for inspection and downloading at http://www.regulations.gov.
    Additional Instructions. In general, comments received, including 
attachments and other supporting materials, are part of the public 
record and are available to the public. Do not submit any information 
in your comment or supporting materials that you consider confidential 
or inappropriate for public disclosure.

FOR FURTHER INFORMATION CONTACT: Amias Gerety, Deputy Assistant 
Secretary, Financial Stability Oversight Council, at (202) 622-0502. 
All responses to this Notice should be submitted via http://www.regulations.gov to ensure consideration.

SUPPLEMENTARY INFORMATION:

I. Background

    The Dodd-Frank Wall Street Reform and Consumer Protection Act, 
Public Law 111-203 (the ``Act'') established the Council to identify 
and respond to threats to the financial stability of the United States. 
Section 112(d)(5)(C) of the Act provides that the FOIA, ``including the 
exceptions thereunder, shall apply to any data or information submitted 
under this subsection and subtitle B.'' These proposed regulations 
would implement the requirements of the FOIA as they apply to the 
Council.

[[Page 17039]]

II. Section-by-Section Analysis

Section 1301.1 General

    This section states that the purpose of the regulations is to 
implement the FOIA.

Section 1301.2 Information Made Available

    This section outlines the types of records that the FOIA requires 
the Council to make available to the public, either as a matter of 
course or by request. The section also describes generally the 
conditions under which a person may request access to Council records. 
Finally, it sets forth the Council's policy for making discretionary 
disclosures of its records that are otherwise withholdable pursuant to 
the FOIA exemptions.

Section 1301.3 Publication in the Federal Register

    This section implements the requirement of the FOIA that certain 
agency records be published in the Federal Register as a matter of 
course, including certain of the Council's organizational documents and 
rules of procedure.

Section 1301.4 Public Inspection and Copying

    This section implements the requirement of the FOIA that certain 
agency records be made available to the public as a matter of course, 
including through publication on the Council's Web site and in a public 
reading room, including final opinions, statements of policy and 
interpretations, staff manuals, and copies of certain frequently 
requested and previously released Council records.

Section 1301.5 Requests for Council Records

    This section sets forth general procedures for the public to follow 
when requesting copies of Council records. The section states the 
Council's requirements for the form and content of such requests, 
instructions for submitting requests, and general instructions for 
requesting fee waivers and/or expedited processing of requests. This 
section furthermore identifies the consequences to the requester of not 
following the prescribed instructions.

Section 1301.6 Responsibility for Responding to Requests for Council 
Records

    This section outlines certain procedures that govern the Council's 
responses to FOIA requests. In particular, this section describes the 
default document date range that the Council will apply when searching 
for records responsive to requests, identifies persons responsible for 
making initial determinations as to whether to grant or deny requests, 
and sets forth circumstances under which the Council will refer FOIA 
requests to other agencies for consultation or direct response to 
requesters.

Section 1301.7 Timing of Responses to Requests for Council Records

    This section identifies the statutory deadline for the Council to 
respond to FOIA requests and describes circumstances in which the 
Council may extend or toll this deadline. This section also sets forth 
the order in which the Council will respond to FOIA requests along with 
procedures for requesting expedited processing of requests. This 
section identifies the standards by which the Council shall determine 
whether to grant requests for expedited processing as well as the 
procedure for appealing denials of such expedited processing requests.

Section 1301.8 Responses to Requests for Council Records

    This section details procedures for the Council to follow when 
notifying requesters of its receipt of their requests. It also outlines 
the Council's procedure, upon granting requests, for producing copies 
of or providing public access to requested records. Likewise, it 
contains procedures for the Council to follow when denying requests in 
whole or in part and when no responsive records are located.

Section 1301.9 Classified Information

    This section explains the Council's procedure for responding to 
requests for records that are classified in accordance with Executive 
Order No. 13526. It also sets forth the Council's policy of conducting 
declassification reviews when classified documents become subject to 
FOIA requests.

Section 1301.10 Requests for Business Information Provided to the 
Council

    This section sets forth the Council's procedure for responding to 
requests for records that contain information submitted to the 
government by businesses. In particular, this section details the 
circumstances under which the Council must notify businesses of FOIA 
requests that seek information comprising information these businesses 
submitted to the government. This section also provides business 
submitters with an opportunity to object to the Council's release of 
their information in response to such FOIA requests and sets forth a 
procedure for doing so. Finally, the section explains the procedure 
that governs the Council's consideration of and responses to such 
objections.

Section 1301.11 Administrative Appeals

    This section identifies the grounds for which requesters may appeal 
certain of the Council's FOIA-related determinations, including its 
determinations to deny requests, in whole or in part, its 
determinations that no responsive records exist, its determinations to 
assign requesters to particular fee categories, and its determinations 
to deny requests for fee waivers and expedited processing. This section 
also sets forth the procedure that requesters must follow when filing 
administrative appeals, including the form and content of appeals, and 
the procedure that governs the Council's responses to such appeals.

Section 1301.12 Fees for Processing Requests for Council Records

    This section sets forth the Council's fee schedule for FOIA-related 
services and describes the circumstances under which the Council will 
charge fees to requesters for searching for, reviewing and duplicating 
responsive records. Such fees are assessable based upon the nature of 
each FOIA requester and the nature and usage of services that are 
required for the Council to respond to FOIA requests. This section also 
describes the grounds and procedures for requesting a reduction or 
waiver of fees, and the Council's procedure for responding to such 
requests. Finally, the section explains how requesters can make payment 
to the Council as well as the circumstances in which the Council may 
require requesters to prepay fees.

III. Regulatory Flexibility Act

    Pursuant to the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), 
it is hereby certified that this proposed rule will not have a 
significant economic impact on a substantial number of small entities. 
This proposed rule would establish procedures for access to Council 
information under the Freedom of Information Act. Under the FOIA, 
agencies may recover only the direct costs of searching for, reviewing, 
and duplicating the records processed for requesters. Thus, fees 
assessed by the Council would be nominal and would not impose a 
significant economic impact on small entity requesters. Accordingly, a 
regulatory flexibility analysis is not required. The Council invites 
comments on the impact of this proposed rule on small entities.

[[Page 17040]]

IV. Executive Order 12866

    This rule is not a significant regulatory action as defined in 
Section 3.f of Executive Order 12866.

List of Subjects in 12 CFR Part 1301

    Freedom of Information.

Financial Stability Oversight Council

Authority and Issuance

    For the reasons set forth in the preamble, the Financial Stability 
Oversight Council proposes to add a new part 1301 to 12 CFR chapter 
XIII, as proposed to be established at 76 FR 4562, January 26, 2011, to 
read as follows:

PART 1301--FREEDOM OF INFORMATION

Sec.
1301.1 General.
1301.2 Information made available.
1301.3 Publication in the Federal Register.
1301.4 Public inspection and copying.
1301.5 Requests for Council records.
1301.6 Responsibility for responding to requests for Council 
records.
1301.7 Timing of responses to requests for Council records.
1301.8 Responses to requests for Council records.
1301.9 Classified information.
1301.10 Requests for business information provided to the Council.
1301.11 Administrative appeals.
1301.12 Fees for processing requests for Council records.

    Authority:  12 U.S.C. 5322.


Sec.  1301.1  General.

    This subpart contains the regulations of the Financial Stability 
Oversight Council (the ``Council'') implementing the Freedom of 
Information Act (FOIA), 5 U.S.C. 552, as amended. These regulations set 
forth procedures for requesting access to the Council's records. These 
regulations should be read together with the FOIA, which provides 
additional information about this topic.


Sec.  1301.2  Information made available.

    (a) General. The FOIA provides for access to records developed or 
maintained by Federal agencies. The provisions of the FOIA are intended 
to assure the right of the public to information. Generally, this 
section divides agency records into three major categories and provides 
methods by which each category of records is to be made available to 
the public. The three major categories of records are as follows:
    (1) Information required to be published in the Federal Register 
(see Sec.  1301.3);
    (2) Information required to be made available for public inspection 
and copying or, in the alternative, to be published and offered for 
sale (see Sec.  1301.4); and
    (3) Information required to be made available to any member of the 
public upon specific request (see Sec. Sec.  1301.5 through 1301.12).
    (b) Right of access. Subject only to the exemptions and exclusions 
set forth in the FOIA (5 U.S.C. 552(b) and (c)), and the regulations 
set forth in this subpart, any person shall be afforded access to 
information or records in the possession of the Council.
    (c) Exemptions. (1) The disclosure requirements of 5 U.S.C. 552(a) 
do not apply to certain matters which are exempt under 5 U.S.C. 552(b); 
nor do the disclosure requirements apply to certain matters which are 
excluded under 5 U.S.C. 552(c).
    (2) Even though a FOIA exemption set forth in 5 U.S.C. 552(b) may 
apply to the records requested, the Council may, if not precluded by 
law and in its sole discretion, make discretionary disclosures of its 
records. The fact that the exemption is not applied by the Council in 
response to a particular request shall have no precedential 
significance in processing other requests. This policy does not create 
any right enforceable in court.


Sec.  1301.3  Publication in the Federal Register.

    Subject to the application of the FOIA exemptions and exclusions (5 
U.S.C. 552(b) and (c)) and subject to the limitations provided in 5 
U.S.C. 552(a)(1), the Council shall state, publish and maintain current 
in the Federal Register for the guidance of the public the following 
information:
    (a) Descriptions of its central and field organization and the 
established places at which, the persons from whom, and the methods 
whereby, the public may obtain information, make submittals or 
requests, or obtain decisions;
    (b) Statements of the general course and method by which its 
functions are channeled and determined, including the nature and 
requirements of all formal and informal procedures available;
    (c) Rules of procedure, descriptions of forms available or the 
places at which forms may be obtained, and instructions as to the scope 
and contents of all papers, reports, or examinations;
    (d) Substantive rules of general applicability adopted as 
authorized by law, and statements of general policy or interpretations 
of general applicability formulated and adopted by the Council; and
    (e) Each amendment, revision, or repeal of matters referred to in 
paragraphs (a) through (d) of this section.


Sec.  1301.4  Public inspection and copying.

    (a) In general. Subject to the application of the FOIA exemptions 
and exclusions (5 U.S.C. 552(b) and (c)), the Council shall, in 
conformance with 5 U.S.C. 552(a)(2), make available for public 
inspection and copying, or, in the alternative, promptly publish and 
offer for sale the following information:
    (1) Final opinions, including concurring and dissenting opinions, 
and orders, made in the adjudication of cases;
    (2) Those statements of policy and interpretations which have been 
adopted by the Council but are not published in the Federal Register;
    (3) Its administrative staff manuals and instructions to staff that 
affect a member of the public;
    (4) Copies of all records, regardless of form or format, which have 
been released previously to any person under 5 U.S.C. 552(a)(3) and 
Sec. Sec.  1301.5 through 1301.12, and which the Council determines 
have become or are likely to become the subject of subsequent requests 
for substantially the same records because they are clearly of interest 
to the public at large. When the Council receives three (3) or more 
requests for substantially the same records, then the Council shall 
place those requests in front of any existing processing backlog and 
make the released records available in the Council's public reading 
room and in the electronic reading room on the Council's Web site.
    (5) A general index of the records referred to in paragraph (a)(4) 
of this section.
    (b) Information made available by computer telecommunications. For 
records required to be made available for public inspection and copying 
pursuant to 5 U.S.C. 552(a)(2) and paragraphs (a)(1) through (4) of 
this section, the Council shall make such records available on its Web 
site as soon as practicable but in any case no later than one year 
after such records are created.
    (c) Deletion of identifying details. To prevent a clearly 
unwarranted invasion of personal privacy, the Council may delete 
identifying details contained in any matter described in paragraphs 
(a)(1) through (4) of this section before making such matters available 
for inspection or publishing it. The justification for the deletion 
shall be explained fully in writing, and the extent of such deletion 
shall be

[[Page 17041]]

indicated on the portion of the record which is made available or 
published, unless including that indication would harm an interest 
protected by the exemption in 5 U.S.C. 552(b) under which the deletion 
is made. If technically feasible, the extent of the deletion shall be 
indicated at the place in the record where the deletion was made.
    (d) Public reading room. The Council shall make available for 
public inspection and copying, in a reading room or otherwise, the 
material described in paragraphs (a)(1) through (5) of this section. 
Fees for duplication shall be charged in accordance with Sec.  1301.12. 
The location of the Council's reading room is the Department of the 
Treasury's Library. The Library is located in the Main Treasury 
Building, 1500 Pennsylvania Avenue, NW., Washington, DC 20220. For 
building security purposes, visitors are required to make an 
appointment by calling (202) 622-0990.
    (e) Indices. (1) The Council shall maintain and make available for 
public inspection and copying current indices identifying any material 
described in paragraphs (a)(1) through (3) of this section. In 
addition, the Council shall promptly publish, quarterly or more 
frequently, and distribute (by sale or otherwise) copies of each index 
or supplement unless the Council determines by order published in the 
Federal Register that the publication would be unnecessary and 
impractical, in which case the Council shall nonetheless provide copies 
of the index on request at a cost not to exceed the direct cost of 
duplication.
    (2) The Council shall make the indices referred to in paragraph 
(a)(5) and (e)(1) of this section available on its Web site.


Sec.  1301.5  Requests for Council records.

    (a) In general. Except for records made available under 5 U.S.C. 
552(a)(1) and (a)(2) and subject to the application of the FOIA 
exemptions and exclusions (5 U.S.C. 552(b) and (c)), the Council shall 
promptly make its records available to any person pursuant to a request 
that conforms to the rules and procedures of this section.
    (b) Form and content of request. A request for records of the 
Council shall be made as follows:
    (1) The request for records shall be made in writing and state, 
both in the request itself and on any envelope that encloses it, that 
it comprises a Freedom of Information Act request.
    (2) The request shall be addressed and submitted as follows: 
Financial Stability Oversight Council, Attention: FOIA Request for 
Council Records, 1500 Pennsylvania Avenue, NW., Washington, DC 20220.
    (3) The request shall describe the records that the requester seeks 
in sufficient detail to enable Council personnel to locate them with a 
reasonable amount of effort. Whenever possible, the request should 
include specific information about each record sought, such as the 
date, title or name, author, recipient, and subject matter of the 
record. If known, the requester should include any file designations or 
descriptions for the records requested. As a general rule, the more 
specific the requester is about the records or type of records 
requested, the more likely the Council will be able to locate those 
records in response to the request;
    (4) The request must include the name of and contact information 
for the requester, including a mailing address, telephone number, and, 
if available, an e-mail address at which the Council may contact the 
requester regarding the request;
    (5) The request shall state whether the requester wishes to inspect 
the records or desires to have a copy made and furnished without first 
inspecting them.
    (6) For the purpose of determining any fees that may apply to 
processing a request, a requester shall indicate in the request whether 
the requester is a commercial user, an educational institution, non-
commercial scientific institution, representative of the news media, 
governmental entity, or ``other'' requester, as those terms are defined 
in Sec.  1301.12(c). For the same purpose, a request for records shall 
also state how the records released will be used. The Council shall not 
use this information to determine the releasability of any record or 
records.
    (7) If a requester seeks a waiver or reduction of fees associated 
with processing a request, then the request shall include a statement 
to that effect as is required by Sec.  1301.12(f). Any request that 
does not seek a waiver or reduction of fees shall constitute an 
agreement of the requester to pay any and all fees (of up to $25) that 
may apply to the request, as otherwise set forth in Sec.  1301.12, 
except that the requester may specify in the request an upper limit (of 
not less than $25) that the requester is willing to pay to process the 
request.
    (8) If a requester seeks expedited processing of a request, then 
the request must include a statement to that effect as is required by 
Sec.  1301.7(c).
    (c) Request receipt; effect of request deficiencies. The Council 
shall deem itself to have received a request only if, and on the date 
that, it receives a complete request containing the information 
required by paragraph (b) of this section. The Council need not accept 
a request, process a request, or be bound by any deadlines in this 
subpart for processing a request that fails to conform to the 
requirements of paragraph (b) of this section. If a request is 
deficient in any respect, then the Council may return it to the 
requester and advise the requester in what respect the request is 
deficient. The requester may then resubmit the request, which the 
Council shall treat as a new request. A determination by the Council 
that a request is deficient in any respect is not a denial of access, 
and such determinations are not subject to appeal.


Sec.  1301.6  Responsibility for responding to requests for Council 
records.

    (a) In general. In determining which records are responsive to a 
request, the Council ordinarily will include only records in its 
possession as of the date the Council begins its search for them. If 
any other date is used, the Council shall inform the requester of that 
date.
    (b) Authority to grant or deny requests. The Council records 
officer shall be authorized to make an initial determination to grant 
or deny a request for a record of the Council.
    (c) Consultations and referrals. When the Council receives a 
request for a record or any portion of a record in its possession that 
originated with another federal or state agency, including but not 
limited to a constituent agency of the Council, it shall either:
    (1) Respond to the request regarding that record, after consulting 
with the originating agency to determine whether to disclose it and 
with any other agency that has a substantial interest in it; or
    (2) Refer the responsibility for responding to the request 
regarding that record to the originating agency to determine whether to 
disclose it, or to another agency that originated the record (but only 
if that agency is subject to the FOIA). Ordinarily, the agency that 
originated a record will be presumed to be best able to determine 
whether to disclose it.
    (d) Notice of referral. Whenever the Council refers all or any part 
of the responsibility for responding to a request to another agency, it 
shall notify the requester of the referral and inform the requester of 
the name of each agency to which the request has been referred and of 
the part of the request that has been referred.


Sec.  1301.7  Timing of responses to requests for Council records.

    (a) In general. Except as set forth in paragraphs (b) through (d) 
of this

[[Page 17042]]

section, the Council shall respond to requests according to their order 
of receipt.
    (b) Multitrack processing. (1) The Council may establish tracks to 
process separately simple and complex requests. The Council may assign 
a request to the simple or complex track based on the amount of work 
and/or time needed to process the request. The Council shall process 
requests in each track according to the order of their receipt.
    (2) The Council may provide a requester in its complex track with 
an opportunity to limit the scope of the request to qualify for faster 
processing within the specified limits of the simple track(s).
    (c) Requests for expedited processing. (1) The Council shall 
respond to a request out of order and on an expedited basis whenever a 
requester demonstrates a compelling need for expedited processing in 
accordance with the requirements of this paragraph (c).
    (2) Form and content of a request for expedited processing. A 
request for expedited processing shall be made as follows:
    (i) A request for expedited processing shall be made in writing and 
submitted as part of the initial request for records. When a request 
for records includes a request for expedited processing, both the 
envelope and the request itself must be clearly marked ``Expedited 
Processing Requested.''
    (ii) A request for expedited processing shall contain a statement 
that demonstrates a compelling need for the requester to obtain 
expedited processing of the requested records. A ``compelling need'' is 
defined as follows:
    (A) Failure to obtain the requested records on an expedited basis 
could reasonably be expected to pose an imminent threat to the life or 
physical safety of an individual. The requester shall fully explain the 
circumstances warranting such an expected threat so that the Council 
may make a reasoned determination that a delay in obtaining the 
requested records could pose such a threat; or
    (B) With respect to a request made by a person primarily engaged in 
disseminating information, urgency to inform the public concerning 
actual or alleged Federal Government activity. A person ``primarily 
engaged in disseminating information'' does not include individuals who 
are engaged only incidentally in the dissemination of information. The 
standard of ``urgency to inform'' requires that the records requested 
pertain to a matter of current exigency to the American public and that 
delaying a response to a request for records would compromise a 
significant recognized interest to and throughout the American general 
public. The requester must adequately explain the matter or activity 
and why the records sought are necessary to be provided on an expedited 
basis.
    (iii) The requester shall certify the written statement that 
purports to demonstrate a compelling need for expedited processing to 
be true and correct to the best of the requester's knowledge and 
belief. The certification must be in the form prescribed by 28 U.S.C. 
1746: ``I declare under penalty of perjury that the foregoing is true 
and correct to the best of my knowledge and belief. Executed on 
[date].''
    (3) Determinations of requests for expedited processing. Within ten 
(10) calendar days of its receipt of a request for expedited 
processing, the Council shall decide whether to grant it and shall 
notify the requester of the determination in writing.
    (4) Effect of granting expedited processing. If the Council grants 
a request for expedited processing, then the Council shall give the 
expedited request priority over non-expedited requests and shall 
process the expedited request as soon as practicable. The Council may 
assign expedited requests to their own simple and complex processing 
tracks based upon the amount of work and/or time needed to process 
them. Within each such track, an expedited request shall be processed 
in the order of its receipt.
    (5) Appeals of denials of requests for expedited processing. If the 
Council denies a request for expedited processing, then the requester 
shall have the right to submit an appeal of the denial determination in 
accordance with Sec.  1301.11. The Council shall communicate this 
appeal right as part of its written notification to the requester 
denying expedited processing. The requester shall clearly mark its 
appeal request and any envelope that encloses it with the words 
``Appeal for Expedited Processing.''
    (d) Time period for responding to requests for records. Ordinarily, 
the Council shall have twenty (20) days (excepting Saturdays, Sundays, 
and legal public holidays) from when a request that satisfies the 
requirements of Sec.  1301.5(b) is received by the Council to determine 
whether to grant or deny a request for records. The twenty (20) day 
time period set forth in this paragraph shall not be tolled by the 
Council except that the Council may:
    (1) Make one reasonable demand to the requester for clarifying 
information about the request and toll the twenty (20) day time period 
while it awaits the clarifying information; or
    (2) Toll the twenty (20) day time period while it addresses any 
dispute with the requester regarding the assessment of fees.
    (e) Unusual circumstances. (1) Where the Council determines that, 
due to unusual circumstances, it cannot respond either to a request 
within the time period set forth in paragraph (d) of this section or to 
an appeal within the time period set forth in Sec.  1301.11, the 
Council may extend the applicable time periods by informing the 
requester in writing of the unusual circumstances and of the date by 
which the Council expects to complete its processing of the request or 
appeal. Any extension or extensions of time shall not cumulatively 
total more than ten (10) days (exclusive of Saturdays, Sundays, and 
legal public holidays). However, if the Council determines that it 
needs additional time beyond a ten (10) day extension to process the 
request or appeal, then the Council shall notify the requester and 
provide the requester with an opportunity to limit the scope of the 
request or appeal or to arrange for an alternative time frame for 
processing the request or appeal or a modified request or appeal. The 
requester shall retain the right to define the desired scope of the 
request or appeal, as long as it meets the requirements contained in 
this subpart.
    (2) As used in this paragraph (e), ``unusual circumstances'' means, 
but only to the extent reasonably necessary to the proper processing of 
the particular requests:
    (i) The need to search for and collect the requested records from 
field facilities or other establishments that are separate from the 
office processing the request;
    (ii) The need to search for, collect, and appropriately examine a 
voluminous amount of separate and distinct records which are demanded 
in a single request; or
    (iii) The need for consultation, which shall be conducted with all 
practicable speed, with another agency having a substantial interest in 
the determination of the request, or among two or more components or 
component offices having substantial subject matter interest therein.
    (3) Where the Council reasonably believes that multiple requests 
submitted by a requester, or by a group of requesters acting in 
concert, constitute a single request that would otherwise involve 
unusual circumstances, and the requests involve clearly related 
matters, they may be aggregated. Multiple requests involving unrelated 
matters will not be aggregated.

[[Page 17043]]

The Council may disaggregate and treat as separate requests a single 
request that has multiple unrelated components.


Sec.  1301.8  Responses to requests for Council records.

    (a) Acknowledgements of requests. Upon receipt of a request that 
meets the requirements of Sec.  1301.5(b), the Council shall assign to 
the request a unique tracking number. The Council shall send an 
acknowledgement letter to the requester within ten (10) calendar days 
of receipt of the request that contains the following information:
    (1) Identifies the applicable request tracking number;
    (2) Identifies the date of receipt of the request, as determined in 
accordance with Sec.  1301.5(c); and
    (3) Confirms, with respect to any fees that may apply to the 
request pursuant to Sec.  1301.12, that the requester has sought a 
waiver or reduction in such fees, has agreed to pay any and all 
applicable fees, or has specified an upper limit (of not less than $25) 
that the requester is willing to pay in fees to process the request.
    (b) Initial determination to grant or deny a request--(1) In 
general. The officer designated in Sec.  1301.6(b) shall make initial 
determinations either to grant or to deny in whole or in part requests 
for records.
    (2) Granting of request. If the request is granted in full or in 
part, the Council shall provide the requester with a copy of the 
releasable documents, and shall do so in the format specified by the 
requester to the extent that the documents are readily producible by 
the Council in the requested format, or shall permit the requester to 
inspect the documents in accordance with Sec.  1301.8(b)(3). The 
Council shall also send the requester a statement of the applicable 
fees, either at the time of the determination or shortly thereafter.
    (3) Inspection of records. In the case of a request for inspection, 
the requester shall be notified in writing of the determination, when 
and where the requested records may be inspected, and of the fees 
incurred in complying with the request. The Council shall then promptly 
make the records available for inspection at the time and place stated, 
in a manner that will not interfere with the Council's operations and 
will not exclude other persons from making inspections. The requester 
shall not be permitted to remove the records from the room where 
inspection is made. If, after making inspection, the requester desires 
copies of all or a portion of the requested records, copies shall be 
furnished upon payment of the established fees prescribed by Sec.  
1301.12. Fees may be charged for search and review time as stated in 
Sec.  1301.12.
    (4) Denial of request. If it is determined that the request for 
records should be denied in whole or in part, the requester shall be 
notified in writing. The notification shall:
    (i) State the exemptions relied on in not granting the request;
    (ii) If technically feasible, indicate the amount of information 
deleted and the exemptions under which the deletion is made at the 
place in the record where such deletion is made (unless providing such 
indication would harm an interest protected by the exemption relied 
upon to deny such material);
    (iii) Set forth the name and title or position of the responsible 
official;
    (iv) Advise the requester of the right to administrative appeal in 
accordance with Sec.  1301.11; and
    (v) Specify the official or office to which such appeal shall be 
submitted.
    (5) No records found. If it is determined, after an adequate search 
for records by the responsible official or his/her delegate, that no 
records have been found to exist, the responsible official will so 
notify the requester in writing. The notification letter shall also 
advise the requester of the right to administratively appeal the 
Council's determination that no records exist (i.e., to challenge the 
adequacy of the Council's search for responsive records) in accordance 
with Sec.  1301.11. The response shall specify the official to whom the 
appeal shall be submitted for review.


Sec.  1301.9  Classified information.

    (a) Referrals of requests for classified information. Whenever a 
request is made for a record containing information that has been 
classified, or may be appropriate for classification, by another agency 
under Executive Order 13526 or any other executive order concerning the 
classification of records, the Council shall refer the responsibility 
for responding to the request regarding that information to the agency 
that classified the information, should consider the information for 
classification, or has the primary interest in it, as appropriate. 
Whenever a record contains information that has been derivatively 
classified by the Council because it contains information classified by 
another agency, the Council shall refer the responsibility for 
responding to the request regarding that information to the agency that 
classified the underlying information or shall consult with that agency 
prior to processing the record for release or withholding.
    (b) Determination of continuing need for classification of 
information. Requests for information classified pursuant to Executive 
Order 13526 require the Council to review the information to determine 
whether it continues to warrant classification. Information which no 
longer warrants classification under the Executive Order's criteria 
shall be declassified and made available to the requester, unless the 
information is otherwise exempt from disclosure.


Sec.  1301.10  Requests for business information provided to the 
Council.

    (a) In general. Business information provided to the Council by a 
business submitter shall not be disclosed pursuant to a FOIA request 
except in accordance with this section.
    (b) Definitions. For purposes of this section:
    (1) Business information means trade secrets or commercial or 
financial information obtained by the Council from a submitter that may 
be protected from disclosure under Exemption 4.
    (2) Submitter means any person or entity from whom the Council 
obtains business information, directly or indirectly. The term includes 
corporations, state, local, and tribal governments, and foreign 
governments.
    (3) Exemption 4 refers to Exemption 4 of the FOIA, 5 U.S.C. 
552(b)(4).
    (c) Designation of business information. A submitter of business 
information will use good-faith efforts to designate, by appropriate 
markings, either at the time of submission or at a reasonable time 
thereafter, any portions of its submission that it considers to be 
protected from disclosure under Exemption 4. These designations will 
expire ten (10) years after the date of the submission unless the 
submitter on his or her own initiative requests otherwise, and provides 
justification for, a longer designation period.
    (d) Notice to business submitters. The Council shall provide a 
business submitter with prompt written notice of receipt of a request 
or appeal encompassing its business information whenever required in 
accordance with paragraph (e) of this section. Such written notice 
shall either describe the exact nature of the business information 
requested or provide copies of the records or portions of records 
containing the business information. When notification of a voluminous 
number of submitters is required, notification may be made by posting 
or publishing the notice in a place reasonably likely to accomplish it.
    (e) When notice is required. The Council shall provide a business

[[Page 17044]]

submitter with notice of receipt of a request or appeal whenever:
    (1) The information has been designated in good faith by the 
submitter as information considered protected from disclosure under 
Exemption 4; or
    (2) The Council has reason to believe that the information may be 
protected from disclosure under Exemption 4 because disclosure could 
reasonably be expected to cause substantial competitive harm to the 
business submitter.
    (f) Opportunity to object to disclosure. (1) Through the notice 
described in paragraph (d) of this section, the Council shall notify 
the business submitter in writing that he/she shall have ten (10) days 
from the date of the notice (exclusive of Saturdays, Sundays, and legal 
public holidays) to provide the Council with a detailed statement of 
any objection to disclosure. Such statement shall specify all grounds 
for withholding any of the information under Exemption 4, including a 
statement of why the information is considered to be a trade secret or 
commercial or financial information that is privileged or confidential. 
In the event that a submitter fails to respond to the notice within the 
time specified in it, the submitter shall be considered to have no 
objection to disclosure of the information. Information provided by a 
business submitter pursuant to this paragraph (f) may itself be subject 
to disclosure under the FOIA.
    (2) When notice is given to a submitter under this section, the 
requester shall be advised that such notice has been given to the 
submitter. The requester shall be further advised that a delay in 
responding to the request may be considered a denial of access to 
records and that the requester may proceed with an administrative 
appeal or seek judicial review, if appropriate. However, the requester 
will be invited to agree to a voluntary extension of time so that the 
Council may review the business submitter's objection to disclosure.
    (g) Notice of intent to disclose. The Council shall consider 
carefully a business submitter's objections and specific grounds for 
nondisclosure prior to determining whether to disclose business 
information. Whenever the Council decides to disclose business 
information over the objection of a business submitter, the Council 
shall provide the business submitter with a written notice which shall 
include:
    (1) A statement of the reasons for which the business submitter's 
disclosure objections were not sustained;
    (2) A description of the business information to be disclosed; and
    (3) A specified disclosure date which is not less than ten (10) 
days (exclusive of Saturdays, Sundays, and legal public holidays) after 
the notice of the final decision to release the requested information 
has been provided to the submitter. Except as otherwise prohibited by 
law, notice of the final decision to release the requested information 
shall be forwarded to the requester at the same time.
    (h) Notice of FOIA lawsuit. Whenever a requester brings suit 
seeking to compel disclosure of business information covered in 
paragraph (c) of this section, the Council shall promptly notify the 
business submitter.
    (i) Exception to notice requirement. The notice requirements of 
this section shall not apply if:
    (1) The Council determines that the information shall not be 
disclosed;
    (2) The information lawfully has been published or otherwise made 
available to the public;
    (3) Disclosure of the information is required by statute (other 
than the FOIA) or by a regulation issued in accordance with the 
requirements of Executive Order 12600 (3 CFR, 1987 Comp., p. 235); or
    (4) The designation made by the submitter under paragraph (c) of 
this section appears obviously frivolous--except that, in such a case, 
the Council shall, within a reasonable time prior to a specified 
disclosure date, give the submitter written notice of any final 
decision to disclose the information.


Sec.  1301.11  Administrative appeals.

    (a) Grounds for administrative appeals. A requester may appeal an 
initial determination of the Council:
    (1) To deny access to records in whole or in part (as provided in 
Sec.  1301.8(b)(4));
    (2) To assign a particular fee category to the requestor (as 
provided in Sec.  1301.12(c));
    (3) To deny a request for a reduction or waiver of fees (as 
provided in Sec.  1301.12(f)(7));
    (4) That no records exist that are responsive to the request (as 
provided in Sec.  1301.8(b)(5)); or
    (5) To deny a request for expedited processing (as provided in 
Sec.  1301.7(c)(5)).
    (b) Time limits for filing administrative appeals. An appeal, other 
than an appeal of a denial of expedited processing, must be submitted 
within thirty-five (35) days of the date of the initial determination 
or the date of the letter transmitting the last records released, 
whichever is later. An appeal of a denial of expedited processing must 
be made within ten (10) days of the date of the initial determination 
to deny expedited processing (see Sec.  1301.7).
    (c) Form and content of administrative appeals. The appeal shall--
    (1) Be made in writing and signed by the requester or his or her 
representative;
    (2) Be labeled ``Freedom of Information Act Appeal'' and addressed 
to and submitted to the officer specified in paragraph (e) of this 
section in the manner set forth in Sec.  1301.5(b);
    (3) Set forth the name of and contact information for the 
requester, including a mailing address, telephone number, or e-mail 
address at which the Council may contact the requester regarding the 
appeal;
    (4) Specify the date of the initial request and date of the letter 
of initial determination, and, where possible, enclose a copy of the 
initial request and the initial determination being appealed; and
    (5) Set forth specific grounds for the appeal.
    (d) Processing of administrative appeals. Appeals shall be stamped 
with the date of their receipt by the office to which addressed, and 
shall be processed in the approximate order of their receipt. The 
receipt of the appeal shall be acknowledged by the Council and the 
requester advised of the date the appeal was received and the expected 
date of response.
    (e) Determinations to grant or deny administrative appeals. The 
Chairperson of the Council or his/her designee is authorized to and 
shall decide whether to affirm the initial determination (in whole or 
in part) or to grant the request for records and shall notify the 
requester of this decision in writing within twenty (20) days 
(exclusive of Saturdays, Sundays, and legal public holidays) after the 
date of receipt of the appeal, unless extended pursuant to Sec.  
1301.7(e).
    (1) If it is decided that the appeal is to be denied (in whole or 
in part) the requester shall be--
    (i) Notified in writing of the denial;
    (ii) Notified of the reasons for the denial, including the FOIA 
exemptions relied upon;
    (iii) Notified of the name and title or position of the official 
responsible for the determination on appeal; and
    (iv) Provided with a statement that judicial review of the denial 
is available in the United States District Court for the judicial 
district in which the requester resides or has a principal place of 
business, the judicial district in which the requested records are 
located,

[[Page 17045]]

or the District of Columbia in accordance with 5 U.S.C. 552(a)(4)(B).
    (2) If the initial determination is reversed on appeal, the 
requester shall be so notified and the request shall be processed 
promptly in accordance with the decision on appeal.


Sec.  1301.12  Fees for processing requests for Council records.

    (a) In general. The Council shall charge the requester for 
processing a request under the FOIA in the amounts and for the services 
set forth in paragraph (b) through (d) of this section, except where a 
waiver or reduction of fees is granted under paragraph (f) of this 
section, or where, pursuant to paragraph (e)(4) of this section, the 
failure of the Council to comply with certain time limits precludes it 
from assessing certain fees.
    (b) Fees chargeable for specific services. The fees for services 
performed by the Council shall be imposed and collected as set forth in 
this paragraph (b).
    (1) Duplicating records. The Council shall charge a requester for 
the cost of copying records as follows:
    (i) $.20 per page, up to 8\1/2\'' x 14'', made by photocopy or 
similar process.
    (ii) Photographs, films, and other materials--actual cost of 
duplication.
    (iii) Other types of duplication services not mentioned above--
actual cost.
    (iv) Material provided to a private contractor for copying shall be 
charged to the requester at the actual cost charged by the private 
contractor.
    (2) Search services. The Council shall charge a requester for all 
time spent by its employees searching for records that are responsive 
to a request, including page-by-page or line-by-line identification of 
responsive information within records, even if no responsive records 
are found. The Council shall charge the requester fees for search time 
as follows:
    (i) Searches for other than electronic records. The Council shall 
charge for search time at the salary rate(s) (basic pay plus sixteen 
(16) percent) of the employee(s) who conduct the search. However, where 
a single class of employee is used exclusively (e.g., all 
administrative/clerical, or all professional/executive), an average 
rate for the range of grades typically involved may be established. 
This charge shall include transportation of employees and records 
necessary to the search at actual cost. Fees may be charged for search 
time even if the search does not yield any responsive records, or if 
records are exempt from disclosure.
    (ii) Searches for electronic records. The Council shall charge the 
requester for the actual direct cost of the search, including computer 
search time, runs, and the operator's salary. The fee for computer 
output shall be the actual direct cost. For a requester in the ``all 
other'' category, when the cost of the search (including the operator 
time and the cost of operating the computer to process a request) 
equals the equivalent dollar amount of two hours of the salary of the 
person performing the search (i.e., the operator), the charge for the 
computer search will begin.
    (3) Review of records. The Council shall charge a requester for 
time spent by its employees examining responsive records to determine 
whether any portions of such record are withholdable from disclosure, 
pursuant to the FOIA exemptions of 5 U.S.C. 552(b). The Council shall 
also charge a requester for time spent by its employees redacting any 
such withholdable information from a record and preparing a record for 
release to the requester. The Council shall charge a requester for time 
spent reviewing records at the salary rate(s) (i.e., basic pay plus 
sixteen (16) percent) of the employees who conduct the review. However, 
when a single class of employee is used exclusively (e.g., all 
administrative/clerical, or all professional/executive), an average 
rate for the range of grades typically involved may be established. 
Fees may be charged for review time even if records ultimately are not 
disclosed.
    (4) Inspection of records. Fees for all services provided shall be 
charged whether or not copies are made available to the requester for 
inspection. However, no fee shall be charged for monitoring a 
requester's inspection of records.
    (5) Other services. Other services and materials requested which 
are not covered by this part nor required by the FOIA are chargeable at 
the actual cost to the Council. This includes, but is not limited to:
    (i) Certifying that records are true copies;
    (ii) Sending records by special methods such as express mail, etc.
    (c) Fees applicable to various categories of requesters--(1) 
Generally. The Council shall assess the fees set forth in paragraph (b) 
of this section in accordance with the requester fee categories set 
forth below.
    (2) Requester selection of fee category. A requester shall identify 
itself, in the initial FOIA request, as one of the following categories 
of requesters for purposes of that request:
    (i) Commercial. A commercial use request refers to 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, which can include 
furthering those interests through litigation. The Council may 
determine from the use specified in the request that the requester is a 
commercial user.
    (ii) Educational institution. This refers to a preschool, a public 
or private elementary or secondary school, an institution of graduate 
higher education, an institution of undergraduate higher education, an 
institution of professional education, and an institution of vocational 
education, which operates a program or programs of scholarly research. 
This category does not include requesters wanting records for use in 
meeting individual academic research or study requirements.
    (iii) Non-commercial scientific institution. This refers to an 
institution that is not operated on a ``commercial'' basis as that term 
is defined in paragraph (c)(2)(i) of this section, and which is 
operated solely for the purpose of conducting scientific research, the 
results of which are not intended to promote any particular product or 
industry.
    (iv) Representative of the news media. This refers to 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 (c)(2)(iv), 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 subscription or by 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

[[Page 17046]]

Council may also consider the past publication record of the requester 
in making such a determination.
    (v) Governmental entity. This refers to any requester that 
constitutes a state, local, or foreign government or an international 
governmental organization.
    (vi) ``Other'' Requester. This refers to a requester who does not 
fall within any of the previously described categories.
    (3) Determination of proper fee category. Within twenty (20) 
calendar days of its receipt of a request, the Council shall make a 
determination as to the proper fee category to apply to a requester. 
The Council shall inform the requester of the determination in the 
request acknowledgment letter, or if no such letter is required, in 
writing. The Council shall base its determination upon a review of the 
requester's submission and the Council's own records. Where the Council 
has reasonable cause to doubt the use to which a requester will put the 
records sought, or where that use is not clear from the request itself, 
the Council may seek additional clarification before assigning the 
request to a specific category.
    (4) Appeals of adverse determinations of fee categories. If and 
once the Council assigns a requester to a fee category, then the 
requester shall have the right to appeal the Council's determination in 
accordance with Sec.  1301.11. The Council shall communicate this 
appeal right as part of its written notification to the requester of an 
adverse fee category determination. The requester shall clearly mark 
its appeal request and any accompanying envelope with the words 
``Appeal of Fee Category Determination.''
    (d) Fees applicable to each category of requester. The following 
fee schedule applies to Council requests processed under the FOIA. 
Specific levels of fees are prescribed for each category of requester 
defined in paragraph (c) of this section.
    (1) Commercial use requesters. These requesters shall be charged 
the full direct costs of searching for, reviewing, and duplicating the 
records they request as set forth in paragraph (b) of this section. 
Moreover, when a request is received for disclosure that is primarily 
in the commercial interest of the requester, the Council is not 
required to consider a request for a waiver or reduction of fees based 
upon the assertion that disclosure would be in the public interest. The 
Council may recover the cost of searching for and reviewing records 
even if there is ultimately no disclosure of records or no records are 
located.
    (2) Educational and non-commercial scientific institution 
requesters. These requesters shall be charged only for the cost of 
duplicating the records they request, except that the Council shall 
provide the first one hundred (100) pages of duplication free of 
charge. To be eligible, requesters must show that the request is made 
under the auspices of a qualifying institution and that the records are 
not sought for a commercial use, but are sought in furtherance of 
scholarly (if the request is from an educational institution) or 
scientific (if the request is from a non-commercial scientific 
institution) research. These categories do not include requesters who 
want records for use in meeting individual academic research or study 
requirements.
    (3) Requesters who are representatives of the news media. These 
requesters shall be charged only for the cost of duplicating the 
records they request, except that the Council shall provide them with 
the first one hundred (100) pages of duplication free of charge.
    (4) Governmental entities. These requesters shall receive the 
records they request free of charge.
    (5) All other requesters. Requesters who do not fit any of the 
categories described above shall be charged the full direct cost of 
searching for and duplicating records that are responsive to the 
request, as set forth in paragraph (b) of this section, except that the 
Council shall provide the first one hundred (100) pages of duplication 
and the first two hours of search time free of charge. The Council may 
recover the cost of searching for records even if there is ultimately 
no disclosure of records, or no records are located. Requests from 
persons for records about themselves filed in the Council's systems of 
records shall continue to be treated under the fee provisions of the 
Privacy Act of 1974 which permit fees only for duplication, after the 
first one hundred (100) pages are furnished free of charge.
    (e) Other circumstances when fees are not charged. Notwithstanding 
paragraphs (b), (c), and (d) of this section, the Council may not 
charge a requester a fee for processing a FOIA request if any of the 
following applies:
    (1) Services were performed without charge;
    (2) The cost of collecting a fee would be equal to or greater than 
the fee itself;
    (3) The fees were waived or reduced in accordance with paragraph 
(f) of this section; or
    (4) If the Council fails to comply with any time limit under 
Sec. Sec.  1301.7 or 1301.11, and no unusual circumstances (as that 
term is defined in Sec.  1301.7(e)) or exceptional circumstances apply 
to the processing of the request, then the Council shall not assess 
search fees, or if the requester is an educational or noncommercial 
scientific institution (as set forth in paragraphs 1301.12(c)(2)(ii) 
and (iii) of this section), then the Council shall not assess 
duplication fees.
    (f) Waiver or reduction of fees. (1) A requester shall be entitled 
to receive from the Council a waiver or reduction in the fees otherwise 
applicable to a FOIA request whenever the requester:
    (i) Requests such waiver or reduction of fees in writing and 
submits the written request to the Council together with or as part of 
the FOIA request; and
    (ii) Demonstrates that the fee reduction or waiver request is in 
the public interest because:
    (A) Furnishing the information is likely to contribute 
significantly to public understanding of the operations or activities 
of the government; and
    (B) Furnishing the information is not primarily in the commercial 
interest of the requester.
    (2) To determine whether the requester has satisfied the 
requirements of paragraph (f)(1)(ii)(A) of this section, the Council 
shall consider the following factors:
    (i) The subject of the requested records must concern identifiable 
operations or activities of the federal government, with a connection 
that is direct and clear, not remote or attenuated.
    (ii) The disclosable portions of the requested records must be 
meaningfully informative about government operations or activities in 
order to be ``likely to contribute'' to an increased public 
understanding of those operations or activities. The disclosure of 
information that already is in the public domain, in either a 
duplicative or a substantially identical form, would not be as likely 
to contribute to such understanding where nothing new would be added to 
the public's understanding.
    (iii) The disclosure must contribute to the understanding of a 
reasonably broad audience of persons interested in the subject, as 
opposed to the individual understanding of the requester. A requester's 
expertise in the subject area and ability and intention to effectively 
convey information to the public shall be considered. It shall be 
presumed that a representative of the news media will satisfy this 
consideration.
    (iv) The public's understanding of the subject in question, as 
compared to the level of public understanding existing prior to the 
disclosure, must be

[[Page 17047]]

enhanced by the disclosure to a significant extent.
    (3) To determine whether the requester has satisfied the 
requirements of paragraph (f)(1)(ii)(B) of this section, the Council 
shall consider the following factors:
    (i) The Council shall consider any commercial interest of the 
requester (with reference to the definition of ``commercial use'' in 
Sec.  1301.12(c)(2)(i)), or of any person on whose behalf the requester 
may be acting, that would be furthered by the requested disclosure. 
Requesters shall be given an opportunity in the administrative process 
to provide explanatory information regarding this consideration.
    (ii) A fee waiver or reduction is justified where the public 
interest standard is satisfied and that public interest is greater in 
magnitude than that of any identified commercial interest in 
disclosure. The Council ordinarily shall presume that where a news 
media requester has satisfied the public interest standard, the public 
interest will be the interest primarily served by disclosure to that 
requester. Disclosure to data brokers or others who merely compile and 
market government information for direct economic return shall not be 
presumed to primarily serve the public interest.
    (4) Where only some of the records to be released satisfy the 
requirements for a waiver or reduction of fees, a waiver or reduction 
shall be granted for those records.
    (5) Determinations of requests to reduce or waive fees. The Council 
shall decide whether to grant or deny a request to reduce or waive fees 
prior to processing a request and within twenty (20) calendar days of 
its receipt of the request. The Council shall notify the requester of 
the determination in writing.
    (6) Effect of denying requests to reduce or waive fees. If the 
Council denies a request to reduce or waive fees, then the Council 
shall advise the requester, in the denial notification letter, that the 
requester may incur fees if the Council proceeds to process the 
request. The notification letter shall also advise the requester that 
the Council will not proceed to process the request further unless the 
requester, in writing, directs the Council to do so and either agrees 
to pay any fees that may apply to processing the request or specifies 
an upper limit (of not less than $25) that the requester is willing to 
pay to process the request. If the Council does not receive this 
written direction and agreement/specification within thirty (30) days 
of the date of the denial notification letter, then the Council shall 
deem the request to be withdrawn.
    (7) Appeals of denials of requests to reduce or waive fees. If the 
Council denies a request to reduce or waive fees, then the requester 
shall have the right to submit an appeal of the denial determination in 
accordance with Sec.  1301.11. The Council shall communicate this 
appeal right as part of its written notification to the requester 
denying the fee reduction or waiver request. The requester shall 
clearly mark its appeal request and any envelope that encloses it with 
the words ``Appeal for Fee Reduction/Waiver.''
    (g) Advance notice and prepayment of fees. (1) When the Council 
estimates the fees for processing a request will exceed the limit set 
by the requester, and that amount is less than $250, the requester 
shall be notified of the estimated costs. The requester must provide an 
agreement to pay the estimated costs; however, the requester shall also 
be given an opportunity to reformulate the request in an attempt to 
reduce fees.
    (2) If the requester has failed to state a limit and the costs are 
estimated to exceed $250.00, the requester shall be notified of the 
estimated costs and must pre-pay such amount prior to the processing of 
the request, or provide satisfactory assurance of full payment if the 
requester has a history of prompt payment of FOIA fees. The requester 
shall also be given an opportunity to reformulate the request in such a 
way as to constitute a request for responsive records at a reduced fee.
    (3) The Council reserves the right to request prepayment after a 
request is processed and before documents are released.
    (4) If a requester has previously failed to pay a fee within thirty 
(30) calendar days of the date of the billing, the requester shall be 
required to pay the full amount owed plus any applicable interest, and 
to make an advance payment of the full amount of the estimated fee 
before the Council begins to process a new request or the pending 
request.
    (5) When the Council acts under paragraphs (g)(1) through (4) of 
this section, the administrative time limits of twenty (20) days 
(excluding Saturdays, Sundays, and legal public holidays) from receipt 
of initial requests or appeals, plus extensions of these time limits, 
shall begin only after fees have been paid, a written agreement to pay 
fees has been provided, or a request has been reformulated.
    (h) Form of payment. Payment may be made by check or money order 
payable to Financial Research Fund.
    (i) Charging interest. The Council may charge interest on any 
unpaid bill starting on the 31st day following the date of billing the 
requester. Interest charges will be assessed at the rate provided in 31 
U.S.C. 3717 and will accrue from the date of the billing until payment 
is received by the Council. The Council will follow the provisions of 
the Debt Collection Act of 1982 (Pub. L. 97-365, 96 Stat. 1749), as 
amended, and its administrative procedures, including the use of 
consumer reporting agencies, collection agencies, and offset.
    (j) Aggregating requests. Where the Council reasonably believes 
that a requester or a group of requesters acting together is attempting 
to divide a request into a series of requests for the purpose of 
avoiding fees, the Council may aggregate those requests and charge 
accordingly. The Council may presume that multiple requests of this 
type made within a thirty (30) calendar day period have been made in 
order to avoid fees. Where requests are separated by a longer period, 
the Council will aggregate them only where there exists a solid basis 
for determining that aggregation is warranted under all the 
circumstances involved. Multiple requests involving unrelated matters 
will not be aggregated.

    Dated: March 18, 2011.
Alastair Fitzpayne,
Deputy Chief of Staff and Executive Secretary, Department of the 
Treasury.
[FR Doc. 2011-7005 Filed 3-25-11; 8:45 am]
BILLING CODE 4810-25-P