[Federal Register Volume 81, Number 248 (Tuesday, December 27, 2016)]
[Rules and Regulations]
[Pages 94937-94941]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-30696]


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FEDERAL FINANCIAL INSTITUTIONS EXAMINATION COUNCIL

12 CFR Part 1101

[Docket No. FFIEC-2016-0004]


Description of Office, Procedures, and Public Information

AGENCY: Federal Financial Institutions Examination Council (FFIEC).

ACTION: Interim final rule.

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SUMMARY: The Federal Financial Institutions Examination Council (FFIEC 
or Council), on behalf of its members, is amending its regulations to 
incorporate changes to the Freedom of Information Act (FOIA). This 
interim final rule reflects the required changes necessitated by the 
FOIA Improvement Act of 2016 (Act) consisting of extending the deadline 
for administrative appeals, including information on dispute resolution 
services, and amends parts of the fee determination. This interim final 
rule also corrects a duplicate entry that occurred in the 2010 update 
of the regulations. The Council has reviewed the proposed regulations 
and adopt them in this interim final rule.

[[Page 94938]]


DATES: Effective December 27, 2016.

FOR FURTHER INFORMATION CONTACT: Judith Dupre, Executive Secretary, 
Federal Financial Institutions Examination Council, via telephone: 
(703) 516-5590, or via email: [email protected].

SUPPLEMENTARY INFORMATION: The members of the FFIEC are the Board of 
Governors of the Federal Reserve System (FRB), the Consumer Financial 
Protection Bureau (CFPB), the Federal Deposit Insurance Corporation 
(FDIC), the National Credit Union Administration (NCUA), the Office of 
the Comptroller of the Currency (OCC), and the State Liaison Committee 
(SLC) (Agencies).
    The Council is publishing an interim final rule revising its 
regulations implementing the FOIA as necessitated by the passage of the 
FOIA Improvement Act of 2016 Public Law 114-185, 130 Stat. 538. This 
interim file rule serves to achieve the mandated changes required by 
December 31, 2016. The Council expects to conduct a review and further 
updating of its regulations in the next year based on recent guidance 
issued by the United States Department of Justice's Office of 
Information Policy on agency FOIA regulations.

I. Background

    The Council modifies its existing regulations to reflect a number 
of substantive and procedural amendments to the FOIA contained in the 
FOIA Improvement Act of 2016, Public Law 114-185, 130 Stat. 538.

II. Section-by-Section Analysis

    In 12 CFR 1101.4(a), the Council revises the paragraph by providing 
public inspection in electronic format along with an index of records 
referred to in this section.
    In 12 CFR 1101.4(b)(1), the Council adds language to the paragraph 
on exempt from disclosure to reference 5 U.S.C. 552(b) and where 
disclosure is prohibited by law except as provided in subparagraph (2) 
of this paragraph (b).
    In 12 CFR 1101.4(b)(1)(v), the Council adds language to explain 
that the Council will not withhold records based on the deliberative 
process privilege if the records were created 25 years or more before 
the date of the records request.
    In 12 CFR 1101.4(b)(2), the Council adds language that the Council 
will only withhold records requested under this paragraph (b) if 
disclosure has a foreseeable harm to the interests protected by an 
exemption listed in 5 U.S.C. 552(b), and that the Council will consider 
partial disclosures were possible by segregating and releasing the 
nonexempt portion of the record.
    In 12 CFR 1101.4(b)(3)(v)(A) the Council adds language for defining 
when the Council can extend the time for response by 10 days in unusual 
circumstances as defined in 5 U.S.C. 552(a)(6)(B) and provide notice in 
writing to the requestor including the reasons for the delay and the 
expected date for determination. In addition the Council adds language 
explaining when the requestor would be provided the opportunity to 
modify the scope of their request and offering both the FFIEC FOIA 
Public Liaison and the Office of Government Information Services 
contact information for dispute resolution.
    The Council adds a new 12 CFR 1101.4(b)(3)(v)(B)(3) with language 
that the requestor has the right to seek assistance from the FFIEC FOIA 
Public Liaison.
    The Council reassigns the text from the previous 12 CFR 
1101.4(b)(3)(v)(B)(3) to the new 12 CFR 1101.4(b)(3)(v)(B)(4) and 
details the procedures in the event that an adverse determination is 
made.
    In 12 CFR 1101.4(b)(3)(v)(B)(4)(iv) the Council replaces the words 
``the denial'' with the words ``any adverse determination'' and 
replaces the reference of ``10 working days'' with the new requirement 
of ``90 days.''
    The Council adds 12 CFR 1101.4(b)(3)(v)(B)(4) (v) to offer the 
requester the right to seek dispute resolution services from both the 
FFIEC FOIA Public Liaison and the Office of Government Information 
Services.
    In 12 CFR 1101.4(b)(3)(vi) the Council replaces the phrase ``If a 
request is denied in whole or in part, the requester may appeal'' with 
the phrase ``A requestor may appeal any adverse determination.'' The 
Council also and replaces the reference of ``10 working days'' with the 
new requirement of ``90 days'' and replaces the word ``denial'' with 
the word ``adverse.'' The Council adds the option to file an appeal by 
email.
    In 12 CFR 1101.4(b)(4)(i) the Council adds the words ``in an 
electronic format'' for defining how the Council will provide access to 
the requester for inspection when records requests are granted in whole 
or in part.
    In 12 CFR 1101.4(b)(5)(ii) the Council revises the language to 
include that charging of fees for search and/or duplication is subject 
to the restrictions of paragraph (b)(5)(ii)(G) of this section.
    In 12 CFR 1101.4(b)(5)(ii)(E) the Council replaces the words 
``Council personnel'' with ``the Council's FOIA Public Liaison.''
    In 12 CFR 1101.4(b)(5)(ii)(G) the Council adds sections (1), 
(2)(i), (2)(ii), (2)(iii), and (2)(iv) to update and define the 
procedures for restrictions on assessing fees if the Council fails to 
comply with time limits specified, if the Council determines that 
unusual circumstances apply, and where a court determines that 
exceptional circumstances exist.
    The Council deletes the duplicate entry for section 12 CFR 
1101.4(b)(5)(iii) ``Categories of requestors.''
    In 12 CFR 1101.4(b)(5)(iii)(A) the Council replaces the words 
``which recover the'' with the words ``sufficient to recover the'' and 
makes a typographical correction to replace ``the'' with ``and.''
    The Council deletes the duplicate entry for section 12 CFR 
1101.4(b)(5)(iv) which was inadvertently left in the 2010 regulation 
update along with its replacement section. Therefore the second 
appearance of 12 CFR 1101.4(b)(5)(iv) is fully deleted.
    The Council adds 12 CFR 1101.4(b)(5)(v) which was inadvertently 
removed from the 2010 regulation update in error. Therefore the full 
text from the previous regulation is reinstated as follows: ``Fees for 
unsuccessful search and review. The Council may assess fees for time 
spent searching and reviewing, even if it fails to locate the records 
or if records located are determined to be exempt from disclosure.''

III. 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 interim 
final rule will not have a significant economic impact on a substantial 
number of small entities. The interim 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

[[Page 94939]]

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.

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

    The Council has determined that the interim 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 has sought to present the interim 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.

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

PART 1101--DESCRIPTION OF OFFICE, PROCEDURES, PUBLIC INFORMATION

0
1. The authority citation for part 1101 continues to read as follows:

    Authority: 5 U.S.C. 552; 12 U.S.C. 3307.


0
2. Amend Sec.  1101.4 as follows:
0
a. By revising paragraph (a);
0
b. By revising paragraphs (b)(1) introductory text and (b)(1)(v);
0
c. By revising paragraph (b)(2);
0
d. By revising paragraphs (b)(3)(v)(A) and (b)(3)(v)(B)(3);
0
e. By adding paragraph (b)(3)(v)(B)(4);
0
f. By redesignating paragraphs (b)(3)(v)(B)(3)(i) through (iv) as 
paragraphs (b)(3)(v)(B)(4)(i) through (iv);
0
g. By revising newly redesignated paragraph (b)(3)(v)(B)(4)(iv), and by 
adding paragraph (b)(3)(v)(B)(4)(v);
0
h. By revising paragraph (b)(3)(vi);
0
i. By revising paragraph (b)(4)(i);
0
j. By revising paragraphs (b)(5)(ii) introductory text and 
(b)(5)(ii)(E) and (G);
0
k. By removing the first paragraph (b)(5)(iii) subject heading and 
first paragraph (b)(5)(iii)(A);
0
l. By revising paragraph (b)(5)(iii)(A);
0
m. By removing the second paragraph (b)(5)(iv);
0
n. By adding paragraph (b)(5)(v);
    The revisions and additions read as follows:


Sec.  1101.4  Disclosure of information, policies, and records.

    (a) Statements of policy published in the Federal Register or 
available for public inspection in an electronic format; indices. (1) 
Under 5 U.S.C. 552(a)(l), the Council publishes general rules, policies 
and interpretations in the Federal Register.
    (2) Under 5 U.S.C. 552(a)(2), policies and interpretations adopted 
by the Council, including instructions to Council staff affecting 
members of the public are available for public inspection in an 
electronic format at the office of the Executive Secretary of the 
Council, 3501 Fairfax Drive, Room B-7081a, Arlington, VA, 22226-3550, 
during regular business hours. Policies and interpretations of the 
Council may be withheld from disclosure under the principles stated in 
paragraph (b)(1) of this section.
    (3) Copies of all records, regardless of form or format, are 
available for public inspection in an electronic format if they--
    (i) Have been released to any person under paragraph (b) of this 
section; and
    (ii)(A) Because of the nature of their subject matter, the Council 
determines that they have become or are likely to become the subject of 
subsequent requests for substantially the same records; or
    (B) They have been requested three or more times.
    (4) An index of the records referred to in paragraphs (a)(1) 
through (3) of this section is available for public inspection in an 
electronic format..
    (b) * * *
    (1) General rule and exemptions. Under 5 U.S.C. 552(a)(3), all 
other records of the Council are available to the public upon request, 
except to the extent exempted from disclosure as provided in 5 U.S.C. 
552(b) and described of this paragraph (b)(1), or if disclosure is 
prohibited by law. Unless specifically authorized by the Council, or as 
set forth in paragraph (b)(2) of this section, the following records, 
and portions thereof, are not available to the public:
* * * * *
    (v) An intra-agency or interagency memorandum or letter that would 
not be routinely available by law to a private party in litigation, 
including, but not limited to, memoranda, reports, and other documents 
prepared by the personnel of the Council or its constituent agencies, 
and records of deliberations of the Council and discussions of meetings 
of the Council, any Council Committee, or Council staff, that are not 
subject to 5 U.S.C. 552b (the Government in the Sunshine Act). In 
applying this exemption, the Council will not withhold records based on 
the deliberative process privilege if the records were created 25 years 
or more before the date on which the records were requested.
* * * * *
    (2) Discretionary release of exempt information. Notwithstanding 
the applicability of an exemption, the Council will only withhold 
records requested under this paragraph (b) if the Council reasonably 
foresees that disclosure would harm an interest protected by an 
exemption listed in 5 U.S.C. 552(b) and described in paragraph (b)(1) 
of this section. In addition, whenever the Council determines that full 
disclosure of a requested record is not possible, the Council will 
consider whether partial disclosure is possible and will take 
reasonable steps necessary to segregate and release the nonexempt 
portion of a record. The Council or the Council's designee may elect, 
under the circumstances of a particular request, to disclose all or a 
portion of any requested record where permitted by law. Such disclosure 
has no precedential significance.
    (3) * * *
    (v) * * *
    (A) Except where the Executive Secretary has determined to expedite 
the processing of a request, the Executive Secretary will respond by 
mail or electronic mail to all properly submitted initial requests 
within 20 working days of receipt. The time for response may be 
extended up to 10 additional working days in unusual circumstances, as 
defined in 5 U.S.C.

[[Page 94940]]

552(a)(6)(B), where the Council has provided written notice to the 
requester setting forth the reasons for the extension and the date on 
which a determination is expected to be dispatched. In addition, where 
the extension of the 20-day time limit exceeds 10 working days, as 
described by the FOIA, the requester shall be provided with an 
opportunity to modify the scope of the FOIA request so that it can be 
processed within that time frame or provided an opportunity to arrange 
an alternative time frame for processing the request or a modified 
request. To aid the requester, the Council's FOIA Public Liaison is 
available to assist the requester for this purpose and in the 
resolution of any disputes between the requester and the Council. The 
Council's FOIA Public Liaison's contact information is available at 
http://www.ffiec.gov/foia.htm. The requester may also seek dispute 
resolution services from the Office of Government Information Services.
    (B) * * *
    (3) The right of the requester to seek assistance from the 
Council's FOIA Public Liaison; and
    (4) When an adverse determination is made (including a 
determination that the requested record is exempt, in whole or in part; 
the request does not reasonably describe the records sought; the 
information requested is not a record subject to the FOIA; the 
requested record does not exist, cannot be located, or has been 
destroyed; the requested record is not readily reproducible in the form 
or format sought by the requester; a fee waiver request or other fee 
categorization matter is denied; and a request for expedited processing 
is denied), the Executive Secretary will advise the requester in 
writing of that determination and will further advise the requester:
* * * * *
    (iv) The right of the requester to appeal any adverse determination 
to the Chairman of the Council within 90 days following the date of 
issuance of the notification, as specified in paragraph (b)(3)(vi) of 
this section; and
    (v) The right of the requester to seek dispute resolution services 
from the Council's FOIA Public Liaison or the Office of Government 
Information Services.
    (vi)(A) Appeals of responses to initial requests. A requester may 
appeal any adverse determination in writing, within 90 days of the date 
of issuance of the adverse determination. Appeals shall be submitted to 
the Chairman of the Council:
    (1) 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
    (2) By facsimile clearly marked ``Freedom of Information Act 
Appeal,'' ``FOIA Appeal,'' or the like to the Executive Secretary at 
(703) 562-6446; or
    (3) By email with the subject line marked ``Freedom of Information 
Act Appeal,'' ``FOIA Appeal,'' or the like to [email protected].
    (B) 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.
* * * * *
    (4) Procedure for access to records if request is granted. (i) When 
a request for access to records is granted, in whole or in part, a copy 
of the records to be disclosed will be promptly delivered to the 
requester or made available for inspection in an electronic format, 
whichever was requested. Inspection of records, or duplication and 
delivery of copies of records will be arranged so as not to interfere 
with their use by the Council and other users of the records.
* * * * *
    (5) * * *
    (ii) Fees to be charged. The Council will charge fees that recoup 
the full allowable direct costs it incurs, except that the charging of 
search and/or duplication fees is subject to the restrictions of 
paragraph (b)(5)(ii)(G) of this section. The Council may contract with 
the private sector to locate, reproduce, and/or disseminate records. 
Provided, however, that the Council has ensured that the ultimate cost 
to the requester is no greater than it would be if the Council 
performed these tasks. Fees are subject to change as costs change. In 
no case will the Council contract out responsibilities which the FOIA 
provides that it alone may discharge, such as determining the 
applicability of an exemption, or determining whether to waive or 
reduce fees.
* * * * *
    (E) Fees to exceed $25. If the Council estimates that duplication 
and/or search fees are likely to exceed $25, it will notify the 
requester of the estimated amount of fees, unless the requester has 
indicated in advance his/her willingness to pay fees as high as those 
anticipated. In the case of such notification by the Council, the 
requester will then have the opportunity to confer with the Council's 
FOIA Public Liaison with the object of reformulating the request to 
meet his/her needs at a lower cost.
* * * * *
    (G) Restriction on assessing fees. (1) The Council will not charge 
fees to any requester, including commercial use requesters, if the cost 
of collecting a fee would be equal to or greater than the fee itself.
    (2)(i) If the Council fails to comply with the time limits 
specified in the FOIA in which to respond to a request, the Council 
will not charge search fees, or, in the case of a requester described 
in paragraph (b)(5)(iii)(B) of this section, will not charge 
duplication fees, except as described in paragraphs 
(b)(5)(ii)(G)(2)(ii) through (iv) of this section.
    (ii) If the Council has determined that unusual circumstances apply 
(as the term is defined in the FOIA) and the Council provided a timely 
written notice to the requester in accordance with the FOIA, a failure 
to comply with the time limit shall be excused for an additional 10 
working days.
    (iii) If the Council has determined that unusual circumstances 
apply (as the term is defined in the FOIA) and more than 5,000 pages 
are necessary to respond to the request, the Council may charge search 
fees, or, in the case of requesters described in paragraph 
(b)(5)(iii)(B) of this section, may charge duplication fees, if the 
following steps are taken: The Council provided timely written notice 
of unusual circumstances to the requester in accordance with the FOIA; 
and The Council discussed with the requester via written mail, email 
message, or telephone (or made not less than three good-faith attempts 
to do so) how the requester could effectively limit the scope of the 
request in accordance with 5 U.S.C. 552(a)(6)(B)(ii). If this exception 
is satisfied, the Council may charge all applicable fees incurred in 
the processing of the request.
    (iv) If a court has determined that exceptional circumstances 
exist, as defined by the FOIA, a failure to comply with the time limits 
shall be excused for the length of time provided by the court order.
* * * * *
    (iii) Categories of requesters--(A) Commercial use requesters. The 
Council will assess fees for commercial use requesters sufficient to 
recover the full direct costs of searching for, reviewing for release, 
and duplicating the records sought. Commercial use requesters are not 
entitled to two hours of free search

[[Page 94941]]

time nor 100 free pages of reproduction of documents.
* * * * *
    (v) Fees for unsuccessful search and review. The Council may assess 
fees for time spent searching and reviewing, even if it fails to locate 
the records or if records located are determined to be exempt from 
disclosure.
* * * * *

Federal Financial Institutions Examination Council.
Judith E. Dupre,
FFIEC Executive Secretary.
[FR Doc. 2016-30696 Filed 12-23-16; 8:45 am]
 BILLING CODE 7535-01-P 6714-01-P 6210-01-P 4810-33-P 4810-AM-P