17038 Federal Register / Vol. 76, No. 59 / Monday, March 28, 2011 / Proposed Rules 

(2) The comment proposes a change 

or an addition to the rule, and it is 

apparent that the rule would be 

ineffective or unacceptable without 

incorporation of the change or addition. 

(3) The comment causes the NRC staff 

to make a change (other than editorial) 

to the rule, Certificate of Compliance 

(CoC), or Technical Specifications (TS). 

For additional procedural information 

and the regulatory analysis, see the 

direct final rule published in the Rules 

and Regulations section of this Federal 

Register. 

List of Subjects in 10 CFR Part 72 

Administrative practice and 

procedure, Hazardous waste, Nuclear 

materials, Occupational safety and 

health, Radiation protection, Reporting 

and recordkeeping requirements, 

Security measures, Spent fuel, Whistle 

blowing. 

For the reasons set out in the 

preamble and under the authority of the 

Atomic Energy Act of 1954, as amended; 

the Energy Reorganization Act of 1974, 

as amended; the Nuclear Waste Policy 

Act of 1982, as amended, and 5 U.S.C. 

553; the NRC is proposing to adopt the 

following amendments to 10 CFR part 

72. 

PART 72—LICENSING 

REQUIREMENTS FOR THE 

INDEPENDENT STORAGE OF SPENT 

NUCLEAR FUEL, HIGH-LEVEL 

RADIOACTIVE WASTE, AND 

REACTOR-RELATED GREATER THAN 

CLASS C WASTE 

1. The authority citation for part 72 

continues to read as follows: 

Authority: Secs. 51, 53, 57, 62, 63, 65, 69, 

81, 161, 182, 183, 184, 186, 187, 189, 68 Stat. 

929, 930, 932, 933, 934, 935, 948, 953, 954, 

955, as amended, sec. 234, 83 Stat. 444, as 

amended (42 U.S.C. 2071, 2073, 2077, 2092, 

2093, 2095, 2099, 2111, 2201, 2232, 2233, 

2234, 2236, 2237, 2238, 2282); sec. 274, Pub. 

L. 86–373, 73 Stat. 688, as amended (42 

U.S.C. 2021); sec. 201, as amended, 202, 206, 

88 Stat. 1242, as amended, 1244, 1246 (42 

U.S.C. 5841, 5842, 5846); Pub. L. 95–601, sec. 

10, 92 Stat. 2951 as amended by Pub. L. 102– 

486, sec. 7902, 106 Stat. 3123 (42 U.S.C. 

5851); sec. 102, Pub. L. 91–190, 83 Stat. 853 

(42 U.S.C. 4332); secs. 131, 132, 133, 135, 

137, 141, Pub. L. 97–425, 96 Stat. 2229, 2230, 

2232, 2241, sec. 148, Pub. L. 100–203, 101 

Stat. 1330–235 (42 U.S.C. 10151, 10152, 

10153, 10155, 10157, 10161, 10168); sec. 

1704, 112 Stat. 2750 (44 U.S.C. 3504 note); 

sec. 651(e), Pub. L. 109–58, 119 Stat. 806–10 

(42 U.S.C. 2014, 2021, 2021b, 2111). 

Section 72.44(g) also issued under secs. 

142(b) and 148(c), (d), Pub. L. 100–203, 101 

Stat. 1330–232, 1330–236 (42 U.S.C. 

10162(b), 10168(c), (d)). Section 72.46 also 

issued under sec. 189, 68 Stat. 955 (42 U.S.C. 

2239); sec. 134, Pub. L. 97–425, 96 Stat. 2230 

(42 U.S.C. 10154). Section 72.96(d) also 

issued under sec. 145(g), Pub. L. 100–203, 

101 Stat. 1330–235 (42 U.S.C. 10165(g)). 

Subpart J also issued under secs. 2(2), 2(15), 

2(19), 117(a), 141(h), Pub. L. 97–425, 96 Stat. 

2202, 2203, 2204, 2222, 2244 (42 U.S.C. 

10101, 10137(a), 10161(h)). Subparts K and L 

are also issued under sec. 133, 98 Stat. 2230 

(42 U.S.C. 10153) and sec. 218(a), 96 Stat. 

2252 (42 U.S.C. 10198). 

2. In § 72.214, CoC 1032 is added to 

read as follows: 

§ 72.214 List of approved spent fuel 

storage casks. 

* * * * * 

Certificate Number: 1032. 

Initial Certificate Effective Date: June 

13, 2011. 

SAR Submitted by: Holtec 

International, Inc. 

SAR Title: Safety Analysis Report on 

the HI–STORM FW System. 

Docket Number: 72–1032. 

Certificate Expiration Date: June 13, 

2031. 

Model Numbers: MPC–37, MPC–89. 

Dated at Rockville, Maryland, this 8th day 

of February, 2011. 

For the Nuclear Regulatory Commission. 

R.W. Borchardt, 

Executive Director for Operations. 

[FR Doc. 2011–7091 Filed 3–25–11; 8:45 am] 

BILLING CODE 7590–01–P 

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. 

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. 

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Federal Register / Vol. 76, No. 59 / Monday, March 28, 2011 / Proposed Rules 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. 

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17040 Federal Register / Vol. 76, No. 59 / Monday, March 28, 2011 / Proposed Rules 

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. 

§ 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. 

§ 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 

§ 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 

§ 1301.4); and 

(3) Information required to be made 

available to any member of the public 

upon specific request (see §§ 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. 

§ 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. 

§ 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 §§ 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 

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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 

§ 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. 

§ 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 

§ 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 § 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 § 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 § 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. 

§ 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. 

§ 1301.7 Timing of responses to requests 

for Council records. 

(a) In general. Except as set forth in 

paragraphs (b) through (d) of this 

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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 § 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 

§ 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 § 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. 

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The Council may disaggregate and treat 

as separate requests a single request that 

has multiple unrelated components. 

§ 1301.8 Responses to requests for 

Council records. 

(a) Acknowledgements of requests. 

Upon receipt of a request that meets the 

requirements of § 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 § 1301.5(c); and 

(3) Confirms, with respect to any fees 

that may apply to the request pursuant 

to § 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 § 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 

§ 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 § 1301.12. 

Fees may be charged for search and 

review time as stated in § 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 § 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 § 1301.11. The 

response shall specify the official to 

whom the appeal shall be submitted for 

review. 

§ 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. 

§ 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 

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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. 

§ 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 § 1301.8(b)(4)); 

(2) To assign a particular fee category 

to the requestor (as provided in 

§ 1301.12(c)); 

(3) To deny a request for a reduction 

or waiver of fees (as provided in 

§ 1301.12(f)(7)); 

(4) That no records exist that are 

responsive to the request (as provided in 

§ 1301.8(b)(5)); or 

(5) To deny a request for expedited 

processing (as provided in 

§ 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 § 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 § 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 § 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, 

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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. 

§ 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 81⁄2′′ 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 allinclusive. 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 

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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 § 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 §§ 1301.7 or 

1301.11, and no unusual circumstances 

(as that term is defined in § 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 

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Federal Register / Vol. 76, No. 59 / Monday, March 28, 2011 / Proposed Rules 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 § 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 

§ 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 

FINANCIAL STABILITY OVERSIGHT 

COUNCIL 

12 CFR Part 1320 

RIN 4030–AA01 

Authority To Designate Financial 

Market Utilities as Systemically 

Important 

AGENCY: Financial Stability Oversight 

Council. 

ACTION: Notice of proposed rulemaking. 

SUMMARY: Section 804 of the DoddFrank Wall Street Reform and Consumer 

Protection Act (the ‘‘DFA’’) provides the 

Financial Stability Oversight Council 

(the ‘‘Council’’) the authority to 

designate a financial market utility (an 

‘‘FMU’’) the Council determines is or is 

likely to become systemically 

important—that is, the failure of or a 

disruption to the functioning of which 

could create, or increase, the risk of 

significant liquidity or credit problems 

spreading among financial institutions 

or markets and thereby threaten the 

stability of the United States financial 

mstockstill on DSKH9S0YB1PROD with PROPOSALS