392 1 0 Federal R egister / Vol. 52, No. 203 / W ednesday, O ctober 21, 1987 / Rules and Regulations

(i) Floor space shall consist of a 

minimum of 3 feet along each conveyor 

line and after each chiller to allow 

carcasses to be removed for evaluation. 

The space shall be level and protected 

from all traffic and overhead 

obstructions.

(ii) The vertical distance from the 

bottom of the shackles to the floor shall 

not be less than 48 inches.

(iii) A table, at least 2 feet wide, 2 feet 

deep, and 3 feet high designed to be 

readily cleanable and drainable shall be 

provided for reinspecting the sampled 

birds.

(iv) A minimum of 200-footcandles of 

shadow-free lighting with a minimum 

color rendering index of 85 on the table 

surface shall be provided.

(v) A separate clip board holder shall 

be provided for holding the recording 

sheets.

(vi) Handwashing facilities shall be 

provided for and shall be within easy 

access of persons working at the 

stations.

(vii) Hangback racks designed to hold 

10 carcasses shall be provided for and 

positioned within easy reach of the 

person at the station.

Done at Washington, DC, on October 2,

1987.

Donald L. Houston,

Administrator, Food Safety and Inspection

Service.

[FR Doc. 87-24389 Filed 1Q-2Q-87; 8:45 am]

BILLING CODE 3410-DM-M

FEDERAL ELECTION COMMISSION

11 CFR Parts 4 and 5

[Notice 1987-12]

Public Records and Freedom of

Information Act

a g e n c y: Federal Election Commission. 

a c t io n : Final rule.

s u m m a r y: The Federal Election 

Commission has revised its regulations 

implementing the Freedom of 

Information Reform Act, Pub. L. No. 99- 

570, and guidelines established by the 

Office of Management and Budget 

(OMB), 52 FR 10012 (March 27,1987). 

The revisions are based on the 

Commission’s experience in working 

with the Freedom of Information Act 

(FOIA) and on public comments 

received in response to the Notice of 

Interim Rulemaking published by the 

Commission.

The revisions incorporate the recent 

changes to the FOIA regarding among 

other things, establishment of fees to be 

charged for search, review and

duplication of records in response to 

FOIA requests. These rules also include 

a revision of the FOIA fee reduction and 

waiver standard drawn directly from the 

language of the Reform Act, along with 

procedures for implementing that 

standard.

Further information on these revisions 

is provided in the supplementary 

information which follows.

EFFECTIVE DATE: November 20,1987.

FOR FURTHER INFORMATION CONTACT:

Ms. Susan E. Propper, Assistant General 

Counsel, 999 E Street NW., Washington, 

DC 20463, (202) 376-5690 or Toll Free 

(800) 424-9530.

SUPPLEMENTARY INFORMATION: The 

Freedom of Information Reform Act of

1986 (FOIRA) requires each agency to 

promulgate regulations, pursuant to 

notice and receipt of public comments, 

specifying the schedule of fees 

applicable to the processing of Freedom 

of Information Act (FOIA) requests and 

establishing procedures and guidelines 

for determining when such fees should 

be waived or reduced. The FOIRA also 

requires the Office of Management and 

Budget (OMB) to promulgate guidelines 

containing a uniform schedule of fees 

applicable to all agencies. OMB’s 

guidelines were published on March 27,

1987 (52 FR 10012). The Federal Election 

Commission Interim Rule, published for 

comment on June 24,1987 (52 FR 23636), 

conforms to the OMB guidelines.

The Commission received three 

comments on the interim rules. Having 

considered these comments, the 

Commission is now publishing the final 

rules together with a statement 

explaining their basis and purpose in 

accordance with the Administrative 

Procedure Act, 5 U.S.C. 553(c).

Statement of Basis and Purpose

B asis and Purpose o f the Public R ecords

and Freedom o f Inform ation Act

Regulations, 11 CFR Parts 4 and 5

Part 4—Freedom of Information Act

The rules implementing the Freedom 

of Information Act have been revised 

and expanded as a result of the Freedom 

of Information Reform Act of 1986 (Pub.

L. 99-570). Several new definitions and 

modifications have been made to 

broaden the scope of the FOIA and 

establish uniformity with the fee 

provisions set by the Office of 

Management and Budget.

The comments received were taken 

into consideration in developing the 

final rule. These comments primarily 

addressed definitions of terms contained 

in the proposed fee schedule regarding 

the different categories of requestors. In 

particular, the commenters objected to

the definitions of “freelance journalist,” 

“representative of the news media” and 

“commercial use.” However, the 

Commission’s definitions of these terms 

conform to OMB guidelines and are 

consistent with the statute and 

legislative history.

Section 4.1 Definitions. This section 

adds seven new definitions, paragraphs

(g) through (n). These amendments are 

intended to clarify the expanded 

provisions of the statute. Three of these 

definitions were addressed by the 

comments.

Concerning “commercial use,” (11 

CFR 4.1 (k)) the commenters focus on 

statements in the legislative history 

which seem to indicate that it is the 

requestor rather than the nature of the 

request which is controlling.

Specifically, one commenter proposed a 

definition of “commercial use” requestor 

that would distinguish between private, 

profit-making and non-profit entities, 

allowing at a minimum that requests 

from public interest groups, labor 

unions, libraries and the news media not 

be treated as commercial requests. This 

interpretation is contrary to legislative 

intent. Congress did not intend that 

organizations seeking to establish 

private repositories of public records 

would qualify for waivers. See 123 Cong. 

Rec. S 14038 (daily ed. Sept. 27,1985) 

(statement of Sen. Hatch). Furthermore, 

the statute does not refer to commercial 

users, but instead plainly states 

"commercial use.” Therefore, the 

Commission regulations implement the 

statute.

With regard to “representative of the 

news media” (11 CFR 4.1 (n)), the 

comments received suggest that the 

Commission liberalize its definition 

beyond the guidelines set forth by OMB. 

One commenter stated that the 

Commission’s definition is counter to 

the legislative history and allows the 

Commission to judge what is current 

before acting on a request. The 

commenter suggested that 

“representative of the news media” be 

broadened to include any person or 

organization which publishes or 

disseminates information to the public. 

The Commission has retained the word 

“news” in the definition because it is 

based on the statutory phrase “news 

media.” The other commenters interpret 

the Commission definition as 

inconsistent with Congressional intent 

due to the use of the terms “current 

events” or information of “current 

interest to the public.” The Commission 

concludes however, that the plain 

meaning of the word “news” entails 

currency of events and that its 

interpretation is consistent with the
39211 Federal Register / Vol. 52, No. 203 / W ednesday, O ctober 21, 1987 / Rules and Regulations

statute and OMB guidelines. As a result 

no change has been made to this 

definition. Moreover, as traditional 

methods of news delivery evolve (e.g., 

electronic dissemination of newspapers 

through telecommunications services), 

such alternative media would be 

included in this category.

Concerning “freelance journalist” (11 

CFR 4.1(n)) one commenter suggested 

the Commission delete its definition of 

freelance journalist from the rules as it 

did not properly describe the work of a 

freelance journalist and discriminated 

against first-time freelancers. The 

Commission’s intent was not to limit 

qualification under this definition to any 

one particular form of proof or 

discriminate against legitimate 

freelancers. Rather, its intent was to 

incorporate legitimate freelance 

journalists into the definition, but not 

anyone merely declaring himself or 

herself to be a freelance journalist. 

Accordingly, in addition to the standard 

set forth by Representative English in 

his comments in which he describes 

freelance writers as those "who can 

demonstrate that their work is likely to 

be published * * 132 Cong. Rec. H

9464 (Oct. 8,1986), the Commission has 

adopted other indicia of qualification 

consistent with another commenter’s 

suggestion. Among these qualifications 

would be a contract or past publication 

record. The Commission considers this 

definition practical and has made no 

change in the final rule.

In addition to the above concerns 

expressed in all three comments one set 

of comments suggested among other 

things, that the OMB guidelines are in 

certain instances not supported by, or 

are contrary to, the legislative intent of 

the FOIRA. Specifically, this commenter 

suggested that the phrase “educational 

institution” (See 11 CFR 4.1(1)) is self 

defining. The commenter recommended 

that the Commission borrow from the 

Tax Code’s section 501(c)(3) grant of tax 

deductible status to determine what 

constitutes an “educational institution.” 

To adopt such a proposal would be 

contrary to the congressional intent of 

the FOIRA and OMB guidelines. The 

Tax Code merely provides that 

“corporations, any community chest, 

fund, or foundation, organized and 

operated exclusively for * * * 

educational purposes * * *” qualify for 

exemption from taxation. 26 U.S.C. 

501(c)(3). The legislative history of the 

FOIRA makes it plain that mere nonprofit status does not entitle a person or 

organization to qualify for a limitation of 

fees as an educational institution. 132 

Cong. Rec. S14040 (Sept. 27,1986.)

Accordingly, the Commission rejects 

this suggestion.

Section 4.5 C ategories o f

exem ptions. This section revises the 

introductory text in paragraphs (a) and

(a)(1) and redesignates paragraphs (b) 

through (d) as paragraphs (c) through

(e). The purpose of this change is to 

reflect the extensive revisions in the 

FOIRA exempting information from 

disclosure under the FOIA, and 

establishing three special exclusions for 

specific types of law enforcement 

records.

Section 4.7 Requests fo r records.

This section is amended to reflect 

circumstances that might warrant an 

extension of time for fulfilling a request 

due to the addition of regulations 

concerning advance payments at 

§ 4.9(f),

Section 4.9 Fees. This section has 

received extensive revisions in order to 

make the FOIA fees charged by 

government agencies more uniform. 

Accordingly, the Commission has 

revised and amended Section 4.9 to 

conform with government wide 

standards.

One commenter argued that there is 

no basis in the FOIRA or its legislative 

history for construing the automatic 

waiver of fees for the first two hours of 

search time to mean something less than 

that for computer searches. 11 CFR 

4.9(a)(2). Congress made it clear that 

each agency must develop regulations 

based on OMB’s guidelines for a 

uniform schedule of fees. The 

Commission’s regulations are in 

conformance with OMB’s guidelines on 

this section, and therefore considered 

both appropriate and consistent with the 

requirements of the FOIRA.

This commenter along with another 

commenter also suggested that the 

Commission reject the Department of 

Justice fee waiver policy and adopt 

simpler less restrictive fee waiver 

regulations. 11 CFR 4.9(b). The 

Commission has not utilized the six 

factors outlined by the Justice 

Department in its 1983 memorandum but 

has developed its own standard without 

guidance from the Department of Justice. 

Furthermore, one comment received 

suggests that in light of the Paperwork 

Reduction Act the Commission should 

reassess its fee waiver regulations 

because they seek information from 

requestors. However, 2 U.S.C. 438(c) 

exempts the Commission from the 

Paperwork Reduction Act.

In response to actual Commission 

practices relating to requests for special 

mailing services, the Commission has 

revised the portion of § 4.9(c)(4) dealing 

with “other charges.” The interim rule

appeared to indicate that the 

Commission would initially pay for such 

services and bill the requestor. In fact, 

the Commission’s practice is to have 

requestors pay these costs directly to 

the company providing the expedited 

delivery or mailing service. The final 

rule reflects this practice and explains 

how it will operate.

Another commenter suggested that the 

Commission adopt the language in the 

OMB guidelines relating to "aggregating 

requests” (11 CFR 4.9(e)) and “advance 

payments.” (11 CFR 4.9(f)). The 

commenter asserted that § 4.9(e) fails to 

note the "presumptions against 

aggregation when the requests have 

been made more than 30 days apart and 

does not state that aggregation of 

multiple requests on unrelated subjects 

from one requester are prohibited.” The 

Commission has clearly stated that it 

will consider the time frame involved, as 

well as the subject matter of the 

requests, and may find that requests 

made more than 30 days apart should be 

aggregated. The Commission, while 

setting guidelines for determining when 

requests should be aggregated, also 

believes each case should be considered 

on its own merits. The commenter also 

recommends adopting a clear 

presumption against advance payments. 

The Commission’s regulations set forth 

two criteria to be considered when 

making a determination whether or not 

to require advance payment. The first 

criterion is when the Commission 

estimates or determines that allowable 

charges that a requestor may be 

required to pay are likely to exceed 

$250. The second criterion is when a 

requestor has previously failed to pay a 

fee in a timely fashion. Moreover, the 

Commission regulations, while not a 

verbatim statement of the OMB 

guidelines, closely conform to the 

standard established by OMB and are 

consistent with the statute. As a result it 

is unnecessary to adopt the commenter’s 

proposals.

Part 5—Access to Public Disclosure 

Division Documents

Section 5.6(a)(1) Fees. This section is 

amended to reflect the increase in the 

direct costs of microfilm and personnel 

to the Commission. The changes in the 

Public Disclosure fee schedule for these 

items are made to keep them consistent 

with the revised FOIA fee schedule.

List of Subjects

11 CFR Part 4

Freedom of Information.

11 CFR Part 5

Archives, Records.
39212 Federal Register / Vol. 52, No. 203 / W ednesday, O ctober 21, 1987J Rules and Regulations

For the reasons set out in the basis 

and purpose, Title 11, Parts 4 and 5 of 

the Code of Federal Regulations are 

amended as follows.

PART 4—PUBLIC RECORDS AND THE

FREEDOM OF INFORMATION ACT

1. The authority citation for Part 4 is 

revised to read as follows:

Authority: 5 U.S.C. 552, as amended.

2. Section 4.1 is amended by revising 

paragraphs (g) through (n) to read as 

follows:

§ 4.1 Definitions.

*****

(g) “Direct costs” means those 

expenditures which the Commission 

actually incurs in searching for and 

duplicating (and, in the case of 

commercial use requestors, reviewing) 

documents to respond to a FOIA 

request. Direct costs include the salary 

of the employee performing the work 

(the basic rate of pay for the employee 

plus 16 percent of that rate to cover 

benefits) and the cost of operating 

duplicating equipment. Direct costs do 

not include overhead expenses such as 

the cost of space and heating or lighting 

the facility in which the records are 

stored.

(h) "Search” means all time spent 

looking for material that is responsive to 

a FOIA request, including page-by-page 

or line-by-line identification of material 

within documents. This includes both 

manual searches and searches 

conducted with a computer using 

existing programming. Search time does 

not include review of material in order 

to determine whether the material is 

exempt from disclosure.

(i) “Review” means the process of 

examining a document located in 

response to a commercial usé request to 

determine whether any portion of the 

document located is exempt from 

disclosure. Review also refers to 

processing any document for disclosure,

i.e., doing all that is necessary to excise 

exempt portions of the document and 

otherwise prepare the document for 

release. Review does not include time 

spent by the Commission resolving 

general legal or policy issues regarding 

the application of exemptions.

(j) “Duplication” means the process of 

making a copy of a document necessary 

to respond to a FOIA request. Examples 

of the form such copies can take include, 

but are not limited to, paper copy, 

microform, audio-visual materials, or 

machine readable documentation (e.g., 

magnetic tape or disk).

(k) “Commercial use” means a 

purpose that furthers the commercial, 

trade, or profit interests of the requestor

or the person on whose behalf the 

request is made. The Commission’s 

determination as to whether documents 

are being requested for a commercial 

use will be based on the purpose for 

which the documents are being 

requested. Where the Commission has 

reasonable cause to doubt the use for 

which the requestor claims to have 

made the request or where that use is 

not clear from the request itself, the 

Commission will seek additional 

clarification before assigning the request 

to a specific category.

(l) “Educational institution” means 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.

(m) "Non-commercial scientific 

institution” means an organization that 

is not operated on a commercial basis, 

as that term is defined in paragraph (k) 

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.

(n) "Representative of the news 

media” means a person actively 

gathering news for an entity that is 

organized and operated to publish or 

broadcast news to the public. 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 include, but are 

not limited to, television or radio 

stations broadcasting to the public at 

large, and publishers of periodicals (but 

only in those instances when they can 

qualify as disseminators of news, as 

defined in this paragraph) who make 

their products available for purchase or 

subscription by the general public. A 

freelance journalist may be regarded as 

working for a news organization and 

therefore considered a representative of 

the news media if that person can 

demonstrate a solid basis for expecting 

publication by that news organization, 

even though that person is not actually 

employed by that organization. The best 

means by which a freelance journalist 

can demonstrate a solid basis for 

expecting publication by a news 

organization is by having a publication 

contract with that news organization. 

When no such contract is present, the 

Commission will look to the freelance 

journalist’s past publication record in 

making this determination.

3. Section 4.5 is amended by revising 

the introductory text of paragraph (a), 

paragraph (a)(7) and paragraph (b) to 

read as follows:

§ 4.5 Categories of exemptions.

(a) No requests under 5 U.S.C. 552 

shall be denied release unless the record 

contains, or its disclosure would reveal, 

matters that are:

*****

(7) Records or information compiled 

for law enforcement purposes, but only 

to the extent that the production of such 

law enforcement records or information:

(i) Could reasonably be expected to 

interfere with enforcement proceedings;

(ii) Would deprive a person of a right 

to a fair trial or an impartial 

adjudication;

(iii) Could reasonably be expected to 

constitute an unwarranted invasion of 

personal privacy;

(iv) Could reasonably be expected to 

disclose the identity of a confidential 

source, including a State, local, or 

foreign agency or authority or any 

private institution which furnished 

information on a confidential basis, and, 

in the case of a record or information 

compiled by a criminal law enforcement 

authority in the course of a criminal 

investigation, or by an agency 

conducting a lawful national security 

intelligence investigation, information 

furnished by a confidential source;

(v) Would disclose techniques and 

procedures for law enforcement 

investigations or prosecutions, or would 

disclose guidelines for law enforcement 

investigations or prosecutions if such 

disclosure could reasonably be expected 

to risk circumvention of the law; or

(vi) Could reasonably be expected to 

endanger the life or physical safety of 

any individual.

(b) Whenever a request is made which 

involves access to records described in 

11 CFR 4.5(a) (7): and

(1) The investigation or proceeding 

involves a possible violation of criminal 

law; and

(2) There is reason to believe that—

(i) The subject of the investigation or 

proceeding is not aware of its pendency, 

and

(ii) Disclosure of the existence of the 

records could reasonably be expected to 

interfere with enforcement proceedings; 

The agency may, during only such time 

as that circumstance continues, treat the 

records as not subject to the 

requirements of the Freedom of 

Information Act.

* * * * *

4. Section 4.7 is amended by revising 

paragraph (c) to read as follows:
Federal R egister / Vol. 52, No. 203 / W ednesday, O ctober 21, 1987 / Rules and Regulations 39213

§ 4.7 Requests for records.

* * * *

(c) Records or copies thereof will 

normally be made available either 

immediately upon receipt of a request or 

within ten working days thereafter, or 

twenty working days in the case of an 

appeal, unless in unusual circumstances 

the time is extended or subject to 11 

CFR 4.9(f)(3), which governs advance 

payments. In the event the time is 

extended, the requestor shall be notified 

of the reasons for the extension and the 

date on which a determination is 

expected to be made, but in no case 

shall the extended time exceed ten 

working days. An extension may be 

made if it is—

(1) Necessary to locate records or 

transfer them from physically separate 

facilities; or

(2) Necessary to search for, collect, 

and appropriately examine a large 

quantity of separate and distinct records 

which are the subject of a single request; 

or

(3) Necessary for consultation with 

another agency which has a substantial 

interest in the determination of the 

request, or with two or more 

components of the Commission which 

have a substantial subject matter 

interest therein.

*****

5. Section 4.9 is revised to read as 

follows:

§4.9 Fees.

(a) Exceptions to fe e charges—(1) 

G eneral Except for a commercial use 

requester, the Commission will not 

charge a fee to any requester for the first 

two hours of search time and the first 

100 pages of duplication in response to 

any FOIA request.

(2) Free com puter search time. For 

purposes of this paragraph, the term 

“search time” is based on the concept of 

a manual search. To apply this to a 

search conducted by a computer, the 

Commission will provide the equivalent 

dollar value of two hours of professional 

staff time, calculated according to 

paragraph (c)(4) of this section, in 

computer search time. Computer search 

time is determined by adding the cost of 

the computer connect time actually used 

for the search, calculated at the rate of 

$25.00 per hour, to the cost of the 

operator’s salary for the time spent 

conducting the computer search, 

calculated at the professional staff time 

rate set forth at paragraph (c)(4) of this 

section.

(3) Definition o f pages. For purposes 

of this paragraph, the word “pages” 

refers to paper copies of a standard 

agency size which will normally be 8 V2" 

x 11" or 8V2* x 14". Thus, while a

requester would not be entitled to 100 

free computer disks, for example, a 

requester would be entitled to 100 free 

pages of a computer printout.

(4) Minimum charge. The Commission 

will not charge a fee to any requester 

when the allowable direct cost of that 

FOIA request is equal to or less than the 

Commission’s cost of routinely 

collecting and processing a FOIA 

request fee.

(b) F ee reduction or w aiver—(1) The 

Commission will consider requests for 

the reduction or waiver of any fees 

assessed pursuant to paragraph (c)(1) of 

this section if it determines, either as a 

result of its own motion or in response 

to a written submission by the requester, 

that disclosure of the information is in 

the public interest because it is likely to 

contribute significantly to public 

understanding of the operations or 

activities of the government and that 

disclosure of the information is not 

primarily in the commercial interest of 

the requester.

(2) A request for a reduction or waiver 

of fees shall be made in writing by the 

FOIA requestor; shall accompany the 

relevant FOIA request so as to be 

considered timely; and shall include a 

specific explanation as to why the fee 

for that FOIA request should be reduced 

or waived, applying the standard stated 

in paragraph (b)(1) of this section to the 

facts of that particular request. In 

addition, the explanation shall include: 

the requester’s (and user’s, if the 

requester and the user are different 

persons or entities) identity, 

qualifications and expertise in the 

subject area, and ability and intention to 

disseminate the information to the 

public; and a discussion of any 

commercial or personal benefit that the 

requestor (and user, if the requestor and 

user are different persons or entities) 

expects as a result of disclosure, 

including whether the information 

disclosed would be resold in any form at 

a fee above actual cost.

(c) F ees to be charged. (1) The FOIA 

services provided by the Commission in 

response to a FOIA request for which 

the requestor will be charged will 

depend upon the category of the 

requestor. The categories of FOIA 

requestors are as follows:

(i) Com m ercial use requestors. A 

requestor of documents for commercial 

use will be assessed reasonable 

standard charges for the full allowable 

direct costs of searching for, reviewing 

for release and duplicating the records 

sought, according to the Commission’s 

schedule of fees for those services as set 

forth at paragraph (c)(4) of this section.

A commercial use requestor is not 

entitled to two hours of free search time

nor 100 free pages of duplication of 

documents.

(ii) Educational and non-com m ercial

scien tific institution requestors. The 

Commission will provide documents to 

requestors in this category for the cost 

of duplication of the records provided 

by the Commission in response to the 

request, according to the Commission’s 

schedule of fees as set forth at 

paragraph (c)(4) of this section, 

excluding charges for the first 100 pages 

of duplication. Requestors in this 

category will not be charged for search 

time. To be eligible for inclusion in this 

category, requestors must show that the 

request is being made as authorized by 

and 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.

(iii) R equestors who are

representatives o f the news m edia. The 

Commission will provide documents to 

requestors in this category for the cost 

of duplication of the records provided 

by the Commission in response to the 

request, according to the Commission’s 

schedule of fees as set forth at 

paragraph (c)(4) of this section, 

excluding charges for the first 100 pages 

of duplication. Requestors in this 

category will not be charged for search 

time. To be eligible for inclusion in this 

category, the requestor must meet the 

criteria listed at 11 CFR 4.1(n) and his or 

her request must not be made for a 

commercial use. A request for records 

supporting the news dissemination 

function of the requestor shall not be 

considered to be a request that is for a 

commercial use.

(iv) A ll other requestors. The 

Commission will charge requestors who 

do not fit into any of the categories 

listed in paragraph (c)(1) (i), (ii) or (iii) of 

this section the full direct costs of 

searching for and duplicating records in 

response to the request, according to the 

Commission’s schedule of fees as set 

forth at paragraph (c)(4) of this section, 

excluding charges for the first two hours 

of search time and the first 100 pages of 

duplication. Requests from record 

subjects for records about themselves 

will continue to be treated under the fee 

provisions of the Privacy Act of 1974 

which permit fees only for duplication.

(2) The Commission may assess fees 

for the full allowable direct costs of 

searching for documents in response to 

a request even if the Commission fails to 

locate any documents which are 

responsive to that request and, in the
392 1 4 Federal Register / Vol. 52, No. 203 / W ednesday, O ctober 21, 1987 / Rules and Regulations_________

case of commercial use requestors, of 

reviewing documents located in 

response to a request which the 

Commission determines are exempt 

from disclosure.

(3) If the Commission estimates that 

search or duplication charges are likely 

to exceed $25.00, it will notify the 

requestor of the estimated amount of the 

fee unless the requestor has indicated in 

advance a willingness to pay a fee as 

high as that estimated by the 

Commission. Through this notification, 

the Commission will offer the requestor 

the opportunity to confer with 

Commission staff to reformulate the 

original request in order to meet the 

requestor’s needs at a lower cost.

(4) The following is the schedule of 

the Commission’s standard fees. The 

cost of staff time will be added to all of 

the following fees, generally at the 

“Professional” rate listed below, except 

for the cost of “Photocopying from 

photocopying machines” which has 

been calculated to include staff time. 

Photocopying

Photocopying from photocopying

machines....................................$.07 per page

Photocopying from microfilm readerprinter...................... .................. $.15 per page

Paper copies from microfilm-paper

print machine................$.05 per frame page

Reels of Microfilm

Daily film (partial or complete roll)...$2.85 per

roll

Other film (partial or complete roll)...$5.00 per

roll

Publications: (new or not from available

stocks)

Cost of photocopying document...$.07 per

page

Cost of binding document..............$.30 per inch

Publications: (available stock)

If available from stock on hand, cost is

based on previously calculated cost as stated

in the publication (based on actual cost per

copy, including reproduction and binding).

Commission publications for which fees will

be charged include, but are not limited to, the

following: Advisory Opinion Index, Report on

Financial Activity, Financial Control and

Compliance Manual, MUR Index, and

Guideline for Presentation in Good Order.

Computer Tapes

Cost to process the request at the rate of

$25.00 per hour connect time plus the cost of

the computer tape ($25.00) and professional

staff time (see Staff Time).

Computer Indexes (including Name Searches)

Cost to process the request at the rate of

$25.00 per hour connect time plus the cost of

professional staff time (see Staff Time).

Staff Time

Clerical: $4.50 per each half hour (agency

average of staff below a GS-11) for each

request.

Professional: $12.40 per each half hour

(agency average of staff at GS-11 and above)

for each request.

Other Charges

Certification of a Document: $7.35 per

quarter hour.

Transcripts of Commission meetings not

previously transcribed: $7.50 per half hour

(equivalent of a GS-11 executive secretary).

The Commission will not charge a fee for

ordinary packaging and mailing of records

requested. When a request for special mailing

or delivery services is received the

Commission will package the records

requested. The requestor will make all

arrangements for pick-up and delivery of the

requested materials. The requestor shall pay

all costs associated with special mailing or

delivery services directly to the courier or

mail service.

(5) Upon receipt of any request for the 

production of computer tape or 

microfilm, the Commission will advise 

the requestor of the identity of the 

private contractor who will perform the 

duplication services. If fees are charged 

for the production of computer tape or 

microfilm, they shall be made payable to 

that private contractor and shall be 

forwarded to the Commission.

(d) Interest charges. FOIA requestors 

should pay fees within 30 days following 

the day on which the invoice for that 

request was sent to the requestor. If the 

invoice is unpaid on the 31st day 

following the day on which the invoice 

was sent, the Commission will begin 

assessing interest charges, which will 

accrue from the date the invoice was 

mailed. Interest will be charged at a rate 

that is equal to the average investment 

rate for the Treasury tax and loan 

accounts for the 12-month period ending 

on September 30 of each year, rounded 

to the nearest whole percentage point, 

pursuant to 31 U.S.C. 3717. The accrual 

of interest will be stayed by the 

Commission’s receipt of the fee, even if 

the fee has not yet been processed.

(e) Aggregating requests. A requestor 

may not file multiple requests, each 

seeking portions of a document or 

documents, in order to avoid payment of 

fees. When the Commission reasonably 

believes that a FOIA requestor or group 

of requestors acting in concert is 

attempting to break a request down into 

a series of requests for the purpose of 

evading the assessment of fees, the 

Commission will aggregate any such 

requests and charge the appropriate 

fees. In making this determination, the 

Commission will consider the time 

period in which the requests have 

occurred, the relationship of the 

requestors, and the subject matter of the 

requests.

(f) A dvance paym ents. The 

Commission will require a requestor to 

make an advance payment, i.e., a

payment before work is commenced or 

continued on a request, when:

(1) The Commission estimates or 

determines that allowable charges that a 

requestor may be required to pay are 

likely to exceed $250. In such a case., the 

Commission will notify the requestor of 

the likely cost and, where the requestor 

has a history of prompt payment of 

FOIA fees, obtain satisfactory assurance 

of full payment, or in the case of a 

requestor with no FOIA fee payment 

history, the Commission will require an 

advance payment of an amount up to 

the full estimated charges; or

(2) A requestor has previously failed 

to pay a fee in a timely fashion (i.e., 

within 30 days of the date of the billing). 

In such a case, the Commission may 

require that the requestor pay the full 

amount owed plus any applicable 

interest or demonstrate that the fee has 

been paid and make an advance 

payment of the full amount of the 

estimated fee before the Commission 

begins to process a new request or a 

pending request from that requestor.

(3) If the provisions of paragraph (f)

(1) or (2) of this section apply, the 

administrative time limits prescribed in 

11 CFR 4.7(c) will begin only after the 

Commission has received the payments 

or the requestor has made acceptable 

arrangements to make the payments 

required by paragraph (f) (1) or (2) of 

this section.

PART 5—ACCESS TO PUBLIC

DISCLOSURE DIVISION DOCUMENTS

1. The authority citation for Part 5 

continues to read as follows:

Authority: 2 U.S.C. 437f(d), 437g(a)(4)(B)(ii),

438(a), and 31 U.S.C. 9701.

2. Section 5.6(a)(1) is amended by 

revising the fees for “Reels of 

Microfilm,” “Research Time/ 

Photocopying Time,” and “Other 

Charges” to read as follows:

§ 5.6 Fees.

(a)(1) * * *

Reels of Microfilm

Daily film (partial or complete roll)...$2.85 per

roll

Other film (partial or complete roll)...$5.00 per

roll

* * * <r ★

Research Time/Photocopying Time

Clerical: First Vi hour is free; remaining

time costs $4.50 per each half hour (agency

average of staff below a GS-11) for each

request.

Professional: First Vi hour is free:

remaining time costs $12.40 per each half

hour (agency average of staff at GS-11 and

above) for each request.
Federal Register / Vol. 52, No. 203 / W ednesday, O ctober 21, 1987 / Rules and Regulations 39215

Other Charges

Certification of a Document: $7.35 per

quarter hour.

Transcripts of Commission meetings not

previously transcribed: $7.50 per half hour

(equivalent of a G S-ll executive secretary).

*

Scott E. Thomas,

Chairman, Federal Election Commission.

Dated: October 13,1987.

[FR Doc. 87-23999 Filed 10-20-87; 8:45 am]

BILLING CODE 6715-01-M

FEDERAL DEPOSIT INSURANCE

CORPORATION

12 CFR Part 337

Unsafe and Unsound Banking

Practices

a g e n c y : Federal Deposit Insurance 

Corporation (“FDIC”). 

a c t io n : Final rule.

SUMMARY: On June 16,1986 the Board of 

Directors of the FDIC granted the 

request of several petitioners that the 

FDIC reconsider the provisions of the 

FDIC’s rule governing securities 

subsidiaries and affiliates of insured 

nonmember banks which deal with the 

use of a common name or logo and 

separate offices. A request for comment 

on whether or not these provisions 

should be retained, modified, or 

eliminated was published in the Federal 

Register on August 20,1986. A 

subsequent proposed rule was published 

for comment on April 9,1987. Insured 

nonmember banks that prior to 

December 28,1984 became affiliated 

with a securities company, or prior to 

that date established or acquired a 

subsidiary that engages in securities 

activities, are presently required to 

comply with the common name or logo 

and separate office restrictions of the 

regulation by October 15,1987. The 

Board of Directors is extending the 

compliance deadline with these 

provisions of the regulation until 

November 15,1987 for institutions 

currently subject to the October 15,1987 

deadline in order to provide staff further 

time to consider the comments on the 

proposed rule.

E L E C T IV E DATE: October 13,1987.

FOR FURTHER INFORMATION CONTACT:

Pamela E.F. LeCren, Senior Attorney, 

Legal Division, (202) 898-3730, 55017th 

Street, NW„ Washington, DC 20429. 

SUPPLEMENTARY INFORMATION: On 

November^, 1984, the FDIC adopted 

§ 337.4 of its regulations (12 CFR 337.4)

(49 FR 46722, November 28,1984), 

governing certain securities activities of

subsidiaries of insured nonmember 

banks and the affiliation of insured 

nonmember banks with certain types of 

securities companies. The regulation 

requires, among other things, that 

securities subsidiaries which engage in 

activities prohibited to the bank by the 

Glass-Steagall Act must meet the 

definition of “bona fide subsidiary.”

That definition in turn requires, among 

other things, that a bank and such a 

securities subsidiary must operate out of 

separate offices that share no common 

entrance. The subsidiary is also 

prohibited from sharing a common name 

or logo with the bank. The regulation 

imposes similar requirements upon a 

bank affiliated with a securities 

company if that securities company 

conducts activities that would be 

prohibited to the bank by the GlassSteagall Act. Banks that were affiliated 

with such a securities company prior to 

December 28,1984, or that established 

or acquired such a securities subsidiary 

prior to December 28,1984, were 

required to comply with the name and 

office restrictions as soon as 

practicable, but not more than one year 

from December 28,1984 without the 

FDIC’s consent.

In December 1985 several banks filed 

petitions with the FDIC requesting that 

the FDIC reconsider the requirements in 

the regulation that a bank and its 

securities subsidiary or affiliate must 

have separate offices that share no 

common entrance and the prohibition on 

the use by a bank of a common name or 

logo with its securities subsidiary or 

affiliate. In order to permit sufficient 

time for the FDIC to fully consider the 

petitions, the Board of Directors 

extended the above-described 

compliance deadline with the common 

name or logo and separate office 

pro visions of the regulation until June 

30,1986. (51 FR 880, January 9,1986).

On June 16,1986 the Board of 

Directors granted the requests to 

reconsider the common name or logo 

prohibition and the separate office and 

separate entrance requirement. A 

document soliciting comment on 

whether or riot to modify or retain these 

restrictions was published for public 

comment on August 20,1986. (51 FR 

29657). At the same meeting, and in 

conjunction with its vote to solicit public 

comment, the Board of Directors voted 

to extend the June 30,1986 compliance 

deadline for the name and office 

restrictions until December 31,1986 for 

institutions with preexisting affiliate and 

subsidiary relationships. (51 FR 23405, 

June 27,1986). Inasmuch as staff had not 

yet completed its review of the 

comments nor formulated a 

recommendation to the Board of

Directors by early December 1986 with 

respect to the August 20,1986 

solicitation of comment, the Board of 

Directors voted to extend the 

compliance deadline until June 30,1987 

in order to allow staff to prepare its 

recommendation. (51 FR 45755, 

December 22,1986).

After considering the comments, the 

FDIC proposed to amend § 337.4 by: (1) 

Revising the requirement that securities 

subsidiaries and affiliates must use 

separate offices from the bank that 

share no common entrance with the 

bank, (2) deleting the prohibition against 

such subsidiaries and affiliates sharing 

a common name or logo with the bank, 

and (3) establishing certain affirmative 

disclosure requirements to the effect 

that investments recommended, offered 

or sold by or through such subsidiary or 

affiliate are not FDIC insured deposits, 

that the subsidiary and affiliate are 

separate organizations from the bank, 

and that the obligations of the 

subsidiary and affiliate are not 

guaranteed, warranted or otherwise 

supported by the bank. (52 FR 11492, 

April 9,1987). The comment period 

closed on May 11,1987. As staff had not 

completed work on a recommendation 

to the Board of Directors as of mid-June 

1987, the Board of Directors voted to 

extend the current June 30,1987 

compliance deadline with the common 

name or logo and separate entrance 

provisions of the regulation until 

October 15,1987. At its October 13,1987 

Board of Directors’ meeting the FDIC’s 

Board of Directors further extended the 

compliance deadline until November 15, 

1987.

In accordance with 5 U.S.C. 553, the 

FDIC has found that prior notice and a 

delayed effective date with respect to 

this amendment are unnecessary as the 

amendment delays the imposition of 

requirements that are already imposed 

by existing regulation. Since the 

amendment only provides for an 

extension of time for compliance with 

certain portions of the regulation and 

imposes no burden upon banks, 

securities affiliates or the public, it is not 

subject to the Paperwork Reduction Act 

(44 U.S.C. 3501 et seq.) or the Regulatory 

Flexibility Act (5 U.S.C. 601 et seq.).

List of Subjects in 12 CFR Part 337

Banks, banking; Securities, State 

nonmember banks.

In consideration of the foregoing, the 

FDIC hereby amends Part 337 of Title 12 

of the Code of Federal Regulations as 

follows: