`[Federal Register Volume 62, Number 221 (Monday, November 17, 1997)]
[Rules and Regulations]
[Pages 61217-61222]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-29965]


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FEDERAL RESERVE SYSTEM

12 CFR Part 271

[Docket No. R-0983]


Federal Open Market Committee; Rules Regarding Availability of 
Information

AGENCY: Federal Open Market Committee, Federal Reserve System.

ACTION: Final rule.

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SUMMARY: The Federal Open Market Committee (Committee) hereby amends 
its Rules Regarding Availability of Information (Rules) to reflect 
recent changes in the Freedom of Information Act (FOIA) as a result of 
the Electronic Freedom of Information Act Amendments (EFOIA).

EFFECTIVE DATE: December 17, 1997.

FOR FURTHER INFORMATION CONTACT: Elaine M. Boutilier, Senior Counsel, 
(202/452-2418), or Stephen L. Siciliano, Special Assistant to the 
General Counsel for Administrative Law, (202/452-3920), Legal Division, 
Board of Governors of the Federal Reserve System. For the hearing 
impaired only, contact Diane Jenkins, Telecommunications Device for the 
Deaf (TDD) (202/452-3544), Board of Governors of the Federal Reserve 
System, 20th and Constitution, NW., Washington, DC 20551.

SUPPLEMENTARY INFORMATION: Last year, Congress passed the Electronic 
Freedom of Information Act Amendments of 1996, Public Law 104-231, 
which amend the Freedom of Information Act, 5 U.S.C. 552. Among other 
things, EFOIA requires agencies to promulgate regulations that provide 
for expedited processing of requests for records. In addition to 
amendments intended to implement EFOIA, the Committee has updated its 
fee schedule and made other changes to streamline and clarify the 
Rules.
    To implement these changes, the Committee published proposed 
amendments to the Rules on August 26, 1997 (62 FR 45178). The Committee 
received only one comment, submitted by an association established by 
news editors and reporters to defend First Amendment rights of the 
media. This comment requested two changes to the Committee's proposed 
rule--one specific change and one general change. Specifically, the 
association requested that the Secretary be given the discretion to 
waive the formal certification requirement for persons requesting 
expedited treatment of a FOIA request. The second, general suggestion 
was to incorporate the key mandates of EFOIA into the regulation, 
because ``future FOI officers and specialists at the Committee [may 
not] realize the additional requirements placed on them by this law if 
regulations do not make adherence necessary.'' After review of the 
comment, the Committee has made the specific change regarding the 
discretionary waiver of formal certification. With regard to the second 
comment, the Committee does not believe that the Rules need to be 
amended to reflect statutory provisions that are not required to be 
implemented by regulation. When a FOIA request is received, FOMC 
officers routinely work with attorneys in the Board's Legal Division 
who are familiar with the law and the procedural requirements. 
Furthermore, incorporating these changes into the regulation would add 
nothing to the public's understanding of FOIA and would unnecessarily 
lengthen and complicate the regulation at a time when all agencies are 
attempting to simplify and streamline their regulations. The following 
is a section-by-section discussion of the final amendments.

Section 271.1--Authority and Purpose

    This section has been revised to state the statutory authority for 
promulgation of the Rules and the purpose of the Rules.

Section 271.2--Definitions

    The definitions have been alphabetized and now include the 
definitions relating to the fee schedule that were previously in 
Sec. 271.8.

Section 271.3--Published Information

    No substantive changes have been made to this section.

Section 271.4--Records Available for Public Inspection and Copying

    This new section describes the types of Committee records that are 
available in the reading room of the Board's Freedom of Information 
(FOI) Office. Pursuant to EFOIA, it also describes the Committee 
records available on the Board's website.

Section 271.5--Records Available to the Public on Request

    This is a revision of existing Sec. 271.4, which describes the 
types of records available upon request, and the procedures for making 
such a request.

Section 271.6--Processing Request

    This is a new section that describes the Committee's procedures in 
processing requests for information and appeals of denials of such 
requests. This section also contains the procedures for expedited 
processing of requests. As noted above, this section has been modified 
to give the Secretary the discretion to waive the formal certification 
requirement for expedited processing in exceptional situations. It is 
expected that, as a routine matter, certification will be required. 
Nevertheless, where time is important and the certification is in fact 
a formality, then the Secretary has the discretion to waive that 
formality.

Section 271.7--Exemptions From Disclosure

    This section combines the rules currently found in Secs. 271.5 and 
271.6, regarding deferred release of information and information that 
is exempt from release under FOIA.

Section 271.8--Subpoenas

    There are no substantive changes to this section, except that it is 
renumbered from Sec. 271.7 to Sec. 271.8.

Section 271.9--Fee Schedules; Waiver of Fees

    This section is renumbered from Sec. 271.8 to Sec. 271.9. The 
Committee has moved the definitions that were in this section to 
Sec. 271.2, which contains the other definitions for this part. The fee 
schedule provisions have been revised to clarify that the processing 
time of a FOIA request does not begin in cases where advance payment is 
required until payment is received; or, where a person has requested a 
waiver of the fees, until the person agrees to pay the fees if the 
waiver request is denied. Additionally, the standards under which the 
Secretary may grant a request for waiver of fees have been modified to 
reflect the development of case law in this area. The rule provides for 
administrative appeal of a denial of a waiver request.

[[Page 61218]]

Regulatory Flexibility Act Analysis

    Pursuant to section 605(b) of the Regulatory Flexibility Act (5 
U.S.C. 601 et seq.), the Committee certifies that the amendments will 
not have a significant economic impact on a substantial number of small 
entities. These amendments simplify some of the procedures regarding 
release of information and require disclosure of information in certain 
instances in accordance with law. The requirements to disclose apply to 
the Committee, therefore they should not have a significant economic 
impact on a substantial number of small entities.

List of Subjects in 12 CFR Part 271

    Federal Open Market Committee, Freedom of information.

    For the reasons set forth in the preamble, the Committee is 
revising 12 CFR part 271 to read as follows:

PART 271--RULES REGARDING AVAILABILITY OF INFORMATION

Sec.

271.1  Authority and purpose.
271.2  Definitions.
271.3  Published information.
271.4  Records available for public inspection and copying.
271.5  Records available to the public on request.
271.6  Processing requests.
271.7  Exemptions from disclosure.
271.8  Subpoenas.
271.9  Fee schedules; waiver of fees.

    Authority: 5 U.S.C. 552; 12 U.S.C. 263.


Sec. 271.1  Authority and purpose.

    (a) Authority. This part is issued by the Federal Open Market 
Committee (the Committee) pursuant to the Freedom of Information Act, 5 
U.S.C. 552, and also pursuant to the Committee's authority under 
section 12A of the Federal Reserve Act, 12 U.S.C. 263, to issue 
regulations governing the conduct of its business.
    (b) Purpose. This part sets forth the categories of information 
made available to the public and the procedures for obtaining documents 
and records.


Sec. 271.2  Definitions.

    (a) Board means the Board of Governors of the Federal Reserve 
System established by the Federal Reserve Act of 1913 (38 Stat. 251).
    (b) 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.
    (c) Direct costs mean those expenditures that the Committee 
actually incurs in searching for, reviewing, and duplicating documents 
in response to a request made under Sec. 271.5.
    (d) Duplication refers to the process of making a copy of a 
document in response to a request for disclosure of records or for 
inspection of original records that contain exempt material or that 
otherwise cannot be inspected directly. Among others, such copies may 
take the form of paper, microform, audiovisual materials, or machine-
readable documentation (e.g., magnetic tape or disk).
    (e) Educational institution refers to a preschool, a public or 
private elementary or secondary school, or an institution of 
undergraduate higher education, graduate higher education, professional 
education, or an institution of vocational education that operates a 
program of scholarly research.
    (f) Federal Reserve Bank means one of the district Banks authorized 
by the Federal Reserve Act, 12 U.S.C. 222, including any branch of any 
such Bank.
    (g) Information of the Committee means all information coming into 
the possession of the Committee or of any member thereof or of any 
officer, employee, or agent of the Committee, the Board, or any Federal 
Reserve Bank, in the performance of duties for, or pursuant to the 
direction of, the Committee.
    (h) Noncommercial scientific institution refers to an institution 
that is not operated on a ``commercial'' basis (as that term is used in 
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.
    (i) Records of the Committee includes rules, statements, decisions, 
minutes, memoranda, letters, reports, transcripts, accounts, charts, 
and other written material, as well as any materials in machine 
readable form that constitute a part of the Committee's official files.
    (j) Representative of the news media refers to any person actively 
gathering news for an entity that is organized and operated to publish 
or broadcast news to the public.
    (1) The term ``news'' means information about current events or 
that would be of current interest to the public.
    (2) Examples of news media entities include, but are not limited 
to, television or radio stations broadcasting to the public at large, 
and publishers of newspapers and other periodicals (but only in those 
instances when they can qualify as disseminators of ``news'') who make 
their products available for purchase or subscription by the general 
public.
    (3) ``Freelance'' journalists may be regarded as working for a news 
organization if they can demonstrate a solid basis for expecting 
publication through that organization, even though not actually 
employed by it.
    (k)(1) Review refers to the process of examining documents, located 
in response to a request for access, to determine whether any portion 
of a document is exempt information. It includes doing all that is 
necessary to excise the documents and otherwise to prepare them for 
release.
    (2) Review does not include time spent resolving general legal or 
policy issues regarding the application of exemptions.
    (l)(1) Search means a reasonable search, by manual or automated 
means, of the Committee's official files and any other files containing 
records of the Committee as seem reasonably likely in the particular 
circumstances to contain documents of the kind requested. For purposes 
of computing fees under Sec. 271.9, search time includes all time spent 
looking for material that is responsive to a request, including line-
by-line identification of material within documents. Such activity is 
distinct from ``review'' of material to determine whether the material 
is exempt from disclosure.
    (2) Search does not mean or include research, creation of any 
document, or extensive modification of an existing program or system 
that would significantly interfere with the operation of the 
Committee's automated information system.


Sec. 271.3  Published information.

    (a) Federal Register. The Committee publishes in the Federal 
Register, in addition to this part:
    (1) A description of its organization;
    (2) Statements of the general course and method by which its 
functions are channeled and determined;
    (3) Rules of procedure;
    (4) Substantive rules of general applicability, and statements of 
general policy and interpretations of general applicability formulated 
and adopted by the Committee;
    (5) Every amendment, revision, or repeal of the foregoing; and
    (6) General notices of proposed rulemaking.
    (b) Annual Report to Congress. Each annual report made to Congress 
by the Board includes a complete record of the actions taken by the 
Committee during the preceding year upon all matters of policy relating 
to open market operations, showing the reasons

[[Page 61219]]

underlying the actions, and the votes taken.
    (c) Other published information. From time to time, other 
information relating to open market operations of the Federal Reserve 
Banks is published in the Federal Reserve Bulletin, issued monthly by 
the Board, in the Board's annual report to Congress, and in 
announcements and statements released to the press. Copies of issues of 
the Bulletin and of annual reports of the Board may be obtained from 
the Publications Services of the Federal Reserve Board, 20th Street and 
Constitution Avenue, N.W., Washington, D.C. 20551 (pedestrian entrance 
is on C Street, N.W.). Subscription or other charges may apply.


Sec. 271.4  Records available for public inspection and copying.

    (a) Types of records made available. Unless they were published 
promptly and made available for sale or without charge, certain records 
shall be made available for inspection and copying at the Board's 
Freedom of Information Office pursuant to 5 U.S.C. 552(a)(2).
    (b) Reading room procedures. (1) Information available under this 
section is available for inspection and copying, from 9:00 a.m. to 5:00 
p.m. weekdays, at the Freedom of Information Office of the Board of 
Governors of the Federal Reserve System, 20th Street and Constitution 
Avenue, N.W., Washington, D.C. 20551 (the pedestrian entrance is on C 
Street, N.W.).
    (2) The Committee may determine that certain classes of publicly 
available filings shall be made available for inspection and copying 
only at the Federal Reserve Bank where those records are maintained.
    (c) Electronic records. Information available under this section 
that was created on or after November 1, 1996, shall also be available 
on the Board's website, found at http://www.bog.frb.fed.us.
    (d) Privacy protection. The Committee may delete identifying 
details from any record to prevent a clearly unwarranted invasion of 
personal privacy.


Sec. 271.5  Records available to the public on request.

    (a) Types of records made available. All records of the Committee 
that are not available under Secs. 271.3 and 271.4 shall be made 
available upon request, pursuant to the procedures in this section and 
the exceptions in Sec. 271.7.
    (b) Procedures for requesting records. (1) A request for 
identifiable records shall reasonably describe the records in a way 
that enables the Committee's staff to identify and produce the records 
with reasonable effort and without unduly burdening or significantly 
interfering with any of the Committee's operations.
    (2) The request shall be submitted in writing to the Secretary of 
the Committee, Federal Open Market Committee, 20th & C Street, N.W., 
Washington, D.C. 20551; or sent by facsimile to the Secretary of the 
Committee, (202) 452-2921. The request shall be clearly marked FREEDOM 
OF INFORMATION ACT REQUEST.
    (c) Contents of request. The request shall contain the following 
information:
    (1) The name and address of the requester, and the telephone number 
at which the requester can be reached during normal business hours;
    (2) Whether the requested information is intended for commercial 
use, and whether the requester represents an educational or 
noncommercial scientific institution, or news media;
    (3) A statement agreeing to pay the applicable fees, or a statement 
identifying any fee limitation desired, or a request for a waiver or 
reduction of fees that satisfies Sec. 271.9(f).
    (d) Defective requests. The Committee need not accept or process a 
request that does not reasonably describe the records requested or that 
does not otherwise comply with the requirements of this section. The 
Committee may return a defective request, specifying the deficiency. 
The requester may submit a corrected request, which will be treated as 
a new request.


Sec. 271.6  Processing requests.

    (a) Receipt of requests. The date of receipt for any request, 
including one that is addressed incorrectly or that is referred to the 
Committee by another agency or by a Federal Reserve Bank, is the date 
the Secretary of the Committee actually receives the request.
    (b) Priority of responses. The Committee shall normally process 
requests in the order they are received. However, in the Secretary's 
discretion, or upon a court order in a matter to which the Committee is 
a party, a particular request may be processed out of turn.
    (c) Expedited processing. Where a person requesting expedited 
access to records has demonstrated a compelling need for the records, 
or where the Committee has determined to expedite the response, the 
Committee shall process the request as soon as practicable.
    (1) To demonstrate a compelling need for expedited processing, the 
requester shall provide a certified statement, a sample of which may be 
obtained from the Board's Freedom of Information Office. The statement, 
certified to be true and correct to the best of the requester's 
knowledge and belief, shall demonstrate that:
    (i) The failure to obtain the records on an expedited basis could 
reasonably be expected to pose an imminent threat to the life or 
physical safety of an individual; or
    (ii) The requester is a representative of the news media, as 
defined in Sec. 271.2, and there is urgency to inform the public 
concerning actual or alleged Committee activity.
    (2) In response to a request for expedited processing, the 
Secretary of the Committee shall notify a requester of the 
determination within ten working days of receipt of the request. In 
exceptional situations, the Secretary of the Committee has the 
discretion to waive the formality of certification. If the Secretary of 
the Committee denies a request for expedited processing, the requester 
may file an appeal pursuant to the procedures set forth in paragraph 
(i) of this section, and the Committee shall respond to the appeal 
within ten working days after the appeal was received by the Committee.
    (d) Time limits. The time for response to requests shall be 20 
working days, except:
    (1) In the case of expedited treatment under paragraph (c) of this 
section;
    (2) Where the running of such time is suspended for payment of fees 
pursuant to Sec. 271.9(b)(2);
    (3) In unusual circumstances, as defined in 5 U.S.C. 552(a)(6)(B). 
In such circumstances, the time limit may be extended for a period of 
time not to exceed:
    (i) 10 working days as provided by written notice to the requester, 
setting forth the reasons for the extension and the date on which a 
determination is expected to be dispatched; or
    (ii) Such alternative time period as mutually agreed to by the 
Secretary of the Committee and the requester when the Secretary of the 
Committee notifies the requester that the request cannot be processed 
in the specified time limit.
    (e) Response to request. In response to a request that satisfies 
Sec. 271.5, an appropriate search shall be conducted of records of the 
Committee in existence on the date of receipt of the request, and a 
review made of any responsive information located. The Secretary shall 
notify the requester of:
    (1) The Committee's determination of the request;
    (2) The reasons for the determination;
    (3) The amount of information withheld;
    (4) The right of the requester to appeal to the Committee any 
denial or partial

[[Page 61220]]

denial, as specified in paragraph (i) of this section; and
    (5) In the case of a denial of a request, the name and title or 
position of the person responsible for the denial.
    (f) Referral to another agency. To the extent a request covers 
documents that were created by, obtained from, or classified by another 
agency, the Committee may refer the request to that agency for a 
response and inform the requester promptly of the referral.
    (g) Providing responsive records. (1) Copies of requested records 
shall be sent to the requester by regular U.S. mail to the address 
indicated in the request, unless the requester elects to take delivery 
of the documents at the Board's Freedom of Information Office or makes 
other acceptable arrangements, or the Committee deems it appropriate to 
send the documents by another means.
    (2) The Committee shall provide a copy of the record in any form or 
format requested if the record is readily reproducible by the Committee 
in that form or format, but the Committee need not provide more than 
one copy of any record to a requester.
    (h) Appeal of denial of request. Any person denied access to 
Committee records requested under Sec. 271.5 may file a written appeal 
with the Committee, as follows:
    (1) The appeal shall prominently display the phrase FREEDOM OF 
INFORMATION ACT APPEAL on the first page, and shall be addressed to the 
Secretary of the Committee, Federal Open Market Committee, 20th and C 
Street, N.W., Washington, D.C. 20551; or sent by facsimile to the 
Secretary of the Committee, (202) 452-2921.
    (2) An initial request for records may not be combined in the same 
letter with an appeal.
    (3) The Committee, or such member of the Committee as is delegated 
the authority, shall make a determination regarding any appeal within 
20 working days of actual receipt of the appeal by the Secretary, and 
the determination letter shall notify the appealing party of the right 
to seek judicial review of such denial.


Sec. 271.7  Exemptions from disclosure.

    (a) Types of records exempt from disclosure. Pursuant to 5 U.S.C. 
552(b), the following records of the Committee are exempt from 
disclosure under this part:
    (1) National defense. Any information that is specifically 
authorized under criteria established by an Executive Order to be kept 
secret in the interest of national defense or foreign policy and is in 
fact properly classified pursuant to the Executive Order.
    (2) Internal personnel rules and practices. Any information related 
solely to the internal personnel rules and practices of the Board.
    (3) Statutory exemption. Any information specifically exempted from 
disclosure by statute (other than 5 U.S.C. 552b), if the statute:
    (i) Requires that the matters be withheld from the public in such a 
manner as to leave no discretion on the issue; or
    (ii) Establishes particular criteria for withholding or refers to 
particular types of matters to be withheld.
    (4) Trade secrets; commercial or financial information. Any matter 
that is a trade secret or that constitutes commercial or financial 
information obtained from a person and that is privileged or 
confidential.
    (5) Inter- or intra-agency memorandums. Information contained in 
inter- or intra-agency memorandums or letters that would not be 
available by law to a party (other than an agency) in litigation with 
an agency, including, but not limited to:
    (i) Memorandums;
    (ii) Reports;
    (iii) Other documents prepared by the staffs of the Committee, 
Board or Federal Reserve Banks; and
    (iv) Records of deliberations of the Committee and of discussions 
at meetings of the Committee or its staff.
    (6) Personnel and medical files. Any information contained in 
personnel and medical files and similar files the disclosure of which 
would constitute a clearly unwarranted invasion of personal privacy.
    (7) Information compiled for law enforcement purposes. Any records 
or information compiled for law enforcement purposes, to the extent 
permitted under 5 U.S.C. 552(b)(7).
    (8) Examination, inspection, operating, or condition reports, and 
confidential supervisory information. Any matter that is contained in 
or related to examination, operating, or condition reports prepared by, 
on behalf of, or for the use of an agency responsible for the 
regulation or supervision of financial institutions, including a state 
financial institution supervisory agency.
    (b) Segregation of nonexempt information. The Committee shall 
provide any reasonably segregable portion of a record that is requested 
after deleting those portions that are exempt under this section.
    (c) Discretionary release. Except where disclosure is expressly 
prohibited by statute, regulation, or order, the Committee may 
authorize the release of records that are exempt from mandatory 
disclosure whenever the Committee or designated Committee members 
determines that such disclosure would be in the public interest.
    (d) Delayed release. Publication in the Federal Register or 
availability to the public of certain information may be delayed if 
immediate disclosure would likely:
    (1) Interfere with accomplishing the objectives of the Committee in 
the discharge of its statutory functions;
    (2) Interfere with the orderly conduct of the foreign affairs of 
the United States;
    (3) Permit speculators or others to gain unfair profits or other 
unfair advantages by speculative trading in securities or otherwise;
    (4) Result in unnecessary or unwarranted disturbances in the 
securities markets;
    (5) Interfere with the orderly execution of the objectives or 
policies of other government agencies; or
    (6) Impair the ability to negotiate any contract or otherwise harm 
the commercial or financial interest of the United States, the 
Committee, the Board, any Federal Reserve Bank, or any department or 
agency of the United States.
    (e) Prohibition against disclosure. Except as provided in this 
part, no officer, employee, or agent of the Committee or any Federal 
Reserve Bank shall disclose or permit the disclosure of any unpublished 
information of the Committee to any person (other than Committee 
officers, employees, or agents properly entitled to such information 
for the performance of official duties).


Sec. 271.8  Subpoenas.

    (a) Advice by person served. If any person, whether or not an 
officer or employee of the Committee, of the Board of Governors of the 
Federal Reserve System, or of a Federal Reserve Bank, has information 
of the Committee that may not be disclosed by reason of Sec. 271.7 and 
in connection therewith is served with a subpoena, order, or other 
process requiring his personal attendance as a witness or the 
production of documents or information upon any proceeding, he should 
promptly inform the Secretary of the Committee of such service and of 
all relevant facts, including the documents and information requested 
and any facts that may be of assistance in determining whether such 
documents or information should be made available; and he should take 
action at the appropriate time to inform the court or tribunal that 
issued the process, and the attorney for the party at whose instance 
the process

[[Page 61221]]

was issued, if known, of the substance of this part.
    (b) Appearance by person served. Except as disclosure of the 
relevant information is authorized pursuant to this part, any person 
who has information of the Committee and is required to respond to a 
subpoena or other legal process shall attend at the time and place 
therein mentioned and decline to disclose such information or give any 
testimony with respect thereto, basing his refusal upon this part. If, 
notwithstanding, the court or other body orders the disclosure of such 
information, or the giving of such testimony, the person having such 
information of the Committee shall continue to decline to disclose such 
information and shall promptly report the facts to the Committee for 
such action as the Committee may deem appropriate.


Sec. 271.9  Fee schedules; waiver of fees.

    (a) Fee schedules. The fees applicable to a request for records 
pursuant to Secs. 271.4 and 271.5 are set forth in Appendix A to this 
section. These fees cover only the full allowable direct costs of 
search, duplication, and review. No fees will be charged where the 
average cost of collecting the fee (calculated at $5.00) exceeds the 
amount of the fee.
    (b) Payment procedures. The Secretary may assume that a person 
requesting records pursuant to Sec. 271.5 will pay the applicable fees, 
unless the request includes a limitation on fees to be paid or seeks a 
waiver or reduction of fees pursuant to paragraph (f) of this section.
    (1) Advance notification of fees. If the estimated charges are 
likely to exceed $100, the Secretary of the Committee shall notify the 
requester of the estimated amount, unless the requester has indicated a 
willingness to pay fees as high as those anticipated. Upon receipt of 
such notice, the requester may confer with the Secretary to reformulate 
the request to lower the costs.
    (2) Advance payment. The Secretary may require advance payment of 
any fee estimated to exceed $250. The Secretary may also require full 
payment in advance where a requester has previously failed to pay a fee 
in a timely fashion. The time period for responding to requests under 
Sec. 271.6(d), and the processing of the request shall be suspended 
until the Secretary receives the required payment.
    (3) Late charges. The Secretary may assess interest charges when 
fee payment is not made within 30 days of the date on which the billing 
was sent. Interest is at the rate prescribed in 31 U.S.C. 3717 and 
accrues from the date of the billing.
    (c) Categories of uses. The fees assessed depend upon the intended 
use for the records requested. In determining which category is 
appropriate, the Secretary shall look to the intended use set forth in 
the request for records. Where a requester's description of the use is 
insufficient to make a determination, the Secretary may seek additional 
clarification before categorizing the request.
    (1) Commercial use. The fees for search, duplication, and review 
apply when records are requested for commercial use.
    (2) Educational, research, or media use. The fees for duplication 
apply when records are not sought for commercial use, and the requester 
is a representative of the news media or an educational or 
noncommercial scientific institution, whose purpose is scholarly or 
scientific research. The first 100 pages of duplication, however, will 
be provided free.
    (3) All other uses. For all other requests, the fees for document 
search and duplication apply. The first two hours of search time and 
the first 100 pages of duplication, however, will be provided free.
    (d) Nonproductive search. Fees for search and review may be charged 
even if no responsive documents are located or if the request is 
denied.
    (e) Aggregated requests. A requester may not file multiple requests 
at the same time, solely in order to avoid payment of fees. If the 
Secretary reasonably believes that a requester is separating a request 
into a series of requests for the purpose of evading the assessment of 
fees, the Secretary may aggregate any such requests and charge 
accordingly. It is considered reasonable for the Secretary to presume 
that multiple requests of this type made within a 30-day period have 
been made to avoid fees.
    (f) Waiver or reduction of fees. A request for a waiver or 
reduction of the fees, and the justification for the waiver, shall be 
included with the request for records to which it pertains. If a waiver 
is requested and the requester has not indicated in writing an 
agreement to pay the applicable fees if the waiver request is denied, 
the time for response to the request for documents, as set forth in 
Sec. 271.6(d), shall not begin until a determination has been made on 
the request for a waiver or reduction of fees.
    (1) Standards for determining waiver or reduction. The Secretary 
shall grant a waiver or reduction of fees where it is determined both 
that disclosure of the information is in the public interest because it 
is likely to contribute significantly to public understanding of the 
operation or activities of the government, and that the disclosure of 
information is not primarily in the commercial interest of the 
requester. In making this determination, the following factors shall be 
considered:
    (i) Whether the subject of the records concerns the operations or 
activities of the government;
    (ii) Whether disclosure of the information is likely to contribute 
significantly to public understanding of government operations or 
activities;
    (iii) Whether the requester has the intention and ability to 
disseminate the information to the public;
    (iv) Whether the information is already in the public domain;
    (v) Whether the requester has a commercial interest that would be 
furthered by the disclosure; and, if so,
    (vi) Whether the magnitude of the identified commercial interest of 
the requester is sufficiently large, in comparison with the public 
interest in disclosure, that disclosure is primarily in the commercial 
interest of the requester.
    (2) Contents of request for waiver. A request for a waiver or 
reduction of fees shall include:
    (i) A clear statement of the requester's interest in the documents;
    (ii) The use proposed for the documents and whether the requester 
will derive income or other benefit for such use;
    (iii) A statement of how the public will benefit from such use and 
from the Committee's release of the documents;
    (iv) A description of the method by which the information will be 
disseminated to the public; and
    (v) If specialized use of the information is contemplated, a 
statement of the requester's qualifications that are relevant to that 
use.
    (3) Burden of proof. The burden shall be on the requester to 
present evidence or information in support of a request for a waiver or 
reduction of fees.
    (4) Determination by Secretary. The Secretary shall make a 
determination on the request for a waiver or reduction of fees and 
shall notify the requester accordingly. A denial may be appealed to the 
Committee in accordance with Sec. 271.6(h).
    (g) Employee requests. In connection with any request by an 
employee, former employee, or applicant for employment, for records for 
use in prosecuting a grievance or complaint of discrimination against 
the Committee, fees shall be waived where the total charges (including 
charges for

[[Page 61222]]

information provided under the Privacy Act of 1974 (5 U.S.C. 552a) are 
$50 or less; but the Secretary may waive fees in excess of that amount.
    (h) Special services The Secretary may agree to provide, and set 
fees to recover the costs of, special services not covered by the 
Freedom of Information Act, such as certifying records or information 
and sending records by special methods such as express mail or 
overnight delivery.

Appendix A To Sec. 271.9--Freedom of Information Fee Schedule

Duplication:                                                            
    Photocopy, per standard page...........................         $.10
    Paper copies of microfiche, per frame..................          .10
    Duplicate microfiche, per microfiche...................          .35
Search and review:                                                      
    Clerical/Technical, hourly rate........................        20.00
    Professional/Supervisory, hourly rate..................        38.00
    Manager/Senior Professional, hourly rate...............        65.00
Computer search and production:                                         
    Computer operator search, hourly rate..................        32.00
    Tapes (cassette), per tape.............................         6.00
    Tapes (cartridge), per tape............................         9.00
    Tapes (reel), per tape.................................        18.00
    Diskettes (3\1/2\''), per diskette.....................         4.00
    Diskettes (5\1/4\''), per diskette.....................         5.00
    Computer Output (PC), per minute.......................          .10
    Computer Output (mainframe)............................  actual cost
                                                                        

    By order of the Federal Open Market Committee, November 7, 1997.
Donald L. Kohn,
Secretary of the Federal Open Market Committee.
[FR Doc. 97-29965 Filed 11-14-97; 8:45 am]
BILLING CODE 6210-10-P`