Federal Register / Vol. 77, No. 70 / Wednesday, April 11, 2012 / Rules and Regulations 21625 

Final Regulatory Flexibility Analysis 

Pursuant to requirements set forth in 

the Regulatory Flexibility Act (RFA) (5 

U.S.C. 601–612), the Agricultural 

Marketing Service (AMS) has 

considered the economic impact of this 

rule on small entities. Accordingly, 

AMS has prepared this final regulatory 

flexibility analysis. 

The purpose of the RFA is to fit 

regulatory actions to the scale of 

business subject to such actions in order 

that small businesses will not be unduly 

or disproportionately burdened. 

Marketing orders issued pursuant to the 

Act, and the rules issued thereunder, are 

unique in that they are brought about 

through group action of essentially 

small entities acting on their own 

behalf. 

There are approximately 1,500 

producers of processed pears in the 

regulated production area and 

approximately 51 handlers of processed 

pears subject to regulation under the 

order. Small agricultural producers are 

defined by the Small Business 

Administration (SBA)(13 CFR 121.201) 

as those having annual receipts of less 

than $750,000, and small agricultural 

service firms are defined as those whose 

annual receipts are less than $7,000,000. 

According to the Noncitrus Fruits and 

Nuts 2010 Preliminary Summary issued 

in January 2011 by the National 

Agricultural Statistics Service, the total 

farm-gate value of summer/fall 

processed pears grown in Oregon and 

Washington for 2010 was $76,427,000. 

Based on the number of processed pear 

producers in the Oregon and 

Washington, the average gross revenue 

for each producer can be estimated at 

approximately $50,951. Furthermore, 

based on Committee records, the 

Committee has estimated that each of 

the Northwest pear handlers currently 

ship less than $7,000,000 worth of 

processed pears on an annual basis. 

From this information, it is concluded 

that the majority of producers and 

handlers of Oregon and Washington 

processed pears may be classified as 

small entities. 

In addition, there are five processing 

plants in the production area, with one 

in Oregon and four in Washington. All 

five processors would be considered 

large entities under the SBA’s definition 

of small businesses. 

This rule continues in effect the 

action that decreased the assessment 

rate established for the Committee and 

collected from handlers for the 2011– 

2012 and subsequent fiscal periods from 

$8.41 to $7.73 per ton for summer/fall 

processed pears handled. The 

Committee unanimously recommended 

2011–2012 expenditures of $926,933 

and an assessment rate of $7.73 per ton 

for summer/fall processed pears. The 

assessment rate of $7.73 is $0.78 lower 

than the previous rate. The Committee 

recommended the assessment rate 

decrease because the summer/fall 

processed pear promotion budget was 

reduced. 

The quantity of assessable processed 

pears for the 2011–2012 fiscal period is 

estimated at 120,000 tons. Thus, the 

$7.73 rate should provide $927,600 in 

assessment income. Income derived 

from summer/fall processed pear 

handler assessments, interest and other 

income will be adequate to cover the 

budgeted expenses. 

This rule continues in effect the 

action that decreased the assessment 

obligation imposed on handlers. 

Assessments are applied uniformly on 

all handlers, and some of the costs may 

be passed on to producers. However, 

decreasing the assessment rate reduces 

the burden on handlers, and may reduce 

the burden on producers. 

In accordance with the Paperwork 

Reduction Act of 1991 (44 U.S.C. 

Chapter 35), the order’s information 

collection requirements have been 

previously approved by the Office of 

Management and Budget (OMB) and 

assigned OMB No. 0581–0189, Generic 

Fruit Crops. No changes in those 

requirements as a result of this action 

are anticipated. Should any changes 

become necessary, they would be 

submitted to OMB for approval. 

This action imposes no additional 

reporting or recordkeeping requirements 

on either small or large OregonWashington processed pear handlers. As 

with all Federal marketing order 

programs, reports and forms are 

periodically reviewed to reduce 

information requirements and 

duplication by industry and public 

sector agencies. USDA has not 

identified any relevant Federal rules 

that duplicate, overlap, or conflict with 

this rule. 

In addition, the Committee’s meeting 

was widely publicized throughout the 

Oregon-Washington pear industry and 

all interested persons were invited to 

attend the meeting and participate in 

Committee deliberations on all issues. 

Like all Committee meetings, the June 2, 

2011, meeting was a public meeting and 

all entities, both large and small, were 

able to express views on this issue. 

Comments on the interim rule were 

required to be received on or before 

October 31, 2011. No comments were 

received. Therefore, for the reasons 

given in the interim rule, we are 

adopting the interim rule as a final rule, 

without change. 

To view the interim rule, go to: 

http://www.regulations.gov/ 

#!documentDetail;D=AMS-FV-11-0070- 

0001. 

This action also affirms information 

contained in the interim rule concerning 

Executive Orders 12866 and 12988, the 

Paperwork Reduction Act (44 U.S.C. 

Chapter 35), and the E-Gov Act (44 

U.S.C. 101). 

After consideration of all relevant 

material presented, it is found that 

finalizing the interim rule, without 

change, as published in the Federal 

Register (76 FR 53811, August 30, 2011) 

will tend to effectuate the declared 

policy of the Act. 

List of Subjects in 7 CFR Part 927 

Marketing agreements, Pears, 

Reporting and recordkeeping 

requirements. 

PART 927—PEARS GROWN IN 

OREGON AND WASHINGTON 

■ Accordingly, the interim rule 

amending 7 CFR part 927 which was 

published at 76 FR 53811 on August 30, 

2011, is adopted as a final rule, without 

change. 

Dated: April 5, 2012. 

David R. Shipman, 

Acting Administrator, Agricultural Marketing 

Service. 

[FR Doc. 2012–8638 Filed 4–10–12; 8:45 am] 

BILLING CODE 3410–02–P 

NUCLEAR REGULATORY 

COMMISSION 

10 CFR Part 8 

RIN 3150–AJ02 

[NRC–2011–0180] 

Interpretations; Removal of Part 8 

AGENCY: Nuclear Regulatory 

Commission. 

ACTION: Final rule. 

SUMMARY: The U.S. Nuclear Regulatory 

Commission (NRC or the Commission) 

is amending its regulations to remove its 

published General Counsel 

interpretations of various regulatory 

provisions. These interpretations are 

largely obsolete, having been 

superseded by subsequent statutory and 

regulatory changes, and this part of the 

Commission’s regulations is no longer 

necessary. 

DATES: Effective April 11, 2012. 

ADDRESSES: Please refer to Docket ID 

NRC–2011–0180 when contacting the 

NRC about the availability of 

information for this final rule. You may 


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21626 Federal Register / Vol. 77, No. 70 / Wednesday, April 11, 2012 / Rules and Regulations 

access information related to this final 

rulemaking, which the NRC possesses 

and is publicly available, by the 

following methods: 

• Federal Rulemaking Web Site: Go to 

http://www.regulations.gov and search 

for Docket ID NRC–2011–0180. 

• NRC’s Public Document Room 

(PDR): You may examine and purchase 

copies of public documents at the NRC’s 

PDR, Room O1–F21, One White Flint 

North, 11555 Rockville Pike, Rockville, 

Maryland 20852. 

FOR FURTHER INFORMATION CONTACT: 

Sean Croston, Office of the General 

Counsel, U.S. Nuclear Regulatory 

Commission, Mail Stop O15–D21, 

Washington, DC 20555–0001, telephone: 

301–415–2585, email: 

Sean.Croston@nrc.gov. 

SUPPLEMENTARY INFORMATION: Various 

NRC regulations provide the NRC 

General Counsel with authority to issue 

binding written interpretations of the 

NRC’s regulations. Between 1956 and 

1977, the General Counsel of the NRC 

and its precursor, the Atomic Energy 

Commission (AEC), occasionally 

published such interpretations in Title 

10 of the Code of Federal Regulations 

(10 CFR) part 8. These interpretations 

have not been updated, and contained 

various provisions that have since been 

superseded by statutory and regulatory 

changes. 

To resolve these problems and 

prevent any confusion resulting from 

mistaken reliance upon outdated 

interpretations, the NRC is now 

removing and reserving 10 CFR part 8. 

This action is consistent with Section 2 

of Executive Order 13579 (76 FR 41587; 

July 14, 2011), which calls upon 

independent regulatory agencies to 

repeal outmoded and unnecessary rules. 

I. Background 

Less than one year after the Atomic 

Energy Act of 1946 authorized the 

creation of the NRC’s predecessor, the 

AEC issued 10 CFR 40.50, ‘‘Valid 

Interpretations’’ (12 FR 1855; March 20, 

1947). Section 40.50 was the first AEC 

regulation authorizing the agency’s 

General Counsel to issue written 

‘‘interpretations’’ of other AEC 

regulations, which would be valid and 

binding upon the Commission. The 

current 10 CFR 40.6 is almost identical 

to the original 10 CFR 40.50. 

Following the enactment of 10 CFR 

40.50, the AEC and then the NRC added 

very similar regulations to most of its 

parts in Title 10 of the CFR. Like the 

current rules authorizing General 

Counsel interpretations, these rules did 

not specify where the General Counsel 

would publish written interpretations. 

In 1956, AEC General Counsel 

William Mitchell issued the first formal 

General Counsel interpretation, 10 CFR 

8.1, regarding inventions under Section 

152 of the Atomic Energy Act (21 FR 

1414; March 3, 1956). 

Four years later, General Counsel L.K. 

Olson issued the next formal 

interpretation, published at 10 CFR 8.2, 

which construed the Price-Anderson 

Act, a provision that had been recently 

added to the Atomic Energy Act in 1957 

(25 FR 4075; May 7, 1960). 

The AEC General Counsel Joseph 

Hennessey then issued 10 CFR 8.3, 

which related to the computation of 

time when regulatory deadlines fell on 

Saturdays, Sundays, or holidays (32 FR 

11379; August 5, 1967). ‘‘Based upon 

comments and further consideration,’’ 

the Commission revoked that 

interpretation in 1978 (43 FR 17999; 

April 26, 1978). 

General Counsel Hennessey also 

published 10 CFR 8.4, which addressed 

whether states could regulate materials 

covered under the Atomic Energy Act 

on the basis of radiological health and 

safety (34 FR 7273; May 3, 1969). When 

faced with a later industry petition for 

rulemaking, the Commission defended 

this rule, asserting that the 

interpretation remained ‘‘correct as it 

stands’’ (67 FR 66075; October 30, 

2002). 

Lastly, the NRC General Counsel Peter 

Strauss issued 10 CFR 8.5, which 

interpreted contemporary illumination 

and physical search requirements under 

10 CFR 73.55 (42 FR 33265; June 30, 

1977). Since the publication of 10 CFR 

8.5 and revocation of 10 CFR 8.3 one 

year later, the interpretations in 10 CFR 

Part 8 have remained unchanged for 

approximately thirty-three years. 

II. Status of 10 CFR Part 8 

Interpretations 

The Administrator of the Office of 

Management and Budget’s (OMB’s) 

Office of Information and Regulatory 

Affairs, recently issued a Memorandum 

to the Independent Regulatory Agencies 

regarding ‘‘Executive Order 13579, 

‘Regulation and Independent Regulatory 

Agencies’ ’’ (July 22, 2011). This 

Memorandum encouraged independent 

agencies to identify ‘‘rules that are 

obsolete, unnecessary, unjustified, 

excessively burdensome, or counterproductive,’’ and to modify or repeal 

them. Moreover, the Memorandum 

advised that agencies ‘‘should focus on 

the elimination of rules that are no 

longer justified or necessary.’’ This is 

consistent with the longstanding policy 

of the Administrative Committee of the 

Federal Register, which maintains that 

each agency should ‘‘amend its 

regulations whenever the regulations are 

rendered ineffective in whole or in part’’ 

(54 FR 9670; March 7, 1989). 

i. 10 CFR 8.1 

When the AEC issued its first General 

Counsel interpretation, regarding the 

status of licensee inventions with 

respect to Section 152 of the Atomic 

Energy Act, that statute was unclear. It 

referred to inventions ‘‘made or 

conceived under any contract, 

subcontract, arrangement, or other 

relationship with the Commission.’’ 

Thus, General Counsel Mitchell felt it 

necessary to announce whether agency 

licensees had a ‘‘relationship with the 

Commission’’ under that section. 

But five years later, Congress 

amended Section 152 to its current 

form, eliminating the ‘‘other 

relationship’’ language. The legislative 

history makes it clear that the purpose 

of this amendment was to ‘‘more clearly 

define the applicability of Section 152’’ 

by eliminating its former ‘‘unclear’’ 

language. See 107 Cong. Rec. 15514 

(Aug. 22, 1961) (statement of Rep. 

Aspinall); S. Rep. No. 87–746 at 8 (Aug. 

16, 1961). Therefore, § 8.1 is ‘‘no longer 

justified or necessary,’’ as it interprets a 

statutory provision that no longer exists. 

ii. 10 CFR 8.2 

The next General Counsel 

interpretation, 10 CFR 8.2, has remained 

unchanged since 1960. It comments on 

the international application of the 

Price-Anderson Act. The interpretation 

relied on ‘‘Section 11o.’’ of the Atomic 

Energy Act, which was the original 

definition of ‘‘nuclear incident.’’ That 

definition included occurrences causing 

‘‘damage’’ without specifying the 

location of that damage. But since the 

issuance of § 8.2, that definition, 

subsequently retitled as Section 11q., 

has been significantly amended to 

explicitly cover damages ‘‘within or 

outside the United States.’’ The 

interpretation also relied on ‘‘Section 

11u.’’ of the Atomic Energy Act, the 

original definition of ‘‘public liability,’’ 

which has since been amended and 

retitled as Section 11w. 

Moreover, §§ 8.2(h)–(i) pointed to a 

‘‘confusing’’ and ‘‘ambiguous’’ 

legislative history, ‘‘since the language 

of the Act [at that time] draws no 

distinction between damage received in 

the United States and that received 

abroad.’’ The interpretation concluded 

that Price-Anderson insurance should 

cover damage to Canada or Mexico 

caused by a nuclear incident in the 

United States. 

However, as noted above, the crucial 

definition of ‘‘nuclear incident’’ has 

been updated since 1960. In its 


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Federal Register / Vol. 77, No. 70 / Wednesday, April 11, 2012 / Rules and Regulations 21627 

1On the other hand, everyday interpretations of 

particular applicability regarding specific factual 

circumstances are not and need not be published 

in the Federal Register. See U.S. Department of 

Justice, Attorney General’s Manual on the 

Administrative Procedure Act at 22–23 (1947) (‘‘An 

advisory interpretation relating to a specific set of 

facts is not subject to [the publication requirement]. 

For example, a reply from the agency’s general 

counsel to an inquiry from a member of the public 

as to the applicability of a statute to a specific set 

of facts need not be published.’’). 

amendments, Congress made it 

absolutely clear that ‘‘nuclear incidents’’ 

under Price-Anderson would include 

incidents in America causing damage 

‘‘outside the United States.’’ There is no 

longer any ambiguity, and thus no need 

for the interpretation. 

Section 8.2 is also confusing, because 

it hinted at a potential controversy 

involving ‘‘ambiguous’’ legislation 

where there is none. The NRC 

understands that some stakeholders still 

rely on § 8.2 as valid guidance on the 

scope of the Price-Anderson Act. The 

NRC is attempting to end any such 

confusion by removing this rule, which 

has been rendered obsolete and is thus 

‘‘no longer justified or necessary.’’ 

iii. 10 CFR 8.3 

As indicated previously, the 

Commission revoked the former General 

Counsel interpretation at 10 CFR 8.3 in 

1978. 

iv. 10 CFR 8.4 

Nine years ago, in response to a 

petition for rulemaking, the Commission 

reaffirmed the position set forth in 10 

CFR 8.4, which discussed state 

regulation of materials covered under 

the Atomic Energy Act on the basis of 

radiological health and safety (67 FR 

66075; October 30, 2002). Although this 

interpretation was never updated to 

incorporate subsequent court decisions 

and other events, the NRC continues to 

adhere to the substance of the 

interpretation in § 8.4. The removal of 

10 CFR part 8 should not be read to 

imply a change in the NRC’s substantive 

position on this or any other issue. 

v. 10 CFR 8.5 

The last General Counsel 

interpretation, 10 CFR 8.5, referred to 

the illumination and physical search 

requirements contained in a previous 

version of 10 CFR 73.55. However, 

§ 73.55 has been amended at least 18 

times since this interpretation was 

issued in June 1977. The latest version 

of § 73.55 bears little resemblance to the 

version interpreted in § 8.5. 

For example, the interpretation relied 

on provisions in §§ 73.55(c)(4), (c)(5), 

and (d)(1) that no longer exist. 

Moreover, it cited forthcoming revisions 

to a guidance document that was itself 

superseded thirty years ago. 

Unsurprisingly, the NRC staff recently 

concluded that § 8.5 is no longer needed 

from a technical perspective, and 

recommended removing that provision. 

Thus, it is clear that the interpretation 

at § 8.5 has also been ‘‘rendered 

ineffective’’ and should be removed. 

III. Publication of Part 8 Interpretations 

Under the Administrative Procedure 

Act, 5 U.S.C. 552(a)(1)(D), all 

‘‘interpretations of general applicability 

formulated and adopted by the agency’’ 

must be ‘‘state[d] and currently 

publish[ed] in the Federal Register for 

the guidance of the public.’’ 1 All of the 

General Counsel’s formal interpretations 

in 10 CFR Part 8 were properly 

published in the Federal Register. Other 

agencies also continue to publish their 

legal interpretations in the Federal 

Register. See, e.g., Department of 

Veterans Affairs, ‘‘Summary of 

Precedent Opinions of the General 

Counsel’’ (76 FR 4430; January 25, 

2011); Department of Energy, ‘‘Office of 

the General Counsel Ruling 1995–1 

Concerning 10 CFR Parts 830 and 835’’ 

(61 FR 4209; February 5, 1996). 

However, publication in the CFR is 

another matter. Beginning with an 

opinion by then-Judge Scalia, the Court 

of Appeals for the D.C. Circuit has 

repeatedly held that under a provision 

of the Federal Register Act, 44 U.S.C. 

1510, ‘‘the Code of Federal Regulations 

[may] contain only documents having 

general applicability and legal effect.’’ 

Wilderness Society v. Norton, 434 F.3d 

584, 596 (D.C. Cir. 2006), quoting Brock 

v. Cathedral Bluffs Shale Oil Co., 796 

F.2d 533, 539 (D.C. Cir. 1986). See also 

American Mining Congress v. Mine 

Safety & Health Admin., 995 F.2d 1106, 

1109 (D.C. Cir. 1993) (‘‘44 U.S.C. 1510 

limits publication in [the] [C]ode to 

rules ‘having general applicability and 

legal effect.’ ’’). 

Moreover, the administrative 

regulations implementing 44 U.S.C. 

1510 confirm that the CFR should 

‘‘contain * * * Federal regulation[s] of 

general applicability and legal effect.’’ 

1 CFR 8.1. The key to this limitation on 

publication in the CFR is ‘‘legal effect.’’ 

The D.C. Circuit long-ago established 

that documents with ‘‘legal effect’’ are 

those that ‘‘ha[ve] the force and effect of 

statute.’’ Sheridan-Wyoming Coal Co. v. 

Krug, 172 F.2d 282, 287 (D.C. Cir. 1949). 

The interpretations in 10 CFR Part 8 do 

not have the binding force and effect of 

statute (67 FR 66076; October 30, 2002) 

(agreeing that the NRC’s 10 CFR part 8 

interpretations ‘‘presumably would not 

be binding on a court’’). Likewise, 

regulations define the term ‘‘Document 

having general applicability and legal 

effect’’ to mean ‘‘any document issued 

under proper authority prescribing a 

penalty or course of conduct, conferring 

a right, privilege, authority, or 

immunity, or imposing an obligation.’’ 1 

CFR 1.1. Interpretive rules like those in 

10 CFR part 8 do not meet this 

definition, as the General Counsel’s 

interpretations do not have ‘‘legal 

effect’’ like the substantive regulations 

published elsewhere in 10 CFR chapter 

I. 

Therefore, the NRC has concluded 

that it would be more prudent to remove 

the obsolete interpretations in 10 CFR 

Part 8 than to attempt to update these 

provisions. Any future formal General 

Counsel interpretations will be 

published only in the Federal Register. 

IV. Rulemaking Procedure 

Because this rulemaking concerns 

interpretive rules, the notice and 

comment provisions of the 

Administrative Procedure Act do not 

apply under 5 U.S.C. 553(b)(A), and this 

rule is immediately effective under 5 

U.S.C. 553(d)(2). Additionally, the NRC 

has determined that a postpromulgation comment period would 

serve no public interest under 10 CFR 

2.804(e)(2) because the interpretations 

have been superseded by subsequent 

statutory and regulatory changes. 

V. Environmental Impact: Categorical 

Exclusion 

This final rule is the type of action 

described in categorical exclusion 10 

CFR 51.22(c)(1). Therefore, the NRC has 

not prepared an environmental impact 

statement or an environmental 

assessment for this rule. 

VI. Paperwork Reduction Act 

Statement 

This final rule does not contain 

information collection requirements 

and, therefore, is not subject to the 

Paperwork Reduction Act of 1995 (44 

U.S.C. 3501 et seq.). 

Public Protection Notification 

The NRC may not conduct or sponsor, 

and a person is not required to respond 

to, a request for information or an 

information collection requirement 

unless the requesting document 

displays a currently valid OMB control 

number. 

VII. Regulatory Analysis 

A regulatory analysis has not been 

prepared for this final rule because the 

NRC is eliminating regulations that have 

been superseded by subsequent 

statutory and regulatory actions, and 


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21628 Federal Register / Vol. 77, No. 70 / Wednesday, April 11, 2012 / Rules and Regulations 

this rule has no impact on health, safety, 

or the environment. There is no cost to 

licensees, the NRC, or other Federal 

agencies. 

VIII. Backfit Analysis 

The NRC has determined that the 

backfit rule does not apply to this final 

rule because removal of these 

interpretations does not involve any 

backfits as defined in 10 CFR 

50.109(a)(1). Therefore, a backfit 

analysis is not required for this rule. 

IX. Congressional Review Act (CRA) 

In accordance with the CRA, the NRC 

has determined that this action is not a 

major rule and has verified this 

determination with OMB’s Office of 

Information and Regulatory Affairs. 

List of Subjects in 10 CFR Part 8 

Intergovernmental relations, 

Inventions and patents, Nuclear power 

plants and reactors. 

PART 8—INTERPRETATIONS 

[REMOVED AND RESERVED] 

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; and 5 U.S.C. 552 and 553, 

the NRC is removing and reserving 10 

CFR part 8. 

■ 1. 10 CFR part 8 is hereby removed 

and reserved. 

Dated at Rockville, Maryland, this 3rd day 

of April 2012. 

For the Nuclear Regulatory Commission. 

Michael F. Weber, 

Acting Executive Director for Operations. 

[FR Doc. 2012–8673 Filed 4–10–12; 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: Final rule. 

SUMMARY: The Financial Stability 

Oversight Council (the ‘‘Council’’ or 

‘‘FSOC’’) issues this rule to implement 

provisions of the Freedom of 

Information Act (the ‘‘FOIA’’). This final 

rule implements the requirements of the 

FOIA by setting forth procedures for 

requesting access to, and making 

disclosures of, information contained in 

Council records. 

DATES: Effective date: May 11, 2012. 

FOR FURTHER INFORMATION CONTACT: 

Amias Gerety, Deputy Assistant 

Secretary, Financial Stability Oversight 

Council, at (202) 622–0502. 

SUPPLEMENTARY INFORMATION: 

I. Background 

The Dodd-Frank Wall Street Reform 

and Consumer Protection Act, Public 

Law 111–203 (the ‘‘Act’’) establishes the 

Council, which, among other functions, 

is responsible for identifying and 

responding 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.’’ 

On March 28, 2011 (76 FR 17038), the 

Council published a proposed rule that 

would implement the requirements of 

the FOIA as they apply to the Council. 

The proposed rule, among other things, 

described how information would be 

made available and the timing and 

procedures for public requests. See the 

March 28, 2011 notice for a description 

of the proposed rule. 

II. This Final Rule and Discussion of 

Public Comments 

The comment period closed on May 

27, 2011, and the Council received 

comments from nine entities on the 

proposed rule. Comments were received 

from an insurance company, trade 

associations, a federal government 

agency, and consumer groups. This 

section of the preamble sets out 

significant comments raised, along with 

FSOC’s responses to these comments, 

and identifies where the Council has 

made changes to the regulations. 

Several commenters indicated that it 

was unclear whether FOIA requests 

could be submitted by electronic means. 

In response, the regulation has been 

modified throughout to clarify that 

FOIA requests may be submitted via the 

Internet and that online methods may be 

used throughout the FOIA process. 

Although it is likely that the Council 

will initially rely on a Web form to 

enable electronic receipt of FOIA 

requests, the Council anticipates that, 

eventually, email requests also could be 

accommodated. 

Section 1301.2, as proposed, stated 

that, even though a FOIA exemption 

might apply, the Council could make 

discretionary disclosures if not 

precluded by law. Some commenters 

expressed concern that this provision 

would give the Council unfettered 

discretion and would result in the 

unnecessary disclosure of sensitive 

information. The Council is sympathetic 

to these concerns and, as suggested by 

the commenters, has modified the 

language to make clear that the Council 

will make discretionary disclosures after 

weighing the particular facts and 

circumstances of each request. In 

considering requests under the FOIA, 

the Council will carefully consider the 

balance between protecting sensitive 

information in accordance with the 

FOIA, and the public interest in 

disclosure. It will also take steps to 

assure consistent handling of multiple 

requesters for the same information. 

Some commenters expressed concern 

about what they perceived as overlystrict procedural requirements in 

§ 1301.5. The Council has revised this 

section of the rule to explicitly afford 

greater latitude for accepting and 

processing requests that contain one or 

more technical deficiencies. In 

particular, § 1301.5(d), as added in the 

final rule, provides that the Council may 

not reject a request solely because the 

request contains one or more technical 

deficiencies. Moreover, the regulation 

now more clearly states that requesters 

will be notified when their requests fail 

to meet the requirements that allow for 

adequate and timely processing. 

Some commenters suggested that 

§ 1301.5 should also be modified to 

make clear that fee waiver requests do 

not necessarily need to be included with 

the original FOIA request. Rather, 

commenters urged the Council to allow 

fee-waiver requests to be submitted at 

any time prior to the processing of the 

FOIA request. Accordingly, the Council 

modified § 1301.5(b)(7) to allow a 

requester to seek a fee waiver at a later 

time. 

Regarding the procedures in § 1301.6 

governing records originating from other 

agencies, some commenters suggested 

that referrals to other agencies be 

prohibited whereas others suggested 

that such referrals be required in all 

cases. The referral procedures as 

originally proposed are consistent with 

the statute and with case law, and FSOC 

has determined to retain those 

procedures. However, FSOC has 

modified § 1301.6 to more clearly 

describe how it will treat documents 

originated by federal agencies and state 

agencies. 

In § 1301.8, governing the format of 

the agency’s response to FOIA requests 

and its description of the records 

withheld, some commenters objected to 

the use of the word ‘‘amount’’ rather 

than ‘‘volume,’’ suggesting that FSOC 

would only be providing information 

regarding redactions within documents 


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