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 


wreier-aviles on DSK5TPTVN1PROD with RULES
Federal Register / Vol. 77, No. 70 / Wednesday, April 11, 2012 / Rules and Regulations 21629 

that were released and would not be 

providing information regarding the 

number of responsive documents 

withheld in their entirety. That was not 

FSOC’s intention, and the language has 

been modified to address this concern. 

It was also suggested that § 1301.8 be 

modified to make clear that fees being 

assessed by FSOC will be broken down 

by search, review, and duplication fees. 

This commenter also suggested that the 

Council include a brief description of 

the subject of the request in 

acknowledgement letters. The Council 

agrees and these changes have been 

incorporated in this final rule. Two commenters provided views on 

§ 1301.10 related to requests for 

business information. One commenter 

urged the Council to modify the 

provision to state that business 

information provided by any submitter, 

not just a business submitter, should not 

be disclosed except as provided in 

§ 1301.10. The Council agrees and has 

changed the references to ‘‘business 

submitter’’ to ‘‘submitter.’’ Another 

commenter recommended that the 

Council broaden the scope of protection 

of business information beyond 

Exemption 4 of the FOIA and eliminate 

the scaled-back notice in § 1301.10(d) if 

the number of submitters is voluminous. 

Although the FSOC appreciates these 

recommendations, it has determined 

that the proposed changes are not 

appropriate. The existing language is 

consistent with the FOIA and Executive 

Order 12600 (‘‘Predisclosure 

notification procedures for confidential 

commercial information’’). FSOC has, 

however, determined to omit the 

provision contained in § 1301.10(i)(4) of 

the proposed regulation that stated only 

limited notice would be provided if the 

designation made by the submitter 

appeared obviously frivolous. The 

omission is intended to simplify the 

predisclosure notification procedures. Section 1301.11, governing 

administrative appeals, has been 

modified at the suggestion of the 

National Archives and Records 

Administration, Office of Government 

Information Services (‘‘OGIS’’), to 

remind requesters that OGIS’s 

mediation services are available as a 

non-exclusive alternative to litigation. With respect to § 1301.12, governing 

fees for processing requests for Council 

records, several commenters expressed 

the view that the listed duplication fees 

in the proposed regulations were too 

high and did not reasonably reflect the 

likely costs of duplication. The Council 

agrees and has reduced the listed fees to 

accurately reflect the direct costs of 

duplication. Some commenters proposed that the 

FSOC proactively post online the 

calendars and travel records for highlevel FSOC officials. However, the 

highest-level FSOC officials are the 

members of the Council, who generally 

are heads of other federal agencies. As 

such, the FSOC has concluded that this 

request is best directed, on a case-bycase basis, to the specific member 

agencies. 

A couple of commenters proposed 

that the regulation should require the 

disclosure of all votes by members of 

the Council in Council proceedings. The 

Council has concluded that this is 

unnecessary because the Council is 

subject to the requirements of the FOIA, 

see 5 U.S.C. 552(a)(5), as well as the 

Council’s official transparency policy, 

see http://www.treasury.gov/initiatives/ 

Documents/ 

FSOCtransparencypolicy.pdf. 

Various other minor changes were 

made to the regulation—some in 

response to comments received. For 

example, in § 1301.7(e)(3), a sentence 

was added to indicate that if a request 

is disaggregated, the requester will be 

notified. In addition, the term 

‘‘deletion’’ was replaced with the term 

‘‘redaction’’ in § 1301.4, and the term 

‘‘governmental entity’’ was removed 

from § 1301.12. Further, in § 1301.4, the 

reference to records ‘‘clearly of interest 

to the public at large’’ has been 

removed. Certain other suggestions from 

commenters were inconsistent with the 

requirements of the FOIA or outside the 

scope of this rulemaking and have not 

been adopted in this final rule. 

III. Procedural Matters 

A. Regulatory Flexibility Act 

Pursuant to the Regulatory Flexibility 

Act (5 U.S.C. 601 et seq.), it is hereby 

certified that this rule will not have a 

significant economic impact on a 

substantial number of small entities. 

This rule establishes procedures for 

access to Council records under the 

Freedom of Information Act. Under the 

FOIA, agencies may recover only the 

direct costs of searching for, reviewing, 

and duplicating the records processed 

for requesters. Thus, fees assessed by 

the Council would be nominal and 

would not impose a significant 

economic impact on small entity 

requesters. Accordingly, a regulatory 

flexibility analysis is not required. 

B. Executive Order 12866 

This rule is not a significant 

regulatory action as defined in Section 

3.f of Executive Order 12866. 

List of Subjects in 12 CFR Part 1301 

Freedom of information. 

Financial Stability Oversight Council 

Authority and Issuance 

■ For the reasons set forth in the 

preamble, the Financial Stability 

Oversight Council adds a new part 1301 

to 12 CFR chapter XIII to read as 

follows: 

PART 1301—FREEDOM OF 

INFORMATION 

Sec. 

1301.1 General. 

1301.2 Information made available. 

1301.3 Publication in the Federal Register. 

1301.4 Public inspection and copying. 

1301.5 Requests for Council records. 

1301.6 Responsibility for responding to 

requests for Council records. 

1301.7 Timing of responses to requests for 

Council records. 

1301.8 Responses to requests for Council 

records. 

1301.9 Classified information. 

1301.10 Requests for business information 

provided to the Council. 

1301.11 Administrative appeals. 

1301.12 Fees for processing requests for 

Council records. 

Authority: 12 U.S.C. 5322; 5 U.S.C. 552. 

§ 1301.1 General. 

This subpart contains the regulations 

of the Financial Stability Oversight 

Council (the ‘‘Council’’) implementing 

the Freedom of Information Act 

(‘‘FOIA’’), 5 U.S.C. 552, as amended. 

These regulations set forth procedures 

for requesting access to records 

maintained by the Council. These 

regulations should be read together with 

the FOIA, which provides additional 

information about this topic. 

§ 1301.2 Information made available. 

(a) General. The FOIA provides for 

access to records developed or 

maintained by a Federal agency. The 

provisions of the FOIA are intended to 

assure the right of the public to 

information. Generally, this section 

divides agency records into three major 

categories and provides methods by 

which each category of records is to be 

made available to the public. The three 

major categories of records are as 

follows: 

(1) Information required to be 

published in the Federal Register (see 

§ 1301.3); 

(2) Information required to be made 

available for public inspection and 

copying or, in the alternative, to be 

published and offered for sale (see 

§ 1301.4); and 

(3) Information required to be made 

available to any member of the public 

upon specific request (see §§ 1301.5 

through 1301.12). 

(b) Right of access. Subject to the 

exemptions and exclusions set forth in 


wreier-aviles on DSK5TPTVN1PROD with RULES
21630 Federal Register / Vol. 77, No. 70 / Wednesday, April 11, 2012 / Rules and Regulations 

the FOIA (5 U.S.C. 552(b) and (c)), and 

the regulations set forth in this subpart, 

any person shall be afforded access to 

records. 

(c) Exemptions. (1) The disclosure 

requirements of 5 U.S.C. 552(a) do not 

apply to certain records which are 

exempt under 5 U.S.C. 552(b); nor do 

the disclosure requirements apply to 

certain records which are excluded 

under 5 U.S.C. 552(c). 

(2) Even though a FOIA exemption set 

forth in 5 U.S.C. 552(b) may apply to the 

record requested, the Council may, if 

not precluded by law, elect under the 

circumstances of that request not to 

apply the exemption. The fact that an 

exemption is not applied by the Council 

in response to a particular request shall 

have no precedential significance in 

processing other requests. This policy 

does not create any right enforceable in 

court. 

§ 1301.3 Publication in the Federal 

Register. 

Subject to the application of the FOIA 

exemptions and exclusions (5 U.S.C. 

552(b) and (c)) and subject to the 

limitations provided in 5 U.S.C. 

552(a)(1), the Council shall state, 

publish and maintain current in the 

Federal Register for the guidance of the 

public: 

(a) Descriptions of its central and field 

organization and the established places 

at which, the persons from whom, and 

the methods whereby, the public may 

obtain information, make submittals or 

requests, or obtain decisions; 

(b) Statements of the general course 

and method by which its functions are 

channeled and determined, including 

the nature and requirements of all 

formal and informal procedures 

available; 

(c) Rules of procedure, descriptions of 

forms available or the places at which 

forms may be obtained, and instructions 

as to the scope and contents of all 

papers, reports, or examinations; 

(d) Substantive rules of general 

applicability adopted as authorized by 

law, and statements of general policy or 

interpretations of general applicability 

formulated and adopted by the Council; 

and 

(e) Each amendment, revision, or 

repeal of matters referred to in 

paragraphs (a) through (d) of this 

section. 

§ 1301.4 Public inspection and copying. 

(a) In general. Subject to the 

application of the FOIA exemptions and 

exclusions (5 U.S.C. 552(b) and (c)), the 

Council shall, in conformance with 5 

U.S.C. 552(a)(2), make available for 

public inspection and copying, or, in 

the alternative, promptly publish and 

offer for sale: 

(1) Final opinions, including 

concurring and dissenting opinions, and 

orders, made in the adjudication of 

cases; 

(2) Those statements of policy and 

interpretations which have been 

adopted by the Council but which are 

not published in the Federal Register; 

(3) Its administrative staff manuals 

and instructions to staff that affect a 

member of the public; 

(4) Copies of all records, regardless of 

form or format, which have been 

released previously to any person under 

5 U.S.C. 552(a)(3) and §§ 1301.5 through 

1301.12, and which the Council 

determines have become or are likely to 

become the subject of subsequent 

requests for substantially the same 

records. When the Council receives 

three (3) or more requests for 

substantially the same records, then the 

Council shall place those requests in 

front of any existing processing backlog 

and make the released records available 

in the Council’s public reading room 

and in the electronic reading room on 

the Council’s Web site. 

(5) A general index of the records 

referred to in paragraph (a)(4) of this 

section. 

(b) Information made available 

online. For records required to be made 

available for public inspection and 

copying pursuant to 5 U.S.C. 552(a)(2) 

and paragraphs (a)(1) through (4) of this 

section, the Council shall make such 

records available on its Web site as soon 

as practicable but in any case no later 

than one year after such records are 

created. 

(c) Redaction. Based upon applicable 

exemptions in 5 U.S.C. 552(b), the 

Council may redact certain information 

contained in any matter described in 

paragraphs (a)(1) through (4) of this 

section before making such information 

available for inspection or publishing it. 

The justification for the redaction shall 

be explained in writing, and the extent 

of such redaction shall be indicated on 

the portion of the record which is made 

available or published, unless including 

that indication would harm an interest 

protected by the exemption in 5 U.S.C. 

552(b) under which the redaction is 

made. If technically feasible, the extent 

of the redaction shall be indicated at the 

place in the record where the redaction 

was made. 

(d) Public reading room. The Council 

shall make available for public 

inspection and copying, in a reading 

room or otherwise, the material 

described in paragraphs (a)(1) through 

(5) of this section. Fees for duplication 

shall be charged in accordance with 

§ 1301.12. The location of the Council’s 

reading room is the Department of the 

Treasury’s Library. The Library is 

located in the Main Treasury Building, 

1500 Pennsylvania Avenue NW., 

Washington, DC 20220. For building 

security purposes, visitors are required 

to make an appointment by calling (202) 

622–0990. 

(e) Indices. (1) The Council shall 

maintain and make available for public 

inspection and copying current indices 

identifying any material described in 

paragraphs (a)(1) through (3) of this 

section. In addition, the Council shall 

promptly publish, quarterly or more 

frequently, and distribute (by sale or 

otherwise) copies of each index or 

supplement unless the Council 

determines by order published in the 

Federal Register that the publication 

would be unnecessary and impractical, 

in which case the Council shall 

nonetheless provide copies of the index 

on request at a cost not to exceed the 

direct cost of duplication. 

(2) The Council shall make the 

indices referred to in paragraph (a)(5) 

and (e)(1) of this section available on its 

Web site. 

§ 1301.5 Requests for Council records. 

(a) In general. Except for records 

made available under 5 U.S.C. 552(a)(1) 

and (a)(2) and subject to the application 

of the FOIA exemptions and exclusions 

(5 U.S.C. 552(b) and (c)), the Council 

shall promptly make its records 

available to any person pursuant to a 

request that conforms to the rules and 

procedures of this section. 

(b) Form and content of request. A 

request for records of the Council shall 

be made as follows: 

(1) The request for records shall be 

made in writing and submitted by mail 

or via the Internet and should state, both 

in the request itself and on any envelope 

that encloses it, that it comprises a 

Freedom of Information Act (FOIA) 

request. A request that does not 

explicitly state that it is a FOIA request, 

but clearly indicates or implies that it is 

a request for records, may also be 

processed under the FOIA. 

(2) If a request is sent by mail, it shall 

be addressed and submitted as follows: 

FOIA Request—Financial Stability 

Oversight Council, U.S. Department of 

the Treasury, 1500 Pennsylvania 

Avenue NW., Washington, DC 20220. If 

a request is made via the Internet, it 

shall be submitted as set forth on the 

Council’s Web site. 

(3) In order to ensure the Council’s 

ability to respond in a timely manner, 

a FOIA request must describe the 

records that the requester seeks in 

sufficient detail to enable Council 


wreier-aviles on DSK5TPTVN1PROD with RULES
Federal Register / Vol. 77, No. 70 / Wednesday, April 11, 2012 / Rules and Regulations 21631 

personnel to locate them with a 

reasonable amount of effort. Whenever 

possible, the request must include 

specific information about each record 

sought, such as the date, title or name, 

author, recipient, and subject matter of 

the record. If known, the requester must 

include any file designations or 

descriptions for the records requested. 

In general, a requester is encouraged to 

provide more specific information about 

the records or types of records sought to 

increase the likelihood that responsive 

records can be located. 

(4) The request shall include the name 

of and contact information for the 

requester, including a mailing address, 

telephone number, and, if available, an 

email address at which the Council may 

contact the requester regarding the 

request. 

(5) For the purpose of determining 

any fees that may apply to processing a 

request, a requester shall indicate in the 

request whether the requester is a 

commercial user, an educational 

institution, non-commercial scientific 

institution, representative of the news 

media, or ‘‘other’’ requester, as those 

terms are defined in § 1301.12(c), or in 

the alternative, state how the records 

released will be used. The Council shall 

use this information solely for the 

purpose of determining the appropriate 

fee category that applies to the requester 

and shall not use this information to 

determine whether to disclose a record 

in response to the request. 

(6) If a requester seeks a waiver or 

reduction of fees associated with 

processing a request, then the request 

shall include a statement to that effect, 

pursuant to § 1301.12(f). Any request 

that does not seek a waiver or reduction 

of fees shall constitute an agreement of 

the requester to pay any and all fees (of 

up to $25) that may apply to the request, 

unless or until a request for waiver is 

sought and granted. The requester also 

may specify in the request an upper 

limit (of not less than $25) that the 

requester is willing to pay to process the 

request. 

(i) Any request for waiver or 

reduction of fees should be filed 

together with or as part of the FOIA 

request, or at a later time prior to the 

Council incurring costs to process the 

request. 

(ii) A waiver request submitted after 

the Council incurs costs will be 

considered in accordance with 

§ 1301.12(f); however, the requester 

must agree in writing to pay the fees 

already incurred if the waiver is denied. 

(7) If a requester seeks expedited 

processing of a request, then the request 

must include a statement to that effect 

as is required by § 1301.7(c). 

(c) Request receipt; effect of request 

deficiencies. The Council shall deem 

itself to have received a request on the 

date that it receives a complete request 

containing the information required by 

paragraph (b) of this section. The 

Council need not accept a request, 

process a request, or be bound by any 

deadlines in this subpart for processing 

a request that fails materially to conform 

to the requirements of paragraph (b) of 

this section. If the Council determines 

that it cannot process a request because 

the request is deficient, then the Council 

shall return it to the requester and 

advise the requester in what respect the 

request is deficient. The requester may 

then resubmit the request, which the 

Council shall treat as a new request. A 

determination by the Council that a 

request is deficient in any respect is not 

a denial of a request for records, and 

such determinations are not subject to 

appeal. 

(d) Processing of request containing 

technical deficiency. Notwithstanding 

paragraph (c) of this section, the Council 

shall not reject a request solely due to 

one or more technical deficiencies 

contained in the request. For the 

purposes of this paragraph, the term 

‘‘technical deficiency’’ means an error 

or omission with respect to an item of 

information required by paragraph (b) of 

this section which, by itself, does not 

prevent that part of the request from 

conforming to the applicable 

requirement, and includes without 

limitation a non-material error relating 

to the contact information for the 

requester, or similar error or omission 

regarding the date, title or name, author, 

recipient, or subject matter of the record 

requested. 

§ 1301.6 Responsibility for responding to 

requests for Council records. 

(a) In general. In determining which 

records are responsive to a request, the 

Council ordinarily will include only 

information contained in records that 

the Council maintains, or are in its 

possession and control, as of the date 

the Council begins its search for 

responsive records. If any other date is 

used, the Council shall inform the 

requester of that date. 

(b) Authority to grant or deny 

requests. The records officer shall be 

authorized to make an initial 

determination to grant or deny, in whole 

or in part, a request for a record. 

(c) Referrals. When the Council 

receives a request for a record or any 

portion of a record in its possession that 

originated with another agency, 

including but not limited to a 

constituent agency of the Council, it 

shall: 

(1) In the case of a record originated 

by a federal agency subject to the FOIA, 

refer the responsibility for responding to 

the request regarding that record to the 

originating agency to determine whether 

to disclose it; and 

(2) In the case of a record originated 

by a state agency, respond to the request 

after giving notice to the originating 

state agency and a reasonable 

opportunity to provide input or to assert 

any applicable privileges. 

(d) Notice of referral. Whenever the 

Council refers all or any part of the 

responsibility for responding to a 

request to another agency, the Council 

shall notify the requester of the referral 

and inform the requester of the name of 

each agency to which the request has 

been referred and of the part of the 

request that has been referred. 

§ 1301.7 Timing of responses to requests 

for Council records. 

(a) In general. Except as set forth in 

paragraphs (b) through (d) of this 

section, the Council shall respond to 

requests according to their order of 

receipt. 

(b) Multitrack processing. (1) The 

Council may establish tracks to process 

separately simple and complex requests. 

The Council may assign a request to the 

simple or complex track based on the 

amount of work and/or time needed to 

process the request. The Council shall 

process requests in each track according 

to the order of their receipt. 

(2) The Council may provide a 

requester in its complex track with an 

opportunity to limit the scope of the 

request to qualify for faster processing 

within the specified limits of the simple 

track(s). 

(c) Requests for expedited processing. 

(1) The Council shall respond to a 

request out of order and on an expedited 

basis whenever a requester 

demonstrates a compelling need for 

expedited processing in accordance 

with the requirements of this paragraph 

(c). 

(2) Form and content of a request for 

expedited processing. A request for 

expedited processing shall be made as 

follows: 

(i) A request for expedited processing 

shall be made in writing or via the 

Internet and submitted as part of the 

initial request for records. When a 

request for records includes a request 

for expedited processing, both the 

envelope and the request itself must be 

clearly marked ‘‘Expedited Processing 

Requested.’’ A request for expedited 

processing that is not clearly so marked, 

but satisfies the requirements in 

§ 1301.7(c)(2)(ii) and (iii), may 

nevertheless be granted. 


wreier-aviles on DSK5TPTVN1PROD with RULES
21632 Federal Register / Vol. 77, No. 70 / Wednesday, April 11, 2012 / Rules and Regulations 

(ii) A request for expedited processing 

shall contain a statement that 

demonstrates a compelling need for the 

requester to obtain expedited processing 

of the requested records. A ‘‘compelling 

need’’ may be established under the 

standard in either paragraph (c)(2)(ii)(A) 

or (B) of this section by demonstrating 

that: 

(A) Failure to obtain the requested 

records on an expedited basis could 

reasonably be expected to pose an 

imminent threat to the life or physical 

safety of an individual. The requester 

shall fully explain the circumstances 

warranting such an expected threat so 

that the Council may make a reasoned 

determination that a delay in obtaining 

the requested records would pose such 

a threat; or 

(B) With respect to a request made by 

a person primarily engaged in 

disseminating information, urgency to 

inform the public concerning actual or 

alleged Federal Government activity. A 

person ‘‘primarily engaged in 

disseminating information’’ does not 

include individuals who are engaged 

only incidentally in the dissemination 

of information. The standard of 

‘‘urgency to inform’’ requires that the 

records requested pertain to a matter of 

current exigency to the American 

general public and that delaying a 

response to a request for records would 

compromise a significant recognized 

interest to and throughout the American 

general public. The requester must 

adequately explain the matter or activity 

and why the records sought are 

necessary to be provided on an 

expedited basis. 

(iii) The requester shall certify the 

written statement that purports to 

demonstrate a compelling need for 

expedited processing to be true and 

correct to the best of the requester’s 

knowledge and belief. The certification 

must be in the form prescribed by 28 

U.S.C. 1746: ‘‘I declare under penalty of 

perjury that the foregoing is true and 

correct to the best of my knowledge and 

belief. Executed on [date].’’ 

(3) Determinations of requests for 

expedited processing. Within ten (10) 

calendar days of its receipt of a request 

for expedited processing, the Council 

shall decide whether to grant the 

request and shall notify the requester of 

the determination in writing. 

(4) Effect of granting expedited 

processing. If the Council grants a 

request for expedited processing, then 

the Council shall give the expedited 

request priority over non-expedited 

requests and shall process the expedited 

request as soon as practicable. The 

Council may assign expedited requests 

to their own simple and complex 

processing tracks based upon the 

amount of work and/or time needed to 

process them. Within each such track, 

an expedited request shall be processed 

in the order of its receipt. 

(5) Appeals of denials of requests for 

expedited processing. If the Council 

denies a request for expedited 

processing, then the requester shall have 

the right to submit an appeal of the 

denial determination in accordance 

with § 1301.11. The Council shall 

communicate this appeal right as part of 

its written notification to the requester 

denying expedited processing. The 

requester shall clearly mark its appeal 

request and any envelope that encloses 

it with the words ‘‘Appeal for Expedited 

Processing.’’ 

(d) Time period for responding to 

requests for records. Ordinarily, the 

Council shall have twenty (20) days 

(excepting Saturdays, Sundays, and 

legal public holidays) from when a 

request that satisfies the requirements of 

§ 1301.5(b) is received by the Council to 

determine whether to grant or deny a 

request for records. The twenty-day time 

period set forth in this paragraph shall 

not be tolled by the Council except that 

the Council may: 

(1) Make one reasonable demand to 

the requester for clarifying information 

about the request and toll the twentyday time period while it awaits the 

clarifying information; or 

(2) Toll the twenty-day time period 

while awaiting receipt of the requester’s 

response to the Council’s request for 

clarification regarding the assessment of 

fees. 

(e) Unusual circumstances. (1) In 

general. Except as provided in 

paragraph (e)(2) of this section, if the 

Council determines that, due to unusual 

circumstances, it cannot respond either 

to a request within the time period set 

forth in paragraph (d) of this section or 

to an appeal within the time period set 

forth in § 1301.11, the Council may 

extend the applicable time periods by 

informing the requester in writing of the 

unusual circumstances and of the date 

by which the Council expects to 

complete its processing of the request or 

appeal. Any extension or extensions of 

time shall not cumulatively total more 

than ten (10) days (exclusive of 

Saturdays, Sundays, and legal public 

holidays). 

(2) Additional time. If the Council 

determines that it needs additional time 

beyond a ten-day extension to process 

the request or appeal, then the Council 

shall notify the requester and provide 

the requester with an opportunity to 

limit the scope of the request or appeal 

or to arrange for an alternative time 

frame for processing the request or 

appeal or a modified request or appeal. 

The requester shall retain the right to 

define the desired scope of the request 

or appeal, as long as it meets the 

requirements contained in this part. 

(3) As used in this paragraph (e), 

‘‘unusual circumstances’’ means, but 

only to the extent reasonably necessary 

to the proper processing of the 

particular requests: 

(i) The need to search for and collect 

the requested records from field 

facilities or other establishments that are 

separate from the office processing the 

request; 

(ii) The need to search for, collect, 

and appropriately examine a 

voluminous amount of separate and 

distinct records which are demanded in 

a single request; or 

(iii) The need for consultation, which 

shall be conducted with all practicable 

speed, with another agency having a 

substantial interest in the determination 

of the request, or among two or more 

components or component offices 

having substantial subject matter 

interest therein. 

(4) Where the Council reasonably 

believes that multiple requests 

submitted by a requester, or by a group 

of requesters acting in concert, 

constitute a single request that would 

otherwise involve unusual 

circumstances, and the requests involve 

clearly related matters, they may be 

aggregated. Multiple requests involving 

unrelated matters will not be aggregated. 

The Council may disaggregate and treat 

as separate requests a single request that 

has multiple unrelated components. The 

Council shall notify the requester if a 

request is disaggregated. 

§ 1301.8 Responses to requests for 

Council records. 

(a) Acknowledgement of requests. 

Upon receipt of a request that meets the 

requirements of § 1301.5(b), the Council 

ordinarily shall assign to the request a 

unique tracking number and shall send 

an acknowledgement letter or email to 

the requester that contains the following 

information: 

(1) A brief description of the request; 

(2) The applicable request tracking 

number; 

(3) The date of receipt of the request, 

as determined in accordance with 

§ 1301.5(c); and 

(4) A confirmation, with respect to 

any fees that may apply to the request 

pursuant to § 1301.12, that the requester 

has sought a waiver or reduction in such 

fees, has agreed to pay any and all 

applicable fees, or has specified an 

upper limit (of not less than $25) that 

the requester is willing to pay in fees to 

process the request. 


wreier-aviles on DSK5TPTVN1PROD with RULES
Federal Register / Vol. 77, No. 70 / Wednesday, April 11, 2012 / Rules and Regulations 21633 

(b) Initial determination to grant or 

deny a request. (1) In general. The 

Council records officer (as designated in 

§ 1301.6(b)) shall make initial 

determinations to grant or to deny in 

whole or in part requests for records. 

(2) Granting of request. If the request 

is granted in full or in part, the Council 

shall provide the requester with a copy 

of the releasable records, and shall do so 

in the format specified by the requester 

to the extent that the records are readily 

producible by the Council in the 

requested format. The Council also shall 

send the requester a statement of the 

applicable fees, broken down by search, 

review and duplication fees, either at 

the time of the determination or shortly 

thereafter. 

(3) Denial of requests. If the Council 

determines that the request for records 

should be denied in whole or in part, 

the Council shall notify the requester in 

writing. The notification shall: 

(i) State the exemptions relied on in 

not granting the request; 

(ii) If technically feasible, indicate the 

volume of information redacted 

(including the number of pages 

withheld in part and in full) and the 

exemptions under which the redaction 

is made at the place in the record where 

such redaction is made (unless 

providing such indication would harm 

an interest protected by the exemption 

relied upon to deny such material); 

(iii) Set forth the name and title or 

position of the responsible official; 

(iv) Advise the requester of the right 

to administrative appeal in accordance 

with § 1301.11; and 

(v) Specify the official or office to 

which such appeal shall be submitted. 

(4) No records found. If it is 

determined, after an adequate search for 

records by the responsible official or 

his/her delegate, that no records could 

be located, the Council shall so notify 

the requester in writing. The 

notification letter also shall advise the 

requester of the right to administratively 

appeal the Council’s determination that 

no records could be located (i.e., to 

challenge the adequacy of the Council’s 

search for responsive records) in 

accordance with § 1301.11. The 

response shall specify the official to 

whom the appeal shall be submitted for 

review. 

§ 1301.9 Classified information. 

(a) Referrals of requests for classified 

information. Whenever a request is 

made for a record containing 

information that has been classified, or 

may be appropriate for classification, by 

another agency under Executive Order 

13526 or any other executive order 

concerning the classification of records, 

the Council shall refer the responsibility 

for responding to the request regarding 

that information to the agency that 

classified the information, should 

consider the information for 

classification, or has the primary 

interest in it, as appropriate. Whenever 

a record contains information that has 

been derivatively classified by the 

Council because it contains information 

classified by another agency, the 

Council shall refer the responsibility for 

responding to the request regarding that 

information to the agency that classified 

the underlying information or shall 

consult with that agency prior to 

processing the record for disclosure or 

withholding. 

(b) Determination of continuing need 

for classification of information. 

Requests for information classified 

pursuant to Executive Order 13526 

require the Council to review the 

information to determine whether it 

continues to warrant classification. 

Information which no longer warrants 

classification under the Executive 

Order’s criteria shall be declassified and 

made available to the requester, unless 

the information is otherwise exempt 

from disclosure. 

§ 1301.10 Requests for business 

information provided to the Council. 

(a) In general. Business information 

provided to the Council by a submitter 

shall not be disclosed pursuant to a 

FOIA request except in accordance with 

this section. 

(b) Definitions. For purposes of this 

section: 

(1) Business information means 

information from a submitter that is 

trade secrets or other commercial or 

financial information that may be 

protected from disclosure under 

Exemption 4. 

(2) Submitter means any person or 

entity from whom the Council obtains 

business information, directly or 

indirectly. The term includes 

corporations, state, local, and tribal 

governments, and foreign governments. 

(3) Exemption 4 means Exemption 4 

of the FOIA, 5 U.S.C. 552(b)(4). 

(c) Designation of business 

information. A submitter of business 

information shall use good-faith efforts 

to designate, by appropriate markings, 

either at the time of submission or at a 

reasonable time thereafter, any portions 

of its submission that it considers to be 

protected from disclosure under 

Exemption 4. These designations will 

expire ten (10) years after the date of the 

submission unless the submitter on his 

or her own initiative requests otherwise, 

and provides justification for, a longer 

designation period. 

(d) Notice to submitters. The Council 

shall provide a submitter with prompt 

written notice of receipt of a request or 

appeal encompassing the business 

information of the submitter whenever 

required in accordance with paragraph 

(e) of this section. Such written notice 

shall either describe the exact nature of 

the business information requested or 

provide copies of the records or portions 

of records containing the business 

information. When a voluminous 

number of submitters must be notified, 

the Council may post or publish such 

notice in a place reasonably likely to 

accomplish such notification. 

(e) When notice is required. The 

Council shall provide a submitter with 

notice of receipt of a request or appeal 

whenever: 

(1) The information has been 

designated in good faith by the 

submitter as information considered 

protected from disclosure under 

Exemption 4; or 

(2) The Council has reason to believe 

that the information may be protected 

from disclosure under Exemption 4 

because disclosure could reasonably be 

expected to cause substantial 

competitive harm to the submitter. 

(f) Opportunity to object to disclosure. 

(1) Through the notice described in 

paragraph (d) of this section, the 

Council shall notify the submitter in 

writing that the submitter shall have ten 

(10) days from the date of the notice 

(exclusive of Saturdays, Sundays, and 

legal public holidays) to provide the 

Council with a detailed statement of any 

objection to disclosure. Such statement 

shall specify all grounds for 

withholding any of the information 

under Exemption 4, including a 

statement of why the information is 

considered to be a trade secret or 

commercial or financial information 

that is privileged or confidential. In the 

event that the submitter fails to respond 

to the notice within the time specified, 

the submitter shall be considered to 

have no objection to disclosure of the 

information. Information provided by a 

submitter pursuant to this paragraph (f) 

may itself be subject to disclosure under 

the FOIA. 

(2) When notice is given to a 

submitter under this section, the 

Council shall advise the requester that 

such notice has been given to the 

submitter. The requester shall be further 

advised that a delay in responding to 

the request may be considered a denial 

of access to records and that the 

requester may proceed with an 

administrative appeal or seek judicial 

review, if appropriate. However, the 

Council shall invite the requester to 

agree to an extension of time so that the 


wreier-aviles on DSK5TPTVN1PROD with RULES
21634 Federal Register / Vol. 77, No. 70 / Wednesday, April 11, 2012 / Rules and Regulations 

Council may review the submitter’s 

objection to disclosure. 

(g) Notice of intent to disclose. The 

Council shall consider carefully a 

submitter’s objections and specific 

grounds for nondisclosure prior to 

determining whether to disclose 

business information responsive to the 

request. If the Council decides to 

disclose business information over the 

objection of a submitter, the Council 

shall provide the submitter with a 

written notice which shall include: 

(1) A statement of the reasons for 

which the submitter’s disclosure 

objections were not sustained; 

(2) A description of the business 

information to be disclosed; and 

(3) A specified disclosure date which 

is not less than ten (10) days (exclusive 

of Saturdays, Sundays, and legal public 

holidays) after the notice of the final 

decision to release the requested 

information has been provided to the 

submitter. Except as otherwise 

prohibited by law, notice of the final 

decision to release the requested 

information shall be forwarded to the 

requester at the same time. 

(h) Notice of FOIA lawsuit. Whenever 

a requester brings suit seeking to compel 

disclosure of business information 

covered in paragraph (c) of this section, 

the Council shall promptly notify the 

submitter. 

(i) Exception to notice requirement. 

The notice requirements of this section 

shall not apply if: 

(1) The Council determines that the 

information shall not be disclosed; 

(2) The information lawfully has been 

published or otherwise made available 

to the public; or 

(3) Disclosure of the information is 

required by statute (other than the 

FOIA) or by a regulation issued in 

accordance with the requirements of 

Executive Order 12600 (3 CFR, 1987 

Comp., p. 235). 

§ 1301.11 Administrative appeals. 

(a) Grounds for administrative 

appeals. A requester may appeal an 

initial determination of the Council, 

including but not limited to a 

determination: 

(1) To deny access to records in whole 

or in part (as provided in § 1301.8(b)(4)); 

(2) To assign a particular fee category 

to the requester (as provided in 

§ 1301.12(c)); 

(3) To deny a request for a reduction 

or waiver of fees (as provided in 

§ 1301.12(f)(7)); 

(4) That no records could be located 

that are responsive to the request (as 

provided in § 1301.8(b)(5)); or 

(5) To deny a request for expedited 

processing (as provided in 

§ 1301.7(c)(5)). 

(b) Time limits for filing 

administrative appeals. An appeal, 

other than an appeal of a denial of 

expedited processing, must be 

submitted within thirty-five (35) days of 

the date of the initial determination or 

the date of the letter transmitting the 

last records released, whichever is later. 

An appeal of a denial of expedited 

processing must be made within ten (10) 

days of the date of the initial 

determination to deny expedited 

processing (see § 1301.7). 

(c) Form and content of 

administrative appeals. The appeal 

shall— 

(1) Be made in writing or via the 

Internet; 

(2) Be clearly marked on the appeal 

request and any envelope that encloses 

it with the words ‘‘Freedom of 

Information Act Appeal’’ and addressed 

to Financial Stability Oversight Council, 

U.S. Department of the Treasury, 1500 

Pennsylvania Avenue NW., Washington, 

DC 20220; 

(3) Set forth the name of and contact 

information for the requester, including 

a mailing address, telephone number, 

and, if available, an email address at 

which the Council may contact the 

requester regarding the appeal; 

(4) Specify the date of the initial 

request and date of the letter of initial 

determination, and, where possible, 

enclose a copy of the initial request and 

the initial determination being 

appealed; and 

(5) Set forth specific grounds for the 

appeal. 

(d) Processing of administrative 

appeals. Appeals shall be stamped with 

the date of their receipt by the office to 

which addressed, and shall be 

processed in the approximate order of 

their receipt. The receipt of the appeal 

shall be acknowledged by the Council 

and the requester advised of the date the 

appeal was received and the expected 

date of response. 

(e) Determinations to grant or deny 

administrative appeals. The 

Chairperson of the Council or his/her 

designee is authorized to and shall 

decide whether to affirm or reverse the 

initial determination (in whole or in 

part), and shall notify the requester of 

this decision in writing within twenty 

(20) days (exclusive of Saturdays, 

Sundays, and legal public holidays) 

after the date of receipt of the appeal, 

unless extended pursuant to § 1301.7(e). 

(1) If it is decided that the appeal is 

to be denied (in whole or in part) the 

requester shall be— 

(i) Notified in writing of the denial; 

(ii) Notified of the reasons for the 

denial, including the FOIA exemptions 

relied upon; 

(iii) Notified of the name and title or 

position of the official responsible for 

the determination on appeal; 

(iv) Provided with a statement that 

judicial review of the denial is available 

in the United States District Court for 

the judicial district in which the 

requester resides or has a principal 

place of business, the judicial district in 

which the requested records are located, 

or the District of Columbia in 

accordance with 5 U.S.C. 552(a)(4)(B); 

and 

(v) Provided with notification that 

mediation services may be available to 

the requester as a non-exclusive 

alternative to litigation through the 

Office of Government Information 

Services in accordance with 5 U.S.C. 

552(h)(3). 

(2) If the Council grants the appeal in 

its entirety, the Council shall so notify 

the requester and promptly process the 

request in accordance with the decision 

on appeal. 

§ 1301.12 Fees for processing requests for 

Council records. 

(a) In general. The Council shall 

charge the requester for processing a 

request under the FOIA in the amounts 

and for the services set forth in 

paragraphs (b) through (d) of this 

section, except if a waiver or reduction 

of fees is granted under paragraph (f) of 

this section, or if, pursuant to paragraph 

(e)(4) of this section, the failure of the 

Council to comply with certain time 

limits precludes it from assessing 

certain fees. No fees shall be charged if 

the amount of fees incurred in 

processing the request is below $25. 

(b) Fees chargeable for specific 

services. The fees for services performed 

by the Council shall be imposed and 

collected as set forth in this paragraph 

(b). 

(1) Duplicating records. The Council 

shall charge a requester fees for the cost 

of copying records as follows: 

(i) $.15 per page, up to 81⁄2 x 14′′, 

made by photocopy or similar process. 

(ii) Photographs, films, and other 

materials—actual cost of duplication. 

(iii) Other types of duplication 

services not mentioned above—actual 

cost. 

(iv) Material provided to a private 

contractor for copying shall be charged 

to the requester at the actual cost 

charged by the private contractor. 

(2) Search services. The Council shall 

charge a requester for all time spent by 

its employees searching for records that 

are responsive to a request, including 

page-by-page or line-by-line 

identification of responsive information 

within records, even if no responsive 

records are found. The Council shall 


wreier-aviles on DSK5TPTVN1PROD with RULES
Federal Register / Vol. 77, No. 70 / Wednesday, April 11, 2012 / Rules and Regulations 21635 

charge the requester fees for search time 

as follows: 

(i) Searches for other than electronic 

records. The Council shall charge for 

search time at the salary rate(s) (basic 

pay plus sixteen (16) percent) of the 

employee(s) who conduct the search. 

This charge shall also include 

transportation of employees and records 

at actual cost. Fees may be charged for 

search time even if the search does not 

yield any responsive records, or if 

records are exempt from disclosure. 

(ii) Searches for electronic records. 

The Council shall charge the requester 

for the actual direct cost of the search, 

including computer search time, runs, 

and the operator’s salary. The fee for 

computer output shall be the actual 

direct cost. For a requester in the 

‘‘other’’ category, when the cost of the 

search (including the operator time and 

the cost of operating the computer to 

process a request) equals the equivalent 

dollar amount of two hours of the salary 

of the person performing the search (i.e., 

the operator), the charge for the 

computer search will begin. 

(3) Review of records. The Council 

shall charge a requester for time spent 

by its employees examining responsive 

records to determine whether any 

portions of such record are 

withholdable from disclosure, pursuant 

to the FOIA exemptions of 5 U.S.C. 

552(b). The Council shall also charge a 

requester for time spent by its 

employees redacting any such 

withholdable information from a record 

and preparing a record for release to the 

requester. The Council shall charge a 

requester for time spent reviewing 

records at the salary rate(s) (i.e., basic 

pay plus sixteen (16) percent) of the 

employees who conduct the review. 

Fees may be charged for review time 

even if records ultimately are not 

disclosed. 

(4) Inspection of records in the 

reading room. Fees for all services 

provided shall be charged whether or 

not copies are made available to the 

requester for inspection. However, no 

fee shall be charged for monitoring a 

requester’s inspection of records. 

(5) Other services. Other services and 

materials requested which are not 

covered by this part nor required by the 

FOIA are chargeable at the actual cost to 

the Council. Charges permitted under 

this paragraph may include: 

(i) Certifying that records are true 

copies; and 

(ii) Sending records by special 

methods (such as by express mail, etc.). 

(c) Fees applicable to various 

categories of requesters. (1) Generally. 

The Council shall assess the fees set 

forth in paragraph (b) of this section in 

accordance with the requester fee 

categories set forth below. 

(2) Requester selection of fee category. 

A requester shall identify, in the initial 

FOIA request, the purpose of the request 

in one of the following categories: 

(i) Commercial. A commercial use 

request refers to a request from or on 

behalf of one who seeks information for 

a use or purpose that furthers the 

commercial, trade, or profit interests of 

the requester or the person on whose 

behalf the request is made, which can 

include furthering those interests 

through litigation. The Council may 

determine from the use specified in the 

request that the requester is a 

commercial user. 

(ii) Educational institution. This refers 

to a preschool, a public or private 

elementary or secondary school, an 

institution of graduate higher education, 

an institution of undergraduate higher 

education, an institution of professional 

education, and an institution of 

vocational education, which operates a 

program or programs of scholarly 

research. This category does not include 

requesters seeking records for use in 

meeting individual academic research 

or study requirements. 

(iii) Non-commercial scientific 

institution. This refers to an institution 

that is not operated on a ‘‘commercial’’ 

basis, as that term is defined in 

paragraph (c)(2)(i) of this section, and 

which is operated solely for the purpose 

of conducting scientific research, the 

results of which are not intended to 

promote any particular product or 

industry. 

(iv) Representative of the news media. 

This refers to any person or entity that 

gathers information of potential interest 

to a segment of the public, uses its 

editorial skills to turn the raw materials 

into a distinct work, and distributes that 

work to an audience. In this paragraph 

(c)(2)(iv), the term ‘‘news’’ means 

information that is about current events 

or that would be of current interest to 

the public. Examples of news-media 

entities are television or radio stations 

broadcasting to the public at large and 

publishers of periodicals (but only if 

such entities qualify as disseminators of 

‘‘news’’) who make their products 

available for purchase by subscription 

or by free distribution to the general 

public. These examples are not allinclusive. Moreover, as methods of 

news delivery evolve (for example, the 

adoption of the electronic dissemination 

of newspapers through 

telecommunications services), such 

alternative media shall be considered to 

be news media entities. A freelance 

journalist shall be regarded as working 

for a news media entity if the journalist 

can demonstrate a solid basis for 

expecting publication through that 

entity, whether or not the journalist is 

actually employed by the entity. A 

publication contract would present a 

solid basis for such an expectation; the 

Council may also consider the past 

publication record of the requester in 

making such a determination. 

(v) Other Requester. This refers to a 

requester who does not fall within any 

of the categories described in 

paragraphs (c)(2)(i)–(iv) of this section. 

(d) Fees applicable to each category of 

requester. The Council shall apply the 

fees set forth in this paragraph, for each 

category described in paragraph (c) of 

this section, to requests processed by 

the Council under the FOIA. 

(1) Commercial use. A requester 

seeking records for commercial use shall 

be charged the full direct costs of 

searching for, reviewing, and 

duplicating the records they request as 

set forth in paragraph (b) of this section. 

Moreover, when a request is received for 

disclosure that is primarily in the 

commercial interest of the requester, the 

Council is not required to consider a 

request for a waiver or reduction of fees 

based upon the assertion that disclosure 

would be in the public interest. The 

Council may recover the cost of 

searching for and reviewing records 

even if there is ultimately no disclosure 

of records or no records are located. 

(2) Educational and non-commercial 

scientific uses. A requester seeking 

records for educational or noncommercial scientific use shall be 

charged only for the cost of duplicating 

the records they request, except that the 

Council shall provide the first one 

hundred (100) pages of duplication free 

of charge. To be eligible, the requester 

must show that the request is made 

under the auspices of a qualifying 

institution and that the records are not 

sought for a commercial use, but are 

sought in furtherance of scholarly (if the 

request is from an educational 

institution) or scientific (if the request is 

from a non-commercial scientific 

institution) research. These categories 

do not include a requester who seeks 

records for use in meeting individual 

academic research or study 

requirements. 

(3) News media uses. A requester 

seeking records under the news media 

use category shall be charged only for 

the cost of duplicating the records they 

request, except that the Council shall 

provide the requester with the first one 

hundred (100) pages of duplication free 

of charge. 

(4) Other requests. A requester 

seeking records for any other use shall 

be charged the full direct cost of 


wreier-aviles on DSK5TPTVN1PROD with RULES
21636 Federal Register / Vol. 77, No. 70 / Wednesday, April 11, 2012 / Rules and Regulations 

searching for and duplicating records 

that are responsive to the request, as set 

forth in paragraph (b) of this section, 

except that the Council shall provide 

the first one hundred (100) pages of 

duplication and the first two hours of 

search time free of charge. The Council 

may recover the cost of searching for 

records even if there is ultimately no 

disclosure of records, or no records are 

located. 

(e) Other circumstances when fees are 

not charged. Notwithstanding 

paragraphs (b), (c), and (d) of this 

section, the Council may not charge a 

requester a fee for processing a FOIA 

request if— 

(1) Services were performed without 

charge; 

(2) The cost of collecting a fee would 

be equal to or greater than the fee itself; 

(3) The fees were waived or reduced 

in accordance with paragraph (f) of this 

section; or 

(4) The Council fails to comply with 

any time limit under §§ 1301.7 or 

1301.11, and no unusual circumstances 

(as that term is defined in § 1301.7(e)) or 

exceptional circumstances apply to the 

processing of the request; or 

(5) The requester is an educational or 

noncommercial scientific institution or 

a representative of the news media (as 

described in paragraphs (c)(2)(ii) 

through (iv) of this section), then the 

Council shall not assess the duplication 

fees. 

(f) Waiver or reduction of fees. (1) A 

requester shall be entitled to receive 

from the Council a waiver or reduction 

in the fees otherwise applicable to a 

FOIA request whenever the requester: 

(i) Requests such waiver or reduction 

of fees in writing and submits the 

written request to the Council together 

with or as part of the FOIA request, or 

at a later time consistent with 

§ 1301.5(b)(7) to process the request; 

and 

(ii) Demonstrates that the fee 

reduction or waiver request is in the 

public interest because: 

(A) Furnishing the information is 

likely to contribute significantly to 

public understanding of the operations 

or activities of the government; and 

(B) Furnishing the information is not 

primarily in the commercial interest of 

the requester. 

(2) To determine whether the 

requester has satisfied the requirements 

of paragraph (f)(1)(ii)(A) of this section, 

the Council shall consider: 

(i) The subject of the requested 

records must concern identifiable 

operations or activities of the federal 

government, with a connection that is 

direct and clear, not remote or 

attenuated; 

(ii) The disclosable portions of the 

requested records must be meaningfully 

informative about government 

operations or activities in order to be 

‘‘likely to contribute’’ to an increased 

public understanding of those 

operations or activities. The disclosure 

of information that already is in the 

public domain, in either a duplicative or 

a substantially identical form, would 

not be as likely to contribute to such 

understanding where nothing new 

would be added to the public’s 

understanding; 

(iii) The disclosure must contribute to 

the understanding of a reasonably broad 

audience of persons interested in the 

subject, as opposed to the individual 

understanding of the requester. A 

requester’s expertise in the subject area 

and ability and intention to effectively 

convey information to the public shall 

be considered. It shall be presumed that 

a representative of the news media will 

satisfy this consideration. 

(iv) The public’s understanding of the 

subject in question, as compared to the 

level of public understanding existing 

prior to the disclosure, must be 

enhanced by the disclosure to a 

significant extent. 

(3) To determine whether the 

requester satisfies the requirement of 

paragraph (f)(1)(ii)(B) of this section, the 

Council shall consider: 

(i) Any commercial interest of the 

requester (with reference to the 

definition of ‘‘commercial use’’ in 

§ 1301.12(c)(2)(i)), or of any person on 

whose behalf the requester may be 

acting, that would be furthered by the 

requested disclosure. In the 

administrative process, a requester may 

provide explanatory information 

regarding this consideration; and 

(ii) Whether the public interest is 

greater in magnitude than that of any 

identified commercial interest in 

disclosure. The Council ordinarily shall 

presume that, if a news media requester 

satisfies the public interest standard, the 

public interest will be the interest 

primarily served by disclosure to that 

requester. Disclosure to data brokers or 

others who merely compile and market 

government information for direct 

economic return shall not be presumed 

to primarily serve the public interest. 

(4) Where only some of the records to 

be released satisfy the requirements for 

a waiver or reduction of fees, a waiver 

or reduction shall be granted for those 

records. 

(5) Determination of request to reduce 

or waive fees. The Council shall notify 

the requester in writing regarding its 

determinations to reduce or waive fees. 

(6) Effect of denying request to reduce 

or waive fees. If the Council denies a 

request to reduce or waive fees, then the 

Council shall advise the requester, in 

the denial notification letter, that the 

requester may incur fees as a result of 

processing the request. In the denial 

notification letter, the Council shall 

advise the requester that the Council 

will not proceed to process the request 

further unless the requester, in writing, 

directs the Council to do so and either 

agrees to pay any fees that may apply to 

processing the request or specifies an 

upper limit (of not less than $25) that 

the requester is willing to pay to process 

the request. If the Council does not 

receive this written direction and 

agreement/specification within thirty 

(30) days of the date of the denial 

notification letter, then the Council 

shall deem the FOIA request to be 

withdrawn. 

(7) Appeals of denials of requests to 

reduce or waive fees. If the Council 

denies a request to reduce or waive fees, 

then the requester shall have the right 

to submit an appeal of the denial 

determination in accordance with 

§ 1301.11. The Council shall 

communicate this appeal right as part of 

its written notification to the requester 

denying the fee reduction or waiver 

request. The requester shall clearly mark 

its appeal request and any envelope that 

encloses it with the words ‘‘Appeal for 

Fee Reduction/Waiver.’’ 

(g) Notice of estimated fees; advance 

payments. (1) When the Council 

estimates the fees for processing a 

request will exceed the limit set by the 

requester, and that amount is less than 

$250, the Council shall notify the 

requester of the estimated costs, broken 

down by search, review and duplication 

fees. The requester must provide an 

agreement to pay the estimated costs, 

except that the requester may 

reformulate the request in an attempt to 

reduce the estimated fees. 

(2) If the requester fails to state a limit 

and the costs are estimated to exceed 

$250, the requester shall be notified of 

the estimated costs, broken down by 

search, review and duplication fees, and 

must pay such amount prior to the 

processing of the request, or provide 

satisfactory assurance of full payment if 

the requester has a history of prompt 

payment of FOIA fees. Alternatively, the 

requester may reformulate the request in 

such a way as to constitute a request for 

responsive records at a reduced fee. 

(3) The Council reserves the right to 

request advance payment after a request 

is processed and before records are 

released. 

(4) If a requester previously has failed 

to pay a fee within thirty (30) calendar 

days of the date of the billing, the 

requester shall be required to pay the 


wreier-aviles on DSK5TPTVN1PROD with RULES
Federal Register / Vol. 77, No. 70 / Wednesday, April 11, 2012 / Rules and Regulations 21637 

1See 12 U.S.C. 5311(a)(4). 

2See 12 U.S.C. 5311(a)(6). 

3See 12 U.S.C. 5311(b). 

full amount owed plus any applicable 

interest, and to make an advance 

payment of the full amount of the 

estimated fee before the Council begins 

to process a new request or the pending 

request. 

(5) When the Council acts under 

paragraphs (g)(1) through (4) of this 

section, the administrative time limits of 

twenty (20) days (excluding Saturdays, 

Sundays, and legal public holidays) 

from receipt of initial requests or 

appeals, plus extensions of these time 

limits, shall begin only after any 

applicable fees have been paid (in the 

case of paragraphs (g)(2), (g)(3), or 

(g)(4)), a written agreement to pay fees 

has been provided (in the case of 

paragraph (g)(1)), or a request has been 

reformulated (in the case of paragraphs 

(g)(1) or (g)(2)). 

(h) Form of payment. Payment may be 

made by check or money order paid to 

the Treasurer of the United States. 

(i) Charging interest. The Council may 

charge interest on any unpaid bill 

starting on the 31st day following the 

date of billing the requester. Interest 

charges will be assessed at the rate 

provided in 31 U.S.C. 3717 and will 

accrue from the date of the billing until 

payment is received by the Council. The 

Council will follow the provisions of the 

Debt Collection Act of 1982 (Pub. L. 97– 

365, 96 Stat. 1749), as amended, and its 

administrative procedures, including 

the use of consumer reporting agencies, 

collection agencies, and offset. 

(j) Aggregating requests. If the Council 

reasonably determines that a requester 

or a group of requesters acting together 

is attempting to divide a request into a 

series of requests for the purpose of 

avoiding fees, the Council may aggregate 

those requests and charge accordingly. 

The Council may presume that multiple 

requests involving related matters 

submitted within a thirty (30) calendar 

day period have been made in order to 

avoid fees. The Council shall not 

aggregate multiple requests involving 

unrelated matters. 

Dated: April 3, 2012. 

Rebecca Ewing, 

Acting Executive Secretary, Department of 

the Treasury. 

[FR Doc. 2012–8625 Filed 4–10–12; 8:45 am] 

BILLING CODE 4810–25–P 

FINANCIAL STABILITY OVERSIGHT 

COUNCIL 

12 CFR Part 1310 

RIN 4030–AA00 

Authority To Require Supervision and 

Regulation of Certain Nonbank 

Financial Companies 

AGENCY: Financial Stability Oversight 

Council. 

ACTION: Final rule and interpretive 

guidance. 

SUMMARY: Section 113 of the DoddFrank Wall Street Reform and Consumer 

Protection Act (the ‘‘Dodd-Frank Act’’) 

authorizes the Financial Stability 

Oversight Council (the ‘‘Council’’) to 

determine that a nonbank financial 

company shall be supervised by the 

Board of Governors of the Federal 

Reserve System (the ‘‘Board of 

Governors’’) and shall be subject to 

prudential standards, in accordance 

with Title I of the Dodd-Frank Act, if the 

Council determines that material 

financial distress at the nonbank 

financial company, or the nature, scope, 

size, scale, concentration, 

interconnectedness, or mix of the 

activities of the nonbank financial 

company, could pose a threat to the 

financial stability of the United States. 

This final rule and the interpretive 

guidance attached as an appendix 

thereto describe the manner in which 

the Council intends to apply the 

statutory standards and considerations, 

and the processes and procedures that 

the Council intends to follow, in making 

determinations under section 113 of the 

Dodd-Frank Act. 

DATES: Effective date: May 11, 2012. 

FOR FURTHER INFORMATION CONTACT: 

Lance Auer, Office of Domestic Finance, 

Treasury, at (202) 622–1262, or Eric 

Froman, Office of the General Counsel, 

Treasury, at (202) 622–1942. 

SUPPLEMENTARY INFORMATION: 

I. Background 

Section 111 of the Dodd-Frank Act (12 

U.S.C. 5321) established the Financial 

Stability Oversight Council. Among the 

purposes of the Council under section 

112 of the Dodd-Frank Act (12 U.S.C. 

5322) are ‘‘(A) to identify risks to the 

financial stability of the United States 

that could arise from the material 

financial distress or failure, or ongoing 

activities, of large, interconnected bank 

holding companies or nonbank financial 

companies, or that could arise outside 

the financial services marketplace; (B) to 

promote market discipline, by 

eliminating expectations on the part of 

shareholders, creditors, and 

counterparties of such companies that 

the Government will shield them from 

losses in the event of failure; and (C) to 

respond to emerging threats to the 

stability of the United States financial 

system.’’ 

In the recent financial crisis, financial 

distress at certain nonbank financial 

companies contributed to a broad 

seizing up of financial markets and 

stress at other financial firms. Many of 

these nonbank financial companies 

were not subject to the type of 

regulation and consolidated supervision 

applied to bank holding companies, nor 

were there effective mechanisms in 

place to resolve the largest and most 

interconnected of these nonbank 

financial companies without causing 

further instability. To address any 

potential risks to U.S. financial stability 

posed by these companies, the DoddFrank Act authorizes the Council to 

determine that certain nonbank 

financial companies will be subject to 

supervision by the Board of Governors 

and prudential standards. The Board of 

Governors is responsible for establishing 

the prudential standards that will be 

applicable, under section 165 of the 

Dodd-Frank Act, to nonbank financial 

companies subject to a Council 

determination. 

Title I of the Dodd-Frank Act defines 

a ‘‘nonbank financial company’’ as a 

domestic or foreign company that is 

‘‘predominantly engaged in financial 

activities,’’ other than bank holding 

companies and certain other types of 

firms.1 The Dodd-Frank Act provides 

that a company is ‘‘predominantly 

engaged’’ in financial activities if either 

(i) the annual gross revenues derived by 

the company and all of its subsidiaries 

from financial activities, as well as from 

the ownership or control of insured 

depository institutions, represent 85 

percent or more of the consolidated 

annual gross revenues of the company; 

or (ii) the consolidated assets of the 

company and all of its subsidiaries 

related to financial activities, as well as 

related to the ownership or control of 

insured depository institutions, 

represent 85 percent or more of the 

consolidated assets of the company.2

The Dodd-Frank Act requires the Board 

of Governors to establish the 

requirements for determining whether a 

company is ‘‘predominantly engaged in 

financial activities’’ for this purpose.3

The Council issued an advance notice 

of proposed rulemaking (the ‘‘ANPR’’) 

on October 6, 2010 (75 FR 61653), in 


wreier-aviles on DSK5TPTVN1PROD with RULES