54052 Federal Register / Vol. 75, No. 171 / Friday, September 3, 2010 / Proposed Rules 

the public comments. These actions will 

be taken to aid in the development of a 

test procedure NOPR for TVs. 

DOE considers public participation to 

be a very important part of the process 

for developing test procedures. DOE 

actively encourages the participation 

and interaction of the public during the 

comment period in each stage of the 

rulemaking process. Interactions with 

and between members of the public 

provide a balanced discussion of the 

issues and assist DOE in the rulemaking 

process. Anyone who wishes to be 

added to the DOE mailing list to receive 

future notices and information about 

this rulemaking should contact Ms. 

Brenda Edwards at (202) 586–2945, or 

via e-mail at 

Brenda.Edwards@ee.doe.gov. 

Issued in Washington, DC, on August 27, 

2010. 

Cathy Zoi, 

Assistant Secretary, Energy Efficiency and 

Renewable Energy. 

[FR Doc. 2010–22066 Filed 9–2–10; 8:45 am] 

BILLING CODE 6450–01–P 

FEDERAL FINANCIAL INSTITUTIONS 

EXAMINATION COUNCIL 

12 CFR Part 1101 

Description of Office, Procedures, and 

Public Information 

AGENCY: Federal Financial Institutions 

Examination Council. 

ACTION: Notice of proposed rulemaking; 

request for comments. 

SUMMARY: The Federal Financial 

Institutions Examination Council 

(Council or FFIEC), on behalf of its 

members, is proposing to update its 

Freedom of Information Act (FOIA) 

regulations. The Council last made 

changes to its FOIA regulations in 1988. 

Since that time information relating to 

the Council has changed and there have 

been several amendments to the FOIA, 

which need to be reflected in the 

regulations. The proposed rules revise 

the procedures to be used by members 

of the public in requesting records 

maintained by the Council, the time 

limits in which the Council must make 

a determination on disclosure in 

response to a request for records, the 

time period in which a requester has the 

right to administratively appeal any 

adverse determination made on a 

request for records, and provides 

procedures to be used to request 

expedited processing of FOIA requests. 

The revisions in the proposed rules are 

designed to improve access to records 

maintained by the Council and to 

provide clearer guidance to requesters 

on how to obtain records under the 

FOIA. 

DATES: Comments must be submitted on 

or before October 4, 2010. 

ADDRESSES: Because paper mail in the 

Washington, DC area and received by 

the Council is subject to delay due to 

heightened security precautions, 

commenters are encouraged to submit 

comments by the Federal eRulemaking 

Portal, if possible. Please use the title 

‘‘FOIA Comments’’ to facilitate the 

organization and distribution of the 

comments. You may submit comments 

by any of the following methods: 

• Federal eRulemaking Portal— 

‘‘Regulations.gov’’: Go to http:// 

www.regulations.gov, under the ‘‘More 

Search Options’’ tab click next to the 

‘‘Advanced Docket Search’’ option 

where indicated, select ‘‘FFIEC’’ from 

the agency drop-down menu, then click 

‘‘Submit.’’ In the ‘‘Docket ID’’ column, 

select ‘‘Docket Number FFIEC–2010– 

0001’’ to submit or view public 

comments, and to view supporting and 

related materials for this notice of 

proposed rulemaking. The ‘‘How to Use 

This Site’’ link on the Regulations.gov 

home page provides information on 

using Regulations.gov, including 

instructions for submitting or viewing 

public comments, viewing other 

supporting and related materials, and 

viewing the docket after the close of the 

comment period. 

• Mail: Paul Sanford, Executive 

Secretary, Federal Financial Institutions 

Examination Council, L. William 

Seidman Center, Mailstop: B–7081a, 

3501 Fairfax Drive, Arlington, Virginia 

22226–3550. 

• Hand Delivery/Courier: Paul 

Sanford, Executive Secretary, Federal 

Financial Institutions Examination 

Council, L. William Seidman Center, 

Mailstop: B–7081a, 3501 Fairfax Drive, 

Arlington, Virginia 22226–3550. 

Instructions: You must include 

‘‘FFIEC’’ as the agency name and ‘‘Docket 

Number FFIEC–2010–0001’’ in your 

comment. In general, the Council will 

enter all comments received into the 

docket and publish them on the 

Regulations.gov Web site without 

change, including any business or 

personal information that you provide 

such as name and address information, 

e-mail addresses, or phone numbers. 

Comments received, including 

attachments and other supporting 

materials, are part of the public record 

and subject to public disclosure. Do not 

include any information in your 

comment or supporting materials that 

you consider confidential or 

inappropriate for public disclosure. 

You may review comments and other 

related materials that pertain to this 

notice of proposed rulemaking 

electronically by following these 

instructions: Go to http:// 

www.regulations.gov, under the ‘‘More 

Search Options’’ tab click next to the 

‘‘Advanced Document Search’’ option 

where indicated, select ‘‘FFIEC’’ from 

the agency drop-down menu, then, click 

‘‘Submit.’’ In the ‘‘Docket ID’’ column, 

select ‘‘Docket FFIEC–2010–0001’’ to 

view public comments for this 

rulemaking action. 

Docket: You may also view or request 

available background documents and 

project summaries using the methods 

described above. 

FOR FURTHER INFORMATION CONTACT: Paul 

Sanford, Executive Secretary, Federal 

Financial Institutions Examination 

Council, via telephone: (703) 516–5590, 

or via e-mail: PaSanford@FDIC.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

The Council proposes a number of 

substantive and technical changes to its 

regulations implementing the FOIA (5 

U.S.C. 552, as amended) that fall within 

two general categories. First, the 

Council proposes modifying its existing 

regulations to reflect the amendments to 

the FOIA contained in the Electronic 

Freedom of Information Act 

Amendments of 1996, Public Law 104– 

231, 110 Stat. 3048, and the OPEN 

Government Act, Public Law 110–175, 

121 Stat. 2524. The Electronic Freedom 

of Information Act Amendments 

increased the FOIA’s basic time limit for 

agency responses to FOIA requests, and 

provided for expedited processing of 

FOIA requests under certain conditions, 

among other procedural revisions. The 

OPEN Government Act also amended 

various FOIA administrative 

procedures, such as when an agency 

may toll the statutory time for 

responding to FOIA requests, and how 

to indicate exemptions authorizing 

deletion of materials under the FOIA on 

a responsive record. 

Second, the Council proposes to 

revise its regulations to further clarify 

its policies and procedures relating to 

the processing of FOIA requests and the 

administration of its FOIA operations. 

Accordingly, the Council proposes to 

revise its regulations implementing the 

FOIA and put them out for public 

comment. The specific amendments that 

the Council proposes to each section of 

12 CFR Part 1101 are discussed 

hereafter in regulatory sequence. 

II. Proposed Regulatory Revisions 

In 12 CFR 1101.3(e), the Council 

proposes revising the paragraph by 


erowe on DSK5CLS3C1PROD with PROPOSALS-1
Federal Register / Vol. 75, No. 171 / Friday, September 3, 2010 / Proposed Rules 54053 

providing the current address of the 

Council’s offices. 

In 12 CFR 1101.4(a), the Council 

proposes revising the paragraph by 

providing the current address of the 

Council’s offices and clarifying that 

Council policies and interpretations 

may be withheld from disclosure under 

exemptions to the FOIA. 

In 12 CFR 1101.4(b), the Council 

proposes minor revisions to the wording 

of the section heading. 

In 12 CFR 1101.4(b)(1), the Council 

proposes minor revisions in the wording 

of the paragraph to explain that Council 

records that are not published in the 

Federal Register or available for 

inspection and copying at the Council’s 

offices are available to the public upon 

request except to the extent that such 

records are exempt from disclosure 

under the FOIA. 

In 12 CFR 1101.4(b)(1)(i), the Council 

proposes capitalizing the word ‘‘Order’’ 

when referring to an Executive Order. 

In 12 CFR 1101.4(b)(1)(v), the Council 

proposes adding language to protect 

from disclosure records of deliberations 

and meetings of the Council, its 

committees, and staff, that are not 

subject to the Government in the 

Sunshine Act, 5 U.S.C. 552b. 

In 12 CFR 1101.4(b)(1)(vii), the 

Council proposes revising the paragraph 

by substituting a reference to the 

statutory citation for Exemption 7 of the 

FOIA, 5 U.S.C. 552(b)(7), for the list of 

the specific substantive provisions of 

the exemption in the existing regulation. 

In addition, the term ‘‘state or federal’’ 

has been inserted to clarify that records 

of state financial regulatory agencies in 

the possession of the Council are 

exempt from disclosure under 

Exemption 7 as are the records of 

federal regulatory agencies. 

In 12 CFR 101.4(b)(1)(viii), the 

Council proposes revising the paragraph 

by eliminating a listing of the types of 

financial institutions covered by 

Exemption 8 of the FOIA, 5 U.S.C. 

552(b)(8), and inserting the term ‘‘state 

or federal’’ to clarify that records of state 

financial regulatory agencies in the 

possession of the Council are exempt 

from disclosure under Exemption 8. 

In 12 CFR 1101.4(b)(2), the Council 

proposes revising the heading to reflect 

current FOIA terminology concerning 

discretionary releases of exempt 

information. 

In 12 CFR 1101.4(b)(3)(i), the Council 

proposes to revise the paragraph to 

provide the current address of the 

Council’s offices, to allow the 

submission of FOIA requests by 

facsimile and e-mail, and to require that 

requests reasonably describe the records 

sought. 

In 12 CFR 1101.4 (b)(3)(ii) the Council 

proposes to revise the paragraph to 

specify the information that a request 

must contain in order to be considered 

a ‘‘proper FOIA request’’ (i.e., a request 

to which a response is required). In 

addition, the Council proposes to 

require a requester to identify whether 

the information sought by a FOIA 

request is requested for commercial use 

and whether the requester is an 

educational or noncommercial scientific 

institution, or news media 

representative, and to address the 

payment of fees. 

In 12 CFR 1101.4(b)(3)(iii), the 

Council proposes modifying the 

language of the paragraph to clarify that 

the Council need not accept or process 

a defective FOIA request and to provide 

that such a request may be returned to 

the requester specifying the deficiency. 

In 12 CFR 1101.4(b)(3)(iv), the 

Council proposes to add a procedure to 

request the expedited treatment of FOIA 

requests. A requester seeking to have the 

processing of a request expedited must 

show a compelling need for expedited 

processing. 

In 12 CFR 1101.4(b)(3)(v), the Council 

proposes revising its procedures to 

increase the time limit in which the 

Council must respond to a FOIA request 

from 10 working days to 20 working 

days in accordance with the Electronic 

Freedom of Information Act 

Amendments and to clarify what 

information the Council’s response to a 

FOIA request must contain. 

In 12 CFR 1101.4(b)(3)(vi), the 

Council proposes to shorten the time 

period in which an administrative 

appeal of a denied request may be 

brought from 35 calendar days to 10 

working days, to provide for the filing 

of administrative appeals by facsimile, 

and to update the mailing address of the 

Council. 

In 12 CFR 1101.4(b)(3)(vii), the 

Council proposes to clarify that the time 

in which the Council has to respond to 

an appeal runs from the actual receipt 

of the appeal by the Executive Secretary 

of the Council. 

In 12 CFR 1101.4(b)(4), the Council 

proposes to designate the existing 

paragraph as paragraph 1101.4(b)(4)(i) 

and to make a minor grammatical 

change to the language of the paragraph. 

The Council proposes to add 12 CFR 

1101.4(b)(4)(ii) to provide that if the 

responsive records are to be delivered to 

the requester, they will be mailed to the 

requester unless the Executive Secretary 

of the Council determines that it is 

appropriate to send the records by some 

other means. 

The Council proposes to add 12 CFR 

1101.4(b)(4)(iii) to indicate that the 

Council will provide a copy of a 

responsive record in the format 

requested by the requester if the record 

is ‘‘readily reproducible’’ in that format. 

The Council proposes to add 12 CFR 

1101.4(b)(4)(iv) to permit records to be 

provided electronically, and to provide 

that if the information is subject to the 

Privacy Act, 5 U.S.C. 552a, it will not 

be sent electronically unless ‘‘reasonable 

security measures’’ can be established. 

In 12 CFR 1101.4(b)(5)(i)(C), the 

Council proposes to revise the 

definition of the term ‘‘Duplication’’ to 

provide examples of the forms of 

document reproduction that may be 

used by the Council. 

In 12 CFR 1101.4(b)(5)(i)(D), the 

Council proposes to make a minor 

change to the wording of the paragraph 

replacing the character ‘‘§ ’’ with the 

word ‘‘section’’. 

In 12 CFR 1101.4(b)(5)(i)(E), the 

Council proposes to add a provision to 

allow the Executive Secretary of the 

Council to consider the use to which the 

requester will put the records, and to 

seek additional information on the use 

if necessary in order to determine 

whether a particular FOIA request is a 

‘‘commercial use request’’. 

In 12 CFR 1101.4(b)(5)(i)(G), the 

Council proposes to make a minor 

change to the wording of the paragraph 

replacing the character ‘‘§ ’’ with the 

word ‘‘section’’. 

In 12 CFR 1101.4(b)(5)(i)(H), the 

Council proposes revising its definition 

of ‘‘Representative of the news media’’ to 

reflect the definition provided in the 

OPEN Government Act, 5 U.S.C 

552(a)(4)(A)(ii). 

In 12 CFR 1101.4(b)(5)(ii)(C)(2), the 

Council proposes to add computer disks 

to the list of examples indicating the 

types of materials for which a requester 

will be charged a fee. 

In 12 CFR 1101.4(b)(5)(ii)(F), the 

Council proposes revising the paragraph 

to provide examples of ‘‘special 

services’’ for which additional fees may 

be charged. 

In 12 CFR 1101.4(b)(5)(ii)(H), the 

Council proposes to revise the 

procedures for requesting a waiver or 

reduction of fees. The proposed 

revisions include eliminating the list of 

factors to be considered by the Council 

in determining whether the public 

interest requirement is met, requiring a 

requester to state a justification for a 

waiver or reduction of fees, and 

providing a right to administratively 

appeal the denial of a request for a 

waiver or reduction of fees. 

In 12 CFR 101.4(b)(5)(iii)(A), the 

Council proposes to make a minor 

grammatical change to the language of 

the paragraph. 


erowe on DSK5CLS3C1PROD with PROPOSALS-1
54054 Federal Register / Vol. 75, No. 171 / Friday, September 3, 2010 / Proposed Rules 

In 12 CFR 101.4(b)(5)(iv), the Council 

proposes to make a minor change to the 

statutory citation contained in the 

paragraph. 

In 12 CFR 1101.4(b)(5)(vii)(B), the 

Council proposes to make a minor 

change to the wording of the paragraph 

replacing the character ‘‘§ ’’ with the 

word ‘‘section’’. 

In 12 CFR 1101.4(b)(5)(vii)(C), the 

Council proposes to revise the 

paragraph by replacing the character ‘‘§ ’’ 

with the word ‘‘section,’’ and by 

increasing the limit stated in the 

parenthetical phrase to 20 working days 

in accordance with subsection (a)(6) of 

the FOIA 5 U.S.C. 552(a)(6). 

In 12 CFR 1101.4(b)(6), the Council 

proposes revising the paragraph to 

provide that referral or consultation 

with another agency is appropriate 

whenever the requested record 

originated with or incorporates the 

information of another state or federal 

agency. 

III. Regulatory Analysis and Procedure 

A. Regulatory Flexibility Act 

In accordance with section 3(a) of the 

Regulatory Flexibility Act (RFA), 5 

U.S.C. 603(a), the Council must publish 

an initial regulatory flexibility analysis 

with this proposed rulemaking or certify 

that the proposed rule, if adopted, will 

not have a significant economic impact 

on a substantial number of small 

entities. For purposes of the RFA 

analysis or certification, financial 

institutions with total assets of $175 

million or less are considered to be 

‘‘small entities.’’ The Council hereby 

certifies that this proposed rule will not 

have a significant economic impact on 

a substantial number of small entities. 

B. Paperwork Reduction Act 

In accordance with the Paperwork 

Reduction Act of 1995 (44 U.S.C. 3501 

et seq.), an agency may not conduct or 

sponsor, and a person is not required to 

respond to, a collection of information 

unless it displays a currently valid OMB 

control number. These proposed 

changes do not contain any information 

collection requirements that require the 

approval of OMB. 

C. Solicitation of Comments on Use of 

Plain Language 

Section 722 of the Gramm-LeachBliley Act, Public Law 106–102, 113 

Stat. 1338, 1471 (Nov. 12, 1999), 

requires the Federal banking agencies to 

use plain language in all proposed and 

final rules published after January 1, 

2000. The Council invites your 

comments on how to make this 

proposed regulation easier to 

understand. For example: 

• Has the Council organized the 

material to suit your needs? If not, how 

could this material be better organized? 

• Are the requirements in the 

proposed regulation clearly stated? If 

not, how could the proposed regulation 

be more clearly stated? 

• Does the proposed regulation 

contain language or jargon that is not 

clear? If so, which language requires 

clarification? 

• Would a different format (grouping 

and order of sections, use of headings, 

paragraphing) make the proposed 

regulation easier to understand? If so, 

what changes to the format would make 

the proposed regulation easier to 

understand? 

• What else could the Council do to 

make the proposed regulation easier to 

understand? 

D. The Treasury and General 

Government Appropriations Act, 1999— 

Assessment of Federal Regulations and 

Policies on Families 

The Council has determined that the 

proposed rule will not affect family 

well-being within the meaning of 

section 654 of the Treasury and General 

Government Appropriations Act, 

enacted as part of the Omnibus 

Consolidated and Emergency 

Supplemental Appropriations Act of 

1999 (Pub. L. 105–277, 112 Stat. 2681). 

Congressional Review Act 

This proposed rule will be submitted 

to OMB for a determination as to 

whether or not it constitutes a major 

rule under the Congressional Review 

Act, 5 U.S.C. 801–808, 5 U.S.C 804(2), 

(3)(c), before it is issued as a final rule. 

Lists of Subjects in 12 CFR Part 1101 

Freedom of information, FOIA 

exemptions, Schedule of fees, Waivers 

or reductions of fees. 

For the reasons set forth in the 

preamble, the Council proposes to 

amend 12 CFR part 1101 as follows: 

PART 1101—DESCRIPTION OF 

OFFICE, PROCEDURE, PUBLIC 

INFORMATION 

1. The authority citation for part 1101 

continues to read as follows: 

Authority: 5 U.S.C. 552; 12 U.S.C. 3307. 

2. Section 1101.3 is amended by 

revising paragraph (e) to read as follows: 

§ 1101.3 Organization and methods of 

operation. 

* * * * * 

(e) Council address. Council offices 

are located at 3501 Fairfax Drive, Room 

B–7081a, Arlington, VA 22226–3550. 

3. Section 1101.4 is amended: 

a. By revising paragraph (a); 

b. By revising the heading for 

paragraph (b) and paragraphs (b)(1) 

introductory text, (b)(1)(i), (v), (vii), and 

(viii); 

c. By revising paragraphs (b)(2), (3), 

and (4); 

d. By revising paragraphs (b)(5)(i)(C), 

(D), (E), (G), and (H) and (b)(5)(ii)(C)(2), 

(F), and (H); and 

e. By revising paragraphs (b)(5)(iii)(A), 

(b)(5)(iv), (b)(5)(iv)(B), (C), and (b)(6). 

The revisions read as follows: 

§ 1101.4 Disclosure of information, 

policies, and records. 

(a) Statements of policy published in 

the Federal Register or available for 

public inspection and copying; indices. 

Under 5 U.S.C. 552(a)(1), the Council 

publishes general rules, policies and 

interpretations in the Federal Register. 

Under 5 U.S.C. 552(a)(2), policies and 

interpretations adopted by the Council, 

including instructions to Council staff 

affecting members of the public, and an 

index to the same, are available for 

public inspection and copying at the 

office of the Executive Secretary of the 

Council, 3501 Fairfax Drive, Room 

B–7081a, Arlington, VA 22226–3550, 

during regular business hours. Policies 

and interpretations of the Council may 

be withheld from disclosure under the 

principles stated in paragraph (b)(1) of 

this section. 

(b) Other records of the Council 

available to the public upon request; 

procedures—(1) General rule and 

exemptions. Under 5 U.S.C. 552(a)(3), 

all other records of the Council are 

available to the public upon request, 

except to the extent exempted from 

disclosure as provided in this paragraph 

(b). Except as specifically authorized by 

the Council, the following records, and 

portions thereof, are not available to the 

public: 

(i) A record, or portion thereof, which 

is specifically authorized under criteria 

established by an Executive Order to be 

kept secret in the interest of national 

defense or foreign policy and which is, 

in fact, properly classified pursuant to 

such Executive Order. 

* * * * * 

(v) An intra-agency or interagency 

memorandum or letter that would not 

be routinely available by law to a 

private party in litigation, including, but 

not limited to, memoranda, reports, and 

other documents prepared by the 

personnel of the Council or its 

constituent agencies, and records of 

deliberations of the Council and 

discussions of meetings of the Council, 

any Council Committee, or Council 

staff, that are not subject to 5 U.S.C. 


erowe on DSK5CLS3C1PROD with PROPOSALS-1
Federal Register / Vol. 75, No. 171 / Friday, September 3, 2010 / Proposed Rules 54055 

552b (the Government in the Sunshine 

Act). 

* * * * * 

(vii) Records or information compiled 

for law enforcement purposes, to the 

extent permitted under 5 U.S.C. 

552(b)(7), including records relating to a 

proceeding by a financial institution’s 

state or federal regulatory agency for the 

issuance of a cease-and-desist order, or 

order of suspension or removal, or 

assessment of a civil money penalty and 

the granting, withholding, or revocation 

of any approval, permission, or 

authority. 

(viii) A record, or portion thereof, 

containing, relating to, or derived from 

an examination, operating, or condition 

report prepared by, or on behalf of, or 

for the use of any state or federal agency 

directly or indirectly responsible for the 

regulation or supervision of financial 

institutions. 

* * * * * 

(2) Discretionary Release of Exempt 

Information. Notwithstanding the 

applicability of an exemption, the 

Council or the Council’s designee may 

elect, under the circumstances of a 

particular request, to disclose all or a 

portion of any requested record where 

permitted by law. Such disclosure has 

no precedential significance. 

(3) Procedure for records request—(i) 

Initial request. Requests for records 

shall be submitted in writing to the 

Executive Secretary of the Council: 

(A) By sending a letter to: FFIEC, Attn: 

Executive Secretary, 3501 Fairfax Drive, 

Room B–7081a, Arlington, VA 22226– 

3550. Both the mailing envelope and the 

request should be marked ‘‘Freedom of 

Information Request,’’ ‘‘FOIA Request,’’ 

or the like; or (B) By facsimile clearly 

marked ‘‘Freedom of Information Act 

Request,’’ ‘‘FOIA Request,’’ or the like to 

the Executive Secretary at (703) 562– 

6446; or (C) By e-mail to the address 

provided on the FFIEC’s World Wide 

Web page, found at: http:// 

www.ffiec.gov. Requests must 

reasonably describe the records sought. 

(ii) Contents of request. All requests 

should contain the following 

information: (A) the name and mailing 

address of the requester, an electronic 

mail address, if available, and the 

telephone number at which the 

requester may be reached during normal 

business hours; 

(B) A statement as to whether the 

information is intended for commercial 

use, and whether the requester is an 

educational or noncommercial scientific 

institution, or news media 

representative; 

(C) A statement agreeing to pay all 

applicable fees, or a statement 

identifying any desired fee limitation, or 

a request for a waiver or reduction of 

fees that satisfies paragraph (5)(H)(ii) of 

this section. 

(iii) Defective requests. The Council 

need not accept or process a request that 

does not reasonably describe the records 

requested or that does not otherwise 

comply with the requirements of this 

section. The Executive Secretary may 

return a defective request specifying the 

deficiency. The requester may submit a 

corrected request, which will be treated 

as an initial request. 

(iv) Expedited processing. (A) Where 

a person requesting expedited access to 

records has demonstrated a compelling 

need for the records, or where the 

Executive Secretary has determined to 

expedite the response, the Executive 

Secretary shall process the request as 

soon as practicable. To show a 

compelling need for expedited 

processing, the requester shall provide a 

statement demonstrating that: 

(1) Failure to obtain the records on an 

expedited basis could reasonably be 

expected to pose an imminent threat to 

the life or physical safety of an 

individual; or 

(2) The requester is primarily engaged 

in information dissemination as a main 

professional occupation or activity, and 

there is urgency to inform the public of 

the government activity involved in the 

request. 

(B) The requester’s statement must be 

certified to be true and correct to the 

best of the person’s knowledge and 

belief and explain in detail the basis for 

requesting expedited processing. 

(C) The formality of the certification 

required to obtain expedited treatment 

may be waived by the Executive 

Secretary as a matter of administrative 

discretion. 

(v) Response to initial requests. 

(A) Except where the Executive 

Secretary has determined to expedite 

the processing of a request, the 

Executive Secretary will respond by 

mail or electronic mail to all properly 

submitted initial requests within 20 

working days of receipt. The time for 

response may be extended up to 10 

additional working days, as provided in 

5 U.S.C. 552(a)(6)(B), or for other 

periods by agreement between the 

requester and the Executive Secretary. 

(B) In response to a request that 

reasonably describes the records sought 

and otherwise satisfies the requirements 

of this section, a search shall be 

conducted of records in existence and 

maintained by the Council on the date 

of receipt of the request, and a review 

made of any responsive information 

located. The Executive Secretary shall 

notify the requester of: 

(1) The Executive Secretary’s 

determination of the response to the 

request; 

(2) The reasons for the determination; 

(3) If the response is a denial of an 

initial request or if any information is 

withheld, the Executive Secretary will 

advise the requester in writing: 

(i) If the denial is in part or in whole; 

(ii) The name and title of each person 

responsible for the denial (when other 

than the person signing the 

notification); 

(iii) The exemptions relied on for the 

denial; and 

(iv) The right of the requester to 

appeal the denial to the Chairman of the 

Council within 10 working days 

following the date of issuance of the 

notification, as specified in paragraph 

(b)(3)(vi) of this section. 

(vi) Appeals of responses to initial 

requests. If a request is denied in whole 

or in part, the requester may appeal in 

writing, within 10 working days of the 

date of issuance of a denial 

determination. Appeals shall be 

submitted to the Chairman of the 

Council: (A) By sending a letter to: 

FFIEC, Attn: Executive Secretary, 3501 

Fairfax Drive, Room B–7081a, 

Arlington, VA 22226–3550. Both the 

mailing envelope and the request 

should be marked ‘‘Freedom of 

Information Act Appeal,’’ ‘‘FOIA 

Appeal,’’ or the like; or (B) By facsimile 

clearly marked ‘‘Freedom of Information 

Act Appeal,’’ ‘‘FOIA Appeal,’’ or the like 

to the Executive Secretary at (703) 562– 

6446. Appeals should refer to the date 

and tracking number of the original 

request and the date of the Council’s 

initial ruling. Appeals should include 

an explanation of the basis for the 

appeal. 

(vii) Council response to appeals. The 

Chairman of the Council, or another 

member designated by the Chairman, 

will respond to all properly submitted 

appeals within 20 working days of 

actual receipt of the appeal by the 

Executive Secretary. The time for 

response may be extended up to 10 

additional working days, as provided in 

5 U.S.C. 552(a)(6)(B), or for other 

periods by agreement between the 

requester and the Chairman or the 

Chairman’s designee. 

(4) Procedure for access to records if 

request is granted. (i) When a request for 

access to records is granted, in whole or 

in part, a copy of the records to be 

disclosed will be promptly delivered to 

the requester or made available for 

inspection, whichever was requested. 

Inspection of records, or duplication 

and delivery of copies of records will be 

arranged so as not to interfere with their 


erowe on DSK5CLS3C1PROD with PROPOSALS-1
54056 Federal Register / Vol. 75, No. 171 / Friday, September 3, 2010 / Proposed Rules 

use by the Council and other users of 

the records. 

(ii) When delivery to the requester is 

to be made, copies of requested records 

shall be sent to the requester by regular 

U.S. mail to the address indicated in the 

request, unless the Executive Secretary 

deems it appropriate to send the 

documents by another means. 

(iii) The Council shall provide a copy 

of the record in any form or format 

requested if the record is readily 

reproducible by the Council in that form 

or format, but the Council need not 

provide more than one copy of any 

record to a requester. 

(iv) By arrangement with the 

requester, the Executive Secretary may 

elect to send the responsive records 

electronically if a substantial portion of 

the records is in electronic format. If the 

information requested is subject to 

disclosure under the Privacy Act of 

1974, 5 U.S.C. 552a, it will not be sent 

by electronic means unless reasonable 

security measures can be established. 

(5) * * * 

(i) * * * 

(C) Duplication means the process of 

making a copy of a document necessary 

to respond to a FOIA request. Such 

copies can take the form of paper copy, 

microfilm, audiovisual records, or 

machine readable records (e.g., magnetic 

tape or computer disk). 

(D) Review means the process of 

examining documents located in 

response to a request that is for a 

commercial use (see section 

1101.4(b)(5)(i)(E)) to determine whether 

any portion of any document located is 

permitted to be withheld and processing 

such documents for disclosure. 

(E) Commercial use request means 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. In determining whether a request 

falls within this category, the Executive 

Secretary will determine the use to 

which a requester will put the records 

requested and seek additional 

information as the Executive Secretary 

deems necessary. 

* * * * * 

G) Noncommercial scientific 

institution means an institution that is 

not operated on a ‘‘commercial’’ basis as 

that term is referenced in section 

1101.4(b)(5)(i)(E), and which is operated 

solely for the purposes of conducting 

scientific research, the results of which 

are not intended to promote any 

particular product or industry. 

(H) Representative of the news media 

means 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 clause, 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 

or subscription by or free distribution to 

the general public. These examples are 

not all-inclusive. 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. 

* * * * * 

(ii) * * * 

(C) * * * 

(2 ) The fee for documents generated 

by computer is the hourly rate for the 

computer operator (at GS 7, step 5, plus 

16 percent for benefits if clerical staff, 

and GS 13, step 5, plus 16 percent for 

benefits if professional staff) plus the 

cost of materials (computer paper, tapes, 

disks, labels, etc.). 

* * * * * 

(F) Other services. Complying with 

requests for special services such as 

certifying records as true copies or 

mailing records by express mail is 

entirely at the discretion of the Council. 

The Council will recover the full costs 

of providing such services to the extent 

it elects to provide them. 

* * * * * 

(H) Waiving or reducing fees. As part 

of the initial request for records, a 

requester may ask that the Council 

waive or reduce fees if disclosure of the 

records is in the public interest because 

it is likely to contribute significantly to 

public understanding of the operations 

or activities of the Council and is not 

primarily in the commercial interest of 

the requester. The initial request for 

records must also state the justification 

for a waiver or reduction of fees. 

Determinations as to a waiver or 

reduction of fees will be made by the 

Executive Secretary of the Council and 

the requester will be notified in writing 

of his/her determination. A 

determination not to grant a request for 

a waiver or reduction of fees under this 

paragraph may be appealed to the 

Chairman of the Council pursuant to the 

procedure set forth in paragraph 

(b)(3)(vi) of this section. 

(iii) Categories of requesters. (A) 

Commercial use requesters. The Council 

will assess fees for commercial use 

requesters sufficient to recover the full 

direct costs of searching for, reviewing 

for release, the duplicating the records 

sought. 

* * * * * 

(iv) Interest on unpaid fees. The 

Council may begin assessing interest 

charges on an unpaid bill starting on the 

31st day following the day on which the 

bill was sent. Interest will be at the rate 

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

accrue from the date of the billing. 

* * * * * 

(B) A requester has previously failed 

to pay a fee charged in a timely fashion. 

The Council may require the requester 

to pay the full amount owed plus any 

applicable interest as provided in 

section 1101.4(b)(5)(iv) or demonstrate 

that he/she has, in fact, paid the fee, and 

to make an advance payment of the full 

amount of the estimated fee before the 

Council begins to process a new request 

or a pending request from that requester. 

(C) When the Council acts under 

section 1101.4(b)(5)(vii) (A) or (B), the 

administrative time limits prescribed in 

subsection (a)(6) of the FOIA (i.e., 20 

working days from receipt of initial 

requests, plus permissible extensions of 

these time limits) will begin only after 

the Council has received the fee 

payments described. 

(6) Records of another agency. If a 

requested record originated with or 

incorporates the information of another 

state or federal agency or department, 

upon receipt of a request for the record 

the Council will promptly inform the 

requester of this circumstance and 

immediately shall forward the request to 

the originating agency or department 

either for processing in accordance with 

the latter’s regulations or for guidance 

with respect to disposition. 

Dated at Arlington, Virginia, this 26th day 

of August 2010. 

Federal Financial Institutions Examination 

Council. 

Paul Sanford, 

Executive Secretary. 

[FR Doc. 2010–21667 Filed 9–2–10; 8:45 am] 

BILLING CODE P 


erowe on DSK5CLS3C1PROD with PROPOSALS-1