Implementation of the Freedom of Information Act, 21628-21637 [2012-8625]

Agencies

• Financial Stability Oversight Council

[Federal Register Volume 77, Number 70 (Wednesday, April 11, 2012)]
[Rules and Regulations]
[Pages 21628-21637]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-8625]


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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.

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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 
overly-strict procedural requirements in Sec.  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, Sec.  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 Sec.  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 Sec.  1301.5(b)(7) to allow a requester to seek a fee waiver 
at a later time.
    Regarding the procedures in Sec.  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 Sec.  1301.6 to more clearly describe how it will treat 
documents originated by federal agencies and state agencies.
    In Sec.  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

[[Page 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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 high-level 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-by-case 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 
https://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 Sec.  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 Sec.  1301.4, and the term 
``governmental entity'' was removed from Sec.  1301.12. Further, in 
Sec.  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

0
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.


Sec.  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.


Sec.  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 Sec.  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 Sec.  1301.4); and
    (3) Information required to be made available to any member of the 
public upon specific request (see Sec. Sec.  1301.5 through 1301.12).
    (b) Right of access. Subject to the exemptions and exclusions set 
forth in

[[Page 21630]]

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.


Sec.  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.


Sec.  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 
Sec. Sec.  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 Sec.  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.


Sec.  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

[[Page 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 Sec.  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 Sec.  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 Sec.  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 
Sec.  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.


Sec.  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.


Sec.  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 Sec.  1301.7(c)(2)(ii) and (iii), may nevertheless be 
granted.

[[Page 21632]]

    (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 Sec.  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 Sec.  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 twenty-day 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 Sec.  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.


Sec.  1301.8  Responses to requests for Council records.

    (a) Acknowledgement of requests. Upon receipt of a request that 
meets the requirements of Sec.  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 Sec.  1301.5(c); and
    (4) A confirmation, with respect to any fees that may apply to the 
request pursuant to Sec.  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.

[[Page 21633]]

    (b) Initial determination to grant or deny a request. (1) In 
general. The Council records officer (as designated in Sec.  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 Sec.  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 Sec.  
1301.11. The response shall specify the official to whom the appeal 
shall be submitted for review.


Sec.  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.


Sec.  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

[[Page 21634]]

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).


Sec.  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 
Sec.  1301.8(b)(4));
    (2) To assign a particular fee category to the requester (as 
provided in Sec.  1301.12(c));
    (3) To deny a request for a reduction or waiver of fees (as 
provided in Sec.  1301.12(f)(7));
    (4) That no records could be located that are responsive to the 
request (as provided in Sec.  1301.8(b)(5)); or
    (5) To deny a request for expedited processing (as provided in 
Sec.  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 Sec.  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 Sec.  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.


Sec.  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 8\1/2\ 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

[[Page 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 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.
    (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 non-commercial 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

[[Page 21636]]

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 
Sec. Sec.  1301.7 or 1301.11, and no unusual circumstances (as that 
term is defined in Sec.  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 Sec.  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 Sec.  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 Sec.  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

[[Page 21637]]

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