Rules Regarding Availability of Information, 18423-18431 [2021-06912]

Agencies

• FEDERAL RESERVE SYSTEM
• Federal Open Market Committee

[Federal Register Volume 86, Number 67 (Friday, April 9, 2021)]
[Rules and Regulations]
[Pages 18423-18431]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-06912]


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FEDERAL RESERVE SYSTEM

Federal Open Market Committee

12 CFR Part 271

[Docket No. R-1665]
RIN 7100 AF-51


Rules Regarding Availability of Information

AGENCY: Federal Open Market Committee (``Committee''), Federal Reserve 
System.

ACTION: Final rule.

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SUMMARY: The Committee is issuing a final rule revising its Rules 
Regarding Availability of Information. The revisions clarify and update 
the Committee's regulation implementing the Freedom of Information Act 
(``FOIA'').

DATES: This final rule is effective on May 10, 2021.

FOR FURTHER INFORMATION CONTACT: Matthew Luecke, Deputy Secretary of 
the Committee, (202) 452-2576, Federal Open Market Committee, 20th 
Street and Constitution Avenue NW, Washington, DC 20551; Misty M. 
Kheterpal, Senior Counsel, (202) 452-2597, or Eric Stitely, Senior 
Attorney, (202) 872-4944; Board of Governors of the Federal Reserve 
System, 20th Street and Constitution Avenue NW, Washington, DC 20551.

SUPPLEMENTARY INFORMATION: 

I. Background

    On October 15, 2020, the Committee published a notice of proposed 
rulemaking \1\ (``proposal'') in the Federal Register revising its 
Rules Regarding Availability of Information (the ``Committee's Rules'') 
found at 12 CFR part 271, with a 60-day public comment period ending on 
December 14, 2020. The Committee's Rules set forth the procedures for 
requesting access to documents that are records of the Committee under 
the FOIA.
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    \1\ 85 FR 65262 (October 15, 2020).
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II. Comments Received

    The Committee received 51 comment letters on its proposal to revise 
the Committee's Rules, with the vast majority of the comments having 
been submitted by individuals. Of these, several comment letters were 
about the proposal and suggested further clarifications and revisions 
to particular provisions. The Committee made a few changes to address 
these comments, which are discussed below. The remaining comments were 
not related to the Committee's Rules and focused instead on general 
concerns ranging from monetary policy to the Federal Reserve's creation 
of emergency lending facilities. As these commenters did not comment 
substantively on the Committee's Rules or reference any particular 
provision of the Committee's Rules, the Committee did not make any 
changes based on those comments.

Section-by-Section Analysis of Comments

SUBPART A--General
    While the Committee did not receive any comments directly on 
proposed Sec.  271.1, which sets forth the authority,

[[Page 18424]]

purpose, and scope of the Committee's Rules, one commenter suggested 
that the Committee establish a commitment to transparency in its 
guidance or policies consistent with President Obama's 2009 FOIA 
memorandum (the ``Obama FOIA memorandum''). The Obama FOIA memorandum 
directed the Attorney General to provide guidance to agencies 
``reaffirming the commitment to accountability and transparency.'' \2\ 
The Committee believes that its guidance and policies have established 
this commitment to transparency, and it specifically notes that its 
``Statement on Longer-Run Goals and Monetary Policy Strategy'' includes 
a commitment to fulfilling its statutory mandate from Congress by 
``explain[ing] its monetary policy decisions to the public as clearly 
as possible.'' Such clarity ``enhances transparency and accountability, 
which [is] essential in a democratic society.'' \3\ The FOMC Chief FOIA 
Officer report also emphasizes the Committee's commitment to 
transparency by noting the Committee ``continues to implement its FOIA 
program with a presumption of openness, a spirit of cooperation, and an 
approach that utilizes technology to support effective systems that 
enable proactive disclosures and timely responses to FOIA requests.'' 
\4\
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    \2\ https://obamawhitehouse.archives.gov/the-press-office/freedom-information-act.
    \3\ https://www.federalreserve.gov/monetarypolicy/files/FOMC_LongerRunGoals.pdf. This statement was reaffirmed by the 
Committee on January 26, 2021.
    \4\ https://www.federalreserve.gov/foia/files/2020fomcchieffoiaofficerreport.pdf.
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    Finally, the Obama FOIA memorandum reminds agencies to act ``in a 
spirit of cooperation, recognizing that such agencies are servants of 
the public.'' \5\ To further reinforce the Committee's commitment to 
public service, the Committee is modifying Sec.  271.1(a) to note that 
the Committee's Rules establish mechanisms to carry out the Committee's 
responsibilities relating to the disclosure, production, or withholding 
of information ``to facilitate the Committee's interactions with the 
public.''
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    \5\ https://obamawhitehouse.archives.gov/the-press-office/freedom-information-act.
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    The Committee did not receive any other comments on Sec. Sec.  
271.1, 271.2, 271.3, and 271.4, and the final rule adopts the remainder 
of Subpart A as proposed with the exception of one minor edit to the 
definition of ``Committee'' (Sec.  271.2(b)) to replace the word 
``Chairman'' with its gender-neutral equivalent of ``Chair.''
SUBPART B--Published Information and Records Available to Public; 
Procedures for Requests
Sec.  271.10 Published information.

    The Committee did not receive any comments on Sec.  271.10, and the 
final rule adopts the section as proposed.

Sec.  271.11 Records available to the public upon request.

    The Committee received one comment on Sec.  271.11(c)(1), which 
provides ``the Committee will consider the request to be perfected on 
the date the secretary of the Committee receives a request that 
contains all of the information required by paragraphs (b)(1)-(3) of 
this section.'' The commenter voiced concern that the provision could 
be used as a way for the Committee to delay its FOIA obligations and 
suggested that the language be changed so that the time period for 
processing a FOIA request begins when the Committee receives a 
``substantially complete request with all necessary information to 
allow the Federal Reserve to locate the requested documents.'' The 
Committee considered the comment and did not make any changes because 
the section is consistent with the statutory requirements set forth in 
the FOIA.
    Specifically, the FOIA provides that, in accordance with 5 U.S.C. 
552 (a)(6)(A)(i), each agency shall make a determination within 20 days 
on whether it will comply with the request. This 20-day requirement, 
however, does not begin until the agency receives a request that 
satisfies the statutory requirements set forth in 5 U.S.C. 552 
(a)(3)(A), which mandates that the request ``(i) reasonably describes 
such records and (ii) is made in accordance with published rules 
stating the time, place, fees (if any), and procedures to be 
followed.'' Accordingly, the Committee finds that the information 
required under Sec.  271.11(b)(1)-(3) (contact information, a 
reasonably described request, and an agreement to pay applicable fees) 
to perfect the request under Sec.  271.11(c)(1), and thereby begin the 
20-day agency response requirement, is appropriate as it is consistent 
with the statutory requirements set forth in the FOIA (5 U.S.C. 552 
(a)(3)(A)). Therefore, the Committee finds that no change is warranted.
    The Committee did not receive any other comments on Sec.  271.11, 
and the final rule adopts the section as proposed.

Sec.  271.12 Processing requests.

    The Committee received one comment on Sec.  271.12(c)(2), which 
states, in relevant part, ``a requester who is not a full-time member 
of the news media must establish that the requester is a person whose 
primary professional activity or occupation is information 
dissemination, though it need not be the requester's sole occupation.'' 
The commenter observed that the word ``professional'' is not found in 
the FOIA statutory language and that its inclusion therefore denies 
expedited processing to those requesters such as citizen-advocates who 
are not engaged in a professional activity or occupation of 
disseminating information. The Committee declined to make any changes, 
however, because both the legislative history of the FOIA and relevant 
case law support a narrowly construed definition of a ``person 
primarily engaged in disseminating information.'' \6\ As the DC 
District noted, ``given Congressional and D.C. Circuit direction that 
the category be narrowly construed, this Court must be cautious in 
deeming non-media organizations as persons primarily engaged in 
information dissemination. As noted in the legislative history, the 
category should not include individuals who are engaged only 
incidentally in the dissemination of information.'' \7\ Accordingly, 
the Committee notes that the inclusion of the word ``professional'' 
before ``activity or occupation'' is meant to ensure that the requester 
seeking expedited processing under this provision possesses the 
training and proficiency necessary to disseminate information as their 
main occupation or activity.\8\ Further, the language is verbatim from 
the DOJ's Template for FOIA Agency Regulations (``DOJ Template''), 
which the DOJ established to provide agencies with sample language for 
regulation provisions, including requirements detailed in the FOIA 
statute and policy changes reflected from judicial decisions.\9\ 
Therefore, the Committee believes retaining the word ``professional'' 
in Sec.  271.12(c)(2) is appropriate.
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    \6\ 5 U.S.C. 552 (a)(6)(E)(v)(II).
    \7\ Landmark Legal Found. v. EPA, 910 F. Supp. 2d 270, 275 
(D.D.C. 2012) (quoting H. R. Rep. No. 104-795, at 26 (emphasis 
added)).
    \8\ ``Professional'' definition, Black's Law Dictionary (11th 
ed. 2019) available at Westlaw.
    \9\ U.S. Department of Justice, Office of Information Policy, 
Template for Agency FOIA Regulations, https://www.justice.gov/oip/template-agency-foia-regulations (last updated Feb. 22, 2017).
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    The Committee did not receive any other comments on Sec.  271.12, 
and the final rule adopts the section as proposed.

Sec.  271.13 Responses to requests.


[[Page 18425]]


    The Committee did not receive any comments on Sec.  271.13, and the 
final rule adopts the section as proposed.

Sec.  271.14 Appeals.

    The Committee did not receive any comments on Sec.  271.14, and the 
final rule adopts the section as proposed, with one minor edit to 
account for an administrative change related to the process for 
submitting a FOIA appeal. The Committee modified paragraph (a)(1) to 
replace the email address for submitting FOIA appeals, [email protected], with a hyperlink to the FOMC FOIA Appeals website: 
https://www.federalreserve.gov/foia/fomc/appeals.htm.

Sec.  271.15 Exemptions from disclosure.

    Section 271.15(a) incorporates the statutory exemptions from 
disclosure that are set forth in 5 U.S.C 552(b) of the FOIA. Despite 
the Committee only proposing minor, technical changes to this section, 
the Committee received several comments on the incorporated statutory 
language. These exemptions, which were created by Congress, allow 
agencies to withhold certain information protected from disclosure. Of 
note, several commenters expressed concern that Sec.  271.15(a)(1), 
which incorporates exemption 1 of the FOIA (5 U.S.C. 552 (b)(1)), would 
provide the basis for the Committee to withhold information pursuant to 
an unidentified Executive order.\10\ Commenters raised concerns that 
this exemption would be used to ``circumnavigate the Rule of Law'' or 
``defy subpoenas.''
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    \10\ Section 271.15(a)(1) exempts from disclosure ``[a]ny 
information that is specifically authorized under criteria 
established by an Executive order to be kept secret in the interest 
of national defense or foreign policy and is in fact properly 
classified pursuant to the Executive order.''
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    Similarly, the Committee received one comment each on the language 
set forth in Sec. Sec.  271.15(a)(5), which incorporates exemption 5 of 
the FOIA, and (a)(8), which incorporates exemption 8 of the FOIA.\11\ 
These commenters voiced concerns on how the Committee would use these 
exemptions and asked that the exemptions be narrowly construed. The 
Committee determined that no changes are needed in response to these 
comments because the language set forth in Sec. Sec.  271.15(a)(1), 
(a)(5), and (a)(8), incorporates the statutory language of the FOIA (5 
U.S.C. 552(b)(1), (b)(5), and (b)(8)). Further, while subject to minor 
and technical changes, these exemptions have been included in the 
Committee's Rules since 1967.
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    \11\ Section 271.15(a)(5) exempts from disclosure ``[i]nter- or 
intra-agency memorandums or letters that would not be available by 
law to a party other than an agency in litigation with the 
Committee, provided that the deliberative process privilege shall 
not apply to records that were created 25 years or more before the 
date on which the records were requested.'' Section 271.15(a)(8) 
exempts from disclosure ``[a]ny matter that is contained in or 
related to examination, operating, or condition reports prepared by, 
on behalf of, or for the use of an agency responsible for the 
regulation or supervision of financial institutions, including a 
state financial institution supervisory agency.''
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    The Committee did not receive any other comments on Sec.  271.15, 
and the final rule adopts the section as proposed.

Sec.  271.16 Fee schedules; waiver of fees.

    The Committee received three comments on Sec.  271.16. One 
commenter noted that Sec.  271.16(d) fails to define the fourth 
category of ``all other requesters.'' The Committee agrees that the 
provision should address ``all other requesters'' and thus has added 
language to Sec.  271.16(d) to include an ``all other requesters'' 
category for the purpose of assessing fees.
    The same commenter noted that Sec.  271.16(f) should clarify that 
only multiple requests for records on the same or similar subject 
matter(s) would be considered related for purposes of aggregation. 
After reviewing the statute and the DOJ Template, the Committee has 
added language to Sec.  271.16(f) noting that multiple requests 
involving unrelated matters cannot be aggregated.
    The Committee also received a comment observing that the language 
in Sec.  271.16(h) stating ``[i]f the Committee fails to comply with 
the FOIA's time limits in which to respond to a request, the Committee 
may not charge search fees'' softens the statutory language, which 
states that search fees shall not be charged (emphasis added). The 
Committee notes that this language is the same as the DOJ Template 
which uses ``may'' rather than ``shall.'' \12\ In practice, there is no 
distinction as the Committee interprets the phrase ``the Committee may 
not charge search fees'' to mean that it will not charge search fees in 
the event it fails to comply with the FOIA's statutory time limits. 
Therefore, the final rule retains the word ``may'' in Sec.  271.16(h).
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    \12\ The term ``may'' is considered synonymous with the terms 
``shall'' or ``must'' in a legislative context. See definition of 
``may,'' Black's Law Dictionary (11th ed. 2019) available at 
Westlaw.
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    Finally, the Committee received a comment on Table 1 to Sec.  
271.16--Fees. The commenter observed that the table ``does not clarify 
that duplication fees should not be charged for provision of digital 
records such as a pdf file, unless scanning or duplication is actually 
required.'' The Committee notes that Table 1 lists the charges for 
photocopying, as well as other types of duplication. For other types of 
duplication, Table 1 provides that charges will be limited to ``direct 
costs'' which are defined in Sec.  271.16(b)(2). Accordingly, the 
Committee believes the provision sufficiently addresses duplication 
fees and therefore, changes to this provision are not necessary. The 
Committee did not receive any other comments on Sec.  271.16, and the 
final rule adopts the remainder of the section as proposed.
SUBPART C--Subpoenas, Orders Compelling Production, and Other Process
    The Committee did not receive any comments on Subpart C, and the 
final rule adopts the section as proposed.

III. Administrative Law Matters

Regulatory Flexibility Act

    In accordance with the Regulatory Flexibility Act (``RFA''), 5 
U.S.C. 601 et seq., the Committee published an initial regulatory 
flexibility analysis with the proposal. The Committee did not receive 
any comments on its initial regulatory flexibility analysis. The RFA 
requires a Federal agency to prepare a final regulatory flexibility 
analysis unless the agency certifies that the rule will not, if 
promulgated, have a significant economic impact on a substantial number 
of small entities. Based on its analysis, and for the reasons stated 
below, the Committee certifies that the final rule will not have a 
significant economic impact on a substantial number of small 
entities.\13\ Under regulations issued by the Small Business 
Administration, a small entity includes a bank, bank holding company, 
or savings and loan holding company with assets of $600 million or less 
and trust companies with annual receipts of $41.5 million or less.\14\
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    \13\ 5 U.S.C. 605(b).
    \14\ See 13 CFR 121.201; 84 FR 34261 (July 18, 2019).
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    As stated in the initial regulatory flexibility analysis, the 
requirements set forth in the Committee's Rules with respect to 
requests for Committee records under the FOIA apply equally to all 
persons and to all entities regardless of their size. The Committee's 
Rules, which in part introduces organizational changes to clarify the 
Committee's FOIA regulation, do not impose material economic effects on 
FOIA requesters, including any FOIA requesters that would be small 
entities. Notably, consistent with the FOIA, the Committee's fees for 
processing FOIA requests are limited to reasonable standard charges, 
and the processing fees have not been increased by the final rule. 
Further, the final rule imposes minimal reporting, recordkeeping, or

[[Page 18426]]

other compliance requirements. For these reasons, the Committee 
certifies that the final rule will not have a significant economic 
impact on a substantial number of small entities.

List of Subjects in 12 CFR Part 271

    Federal Open Market Committee, Freedom of Information.

Authority and Issuance

0
For the reasons stated in the preamble, the Federal Open Market 
Committee revises 12 CFR part 271 to read as follows:

PART 271--RULES REGARDING AVAILABILITY OF INFORMATION

Subpart A--General
Sec.
271.1 Authority, purpose, and scope.
271.2 Definitions.
271.3 Certification of record; service of subpoenas or other 
process.
271.4 Prohibition against disclosure.
Subpart B--Published Information and Records Available to Public; 
Procedures for Requests
271.10 Published information.
271.11 Records available to the public upon request.
271.12 Processing requests.
271.13 Responses to requests.
271.14 Appeals.
271.15 Exemptions from disclosure.
271.16 Fee schedules; waiver of fees.

Subpart C--Subpoenas, Orders Compelling Production, and Other 
Process

271.20 Subpoenas, orders compelling production, and other process.

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

Subpart A--General


Sec.  271.1   Authority, purpose, and scope.

    (a) Authority and purpose. This part establishes mechanisms for 
carrying out the Federal Open Market Committee's (Committee) statutory 
responsibilities relating to the disclosure, production, or withholding 
of information to facilitate the Committee's interactions with the 
public. In this regard, the Committee has determined that the 
Committee, or its delegees, may disclose exempt information of the 
Committee, in accordance with the procedures set forth in this part, 
whenever it is necessary or appropriate to do so in the exercise of any 
of the Committee's authorities, including but not limited to authority 
granted to the Committee in the Freedom of Information Act, 5 U.S.C. 
552, and section 12A of the Federal Reserve Act, 12 U.S.C. 263. The 
Committee has determined that all such disclosures made in accordance 
with the rules and procedures specified in this part are authorized by 
law. This part also sets forth the categories of information made 
available to the public, the procedures for obtaining information and 
records, the procedures for limited release of exempt information, and 
the procedures for protecting confidential business information.
    (b) Scope. (1) Subpart A of this part contains general provisions 
and definitions of terms used in this part.
    (2) Subpart B of this part implements the Freedom of Information 
Act (FOIA) (5 U.S.C. 552).
    (3) Subpart C of this part sets forth the procedures with respect 
to subpoenas, orders compelling production, and other process.


Sec.  271.2   Definitions.

    For purposes of this part:
    (a) Board means the Board of Governors of the Federal Reserve 
System established by the Federal Reserve Act of 1913 (38 Stat. 251).
    (b) Committee means the Chair of the Committee or the Chair's 
designee.
    (c) Exempt information means information that is exempt from 
disclosure pursuant to Sec.  271.15(a).
    (d) Federal Reserve Bank or Reserve Bank means one of the District 
Banks authorized by the Federal Reserve Act, 12 U.S.C. 222, including 
any branch of any such bank.
    (e) Records of the Committee or Committee records include all 
information coming into the possession of the Committee or any member 
thereof or of any officer, employee, or agent of the Committee, the 
Board, or any Federal Reserve Bank, in the performance of duties for, 
or pursuant to the direction of, the Committee. These records include 
rules, statements, decisions, minutes, memoranda, letters, reports, 
transcripts, accounts, charts, and other written material.
    (f) Search means:
    (1) A reasonable search of such records of the Committee as seem 
likely in the particular circumstances to contain information of the 
kind requested.
    (2) As part of the Committee's search for responsive records, the 
Committee is not obligated to conduct any research, create any 
document, or modify an electronic program or automated information 
system.
    (g) Working day means any day except Saturday, Sunday, or a legal 
Federal holiday.


Sec.  271.3   Certification of record; service of subpoenas or other 
process.

    (a) Certification of record. The secretary of the Committee may 
certify the authenticity of any Committee record, or any copy of such 
record, for any purpose, and for or before any duly constituted Federal 
or state court, tribunal, or agency.
    (b) Service of subpoenas or other process. Subpoenas or other 
judicial or administrative process demanding access to any Committee 
records or making any claim against the Committee or against Committee 
members or staff in their official capacity shall be addressed to and 
served upon the Secretary of the Committee, Federal Open Market 
Committee, 20th Street & Constitution Avenue NW, Washington, DC 20551. 
The Committee does not accept service of process on behalf of any 
employee in respect of purely private legal disputes.


Sec.  271.4   Prohibition against disclosure.

    Except as provided in this part or as otherwise authorized, no 
officer, employee, or agent of the Board or any Reserve Bank shall 
disclose or permit the disclosure of any exempt information of the 
Committee to any person other than Board or Reserve Bank officers, 
employees, or agents properly entitled to such information in the 
performance of duties for, or pursuant to the direction of, the 
Committee.

Subpart B--Published Information and Records Available to Public; 
Procedures for Requests


Sec.  271.10   Published information.

    (a) Federal Register. The Committee publishes, or incorporates by 
reference, in the Federal Register for the guidance of the public:
    (1) A description of its organization;
    (2) Statements of the general course and method by which its 
functions are channeled and determined, including the nature and 
requirements of procedures;
    (3) Rules of procedure;
    (4) Substantive rules, interpretations of general applicability, 
and statements of general policy formulated and adopted by the 
Committee;
    (5) Every amendment, revision, or repeal of the foregoing in 
paragraphs (a)(1) through (4) of this section; and
    (6) Other notices as required by law.
    (b) Publicly available information--(1) Electronic reading room. 
Information relating to the Committee, including its open market 
operations, is made publicly available on the websites of the Board and 
the Federal Reserve Banks, as well as in the Committee's electronic 
reading room, https://www.federalreserve.gov/foia/fomc/readingrooms.htm#rr1. The Committee

[[Page 18427]]

also makes the following records available in its electronic reading 
room.
    (i) Final opinions, including concurring and dissenting opinions, 
as well as final orders and written agreements, made in the 
adjudication of cases.
    (ii) Statements of policy and interpretations adopted by the 
Committee that are not published in the Federal Register.
    (iii) Administrative staff manuals and instructions to staff that 
affect the public.
    (iv) Copies of all records, regardless of form or format--
    (A) That have been released to any person under Sec.  271.11; and
    (B)(1) That because of the nature of their subject matter, the 
Committee has determined have become or are likely to become the 
subject of subsequent requests for substantially the same records; or
    (2) That have been requested three or more times.
    (v) A general index of the records referred to in paragraph 
(b)(1)(iv) of this section.
    (2) Inspection in electronic format at Reserve Banks. The Committee 
may determine that certain classes of publicly available filings shall 
be made available for inspection in electronic format only at the 
Reserve Bank where those records are filed.
    (3) Privacy protection. The Committee may delete identifying 
details from any public record to prevent a clearly unwarranted 
invasion of personal privacy.


Sec.  271.11   Records available to the public upon request.

    (a) Procedures for requesting records. (1) Requesters are 
encouraged to submit requests electronically using the online request 
form located at www.federalreserve.gov/secure/forms/FOMCForm.aspx. 
Alternatively, requests may be submitted in writing to the Secretary of 
the Committee, Federal Open Market Committee, 20th Street and 
Constitution Avenue NW, Washington, DC 20551; or sent by facsimile to 
the Secretary of the Committee, (202) 452-2921. Clearly mark the 
request FREEDOM OF INFORMATION ACT REQUEST.
    (2) A request may not be combined with any other request or FOIA 
appeal.
    (b) Contents of request. A request must include:
    (1) The requester's name, address, daytime telephone number, and an 
email address if available.
    (2) A description of the records that enables the Committee to 
identify and produce the records with reasonable effort and without 
unduly burdening or significantly interfering with any of the 
Committee's operations. Whenever possible, the request should include 
specific information about each record sought, such as the date, title 
or name, author, recipient, and subject matter of the record.
    (3) A statement agreeing to pay the applicable fees. If the 
information requested is not intended for a commercial use (as defined 
in Sec.  271.16(d)(1)) and the requester seeks a reduction or waiver of 
fees because he or she is either a representative of the news media, an 
educational institution, or a noncommercial scientific institution, the 
requester should include the information called for in Sec.  
271.16(g)(2).
    (c) Perfected and defective requests. (1) The Committee will 
consider the request to be perfected on the date the secretary of the 
Committee receives a request that contains all of the information 
required by paragraphs (b)(1) through (3) of this section.
    (2) The Committee need not accept or process a request that does 
not reasonably describe the records requested or that does not 
otherwise comply with the requirements of this section.
    (3) The Committee may return a defective request, specifying the 
deficiency. The requester may submit a corrected request, which will be 
treated as a new request.


Sec.  271.12   Processing requests.

    (a) Receipt of requests. Upon receipt of any request that satisfies 
the requirements set forth in Sec.  271.11, the Committee shall assign 
the request to the appropriate processing schedule, pursuant to 
paragraph (b) of this section. The date of receipt for any request, 
including one that is addressed incorrectly or that is referred to the 
Committee by another agency or by a Federal Reserve Bank, is the date 
the secretary of the Committee actually receives the request.
    (b) Multitrack processing. (1) The Committee provides different 
levels of processing for categories of requests under this section.
    (i) Requests for records that are readily identifiable by the 
Committee and that have already been cleared for public release or can 
easily be cleared for public release may qualify for simple processing.
    (ii) All other requests shall be handled under normal processing 
procedures, unless expedited processing has been granted pursuant to 
paragraph (c) of this section.
    (2) The Committee will make the determination whether a request 
qualifies for simple processing. A requester may contact the Committee 
to learn whether a particular request has been assigned to simple 
processing. If the request has not qualified for simple processing, the 
requester may limit the scope of the request in order to qualify for 
simple processing by contacting the Committee in writing, by letter or 
email, or by telephone.
    (c) Expedited processing. (1) A request for expedited processing 
may be made at any time. A request for expedited processing must be 
clearly labeled ``Expedited Processing Requested.'' The Committee will 
process requests and appeals on an expedited basis whenever it is 
determined that they involve:
    (i) Circumstances in which the lack of expedited processing could 
reasonably be expected to pose an imminent threat to the life or 
physical safety of an individual; or
    (ii) An urgency to inform the public about an actual or alleged 
Federal Government activity, if made by a person who is primarily 
engaged in disseminating information.
    (2) A requester who seeks expedited processing must submit a 
statement, certified to be true and correct, explaining in detail the 
basis for making the request for expedited processing. For example, 
under paragraph (c)(1)(ii) of this section, a requester who is not a 
full-time member of the news media must establish that the requester is 
a person whose primary professional activity or occupation is 
information dissemination, though it need not be the requester's sole 
occupation. Such a requester also must establish a particular urgency 
to inform the public about the Government activity involved in the 
request--one that extends beyond the public's right to know about 
Federal Government activity generally. The existence of numerous 
articles published on a given subject can be helpful in establishing 
the requirement that there be an ``urgency to inform'' the public on 
the topic. As a matter of administrative discretion, the Committee may 
waive the formal certification requirement.
    (3) Within 10 calendar days of receipt of a request for expedited 
processing, the Committee will notify the requester of its decision on 
the request. A denial of expedited processing may be appealed to the 
Committee in accordance with Sec.  271.14. The Committee will respond 
to the appeal within 10 working days of receipt of the appeal.
    (d) Priority of responses. The Committee will normally process

[[Page 18428]]

requests in the order they are received in the separate processing 
tracks, except when expedited processing is granted in which case the 
request will be processed as soon as practicable.
    (e) Time limits. The time for response to requests shall be 20 
working days from when a request is perfected. Exceptions to the 20-day 
time limit are only as follows:
    (1) In the case of expedited treatment under paragraph (c) of this 
section, the Committee shall give the expedited request priority over 
non-expedited requests and shall process the expedited request as soon 
as practicable.
    (2) Where the running of such time is suspended for a requester to 
address fee requirements pursuant to Sec.  271.16(c)(1) or (2).
    (3) In unusual circumstances, as defined in 5 U.S.C. 552(a)(6)(B), 
the Committee may:
    (i) Extend the 20-day time limit for a period of time not to exceed 
10 working days, where the Committee has provided written notice to the 
requester setting forth the reasons for the extension and the date on 
which a determination is expected to be dispatched; and
    (ii) Extend the 20-day time limit for a period of more than 10 
working days where the Committee has provided the requester with an 
opportunity to modify the scope of the FOIA request so that it can be 
processed within that time frame or with an opportunity to arrange an 
alternative time frame for processing the original request or a 
modified request, and has notified the requester that the Committee's 
FOIA Public Liaison is available to assist the requester for purposes 
of this paragraph (e)(3)(ii) and in the resolution of any disputes 
between the requester and the Committee, and of the requester's right 
to seek dispute resolution services from the Office of Government 
Information Services.


Sec.  271.13   Responses to requests.

    (a) When the Committee receives a perfected request, it will 
conduct a reasonable search of Committee records in its possession on 
the date the Committee's search begins and will review any responsive 
information it locates.
    (b) If a request covers documents that were created by, obtained 
from, or classified by another agency, the Committee may refer the 
request for such documents to that agency for a response and inform the 
requester promptly of the referral. To the extent there is confidential 
supervisory information, as that term is defined by 12 CFR 261.2(b), 
contained within Committee records, disclosure of such information will 
be handled in consultation with the Board.
    (c) In responding to a request, the Committee will withhold 
information under this section only if--
    (1) The Committee reasonably foresees that disclosure would harm an 
interest protected by an exemption described in Sec.  271.15(a); or
    (2) Disclosure is prohibited by law.
    (d) The Committee will take reasonable steps necessary to segregate 
and release nonexempt information.
    (e) The Committee shall notify the requester of:
    (1) The Committee's determination of the request;
    (2) The reasons for the determination;
    (3) An estimate of the amount of information withheld, if any. An 
estimate is not required if the amount of information is otherwise 
indicated by deletions marked on records that are disclosed in part or 
if providing an estimate would harm an interest protected by an 
applicable exemption;
    (4) The right of the requester to seek assistance from the 
Committee's FOIA Public Liaison; and
    (5) When an adverse determination is made, the Committee will 
advise the requester in writing of that determination and will further 
advise the requester of:
    (i) The right of the requester to appeal any adverse determination 
within 90 calendar days after the date of the determination, as 
specified in Sec.  271.14;
    (ii) The right of the requester to seek dispute resolution services 
from the Committee's FOIA Public Liaison or from the Office of 
Government Information Services; and
    (iii) The name and title or position of the person responsible for 
the adverse determination.
    (f) Adverse determinations, or denials of requests, include 
decisions that the requested record is exempt, in whole or in part; the 
request does not reasonably describe the records sought; the 
information requested is not a record subject to the FOIA; the 
requested record does not exist, cannot be located, or has been 
destroyed; or the requested record is not readily reproducible in the 
form or format sought by the requester. Adverse determinations also 
include denials involving fees or fee waiver matters or denials of 
requests for expedited treatment.
    (g) The Committee will normally send responsive, nonexempt 
documents to the requester by email but may use other means as arranged 
between the Committee and the requester or as determined by the 
Committee. The Committee will attempt to provide records in the format 
requested by the requester.


Sec.  271.14   Appeals.

    (a) If the Committee makes an adverse determination as defined in 
Sec.  271.13(f), the requester may file a written appeal with the 
Committee, as follows:
    (1) The appeal should prominently display the phrase FREEDOM OF 
INFORMATION ACT APPEAL on the first page, and can be submitted online 
at https://www.federalreserve.gov/foia/fomc/appeals.htm or, if sent by 
mail, addressed to the Secretary of the Committee, Federal Open Market 
Committee, 20th Street and Constitution Avenue NW, Washington, DC 
20551; or sent by facsimile to the Secretary of the Committee, (202) 
452-2921. If the requester is appealing the denial of expedited 
treatment, the appeal should clearly be labeled ``Appeal for Expedited 
Processing.''
    (2) A request for records under Sec.  271.11 may not be combined in 
the same letter with an appeal.
    (3) To be considered timely, an appeal must be postmarked, or in 
the case of electronic submissions, transmitted, within 90 calendar 
days after the date of the adverse determination.
    (b) Except as provided in Sec.  271.12(c)(3), the Committee shall 
make a determination regarding any appeal within 20 working days of 
actual receipt of the appeal by the Committee. If an adverse 
determination is upheld on appeal, in whole or in part, the 
determination letter shall notify the appealing party of the right to 
seek judicial review and of the availability of dispute resolution 
services from the Office of Government Information Services as a non-
exclusive alternative to litigation.
    (c) The Committee may reconsider an adverse determination, 
including one on appeal, if intervening circumstances or additional 
facts not known at the time of the adverse determination come to the 
attention of the Committee.


Sec.  271.15   Exemptions from disclosure.

    (a) Types of records exempt from disclosure. Pursuant to 5 U.S.C. 
552(b), the following records of the Committee are exempt from 
disclosure under this part.
    (1) Any information that is specifically authorized under criteria 
established by an Executive order to be kept secret in the interest of 
national defense or foreign policy and is in fact properly classified 
pursuant to the Executive order.
    (2) Any information related solely to the internal personnel rules 
and practices of the Committee.

[[Page 18429]]

    (3) Any information specifically exempted from disclosure by 
statute to the extent required by 5 U.S.C. 552(b)(3).
    (4) Any matter that is a trade secret or that constitutes 
commercial or financial information obtained from a person and that is 
privileged or confidential.
    (5) Inter- or intra-agency memorandums or letters that would not be 
available by law to a party other than an agency in litigation with the 
Committee, provided that the deliberative process privilege shall not 
apply to records that were created 25 years or more before the date on 
which the records were requested.
    (6) Any information contained in personnel and medical files and 
similar files the disclosure of which would constitute a clearly 
unwarranted invasion of personal privacy.
    (7) Any records or information compiled for law enforcement 
purposes, to the extent permitted under 5 U.S.C. 552(b)(7).
    (8) Any matter that is contained in or related to examination, 
operating, or condition reports prepared by, on behalf of, or for the 
use of an agency responsible for the regulation or supervision of 
financial institutions, including a state financial institution 
supervisory agency.
    (b) Release of exempt information. (1) Except where disclosure is 
expressly prohibited by statute, regulation, or order, the Committee 
may release records that are exempt from mandatory disclosure whenever 
the Committee determines that such disclosure would be in the public 
interest.
    (2) The fact that the Committee has determined to release 
particular exempt information does not waive the Committee's ability to 
withhold similar exempt information in response to the same or a 
different request.
    (c) Delayed release. Except as required by law, publication in the 
Federal Register or availability to the public of certain information 
may be delayed if immediate disclosure would likely:
    (1) Interfere with accomplishing the objectives of the Committee in 
the discharge of its statutory functions;
    (2) Interfere with the orderly conduct of the foreign affairs of 
the United States;
    (3) Permit speculators or others to gain unfair profits or other 
unfair advantages by speculative trading in securities or otherwise;
    (4) Result in unnecessary or unwarranted disturbances in the 
securities markets;
    (5) Interfere with the orderly execution of the objectives or 
policies of other Government agencies; or
    (6) Impair the ability to negotiate any contract or otherwise harm 
the commercial or financial interest of the United States, the 
Committee, any Federal Reserve Bank, or any department or agency of the 
United States.


Sec.  271.16  Fee schedules; waiver of fees.

    (a) Fee schedules. Consistent with the limitations set forth in 5 
U.S.C. 552(a)(4)(A)(viii), the fees applicable to a request for records 
pursuant to Sec.  271.11 are set forth in Table 1 to this section. 
These fees cover only the full allowable direct costs of search, 
duplication, and review. No fees will be charged where the average cost 
of collecting the fee (calculated at $5.00) exceeds the amount of the 
fee.
    (b) For purposes of computing fees. (1) Search time includes all 
time spent looking for material that is responsive to a request, 
including line-by-line identification of material within documents. 
Such activity is distinct from ``review'' of material to determine 
whether the material is exempt from disclosure.
    (2) Direct costs mean those expenditures that the Committee 
actually incurs in searching for, reviewing, and duplicating records in 
response to a request made under Sec.  271.11, as shown in table 1 to 
this section.
    (3) Duplication refers to the process of making a copy, in any 
format, of a document.
    (4) Review refers to the process of examining documents that have 
been located as being potentially responsive to a request for records 
to determine whether any portion of a document is exempt from 
disclosure. It includes doing all that is necessary to prepare the 
documents for release, including the redaction of exempt information. 
It does not include time spent resolving general legal or policy issues 
regarding the application of exemptions.
    (c) Payment procedures. The Committee may assume that a person 
requesting records pursuant to Sec.  271.11 will pay the applicable 
fees, unless the request includes a limitation on fees to be paid or 
seeks a waiver or reduction of fees pursuant to paragraph (g) of this 
section.
    (1) Advance notification of fees. If the estimated charges are 
likely to exceed the amount authorized by the requester, the secretary 
of the Committee shall notify the requester of the estimated amount. 
Upon receipt of such notice, the requester may confer with the 
secretary of the Committee to reformulate the request to lower the 
costs or may authorize a higher amount. The time period for responding 
to requests under Sec.  271.12(e) and the processing of the request 
will be suspended until the requester agrees in writing to pay the 
applicable fees.
    (2) Advance payment. The Committee may require advance payment of 
any fee estimated to exceed $250. The Committee may also require full 
payment in advance where a requester has previously failed to pay a fee 
in a timely fashion. The time period for responding to a request under 
Sec.  271.12(e), and the processing of the request shall be suspended 
until the Committee receives the required payment.
    (3) Late charges. The Committee may assess interest charges when 
fee payment is not made within 30 days of the date on which the billing 
was sent. Interest is at the rate prescribed in 31 U.S.C. 3717 and 
accrues from the date of the billing.
    (d) Categories of uses. The fees assessed depend upon the intended 
use for the records requested. In determining which category is 
appropriate, the Committee will look to the intended use set forth in 
the request for records. Where a requester's description of the use is 
insufficient to make a determination, the Committee may seek additional 
clarification before categorizing the request.
    (1) A commercial use requester is one who requests records 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.
    (2) Representative of the news media is 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, including organizations 
that disseminate solely on the internet. The term ``news'' means 
information that is about current events or that would be of current 
interest to the public. A non-affiliated journalist who demonstrates a 
solid basis for expecting publication through a news media entity, such 
as a publishing contract or past publication record, will be considered 
as a representative of the news media.
    (3) Educational institution is any school that operates a program 
of scholarly research. A requester in this fee category must show that 
the request is made in connection with his or her

[[Page 18430]]

role at the educational institution. The Committee may seek 
verification from the requester that the request is in furtherance of 
scholarly research.
    (4) Noncommercial scientific institution is an institution that is 
not operated on a ``commercial'' basis, as defined in paragraph (d)(1) 
of this section, and that is operated solely for the purpose of 
conducting scientific research the results of which are not intended to 
promote any particular product or industry. A requester in this 
category must show that the request is authorized by and is made under 
the auspices of a qualifying institution and that the records are 
sought to further scientific research and are not for a commercial use.
    (5) All other requesters refers to those requesters who do not fall 
within any of the categories described in paragraphs (d)(1) through (4) 
of this section.
    (6) Please refer to table 1 to this section to determine what fees 
apply for different categories of users.
    (e) Nonproductive search. Fees for search and review may be charged 
even if no responsive documents are located or if the request is 
denied.
    (f) Aggregated requests. A requester may not file multiple requests 
at the same time, solely in order to avoid payment of fees. If the 
Committee reasonably believes that a requester is separating a single 
request into a series of requests for the purpose of evading the 
assessment of fees, the Committee may aggregate any such requests and 
charge accordingly. It is considered reasonable for the Committee to 
presume that multiple requests of this type made within a 30-day period 
have been made to avoid fees. Multiple requests involving unrelated 
matters cannot be aggregated.
    (g) Waiver or reduction of fees. A request for a waiver or 
reduction of the fees, and the justification for the waiver, shall be 
included with the request for records to which it pertains. If a waiver 
is requested and the requester has not indicated in writing an 
agreement to pay the applicable fees if the waiver request is denied, 
the time for response to the request for documents, as set forth in 
Sec.  271.12(e), shall not begin until either a waiver has been granted 
or, if the waiver is denied, until the requester has agreed to pay the 
applicable fees.
    (1) The Committee shall grant a waiver or reduction of fees where 
it is determined both that disclosure of the information is in the 
public interest because it is likely to contribute significantly to 
public understanding of the operation or activities of the government, 
and that the disclosure of information is not primarily in the 
commercial interest of the requester. In making this determination, the 
Committee will consider the following factors:
    (i) Whether the subject of the records would shed light on 
identifiable operations or activities of the government with a 
connection that is direct and clear, not remote or attenuated; and
    (ii) Whether disclosure of the information is likely to contribute 
significantly to public understanding of those operations or 
activities. This factor is satisfied when the following criteria are 
met:
    (A) Disclosure of the requested records must be meaningfully 
informative about government operations or activities. The disclosure 
of information that already is in the public domain, in either the same 
or a substantially identical form, would not be meaningfully 
informative if nothing new would be added to the public's 
understanding.
    (B) 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 as well as the requester's ability and 
intention to effectively convey information to the public must be 
considered. The Committee will presume that a representative of the 
news media will satisfy this consideration.
    (iii) The disclosure must not be primarily in the commercial 
interest of the requester. A commercial interest includes any 
commercial, trade, profit, or litigation interest.
    (2) A request for a waiver or reduction of fees shall include:
    (i) A clear statement of the requester's interest in the documents;
    (ii) The use proposed for the documents and whether the requester 
will derive income or other benefit for such use;
    (iii) A statement of how the public will benefit from such use and 
from the Committee's release of the documents;
    (iv) A description of the method by which the information will be 
disseminated to the public; and
    (v) If specialized use of the information is contemplated, a 
statement of the requester's qualifications that are relevant to that 
use.
    (3) The requester has the burden to present evidence or information 
in support of a request for a waiver or reduction of fees.
    (4) The Committee shall notify the requester of its determination 
on the request for a waiver or reduction of fees. The requester may 
appeal a denial in accordance with Sec.  271.14(a).
    (5) Where only some of the records to be released satisfy the 
requirements for a waiver of fees, a waiver must be granted for those 
records.
    (6) A request for a waiver or reduction of fees should be made when 
the request for records is first submitted to the Committee and should 
address the criteria referenced in paragraphs (g)(1) through (5) of 
this section. A requester may submit a fee waiver request at a later 
time so long as the underlying record request is pending or on 
administrative appeal. When a requester who has committed to pay fees 
subsequently asks for a waiver of those fees and that waiver is denied, 
the requester must pay any costs incurred up to the date the fee waiver 
request was received.
    (h) Restrictions on charging fees. (1) If the Committee fails to 
comply with the FOIA's time limits in which to respond to a request, 
the Committee may not charge search fees, or, in the instances of 
requests from requesters described in paragraphs (d)(2) through (4) of 
this section, will not charge duplication fees, except as permitted 
under paragraphs (h)(2) through (4) of this section.
    (2) If the Committee has determined that unusual circumstances 
exist, as described in 5 U.S.C. 552(a)(6)(B), and has provided timely 
written notice to the requester and subsequently responds within the 
additional 10 working days provided in Sec.  271.12(e)(3), the 
Committee may charge search fees, or in the case of requesters 
described in paragraphs (d)(2) through (4) of this section, may charge 
duplication fees.
    (3) If the Committee has determined that unusual circumstances 
exist, as described in 5 U.S.C. 552(a)(6)(B), and more than 5,000 pages 
are necessary to respond to the request, the Committee may charge 
search fees, or, in the case of requesters described in paragraphs 
(d)(2) through (4) of this section, may charge duplication fees, if the 
Committee has:
    (i) Provided timely written notice of unusual circumstances to the 
requester in accordance with the FOIA; and
    (ii) Discussed with the requester via written mail, email, or 
telephone (or made not less than three good-faith attempts to do so) 
how the requester could effectively limit the scope of the request in 
accordance with 5 U.S.C. 552(a)(6)(B)(ii).
    (4) If a court has determined that exceptional circumstances exist, 
as defined by the FOIA, a failure to comply with the time limits shall 
be excused for

[[Page 18431]]

the length of time provided by the court order.
    (i) Employee requests. In connection with any request by an 
employee, former employee, or applicant for employment, for records for 
use in prosecuting a grievance or complaint of discrimination against 
the Committee, fees shall be waived where the total charges (including 
charges for information provided under the Privacy Act of 1974 (5 
U.S.C. 552a)) are $50 or less; but the Committee may waive fees in 
excess of that amount.
    (j) Special services. The Committee may agree to provide, and set 
fees to recover the costs of, special services not covered by the FOIA, 
such as certifying records or information and sending records by 
special methods such as express mail or overnight delivery.

                                         Table 1 to Sec.   271.16--Fees
----------------------------------------------------------------------------------------------------------------
          Type of requester             Search costs per hour    Review costs per hour      Duplication costs
----------------------------------------------------------------------------------------------------------------
Commercial...........................  Clerical/Technical       Clerical/Technical       Photocopy per standard
                                        staff, $20.              staff, $20.              page, .10.
                                       Professional/            Professional/            Other types of
                                        Supervisory staff, $40.  Supervisory staff, $40.  duplication, Direct
                                                                                          Costs.
                                       Manager/Senior           Manager/Senior
                                        professional staff,      professional staff,
                                        $65.                     $65.
                                       Computer search,
                                        including computer
                                        search time, output,
                                        operator's salary,
                                        Direct Costs.
Educational; or Non-commercial         Costs waived...........  Costs waived...........  First 100 pages free,
 scientific; or News media.                                                               then:
                                                                                         Photocopy per standard
                                                                                          page, .10.
                                                                                         Other types of
                                                                                          duplication, Direct
                                                                                          Costs.
All other requesters.................  First 2 hours free,      Costs waived...........  First 100 pages free,
                                        then:.                                            then:
                                       Clerical/Technical                                Photocopy per standard
                                        staff, $20                                        page, .10.
                                       Professional/                                     Other types of
                                        Supervisory staff, $40.                           duplication, Direct
                                                                                          Costs.
                                       Manager/Senior
                                        professional staff,
                                        $65.
                                       Computer search,
                                        including computer
                                        search time, output,
                                        operator's salary,
                                        Direct Costs.
----------------------------------------------------------------------------------------------------------------

Subpart C--Subpoenas, Orders Compelling Production, and Other 
Process


Sec.  271.20  Subpoenas, orders compelling production, and other 
process.

    (a) Advice by person served. Any person, whether or not an officer 
or employee of the Committee, of the Board, or of a Federal Reserve 
Bank, who is served with a subpoena, order, or other judicial or 
administrative process requiring the production of exempt information 
of the Committee or requiring the person's testimony regarding such 
Committee information in any proceeding, shall:
    (1) Promptly inform the Committee's General Counsel of the service 
and all relevant facts, including the documents, information, or 
testimony demanded, and any facts relevant to the Committee in 
determining whether the material requested should be made available;
    (2) Inform the entity issuing the process of the substance of this 
part; and
    (3) At the appropriate time, inform the court or tribunal that 
issued the process of the substance of this part.
    (b) Appearance by person served. Unless authorized by the Committee 
or as ordered by a Federal court in a judicial proceeding in which the 
Committee has had the opportunity to appear and oppose discovery, any 
person who is required to respond to a subpoena or other legal process 
concerning exempt Committee information shall attend at the time and 
place required and respectfully decline to disclose or to give any 
testimony with respect to the information, basing such refusal upon the 
provisions of this part. If the court or other body orders the 
disclosure of the information or the giving of testimony, the person 
having the information shall continue to decline to disclose such 
information and shall promptly report the facts to the Committee for 
such action as the Committee may deem appropriate.

Federal Open Market Committee.
Matthew M. Luecke,
Deputy Secretary of the Committee.
[FR Doc. 2021-06912 Filed 4-8-21; 8:45 am]
BILLING CODE 6210-01-P