§4.17. FOIA request fees.
12 C.F.R. § 4.17
Definitions. For purposes of this section, the following definitions apply:
Actual costs means those expenditures that the OCC incurs in providing services (including searching for, reviewing, and duplicating records) in response to a request for records under § 4.15.
Search means the process of locating a record in response to a request, including page-by-page or line-by-line identification of material within a record. The OCC may perform a search manually or by electronic means.
Review means the process of examining a record located in response to a request to determine which portions of that record should be released. It also includes processing a record for disclosure.
Duplication means the process of copying a record in response to a request. A copy may take the form of a paper copy, microform, audiovisual materials, or machine readable material (e.g., magnetic tape or disk), among others.
Commercial use requester means a person who seeks 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.
Educational institution requester means a person who seeks records on behalf of a public or private educational institution, including a preschool, an elementary or secondary school, an institution of undergraduate or graduate higher education, an institution of professional education, or an institution of vocational education that operates a program of scholarly research.
Noncommercial scientific institution requester means a person who is not a “commercial use requester,” as that term is defined in paragraph (a)(5) of this section, and who seeks records on behalf of an institution operated solely for the purpose of conducting scientific research, the results of which are not intended to promote any particular product or industry.
Requester who is a representative of the news media means any person who, or entity that, gathers information of potential interest to a segment of the public, uses editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience. A freelance journalist shall be regarded as working for a news media entity if the person can demonstrate a solid basis for expecting publication through that entity, whether or not the journalist is actually employed by that entity. A publication contract is one example of a basis for expecting publication that ordinarily would satisfy this standard. The OCC also may consider the past publication record of the requester in determining whether she or he qualifies as a “representative of the news media.”
Fees—
General. The hourly and per page rate that the OCC generally charges requesters is set forth in the “Notice of Comptroller of the Currency Fees” (Notice) described in 12 CFR 8.8. Any interested person may request a copy of the Notice from the OCC by mail or may obtain a copy at the location described in § 4.14(c). The OCC may contract with a commercial service to search for, duplicate, or disseminate records, provided that the OCC determines that the fee assessed upon a requester is no greater than if the OCC performed the tasks itself. The OCC does not contract out responsibilities that the FOIA provides that the OCC alone may discharge, such as determining the applicability of an exemption or whether to waive or reduce a fee.
Fee categories. The OCC assesses a fee based on the fee category in which the OCC places the requester. If the request states how the requester intends to use the requested records (see § 4.15(c)(1)(iv)), the OCC may place the requester in a lower fee category; otherwise, the OCC categorizes the requester as a “commercial use requester.” If the OCC reasonably doubts the requester's stated intended use, or if that use is not clear from the request, the OCC may place the requester in the “commercial use” category or may seek additional clarification. The fee categories are as follows:
Commercial use requesters. The OCC assesses a fee for a requester in this category for the actual cost of search, review, and duplication. A requester in this category does not receive any free search, review, or duplication services.
Educational institution requesters, noncommercial scientific institution requesters, and requesters who are representatives of the news media. The OCC assesses a fee for a requester in this category for the actual cost of duplication. A requester in this category receives 100 free pages.
All other requesters. The OCC assesses a fee for a requester who does not fit into either of the above categories for the actual cost of search and duplication. A requester in this category receives 100 free pages and two hours of free search time.
Special services. The OCC may, in its discretion, accommodate a request for special services. The OCC may recover the actual cost of providing any special services.
Waiving or reducing a fee. The OCC may waive or reduce a fee under this section whenever, in its opinion, disclosure of records is in the public interest because the disclosure:
Is likely to contribute significantly to public understanding of the operations or activities of the government; and
Is not primarily in the commercial interest of the requester.
Fee for unsuccessful search. The OCC may assess a fee for time spent searching for records, even if the OCC does not locate the records requested.
No fee if the time limit passes and the OCC has not responded to the request. The OCC will not assess search or duplication fees, as applicable, if it fails to respond to a requester's FOIA request within the time limits specified under 5 U.S.C. 552(a)(6) and 12 CFR 4.15(f), except as follows:
Unusual circumstances—
General. If the OCC has determined that unusual circumstances (as defined in 5 U.S.C. 552(a)(6)(B) and § 4.15(f)(3)(i)) apply and the OCC provides timely written notice to the requester in accordance with 5 U.S.C. 552(a)(6)(B), the OCC may assess search or duplication fees, as applicable, for an additional 10 days. If the OCC fails to comply with the extended time limit, the OCC will not assess any search or duplication fees, as applicable.
Voluminous Requests. Notwithstanding paragraph (b)(6)(i)(A) of this section, if the OCC has determined that unusual circumstances (as defined in 5 U.S.C. 552(a)(6)(B) and § 4.15(f)(3)(i)) apply and more than 5,000 pages are necessary to respond to the request, the OCC may assess search or duplication fees, as appropriate, if the OCC provides a timely written notice to the requester in accordance with 5 U.S.C. 552(a)(6)(B) and discusses with the requester via written mail, electronic mail, or telephone (or makes 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).
In exceptional circumstances. If a court has determined that exceptional circumstances (as defined in 5 U.S.C. 552(a)(6)(C)) apply to the processing of a request, the OCC may assess search or duplication fees, as applicable, for the length of time provided by the court order.
Payment of fees—
General. The OCC generally assesses a fee when it delivers the records in response to the request, if any. A requester must send payment within 30 calendar days of the billing date to the Financial Management, Accounts Receivable, Office of the Comptroller of the Currency, 400 7th Street SW., Washington, DC 20219.
Fee likely to exceed $25. If the OCC estimates that a fee is likely to exceed $25, the OCC notifies the requester of the estimated fee, unless the requester has indicated in advance a willingness to pay a fee as high as the estimated fee. If so notified by the OCC, the requester may confer with OCC employees to revise the request to reflect a lower fee.
Fee likely to exceed $250. If the OCC estimates that a fee is likely to exceed $250, the OCC notifies the requester of the estimated fee. In this circumstance, the OCC may require, as a condition to processing the request, that the requester:
Provide satisfactory assurance of full payment, if the requester has a history of prompt payment; or
Pay the estimated fee in full, if the requester does not have a history of prompt payment.
Failure to pay a fee. If the requester fails to pay a fee within 30 days of the date of the billing, the OCC may require, as a condition to processing any further request, that the requester pay any unpaid fee, plus interest (as provided in paragraph (c)(5) of this section), and any estimated fee in full for that further request.
Interest on unpaid fee. The OCC may assess interest charges on an unpaid fee beginning on the 31st day following the billing date. The OCC charges interest at the rate prescribed in 31 U.S.C. 3717.
Tolling of time limits. Under the circumstances described in paragraphs (c) (2), (3), and (4) of this section, the time limits set forth in § 4.15(f) (i.e., 20 business days from the receipt of a request for records and 20 business days from the receipt of an administrative appeal, plus any permissible extension) begin only after the OCC receives a revised request under paragraph (c)(2) of this section, an assurance of payment under paragraph (c)(3)(i) of this section, or the required payments under paragraph (c)(3)(i) or (c)(4) of this section.
Aggregating requests. When the OCC reasonably believes that a requester or group of requesters is attempting to break a request into a series of requests for the purpose of evading the assessment of a fee, the OCC may aggregate the requests and assess a fee accordingly.
Notes, amendments, and revision history
Amendments
[60 FR 57322, Nov. 15, 1995, as amended at 75 FR 17850, Apr. 8, 2010; 79 FR 15641, Mar. 21, 2014; 81 FR 94245, Dec. 23, 2016]
Authority
Authority: 5 U.S.C. 301, 552; 12 U.S.C. 1, 93a, 161, 481, 482, 484(a), 1442, 1462a, 1463, 1464 1817(a), 1818, 1820, 1821, 1831m, 1831p-1, 1831o, 1833e, 1867, 1951 et seq., 2601 et seq., 2801 et seq., 2901 et seq., 3101 et seq., 3401 et seq., 5321, 5412, 5414; 15 U.S.C. 77uu(b), 78q(c)(3); 18 U.S.C. 641, 1905, 1906; 29 U.S.C. 1204; 31 U.S.C. 5318(g)(2), 9701; 42 U.S.C. 3601; 44 U.S.C. 3506, 3510; E.O. 12600 (3 CFR, 1987 Comp., p. 235).
Source
Source: 60 FR 57322, Nov. 15, 1995, unless otherwise noted.
Amendments
[60 FR 57322, Nov. 15, 1995, as amended at 75 FR 17850, Apr. 8, 2010; 79 FR 15641, Mar. 21, 2014; 81 FR 94245, Dec. 23, 2016]