[Federal Register Volume 62, Number 202 (Monday, October 20, 1997)]
[Rules and Regulations]
[Pages 54356-54366]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-27566]
=======================================================================
-----------------------------------------------------------------------
FEDERAL RESERVE SYSTEM
12 CFR Part 261
[Docket No. R-0975]
Rules Regarding Availability of Information
AGENCY: Board of Governors of the Federal Reserve System.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Board of Governors of the Federal Reserve System (Board)
hereby amends its Rules Regarding Availability of Information (Rules)
to reflect recent changes in the Freedom of Information Act (FOIA) as a
result of the Electronic Freedom of Information Act Amendments (EFOIA).
In order to account for future amendments to the Rules, the sections
have been renumbered.
The review of the Board's Rules that produced this final rule was
conducted in accordance with section 303 of the Riegle Community
Development and Regulatory Improvement Act of 1994. In this regard, the
amendments to the Rules clarify certain provisions and simplify the
processing of requests for access to information in certain
circumstances.
EFFECTIVE DATE: November 19, 1997.
FOR FURTHER INFORMATION CONTACT: Elaine M. Boutilier, Senior Counsel,
(202/452-2418), Legal Division; or Susanne K. Mitchell, Manager,
Freedom of Information Office (202/452-2407). For the hearing impaired
only, contact Diane Jenkins, Telecommunications Device for the Deaf
(TDD)(202/452-3544), Board of Governors of the Federal Reserve System,
20th and Constitution, N.W., Washington, D.C. 20551.
SUPPLEMENTARY INFORMATION: Last year, Congress passed the Electronic
Freedom of Information Act Amendments of 1996, Public Law 104-231,
which amends the Freedom of Information Act, 5 U.S.C. 552. Among other
things, EFOIA requires agencies to promulgate regulations that provide
for expedited processing of requests for records, and permits agencies
to promulgate regulations that provide for multitrack processing of
requests. In addition to amending its Rules to comply with EFOIA, the
Board has taken this opportunity, in accordance with section 303 of the
Riegle Community Development and Regulatory Improvement Act of 1994, to
review and streamline those Rules.\1\ In addition, the Board is
amending the Rules to take account of various statutes that have been
enacted since the Rules were last revised in 1988.\2\
---------------------------------------------------------------------------
\1\ The regulatory citations contained in this final rule refer
to the regulation, as amended. As noted above, the sections have
been renumbered.
\2\ The Board's Rules have been implemented in a manner
consistent with these and other changes described in this final
rule.
---------------------------------------------------------------------------
To implement these changes, the Board published proposed changes to
Subparts A, B, and D of its Rules on June 10, 1997 (62 FR 31526). The
Board received four comments: one from a Federal Reserve Bank, one from
a commercial bank, one from a credit union, and one from a community
group. Three of the comments supported the proposal; the community
group, however, opposed some of the proposed changes. A discussion of
the specific comments is included in the section-by-section analysis.
In 1996, the Board published for comment proposed amendments to the
Rules (61 FR 7436, February 28, 1996) that primarily concerned Subpart
C of the Rules and the definitions in Subpart A of terms that are used
in Subpart C. In addition, the Board had proposed changes to certain
portions of Subpart B and Subpart D, which were republished in the June
1997 proposed rule. The changes to Subparts A, B and D are being
adopted in this final rule; the proposed amendments to Subpart C are
still under consideration.
Subpart A
Subpart A contains the General Provisions, describing the
authority, purpose, and scope; listing the definitions applicable to
this part, and explaining the responsibilities of the Secretary of the
Board as custodian of the Board's records. The changes to this subpart
are primarily in the ``Authority'' section to clarify the ability of
the Board to provide exempt records to certain entities outside of the
FOIA process in specific circumstances. In addition, certain
definitions that were included in the section on FOIA fees and fee
waivers have been moved forward to the ``Definitions'' section. One
commenter noted that the definition of ``records'' specifically
excludes handwritten notes, and questions the authority for this
exclusion. The intention was to exclude personal notes that are not a
part of official Board records. This, however, is accomplished by the
exclusion of personal files, so the reference to handwritten notes has
been deleted.
Section 261.3 is amended to clarify that authority delegated to the
General Counsel and other officers of the Board may be subdelegated. An
additional change to Sec. 261.3(c) states that the Secretary of the
Board is the Board's agent for service of all process, and that
[[Page 54357]]
the Board will not accept process on behalf of employees in connection
with purely private matters except as specifically provided by law.
Subpart B
Subpart B is amended to comply with the EFOIA requirements for
expedited processing. The Board also is implementing multitrack
processing. In addition, the Board has revised the section on fees and
fee waivers; and portions of this Subpart have been reorganized and
streamlined.
Section 261.10 lists the information that the Board publishes on a
regular or intermittent basis. This section has been streamlined. No
substantive changes have been made.
Section 261.11 describes the information that is made available for
inspection or copying, either in the Board's reading room or over the
Internet, as required by EFOIA. The records provided over the Internet
cover a much smaller scope than those available in the Board's reading
room, because the requirement to provide records over the Internet
covers only records created by the Board after November 1, 1996. One of
the commenters suggested that the Board expand the categories of
documents provided over the Internet to include policies,
interpretations, orders, and requests for comments, as well as provide
indexing and an appropriate search mechanism on the website. The Board
is in the process of expanding the information that is made available
over the Internet. Legal interpretations dating from January 1996, and
Press Releases, which include some Board orders, have been placed on
the website. The remaining Board orders dating after November 1, 1996,
will be provided in the near future. Other information that the Board
believes is of interest to the public is being provided as quickly as
the Board's resources permit. With regard to indexing or a search
mechanism, there is a general index provided on the site, and the Board
expects to install a search mechanism soon. Another commenter requested
that the Board place the text of the public sections of its Community
Reinvestment Act examination reports on its website. The Board expects
to have this information on its website by the end of this year. This
commenter also noted that the Board has not placed its administrative
manuals on its website. EFOIA requires such manuals to be made
available in the reading room if they are not published and offered for
sale. All Board manuals of this type are published and offered for
sale.
Section 261.12 describes the procedures for requesting records that
are not published or routinely made available for inspection. This
section includes the requirement that FOIA requests not be combined
with any other requests to the Board except requests under the Privacy
Act. This requirement is intended to ensure that FOIA requests are
delivered promptly to the Board's Freedom of Information Office (FOI
Office) when they are received, which may not occur if the FOIA request
is included in a request for other action by the Board. One commenter
opposed this amendment on grounds that it would prohibit a requester
from combining a FOIA request with comments submitted in connection
with an application under the Bank Holding Company Act of 1956 (BHCA),
12 U.S.C. 1841 et seq. The commenter believes that it should be
permissible to combine a FOIA request with substantive comments
regarding an application, or in the alternative, a process should be
established for making requests under the Board's ex parte rules for
processing BHCA applications. A separate, clearly identified FOIA
request delivered directly to the Secretary insures a faster FOIA
response, however, because comment letters are not routinely sent to
the FOIA office for action. Procedures for BHCA applications are set
forth in the Board's Regulation Y, which was recently revised after
notice and comment.
Section 261.13 describes the Board's procedures for processing FOIA
requests. This section has been extensively revised to reflect the
changes required by EFOIA. In the review process, one sentence was
inadvertently dropped from the section when it was published for
comment. The existing rule states that the Secretary will assign
responsible staff to process particular requests. This provision has
been restored to section 261.13(d) to provide the Secretary with the
authority to assign the requests to the appropriate staff at the Board.
The revised regulation provides for multitrack processing. Fast-
track processing will apply to records that are easily identifiable by
the FOI Office staff and that have already been cleared for release to
the public. Fast-track requests will be handled as expeditiously as
possible, in the order in which they are received. All information
requests that do not meet the fast-track processing standards will be
handled under regular processing procedures. A requester who desires
fast-track processing but whose request does not meet those standards
may contact the FOI Office staff to narrow the request so that it will
qualify for fast-track processing. The statutory time limit for
regular-track processing is extended to twenty business days, from the
previous ten business days.
Expedited processing may be provided where a requester has
demonstrated a compelling need for the records, or where the Board has
determined to expedite the response. The time limit for determination
whether to grant expedited processing is set at ten days, with
expedited procedures for an appeal of the Secretary's determination not
to provide expedited processing. Under EFOIA, there are only two types
of circumstances that can meet the compelling need standard: where
failure to obtain the records expeditiously could pose an imminent
threat to the life or physical safety of a person, or where the
requester is a person primarily engaged in disseminating information
and there is an urgency to inform the public concerning actual or
alleged agency activity. For ease of administration and consistency,
the section uses the term ``representative of the news media,'' to
describe a person primarily engaged in disseminating information,
because this term is used for the FOIA fee schedule, and thus, is known
to those familiar with FOIA and the Board's Rules. To demonstrate a
compelling need, a requester must submit a certified statement. A form
for the certified statement may be obtained from the FOI Office. One
commenter objected that the definition of ``compelling need'' does not
include public interest requesters who wish to comment on pending BHCA
applications. The definition of compelling need is established by
EFOIA, not the Board.
Section 261.14 lists the exemptions from disclosure under FOIA.
This section has been reorganized and streamlined, but no substantive
changes have been made.
Sections 261.15 and 261.16, which were previously located in
Subpart D, have been moved to Subpart B for clarity, since they apply
only to FOIA requests. Accordingly, a separate Subpart D is no longer
necessary. These provisions implement Executive Order 12,600, June 23,
1987, by establishing certain predisclosure notification procedures for
confidential business or financial information that may be exempt under
(b)(4) of the FOIA, 5 U.S.C. 552(b)(4).3
---------------------------------------------------------------------------
\3\ These provisions are intended only to address matters of the
kind covered by Executive Order 12,600. This, however, does not
preclude the Board or its staff from giving notice to submitters in
other situations where, for example, documents obtained pursuant to
a confidentiality commitment are subpoenaed in civil litigation. The
Board exercises its discretion in such cases consistent with
applicable law. The Board does not disclose its receipt of federal
grand jury subpoenas, however, except in accordance with law
following consultation with appropriate law enforcement authorities.
---------------------------------------------------------------------------
[[Page 54358]]
Section 261.15 sets forth the procedures for requesting
confidential treatment. The Board wishes to emphasize that failure to
properly segregate confidential material from other material may result
in the release of that material without prior notice to the submitter.
This is particularly important in light of the Board's intention, in
connection with processing BHCA applications, to provide, upon request,
the public portion of an application within three business days of the
request. In order to meet this deadline, the Board's and Reserve Bank's
staff must rely on the applicant to properly designate the material
submitted. A careful review of the material designated as
``Confidential'' will be made and any information improperly labeled as
``Confidential'' will be provided to requesters immediately upon
identification as publicly available.
Section 261.16 sets forth the procedures for responding to a FOIA
request for information that has been designated by the submitter as
confidential. It provides for notice to the submitter that permits the
submitter to provide written objections to the release of the
confidential information. Section 261.16(e) describes the information
that a submitter should include in its written submission objecting to
the release of the documents, including whether the information was
provided voluntarily under the standards set by the court case,
Critical Mass Energy Project v. NRC, 975 F. 2d. 871 (D.C. Cir. 1992).
If the information was not provided voluntarily, the submitter must
provide detailed facts and arguments showing either the likelihood of
substantial competitive harm resulting from release of the information,
or that release would impair the Board's ability to obtain necessary
information in the future.
Section 261.17 contains the FOIA fee schedules and the standards
for waiver of fees. The fee schedule provisions have been revised to
clarify that the processing time of a FOIA request does not begin until
payment is received in cases where advance payment is required. Where a
person has requested a waiver of the fees and has not agreed to pay the
fees, the processing time does not begin until a fee waiver has been
granted, or if the waiver is denied, until the requester has agreed to
pay the applicable fees. One commenter objected to this provision,
stating that it unfairly affects nonprofit groups with limited budgets
that must promise to pay the fees for an application in order to
receive it in a timely manner. This commenter requested that the Board
establish a procedure to certify groups, on an ongoing basis, for fee
waivers, instead of making the determination on a case-by-case basis.
FOIA, itself, establishes certain categories that receive favorable
treatment with regard to fees, e.g., the news media and educational
institutions. FOIA also provides for fee waivers where disclosure of
the information is in the public interest (not based on the requester's
status). Thus, a requester must meet the standards for a fee waiver in
each request. This requirement is supported by the legislative history
(see, 132 Cong. Rec. H. 9463 (Oct.8, 1986)(Rep. English)) and court
decisions (see, National Wildlife Federation v. Hamilton, No. 95-017-
BU(D. Mont. July 15, 1996)). The Board reviews each fee waiver request
pursuant to the standards set forth in the Act and its Rules. If a non-
profit community group demonstrates in its request for a waiver of fees
that the requested information will be distributed to the public and
will contribute significantly to the public understanding of the
activities of the Board, then the requester should qualify under the
Act and the Board's Rules for a waiver of the fees.
The standards under which the Secretary may grant a request for
waiver of fees have been modified to reflect the development of case
law in this area. Additionally, the regulation provides for
administrative appeal of a denial of a waiver request, which reflects
the Board's current procedure of permitting such administrative
appeals.
Subpart C
The sections in Subpart C have been renumbered to be consistent
with the renumbering of Subparts A and B in this proposal. No
substantive changes have been made at this time. Proposed changes to
this Subpart were published in 1996 (61 FR 7436, February 28, 1996),
and the comments received on these changes are still under
consideration.
Regulatory Flexibility Act Analysis
Pursuant to section 605(b) of the Regulatory Flexibility Act (5
U.S.C. 601 et seq.), the Board certifies that the amendments will not
have a significant economic impact on a substantial number of small
entities. These amendments simplify some of the procedures regarding
release of information and require disclosure of information in certain
instances in accordance with law. The requirements to disclose apply to
the Board, therefore they should not have a significant economic impact
on a substantial number of small entities.
Paperwork Reduction Act Analysis
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C.
3506; 5 CFR 1320 Appendix A.1), the Board reviewed the rule under the
authority delegated to the Board by the Office of Management and
Budget. The Federal Reserve may not conduct or sponsor, and an
organization is not required to respond to, this information collection
unless it displays a currently valid OMB control number. The OMB
control number is 7100-0281.
The collection of information requirements in this regulation are
found in 12 CFR 261.12, 261.13, 261.16, and 261.17. (The hour burden
for requests for confidential treatment made under 261.15 are included
in the hour burden associated with the information collections for
which the respondent desires confidential treatment.) The information
will be used to fulfill requests for information made under the Freedom
of Information Act, or to determine the appropriateness of fulfilling
such requests. The respondents may include small entities. This
information is required to obtain a benefit (5 U.S.C. 552). Generally,
requests made under 12 CFR 261.12, 261.13, 261.16, and 12 CFR 261.17
are not exempt from disclosure under the Freedom of Information Act.
The annual hour burden estimates are presented in the following
table. There is estimated to be no annual cost burden over the annual
hour burden, and no associated capital or start up cost. One comment
specifically addressing the burden estimates was received from a
federal credit union, stating that the burden estimates seemed
accurate.
[[Page 54359]]
------------------------------------------------------------------------
Estimated Estimated
Estimated response annual
annual time burden
frequency (hours) hours
------------------------------------------------------------------------
Initial request (261.12 (b) and
(c) and 261.13(c))............. 4,900 .5 2,450
Limits on an earlier request
that included a request for
expedited processing that has
been denied (261.13(b)(2))..... 100 .5 50
Appeal of denial of request
(261.13(i)).................... 30 2 60
Written objections by submitter
to release of data (261.16(e)). 30 2 60
Request to waive or reduce fees
(261.17(f)).................... 100 .5 50
---------------------------------------
Total..................... ........... ............ 2,670
------------------------------------------------------------------------
The Federal Reserve has a continuing interest in the public's
opinions of its collections of information. At any time, comments
regarding the burden estimate, or any other aspect of this collection
of information, including suggestions for reducing the burden, may be
sent to: Secretary, Board of Governors of the Federal Reserve System,
20th and C Streets, N.W., Washington, DC 20551; and to the Office of
Management and Budget, Paperwork Reduction Project (7100-0281),
Washington, DC 20503.
List of Subjects in 12 CFR Part 261
Confidential business information, Federal Reserve System, Freedom
of Information, Reporting and recordkeeping requirements.
For the reasons set forth in the preamble, the Board amends 12 CFR
part 261 as follows:
PART 261--RULES REGARDING AVAILABILITY OF INFORMATION
1. The authority citation for part 261 is revised to read as
follows:
Authority: 5 U.S.C. 552; 12 U.S.C. 248(i) and (k), 321 et seq.,
611 et seq., 1442, 1817(a)(2)(A), 1817(a)(8), 1818(u) and (v),
1821(o), 1821(t), 1830, 1844, 1951 et seq., 2601, 2801 et seq., 2901
et seq., 3101 et seq., 3401 et seq.; 15 U.S.C. 77uu(b), 78q(c)(3);
29 U.S.C. 1204; 31 U.S.C. 5301 et seq.; 42 U.S.C. 3601; 44 U.S.C.
3510.
Subpart D--[Removed]
2. Subpart D, consisting of Secs. 261.15 through 261.17, is
removed.
Secs. 261.11-261.14 [Redesignated as Secs. 261.20-261.23]
3. Sections 261.11 through 261.14 in Subpart C are redesignated as
Secs. 261.20 through 261.23, respectively, in Subpart C.
4. Subparts A and B are revised to read as follows:
Subpart A--General Provisions
Sec.
261.1 Authority, purpose, and scope.
261.2 Definitions.
261.3 Custodian of records; certification; service; alternative
authority.
Subpart B--Published Information and Records Available to Public;
Procedures for Requests
261.10 Published information.
261.11 Records available for public inspection and copying.
261.12 Records available to public upon request.
261.13 Processing requests.
261.14 Exemptions from disclosure.
261.15 Request for confidential treatment.
261.16 Request for access to confidential commercial or financial
information.
261.17 Fee schedules; waiver of fees.
Subpart A--General Provisions
Sec. 261.1 Authority, purpose, and scope.
(a) Authority. (1) This part is issued by the Board of Governors of
the Federal Reserve System (the Board) pursuant to the Freedom of
Information Act, 5 U.S.C. 552; Sections 9, 11, and 25A of the Federal
Reserve Act, 12 U.S.C. 248(i) and (k), 321 et seq., (including 326),
611 et seq.; Section 22 of the Federal Home Loan Bank Act, 12 U.S.C
1442; the Federal Deposit Insurance Act, 12 U.S.C. 1817(a)(2)(A),
1817(a)(8), 1818(u) and (v), 1821(o); section 5 of the Bank Holding
Company Act, 12 U.S.C. 1844; the Bank Secrecy Act, 12 U.S.C. 1951 et
seq., and Chapter 53 of Title 31; the Home Mortgage Disclosure Act, 12
U.S.C. 2801 et seq.; the Community Reinvestment Act, 12 U.S.C. 2901 et
seq.; the International Banking Act, 12 U.S.C. 3101 et seq.; the Right
to Financial Privacy Act, 12 U.S.C. 3401 et seq.; the Securities and
Exchange Act, 15 U.S.C. 77uuu(b), 78q(c)(3); the Employee Retirement
Income Security Act, 29 U.S.C. 1204; the Money Laundering Suppression
Act, 31 U.S.C. 5301, the Fair Housing Act, 42 U.S.C. 3601; the
Paperwork Reduction Act, 44 U.S.C. 3510; and any other applicable law
that establishes a basis for the exercise of governmental authority by
the Board.
(2) This part establishes mechanisms for carrying out the Board's
statutory responsibilities under statutes in paragraph (a)(1) of this
section to the extent those responsibilities require the disclosure,
production, or withholding of information. In this regard, the Board
has determined that the Board, or its delegees, may disclose exempt
information of the Board, 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 Board's supervisory or regulatory authorities,
including but not limited to, authority granted to the Board in the
Federal Reserve Act, 12 U.S.C. 221 et seq., the Bank Holding Company
Act, 12 U.S.C. 1841 et seq., and the International Banking Act, 12
U.S.C. 3101 et seq. The Board has determined that all such disclosures,
made in accordance with the rules and procedures specified in this
part, are authorized by law.
(3) The Board has also determined that it is authorized by law to
disclose information to a law enforcement or other federal or state
government agency that has the authority to request and receive such
information in carrying out its own statutory responsibilities, or in
response to a valid order of a court of competent jurisdiction or of a
duly constituted administrative tribunal.
(b) Purpose. This part sets forth the categories of information
made available to the public, the procedures for obtaining documents
and records, the procedures for limited release of exempt and
confidential supervisory information, and the procedures for protecting
confidential business information.
(c) Scope. (1) This subpart A 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:
(i) The kinds of exempt information made available to supervised
institutions, supervisory agencies, law enforcement agencies, and
others in certain circumstances;
(ii) The procedures for disclosure; and
(iii) The procedures with respect to subpoenas, orders compelling
production, and other process.
Sec. 261.2 Definitions.
For purposes of this part:
[[Page 54360]]
(a) Board's official files means the Board's central records.
(b) 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.
(c)(1) Confidential supervisory information means:
(i) Exempt information consisting of reports of examination,
inspection and visitation, confidential operating and condition
reports, and any information derived from, related to, or contained in
such reports;
(ii) Information gathered by the Board in the course of any
investigation, suspicious activity report, cease-and-desist orders,
civil money penalty enforcement orders, suspension, removal or
prohibition orders, or other orders or actions under the Financial
Institutions Supervisory Act of 1966, Pub.L. 89-695, 80 Stat. 1028
(codified as amended in scattered sections of 12 U.S.C.), the Bank
Holding Company Act of 1956, 12 U.S.C. 1841 et seq.,the Federal Reserve
Act, 12 U.S.C. 221 et seq., the International Banking Act of 1978,
Pub.L. 95-369, 92 Stat. 607 (codified as amended in scattered sections
of 12 U.S.C.), and the International Lending Supervision Act of 1983,
12 U.S.C. 3901 et seq.; except--
(A) Such final orders, amendments, or modifications of final
orders, or other actions or documents that are specifically required to
be published or made available to the public pursuant to 12 U.S.C.
1818(u), or other applicable law, including the record of litigated
proceedings; and
(B) The public section of Community Reinvestment Act examination
reports, pursuant to 12 U.S.C. 2906(b); and
(iii) Any documents prepared by, on behalf of, or for the use of
the Board, a Federal Reserve Bank, a federal or state financial
institutions supervisory agency, or a bank or bank holding company or
other supervised financial institution.
(2) Confidential supervisory information does not include documents
prepared by a supervised financial institution for its own business
purposes and that are in its possession.
(d) Direct costs mean those expenditures that the Board actually
incurs in searching for, reviewing, and duplicating documents in
response to a request made under Sec. 261.12.
(e) Duplication refers to the process of making a copy of a
document in response to a request for disclosure of records or for
inspection of original records that contain exempt material or that
otherwise cannot be inspected directly. Among others, such copies may
take the form of paper, microform, audiovisual materials, or machine-
readable documentation (e.g., magnetic tape or disk).
(f) Educational institution refers to a preschool, a public or
private elementary or secondary school, or an institution of
undergraduate higher education, graduate higher education, professional
education, or an institution of vocational education, which operates a
program of scholarly research.
(g) Exempt information means information that is exempt from
disclosure under Sec. 261.14.
(h) Noncommercial scientific institution refers to an institution
that is not operated on a ``commercial'' basis (as that term is used in
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.
(i)(1) Records of the Board include:
(i) In written form, or in nonwritten or machine-readable form; all
information coming into the possession and under the control of the
Board, any Board member, any Federal Reserve Bank, or any officer,
employee, or agent of the Board or of any Federal Reserve Bank, in the
performance of functions for or on behalf of the Board that constitute
part of the Board's official files; or
(ii) That are maintained for administrative reasons in the regular
course of business in official files in any division or office of the
Board or any Federal Reserve Bank in connection with the transaction of
any official business.
(2) Records of the Board does not include personal files of Board
members and employees; tangible exhibits, formulas, designs, or other
items of valuable intellectual property; extra copies of documents and
library and museum materials kept solely for reference or exhibition
purposes; unaltered publications otherwise available to the public in
Board publications, libraries, or established distribution systems.
(j) Report of examination means the report prepared by the Board,
or other federal or state financial institution supervisory agency,
concerning the examination of a financial institution, and includes
reports of inspection and reports of examination of U.S. branches or
agencies of foreign banks and representative offices of foreign
organizations, and other institutions examined by the Federal Reserve
System.
(k) Report of inspection means the report prepared by the Board
concerning its inspection of a bank holding company and its bank and
nonbank subsidiaries.
(l) Representative of the news media refers to any person actively
gathering news for an entity that is organized and operated to publish
or broadcast news to the public.
(1) The term ``news'' means information that is about current
events or that would be of current interest to the public.
(2) Examples of news media entities include, but are not limited
to, television or radio stations broadcasting to the public at large,
and publishers of periodicals (but only in those instances when they
can qualify as disseminators of ``news'') who make their products
available for purchase or subscription by the general public.
(3) ``Freelance'' journalists may be regarded as working for a news
organization if they can demonstrate a solid basis for expecting
publication through that organization, even though they are not
actually employed by it.
(m)(1) Review refers to the process of examining documents, located
in response to a request for access, to determine whether any portion
of a document is exempt information. It includes doing all that is
necessary to excise the documents and otherwise to prepare them for
release.
(2) Review does not include time spent resolving general legal or
policy issues regarding the application of exemptions.
(n)(1) Search means a reasonable search, by manual or automated
means, of the Board's official files and any other files containing
Board records as seem reasonably likely in the particular circumstances
to contain information of the kind requested. For purposes of computing
fees under Sec. 261.17, 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) Search does not mean or include research, creation of any
document, or extensive modification of an existing program or system
that would significantly interfere with the operation of the Board's
automated information systems.
(o) Supervised financial institution includes a bank, bank holding
company (including subsidiaries), U.S. branch or agency of a foreign
bank, or any other institution that is supervised by the Board.
[[Page 54361]]
Sec. 261.3 Custodian of records; certification; service; alternative
authority.
(a) Custodian of records. The Secretary of the Board (Secretary) is
the official custodian of all Board records, including records that are
in the possession or control of the Board, any Federal Reserve Bank, or
any Board or Reserve Bank employee.
(b) Certification of record. The Secretary may certify the
authenticity of any Board record, or any copy of such record, for any
purpose, and for or before any duly constituted federal or state court,
tribunal, or agency.
(c) Service of subpoenas or other process. Subpoenas or other
judicial or administrative process, demanding access to any Board
records or making any claim against the Board, shall be addressed to
and served upon the Secretary of the Board at the Board's office at
20th and C Streets, N.W., Washington, D.C. 20551. Neither the Board nor
the Secretary are agents for service of process on behalf of any
employee in respect of purely private legal disputes, except as
specifically provided by law.
(d) Alternative authority. Any action or determination required or
permitted by this part to be done by the Secretary, the General
Counsel, or the Director of any Division may be done by any employee
who has been duly designated for this purpose by the Secretary, General
Counsel, or the appropriate Director.
Subpart B--Published Information and Records Available to Public;
Procedures for Requests
Sec. 261.10 Published information.
(a) Federal Register. The Board publishes in the Federal Register
for the guidance of the public:
(1) Descriptions of the Board's central and field organization;
(2) Statements of the general course and method by which the
Board's functions are channeled and determined, including the nature
and requirements of procedures;
(3) Rules of procedure, descriptions of forms available and the
place where they may be obtained, and instructions on the scope and
contents of all papers, reports, and examinations;
(4) Substantive rules, interpretations of general applicability,
and statements of general policy;
(5) Every amendment, revision, or repeal of the foregoing in
paragraphs (a)(1) through (a)(4) of this section;
(6) Notices of proposed rulemaking;
(7) Notices of applications received under the Bank Holding Company
Act of 1956 (12 U.S.C. 1841 et seq.) and the Change in Bank Control Act
(12 U.S.C. 1817);
(8) Notices of all Board meetings, pursuant to the Government in
the Sunshine Act (5 U.S.C. 552b);
(9) Notices identifying the Board's systems of records, pursuant to
the Privacy Act of 1974 (5 U.S.C. 552a); and
(10) Notices of agency data collection forms being reviewed under
the Paperwork Reduction Act (5 U.S.C. 3501 et seq.).
(b) Board's Reports to Congress. The Board's annual report to
Congress pursuant to the Federal Reserve Act (12 U.S.C. 247), which is
made public upon its submission to Congress, contains a full account of
the Board's operations during the year, the policy actions by the
Federal Open Market Committee, an economic review of the year, and
legislative recommendations to Congress. The Board also makes periodic
reports to Congress under certain statutes, including but not limited
to the Freedom of Information Act (5 U.S.C. 552); the Government in the
Sunshine Act (5 U.S.C. 552b); the Full Employment and Balanced Growth
Act of 1978 (12 U.S.C. 225a); and the Privacy Act (5 U.S.C. 552a).
(c) Federal Reserve Bulletin. This publication is issued monthly
and contains economic and statistical information, articles relating to
the economy or Board activities, and descriptions of recent actions by
the Board.
(d) Other published information. Among other things, the Board
publishes the following information:
(1) Weekly publications. The Board issues the following
publications weekly:
(i) A statement showing the condition of each Federal Reserve Bank
and a consolidated statement of the condition of all Federal Reserve
Banks, pursuant to 12 U.S.C. 248(a);
(ii) An index of applications received and the actions taken on the
applications, as well as other matters issued, adopted, or promulgated
by the Board; and
(iii) A statement showing changes in the structure of the banking
industry resulting from mergers and the establishment of branches.
(2) Press releases. The Board frequently issues statements to the
press and public regarding monetary and credit actions, regulatory
actions, actions taken on certain types of applications, and other
matters.
(3) Call Report and other data. Certain data from Reports of
Condition and Income submitted to the Board are available through the
National Technical Information Service and may be obtained by the
procedure described in Sec. 261.11(c)(2).
(4) Federal Reserve Regulatory Service. This is a multivolume
looseleaf service published by the Board, containing statutes,
regulations, interpretations, rulings, staff opinions, and procedural
rules under which the Board operates. Portions of the service are also
published as separate looseleaf handbooks relating to consumer and
community affairs, monetary policy and reserve requirements, payments
systems, and securities credit transactions. The service and each
handbook contain subject and citation indexes, are updated monthly, and
may be subscribed to on a yearly basis.
(e) Index to Board actions. The Board's Freedom of Information
Office maintains an index to Board actions, which is updated weekly and
provides identifying information about any matters issued, adopted, and
promulgated by the Board since July 4, 1967. Copies of the index may be
obtained upon request to the Freedom of Information Office subject to
the current schedule of fees in Sec. 261.17.
(f) Obtaining Board publications. The Publications Services Section
maintains a list of Board publications that are available to the
public. In addition, a partial list of publications is published in the
Federal Reserve Bulletin. All publications issued by the Board,
including available back issues, may be obtained from Publications
Services, Board of Governors of the Federal Reserve System, 20th Street
and Constitution Avenue, N.W., Washington, D.C. 20551 (pedestrian
entrance is on C Street, N.W.). Subscription or other charges may apply
to some publications.
Sec. 261.11 Records available for public inspection and copying.
(a) Types of records made available. Unless they were published
promptly and made available for sale or without charge, the following
records shall be made available for inspection and copying at the
Freedom of Information Office:
(1) Final opinions, including concurring and dissenting opinions,
as well as final orders and written agreements, made in the
adjudication of cases;
(2) Statements of policy and interpretations adopted by the Board
that are not published in the Federal Register;
(3) Administrative staff manuals and instructions to staff that
affect the public;
(4) Copies of all records released to any person under Sec. 261.12
that, because
[[Page 54362]]
of the nature of their subject matter, the Board has determined are
likely to be requested again;
(5) A general index of the records referred to in paragraph (a)(4)
of this section; and
(6) The public section of Community Reinvestment Act examination
reports.
(b) Reading room procedures. (1) Information available under this
section is available for inspection and copying, from 9:00 a.m. to 5:00
p.m. weekdays, at the Freedom of Information Office of the Board of
Governors of the Federal Reserve System, 20th Street and Constitution
Avenue, N.W., Washington, D.C. 20551 (the pedestrian entrance is on C
Street, N.W.).
(2) The Board may determine that certain classes of publicly
available filings shall be made available for inspection and copying
only at the Federal Reserve Bank where those records are filed.
(c) Electronic records. (1) Except as set forth in paragraph (c)(2)
of this section, information available under this section that was
created by the Board on or after November 1, 1996, shall also be
available on the Board's internet site (which can be found at http://
www.bog.frb.fed.us).
(2) NTIS. The publicly available portions of Reports of Condition
and Income of individual banks and certain other data files produced by
the Board are distributed by the National Technical Information
Service. Requests for these public reports should be addressed to:
Sales Office, National Technical Information Service, U.S. Department
of Commerce, 5285 Port Royal Road, Springfield, Virginia 22161, (703)
487-4650.
(3) Privacy protection. The Board may delete identifying details
from any record to prevent a clearly unwarranted invasion of personal
privacy.
Sec. 261.12 Records available to public upon request.
(a) Types of records made available. All records of the Board that
are not available under Secs. 261.10 and 261.11 shall be made available
upon request, pursuant to the procedures and exceptions in this Subpart
B.
(b) Procedures for requesting records. (1) A request for
identifiable records shall reasonably describe the records in a way
that enables the Board's staff to identify and produce the records with
reasonable effort and without unduly burdening or significantly
interfering with any of the Board's operations.
(2) The request shall be submitted in writing to the Freedom of
Information Office, Board of Governors of the Federal Reserve System,
20th & C Street, N.W., Washington, D.C. 20551; or sent by facsimile to
the Freedom of Information Office, (202) 872-7562 or 7565. The request
shall be clearly marked FREEDOM OF INFORMATION ACT REQUEST.
(3) A request may not be combined with any other request to the
Board except for a request under 12 CFR 261a.3(a) (Rules Regarding
Access to and Review of Personal Information under the Privacy Act of
1974) and a request made under Sec. 261.23(b)(1)(ii).
(c) Contents of request. The request shall contain the following
information:
(1) The name and address of the requester, and the telephone number
at which the requester can be reached during normal business hours;
(2) Whether the requested information is intended for commercial
use, and whether the requester is an educational or noncommercial
scientific institution, or news media representative;
(3) A statement agreeing to pay the applicable fees, or a statement
identifying any desired fee limitation, or a request for a waiver or
reduction of fees that satisfies Sec. 261.17(h); and
(4) If the request is being made in connection with on-going
litigation, a statement indicating whether the requester will seek
discretionary release of exempt information from the General Counsel
upon denial of the request by the Secretary. A requester who intends to
make such a request to the General Counsel may also address the factors
set forth in Sec. 261.23(b).
(d) Defective requests. The Board need not accept or process a
request that does not reasonably describe the records requested or that
does not otherwise comply with the requirements of this section. The
Board may return a defective request, specifying the deficiency. The
requester may submit a corrected request, which will be treated as a
new request.
(e) Oral requests. The Freedom of Information Office may honor an
oral request for records, but if the requester is dissatisfied with the
Board's response and wishes to seek review, the requester must submit a
written request, which shall be treated as an initial request.
Sec. 261.13 Processing requests.
(a) Receipt of requests. Upon receipt of any request that satisfies
Sec. 261.12(b), the Freedom of Information Office 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 Board by
another agency or by a Federal Reserve Bank, is the date the Freedom of
Information Office actually receives the request.
(b) Multitrack processing. (1) The Board provides different levels
of processing for categories of requests under this section. Requests
for records that are readily identifiable by the Freedom of Information
Office and that have already been cleared for public release may
qualify for fast-track processing. All other requests shall be handled
under normal processing procedures, unless expedited processing has
been granted pursuant to paragraph (c)(2) of this section.
(2) The Freedom of Information Office will make the determination
whether a request qualifies for fast-track processing. A requester may
contact the Freedom of Information Office to learn whether a particular
request has been assigned to fast-track processing. If the request has
not qualified for fast-track processing, the requester will be given an
opportunity to limit the request in order to qualify for fast-track
processing. Limitations of requests must be in writing.
(c) Expedited processing. When a person requesting expedited access
to records has demonstrated a compelling need for the records, or when
the Board has determined to expedite the response, the Board shall
process the request as soon as practicable.
(1) To demonstrate a compelling need for expedited processing, the
requester shall provide a certified statement, a sample of which may be
obtained from the Freedom of Information Office. The statement, which
must be certified to be true and correct to the best of the requester's
knowledge and belief, shall demonstrate that:
(i) The failure to obtain the records on an expedited basis could
reasonably be expected to pose an imminent threat to the life or
physical safety of an individual; or
(ii) The requester is a representative of the news media, as
defined in Sec. 261.2, and there is urgency to inform the public
concerning actual or alleged Board activity.
(2) In response to a request for expedited processing, the
Secretary shall notify a requester of the determination within ten
calendar days of receipt of the request. If the Secretary denies a
request for expedited processing, the requester may file an appeal
pursuant to the procedures set forth in paragraph (i) of this section,
and the Board shall respond to the appeal within ten working days after
the appeal was received by the Board.
(d) Priority of responses. The Secretary will assign responsible
staff to process particular requests. The
[[Page 54363]]
Freedom of Information Office will normally process requests in the
order they are received in the separate processing tracks, except when
expedited processing is granted. However, in the Secretary's
discretion, or upon a court order in a matter to which the Board is a
party, a particular request may be processed out of turn.
(e) Time limits. The time for response to requests shall be 20
working days, except:
(1) In the case of expedited treatment under paragraph (c) of this
section;
(2) Where the running of such time is suspended for payment of fees
pursuant to Sec. 261.17(b)(2);
(3) In unusual circumstances, as defined in 5 U.S.C. 552(a)(6)(B).
In such circumstances, the time limit may be extended for a period of
time not to exceed:
(i) 10 working days as provided by written notice to the requester,
setting forth the reasons for the extension and the date on which a
determination is expected to be dispatched; or
(ii) Such alternative time period as mutually agreed to by the
Freedom of Information Office and the requester when the Freedom of
Information Office notifies the requester that the request cannot be
processed in the specified time limit.
(f) Response to request. In response to a request that satisfies
Sec. 261.12(b), an appropriate search shall be conducted of records of
the Board in existence on the date of receipt of the request, and a
review made of any responsive information located. The Secretary shall
notify the requester of:
(1) The Board's determination of the request;
(2) The reasons for the determination;
(3) The amount of information withheld;
(4) The right of the requester to appeal to the Board any denial or
partial denial, as specified in paragraph (i) of this section; and
(5) In the case of a denial of a request, the name and title or
position of the person responsible for the denial.
(g) Referral to another agency. To the extent a request covers
documents that were created by, obtained from, or classified by another
agency, the Board may refer the request to that agency for a response
and inform the requester promptly of the referral.
(h) Providing responsive records. (1) Copies of requested records
shall be sent to the requester by regular U.S. mail to the address
indicated in the request, unless the requester elects to take delivery
of the documents at the Freedom of Information Office or makes other
acceptable arrangements, or the Board deems it appropriate to send the
documents by another means.
(2) The Board shall provide a copy of the record in any form or
format requested if the record is readily reproducible by the Board in
that form or format, but the Board need not provide more than one copy
of any record to a requester.
(i) Appeal of denial of request. Any person denied access to Board
records requested under Sec. 261.12 may file a written appeal with the
Board, as follows:
(1) The appeal shall prominently display the phrase FREEDOM OF
INFORMATION ACT APPEAL on the first page, and shall be addressed to the
Freedom of Information Office, Board of Governors of the Federal
Reserve System, 20th & C Street, N.W., Washington, D.C. 20551; or sent
by facsimile to the Freedom of Information Office, (202) 872-7562 or
7565.
(2) An initial request for records may not be combined in the same
letter with an appeal.
(3) The appeal shall be filed within 10 working days of the date on
which the denial was issued, or the date on which documents in partial
response to the request were transmitted to the requester, whichever is
later. The Board may consider an untimely appeal if:
(i) It is accompanied by a written request for leave to file an
untimely appeal; and
(ii) The Board determines, in its discretion and for good and
substantial cause shown, that the appeal should be considered.
(4) The Board shall make a determination regarding any appeal
within 20 working days of actual receipt of the appeal by the Freedom
of Information Office, and the determination letter shall notify the
appealing party of the right to seek judicial review.
(5) The Secretary may reconsider a denial being appealed if
intervening circumstances or additional facts not known at the time of
the denial come to the attention of the Secretary while an appeal is
pending.
Sec. 261.14 Exemptions from disclosure.
(a) Types of records exempt from disclosure. Pursuant to 5 U.S.C.
552(b), the following records of the Board are exempt from disclosure
under this part:
(1) National defense. 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) Internal personnel rules and practices. Any information related
solely to the internal personnel rules and practices of the Board.
(3) Statutory exemption. Any information specifically exempted from
disclosure by statute (other than 5 U.S.C. 552b), if the statute:
(i) Requires that the matters be withheld from the public in such a
manner as to leave no discretion on the issue; or
(ii) Establishes particular criteria for withholding or refers to
particular types of matters to be withheld.
(4) Trade secrets; commercial or financial information. 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. Information contained in
inter- or intra-agency memorandums or letters that would not be
available by law to a party (other than an agency) in litigation with
an agency, including, but not limited to:
(i) Memorandums;
(ii) Reports;
(iii) Other documents prepared by the staffs of the Board or
Federal Reserve Banks; and
(iv) Records of deliberations of the Board and of discussions at
meetings of the Board, any Board committee, or Board staff, that are
not subject to 5 U.S.C. 552b (the Government in the Sunshine Act).
(6) Personnel and medical files. 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) Information compiled for law enforcement purposes. Any records
or information compiled for law enforcement purposes, to the extent
permitted under 5 U.S.C. 552(b)(7); including information relating to
administrative enforcement proceedings of the Board.
(8) Examination, inspection, operating, or condition reports, and
confidential supervisory information. 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) Segregation of nonexempt information. The Board shall provide
any reasonably segregable portion of a record that is requested after
deleting
[[Page 54364]]
those portions that are exempt under this section.
(c) Discretionary release. (1) Except where disclosure is expressly
prohibited by statute, regulation, or order, the Board may release
records that are exempt from mandatory disclosure whenever the Board or
designated Board members, the Secretary of the Board, the General
Counsel of the Board, the Director of the Division of Banking
Supervision and Regulation, or the appropriate Federal Reserve Bank,
acting pursuant to this part or 12 CFR part 265, determines that such
disclosure would be in the public interest.
(2) The Board may make any exempt information furnished in
connection with an application for Board approval of a transaction
available to the public in accordance with Sec. 261.12, and without
prior notice and to the extent it deems necessary, may comment on such
information in any opinion or statement issued to the public in
connection with a Board action to which such information pertains.
(d) Delayed release. 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 Board 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 Board,
any Federal Reserve Bank, or any department or agency of the United
States.
(e) Prohibition against disclosure. Except as provided in this
part, no officer, employee, or agent of the Board or any Federal
Reserve Bank shall disclose or permit the disclosure of any unpublished
information of the Board to any person (other than Board or Reserve
Bank officers, employees, or agents properly entitled to such
information for the performance of official duties).
Sec. 261.15 Request for confidential treatment.
(a) Submission of request. Any submitter of information to the
Board who desires confidential treatment pursuant to 5 U.S.C. 552(b)(4)
and Sec. 261.14 (a)(4) shall file a request for confidential treatment
with the Board (or in the case of documents filed with a Federal
Reserve Bank, with that Federal Reserve Bank) at the time the
information is submitted or a reasonable time after submission.
(b) Form of request. Each request for confidential treatment shall
state in reasonable detail the facts supporting the request and its
legal justification. Conclusory statements that release of the
information would cause competitive harm generally will not be
considered sufficient to justify confidential treatment.
(c) Designation and separation of confidential material. All
information considered confidential by a submitter shall be clearly
designated CONFIDENTIAL in the submission and separated from
information for which confidential treatment is not requested. Failure
to segregate confidential information from other material may result in
release of the nonsegregated material to the public without notice to
the submitter.
(d) Exceptions. This section does not apply to:
(1) Data collected on forms that are approved pursuant to the
Paperwork Reduction Act (44 U.S.C. 3501 et seq.) and are deemed
confidential by the Board. Any such form deemed confidential by the
Board shall so indicate on the face of the form or in its instructions.
The data may, however, be disclosed in aggregate form in such a manner
that individual company data is not disclosed or derivable.
(2) Any comments submitted by a member of the public on
applications and regulatory proposals being considered by the Board,
unless the Board or the Secretary determines that confidential
treatment is warranted.
(3) A determination by the Board to comment upon information
submitted to the Board in any opinion or statement issued to the public
as described in Sec. 261.14(c).
(e) Special procedures. The Board may establish special procedures
for particular documents, filings, or types of information by express
provisions in this part or by instructions on particular forms that are
approved by the Board. These special procedures shall take precedence
over this section.
Sec. 261.16 Request for access to confidential commercial or financial
information.
(a) Request for confidential information. A request by a submitter
for confidential treatment of any information shall be considered in
connection with a request for access to that information. At their
discretion, appropriate Board or staff members (including Federal
Reserve Bank staff) may act on the request for confidentiality prior to
any request for access to the documents.
(b) Notice to the submitter. When a request for access is received
pursuant to the Freedom of Information Act (5 U.S.C. 552):
(1) The Secretary shall notify a submitter of the request, if:
(i) The submitter requested confidential treatment of the
information pursuant to 5 U.S.C. 552(b)(4); and
(ii) The request by the submitter for confidential treatment was
made within 10 years preceding the date of the request for access.
(2) Absent a request for confidential treatment, the Secretary may
notify a submitter of a request for access to information provided by
the submitter if the Secretary reasonably believes that disclosure of
the information may cause substantial competitive harm to the
submitter.
(3) The notice given to the submitter shall:
(i) Be given as soon as practicable after receipt of the request
for access;
(ii) Describe the request; and
(iii) Give the submitter a reasonable opportunity, not to exceed
ten working days from the date of notice, to submit written objections
to disclosure of the information.
(c) Exceptions to notice to submitter. Notice to the submitter need
not be given if:
(1) The Secretary determines that the request for access should be
denied;
(2) The requested information lawfully has been made available to
the public;
(3) Disclosure of the information is required by law (other than 5
U.S.C. 552); or
(4) The submitter's claim of confidentiality under 5 U.S.C.
552(b)(4) appears obviously frivolous or has already been denied by the
Secretary, except that in this last instance the Secretary shall give
the submitter written notice of the determination to disclose the
information at least five working days prior to disclosure.
(d) Notice to requester. At the same time the Secretary notifies
the submitter, the Secretary also shall notify
[[Page 54365]]
the requester that the request is subject to the provisions of this
section.
(e) Written objections by submitter. Upon receipt of notice of a
request for access to its information, the submitter may provide
written objections to release of the information. Such objections shall
state whether the information was provided voluntarily or involuntarily
to the Board.
(1) If the information was voluntarily provided to the Board, the
submitter shall provide detailed facts showing that the information is
customarily withheld from the public.
(2) If the information was not provided voluntarily to the Board,
the submitter shall provide detailed facts and arguments showing:
(i) The likelihood of substantial harm that would be caused to the
submitter's competitive position; or
(ii) That release of the information would impair the Board's
ability to obtain necessary information in the future.
(f) Determination by Secretary. The Secretary's determination
whether or not to disclose any information for which confidential
treatment has been requested pursuant to this section shall be
communicated to the submitter and the requester immediately. If the
Secretary determines to disclose the information and the submitter has
objected to such disclosure pursuant to paragraph (e) of this section,
the Secretary shall provide the submitter with the reasons for
disclosure, and shall delay disclosure for ten working days from the
date of the determination.
(g) Notice of lawsuit. (1) The Secretary shall promptly notify any
submitter of information covered by this section of the filing of any
suit against the Board to compel disclosure of such information.
(2) The Secretary shall promptly notify the requester of any suit
filed against the Board to enjoin the disclosure of any documents
requested by the requester.
Sec. 261.17 Fee schedules; waiver of fees.
(a) Fee schedules. The fees applicable to a request for records
pursuant to Secs. 261.11 and 261.12 are set forth in Appendix A 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) Payment procedures. The Secretary may assume that a person
requesting records pursuant to Sec. 261.12 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 (f) of this
section.
(1) Advance notification of fees. If the estimated charges are
likely to exceed $100, the Freedom of Information Office shall notify
the requester of the estimated amount, unless the requester has
indicated a willingness to pay fees as high as those anticipated. Upon
receipt of such notice, the requester may confer with the Freedom of
Information Office to reformulate the request to lower the costs. The
time period for responding to requests under Sec. 261.13(e), and the
processing of the request will be suspended until the requester agrees
to pay the applicable fees.
(2) Advance payment. The Secretary may require advance payment of
any fee estimated to exceed $250. The Secretary 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 requests under
Sec. 261.13(e), and the processing of the request will be suspended
until the Freedom of Information Office receives the required payment.
(3) Late charges. The Secretary 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.
(c) Categories of uses. The fees assessed depend upon the intended
use for the records requested. In determining which category is
appropriate, the Secretary shall 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 Secretary may seek additional
clarification before categorizing the request.
(1) Commercial use. The fees for search, duplication, and review
apply when records are requested for commercial use.
(2) Educational, research, or media use. The fees for duplication
apply when records are not sought for commercial use, and the requester
is a representative of the news media or an educational or
noncommercial scientific institution, whose purpose is scholarly or
scientific research. The first 100 pages of duplication, however, will
be provided free.
(3) All other uses. For all other requests, the fees for document
search and duplication apply. The first two hours of search time and
the first 100 pages of duplication, however, will be provided free.
(d) Nonproductive search. Fees for search and review may be charged
even if no responsive documents are located or if the request is
denied.
(e) Aggregated requests. A requester may not file multiple requests
at the same time, solely in order to avoid payment of fees. If the
Secretary reasonably believes that a requester is separating a request
into a series of requests for the purpose of evading the assessment of
fees, the Secretary may aggregate any such requests and charge
accordingly. It is considered reasonable for the Secretary to presume
that multiple requests of this type made within a 30-day period have
been made to avoid fees.
(f) 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. 261.13(e), shall not begin until a waiver has been granted; or if
the waiver is denied, until the requester has agreed to pay the
applicable fees.
(1) Standards for determining waiver or reduction. The Secretary
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 following factors shall be
considered:
(i) Whether the subject of the records concerns the operations or
activities of the government;
(ii) Whether disclosure of the information is likely to contribute
significantly to public understanding of government operations or
activities;
(iii) Whether the requester has the intention and ability to
disseminate the information to the public;
(iv) Whether the information is already in the public domain;
(v) Whether the requester has a commercial interest that would be
furthered by the disclosure; and, if so,
(vi) Whether the magnitude of the identified commercial interest of
the requester is sufficiently large, in comparison with the public
interest in disclosure, that disclosure is primarily in the commercial
interest of the requester.
[[Page 54366]]
(2) Contents of request for waiver. 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 Board'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) Burden of proof. The burden shall be on the requester to
present evidence or information in support of a request for a waiver or
reduction of fees.
(4) Determination by Secretary. The Secretary shall make a
determination on the request for a waiver or reduction of fees and
shall notify the requester accordingly. A denial may be appealed to the
Board in accordance with Sec. 261.13(j).
(g) 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 Board, 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 Secretary may waive fees in
excess of that amount.
(h) Special services. The Secretary may agree to provide, and set
fees to recover the costs of, special services not covered by the
Freedom of Information Act, such as certifying records or information
and sending records by special methods such as express mail or
overnight delivery.
Appendix A to Sec. 261.17.--Freedom of Information Fee Schedule
------------------------------------------------------------------------
------------------------------------------------------------------------
Duplication:
Photocopy, per standard page................................ $0.10
Paper copies of microfiche, per frame....................... .10
Duplicate microfiche, per microfiche........................ .35
Search and review:
Clerical/Technical, hourly rate............................. 20.00
Professional/Supervisory, hourly rate....................... 38.00
Manager/Senior Professional, hourly rate.................... 65.00
Computer search and production:
Computer operator search, hourly rate....................... 32.00
Tapes (cassette) per tape................................... 6.00
Tapes (cartridge), per tape................................. 9.00
Tapes (reel), per tape...................................... 18.00
Diskettes (3\1/2\''), per diskette.......................... 4.00
Diskettes (5\1/4\''), per diskette.......................... 5.00
Computer Output (PC), per minute............................ .10
Computer Output (mainframe)................................. (\1\)
------------------------------------------------------------------------
\1\ Actual cost.
By order of the Board of Governors of the Federal Reserve
System, October 10, 1997.
William W. Wiles,
Secretary of the Board.
[FR Doc. 97-27566 Filed 10-17-97; 8:45 am]
BILLING CODE 6210-01-P
