[Federal Register Volume 63, Number 217 (Tuesday, November 10, 1998)]
[Rules and Regulations]
[Pages 62927-62930]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-30044]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE TREASURY
Office of the Comptroller of the Currency
12 CFR Part 4
[Docket No. 98-18]
RIN 1557-AB65
Organization and Functions, Availability and Release of
Information, Contracting Outreach Program
AGENCY: Office of the Comptroller of the Currency, Treasury.
[[Page 62928]]
ACTION: Interim rule with request for comments.
-----------------------------------------------------------------------
SUMMARY: The Office of the Comptroller of the Currency (OCC) is
amending its disclosure regulation. Among other things, the amendment
clarifies that Suspicious Activity Reports are non-public documents and
that the OCC may make non-public OCC information available to a
supervised entity and to other persons, as in the sole discretion of
the Comptroller may be necessary or appropriate, without a request for
records or testimony.
DATES: This interim rule is effective on November 10, 1998. Comments
must be received by January 11, 1999.
ADDRESSES: Comments should be directed to: Office of the Comptroller of
the Currency, Communications Division, 250 E Street, SW, Washington, DC
20219, Attention: Docket No. 98-18. Comments will be available for
public inspection and photocopying at the same location. In addition,
comments may be sent by facsimile transmission to FAX number (202) 874-
5274 or by electronic mail to [email protected]
FOR FURTHER INFORMATION CONTACT: Ursula Pfeil, Attorney, Legislative
and Regulatory Activities (202) 874-5090; or Stuart Feldstein,
Assistant Director, Legislative and Regulatory Activities (202) 874-
5090.
SUPPLEMENTARY INFORMATION:
Background and Discussion of Interim Rule
The OCC is amending subpart C of 12 CFR Part 4 which governs the
release of non-public OCC information. Part 4 currently requires a
person seeking non-public OCC information to submit a request in
writing to the OCC. The current rule does not include a procedure for
the release of non-public OCC information to supervised entities and
other persons without a specific request for the information.
The OCC has authority to prescribe rules governing the release of
agency records and information under its grant of statutory authority
to promulgate substantive regulations to carry out the responsibilities
of the office, 12 U.S.C. 93a, as well as under statutes that
contemplate the sharing of information with other agencies and persons.
See, e.g., 12 U.S.C. 481; 12 U.S.C. 1867; 12 U.S.C. 1820(d)(6).
In some circumstances, the safety and soundness or financial
stability of national banks may be affected unless the OCC discloses
non-public information to supervised entities or certain other persons
without a request. For example, if the OCC obtains information that a
check fraud ring has targeted multiple banks in a particular area, it
may be necessary for the OCC to disclose confidential supervisory
information obtained from one of the targeted banks to other banks that
may also be targets of the same scheme. Similarly, the OCC's ability to
help national banks attain Year 2000 readiness depends, in part, on the
OCC's ability to share information concerning third parties with
supervised entities and other persons.1
---------------------------------------------------------------------------
\1\ For example, ``other persons'' may include self-regulatory
organizations or state banks with whom the OCC seeks to share
information.
---------------------------------------------------------------------------
This interim rule amends part 4 to include a new section on the
dissemination of non-public OCC information without a request. This new
section authorizes the OCC to make non-public OCC information available
to a supervised entity and to other persons, as in the sole discretion
of the Comptroller may be necessary or appropriate, without a request
for records or testimony.2 This interim rule defines the
term ``supervised entity'' to include a national bank, a subsidiary of
a national bank, or a federal branch or agency of a foreign bank
licensed by the OCC. The OCC may continue to impose conditions and
limitations on the disclosure of information through the entry of a
protective order or a written agreement of confidentiality, as provided
for under the current rule.
---------------------------------------------------------------------------
\2\ This approach is consistent with the long-standing
disclosure regulation of the Federal Reserve Board (FRB). See 12 CFR
261.20. The FRB disclosure regulation similarly authorizes the FRB
to share confidential supervisory information with supervised
financial institutions and, from time to time, to make other
discretionary disclosures that the FRB determines necessary.
---------------------------------------------------------------------------
Current Sec. 4.32 defines non-public OCC information as
information, confidential or otherwise, that the OCC is not required to
release under the Freedom of Information Act (FOIA) (5 U.S.C. 552) or
that the OCC has not yet published or made available under 12 U.S.C.
1818(u), the statute requiring publication of certain enforcement
orders. FOIA specifically exempts from disclosure several categories of
information including records contained in, or related to, examination
and operating or condition reports concerning financial institutions.
This interim rule adds a new provision to the part 4 definition of non-
public OCC information to include a Suspicious Activity Report (SAR)
filed by the OCC or a supervised entity under 12 CFR 21.11. This new
provision clarifies that SARs, which are sensitive and confidential
documents, are subject to the procedures for the release of non-public
OCC information under part 4.
This interim rule also clarifies that non-public OCC information
remains the property of the OCC even after it is disclosed, and that it
may not be disclosed to others except as authorized by the OCC. In
addition, no current or former OCC employee or agent may disclose or
permit the disclosure of any non-public OCC information to anyone other
than an employee or agent of the OCC who is entitled to the information
for the performance of OCC duties. Current or former OCC employees or
agents subpoenaed or otherwise requested to provide OCC information
must notify the OCC immediately under procedures set forth in
Sec. 4.37(a)(2).
Effective Date
Section 553 of the Administrative Procedure Act permits an agency
to issue a rule without prior notice and comment when the agency for
good cause finds that notice and public procedure thereon are
impracticable, unnecessary, or contrary to the public interest. 5
U.S.C. 553(b)(B); 5 U.S.C. 553(d). Likewise, section 302 of the Riegle
Community Development and Regulatory Improvement Act of 1994 (CDRI),
Pub. L. 103-325, authorizes a banking agency to issue a rule without
notice and comment to be effective before the first day of the calender
quarter that begins on or after the date on which the regulations are
published in final form if the agency finds good cause for an earlier
effective date. 12 U.S.C. 4802(b)(1).
The OCC finds good cause for issuing this interim rule without
prior notice and comment and for the rule to take effect upon
publication in the Federal Register. Among other things, making this
interim rule effective immediately will allow the OCC to disclose non-
public OCC information to supervised entities and other persons in
certain enforcement contexts requiring immediate action where a request
for the information may not be forthcoming or may be delayed. The OCC's
ability to help national banks attain Year 2000 readiness in the short
time remaining also depends, in part, on the OCC's ability to provide
information rapidly concerning third parties to supervised entities and
other persons without a request. The OCC's ability to carry out its
mission to ensure national banks' safety and soundness, in certain
circumstances, may be impaired unless it can make disclosures, as
authorized by this interim rule, promptly after acquiring the
information in question. For these reasons, the OCC concludes that
prior notice and comment
[[Page 62929]]
procedures and a delayed effective date are impracticable and would be
contrary to the public interest. 5 U.S.C. 553(b)(B).
Request for Comment
The OCC is interested in the views of the public regarding this
interim rule and therefore welcomes comments on any and all aspects of
this interim rule.
Regulatory Flexibility Act
An initial regulatory flexibility analysis under the Regulatory
Flexibility Act is only required whenever an agency is required to
publish a general notice of proposed rulemaking. 5 U.S.C. 603. As noted
previously, the OCC has determined that it is not necessary to publish
a notice of proposed rulemaking for this rule. Accordingly, an initial
regulatory flexibility analysis is not required. Nonetheless, since
this interim rule imposes no new requirements on any national bank, the
OCC finds that this interim rule does not have a secondary or
incidental effect on a substantial number of small entities or create
any additional burden on small entities.
OCC Executive Order 12866 Statement
The OCC has determined that the interim rule is not a significant
regulatory action under Executive Order 12866.
Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act of 1995, Public Law 104-4
(Unfunded Mandates Act), applies only when an agency is required to
promulgate a general notice of proposed rulemaking or a final rule for
which a general notice of proposed rulemaking was published. 2 U.S.C.
1532. As noted previously, the Agencies have determined that it is not
necessary to publish a notice of proposed rulemaking for these
Guidelines. Accordingly, an unfunded mandates act analysis is not
required. Nonetheless, since this interim rule prescribed no mandate of
any kind, the OCC finds that this interim rule will not result in
expenditure by State, local, and tribal governments, or by the private
sector, of more than $100 million in any one year. Accordingly, the OCC
has not prepared a budgetary impact statement or specifically addressed
the regulatory alternatives considered.
List of Subjects in 12 CFR Part 4
Freedom of information, National banks, Organization and functions
(Government agencies), Reporting and recordkeeping requirements.
Authority and Issuance
For the reasons set out in the preamble, part 4 of chapter I of
title 12 of the Code of Federal Regulations is amended as set forth
below:
PART 4--ORGANIZATIONS AND FUNCTIONS, AVAILABILITY AND RELEASE OF
INFORMATION, CONTRACTING OUTREACH PROGRAM
1. The authority citation for part 4 is revised to read as follows:
Authority: 12 U.S.C. 93a. Subpart A also issued under 5 U.S.C.
552; Subpart B also issued under 5 U.S.C. 552; E.O. 12600 (3 CFR
1987 Comp., p. 235). Subpart C also issued under 5 U.S.C. 301, 552;
12 U.S.C. 161, 481, 482, 484(a), 1442, 1817(a)(3), 1818(u) and (v),
1820(d)(6), 1821(c), 1821(o), 1821(t), 1831m, 1831p-1, 1831o, 1867,
1951 et seq., 2601 et seq., 2801 et seq., 2901 et seq., 3101 et
seq., 3401 et seq.; 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. 9701; 42 U.S.C. 3601; 44
U.S.C. 3506, 3510. Subpart D also issued under 12 U.S.C. 1833e.
Subpart C--Release of Non-Public OCC Information
2. Section 4.31 is amended by revising paragraphs (a)(1) and (b)(1)
to read as follows:
Sec. 4.31 Purpose and scope.
(a) Purpose. * * *
(1) Afford an orderly mechanism for the OCC to process
expeditiously requests for non-public OCC information; to address the
release of non-public OCC information without a request; and, when
appropriate, for the OCC to assert evidentiary privileges in
litigation;
* * * * *
(b) Scope. (1) This subpart applies to requests for, and
dissemination of, non-public OCC information, including requests for
records or testimony arising out of civil lawsuits and administrative
proceedings to which the OCC is not a party and the release of non-
public OCC information without a specific request. Lawsuits and
administrative proceedings to which the OCC is not a party include
proceedings in which a Federal agency is a party in opposition to the
private requester.
* * * * *
3. Section 4.32 is amended by redesignating paragraph (e) as
paragraph (f); by removing the word ``and'' from paragraph (b)(1)(v);
and by adding new paragraphs (b)(1)(vii) and (e) to read as follows:
Sec. 4.32 Definitions.
* * * * *
(b) * * *
(1) * * *
(vii) A Suspicious Activity Report filed by the OCC or a supervised
entity under 12 CFR 21.11; and
* * * * *
(e) Supervised entity includes a national bank, a subsidiary of a
national bank, a Federal branch or agency of a foreign bank licensed by
the OCC as defined under 12 CFR 28.11(h) and (i), or any other entity
supervised by the OCC.
* * * * *
4. Sections 4.36 through 4.39 are redesignated as Secs. 4.37
through 4.40, respectively.
5. A new Sec. 4.36 is added to read as follows:
Sec. 4.36 Disclosure of non-public OCC information.
(a) Discretionary disclosure of non-public OCC information. The OCC
may make non-public OCC information available to a supervised entity
and to other persons, as in the sole discretion of the Comptroller may
be necessary or appropriate, without a request for records or
testimony.
(b) Conditions and limitations. The OCC may impose any conditions
or limitations on disclosures under this section, including the
restrictions on dissemination contained in Sec. 4.38, that it
determines are necessary to effect the purposes of this section.
(c) Unauthorized disclosures prohibited. All non-public OCC
information remains the property of the OCC. No supervised entity,
government agency, person, or other party to whom the information is
made available, or any officer, director, employee, or agent thereof,
may disclose non-public OCC information without the prior written
permission of the OCC, except in published statistical material that
does not disclose, either directly or when used in conjunction with
other publicly available information, the affairs of any individual,
corporation, or other entity. Except as authorized by the OCC, no
person obtaining access to non-public OCC information under this
section may make a copy of the information and no person may remove
non-public OCC information from the premises of the institution,
agency, or other party in authorized possession of the information.
6. Paragraph (a) of newly designated Sec. 4.37 is revised to read
as follows:
Sec. 4.37 Persons and entities with access to OCC information;
prohibition on dissemination.
(a) Current and former OCC employees or agents--(1) Generally.
[[Page 62930]]
Except as authorized by this subpart or otherwise by the OCC, no
current or former OCC employee or agent in any manner, may disclose or
permit the disclosure of any non-public OCC information to anyone other
than an employee or agent of the Comptroller for use in the performance
of OCC duties.
(2) Duty of person served. Any current or former OCC employee or
agent subpoenaed or otherwise requested to provide information covered
by this subpart must immediately notify the OCC as provided in this
paragraph. The OCC may intervene, attempt to have the compulsory
process withdrawn, and register appropriate objections when a current
or former OCC employee or agent receives a subpoena and the subpoena
requires the current or former employee or agent to appear or produce
OCC information. If necessary, the current or former employee or agent
must appear as required and respectfully decline to produce the
information sought, citing this subpart as authority and United States
ex rel. Touhy v. Ragen, 340 U.S. 462 (1951). The current or former OCC
employee or agent must immediately notify the OCC if subpoenaed or
otherwise asked for non-public OCC information:
(i) In a civil action, by notifying the Director of the OCC's
Litigation Division at the Washington, DC office; or
(ii) In a criminal action, by notifying the appropriate district
counsel for current and former district employees or agents; or the
Director of the OCC's Enforcement and Compliance Division at the
Washington, DC office, for current and former Washington employees or
agents.
* * * * *
Dated: October 28, 1998.
Julie L. Williams,
Acting Comptroller of the Currency.
[FR Doc. 98-30044 Filed 11-9-98; 8:45 am]
BILLING CODE 4870-33-P
