[Federal Register Volume 63, Number 1 (Friday, January 2, 1998)]
[Proposed Rules]
[Pages 29-34]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-34037]
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Proposed Rules
Federal Register
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This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 63, No. 1 / Friday, January 2, 1998 /
Proposed Rules
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FEDERAL DEPOSIT INSURANCE CORPORATION
12 CFR Part 309
RIN 3064-AC10
Disclosure of Information
AGENCY: Federal Deposit Insurance Corporation (FDIC).
ACTION: Proposed rule.
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SUMMARY: The FDIC proposes to amend its regulations governing the
public disclosure of information to reflect recent changes to the
Freedom of Information Act (FOIA) as a result of the enactment of the
Electronic Freedom of Information Act Amendments of 1996 (E-FOIA).
Among other things, this proposed rule implements expedited and
``multi-track'' FOIA processing procedures; implements the processing
deadlines and appeal rights created by E-FOIA; and describes the
expanded range of records available to the public through the FDIC's
Public Reading Room and the FDIC's Internet World Wide Web page.
DATES: Comments must be submitted on or before February 2, 1998.
ADDRESSES: Send written comments to Robert E. Feldman, Executive
Secretary, Attention: Comments/OES, Federal Deposit Insurance
Corporation, 550 17th Street NW, Washington, DC 20429. Comments may be
hand delivered to the guard station at the rear of the 17th Street
Building (located on F Street), on business days between 7:00 a.m. and
5:00 p.m. (Fax number: (202) 898-3838; Internet address:
comments@fdic.gov). Comments may be inspected and photocopied in the
FDIC Public Information Center, Room 100, 801 17th Street N.W.,
Washington D.C. 20429, between 9:00 a.m. and 4:30 p.m. on business
days.
FOR FURTHER INFORMATION CONTACT: Valerie J. Best, Assistant Executive
Secretary, Office of the Executive Secretary, (202) 898-3812; Linda
Rego, Senior Attorney, Legal Division, (202) 898-7408.
SUPPLEMENTARY INFORMATION:
Section-by-Section Analysis
The Electronic Freedom of Information Act Amendments of 1996 (E-
FOIA), Public Law 104-231, amended the Freedom of Information Act
(FOIA), 5 U.S.C. 552. Among other things, E-FOIA requires agencies to
promulgate regulations that provide for expedited processing of certain
requests for records and permits agencies to promulgate regulations
that provide for multitrack processing of requests. Changes are
proposed to 12 CFR part 309 to comply with the E-FOIA requirements for
expedited processing. The FDIC also is proposing to implement
multitrack processing. In addition, the FDIC is proposing changes to
the section on fees and fee waivers, and portions of this part have
been reorganized and streamlined.
Section 309.1 has been expanded to clarify the purpose and scope of
the various sections found within part 309. Section 309.4 has been
streamlined by eliminating the lengthy list of various offices to
contact for different categories of publicly available records and,
instead, identifying the FDIC's public reading room, or ``Public
Information Center'', and the FDIC World Wide Web page as primary
sources of FDIC information. This section also describes the
information that is made available for inspection or copying, either in
the FDIC's reading room or over the Internet, as required by E-FOIA.
The FDIC notes that the records provided over the Internet cover a much
smaller scope than those available in the FDIC's reading room because
the E-FOIA requirement to provide records over the Internet covers only
records created by the FDIC after November 1, 1996. However, the FDIC
is increasing the resources available over the Internet on the FDIC
World Wide Web page found at: http://www.fdic.gov. The FDIC also
publishes a pamphlet entitled ``Symbol of Confidence'' which describes
the FDIC's structure and lists sources to contact for information about
the FDIC or other assistance. The ``Symbol of Confidence'' is available
on the FDIC World Wide Web page. Copies may also be obtained through
the FDIC's Public Information Center.
Section 309.5 describes the FDIC's procedures for processing FOIA
requests. This section has been extensively revised to reflect the
changes required by E-FOIA. The proposed rule provides for multitrack
processing. Fast-track processing will apply to records that are easily
identifiable by the Freedom of Information office staff (FOIA/PA Unit)
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 FOIA/PA Unit staff to narrow the
request so that it will qualify for fast-track processing. The
statutory time limit for regular-track processing would be extended to
twenty business days, pursuant to E-FOIA, 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 FDIC has
determined to expedite the response. The time limit for expedited
processing is set at ten business days, with expedited procedures
available for an appeal of the FDIC's determination not to provide
expedited processing. Under E-FOIA, 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 proposal 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 FDIC's rules. To demonstrate a compelling need, a
requester must submit a certified statement, a sample of which may be
obtained from the FOIA/PA Unit.
Section 309.5(f) 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
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not begin in cases (1) where advance payment is required until payment
is received, or (2) where a person has requested a waiver of the fees
and has not agreed to pay the fees if the waiver request is denied.
Regulatory Flexibility Act Analysis
Pursuant to section 605(b) of the Regulatory Flexibility Act (5
U.S.C. 601, et seq.), the FDIC certifies that the proposed rule 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 FDIC; therefore, they should not have a significant economic impact
on a substantial number of small entities.
Paperwork Reduction Act Analysis
The collection of information contained in this proposed rule is
found at 12 CFR 309.5(c) and has been submitted to the Office of
Management and Budget (OMB) for review and approval in accordance with
the requirements of the Paperwork Reduction Act of 1995 (PRA) (44
U.S.C. 3501 et seq.). Comments are invited on: (a) Whether the
collection of information is necessary for the proper performance of
the FDIC's functions, including whether the information has practical
utility; (b) the accuracy of the estimates of the burden of the
information collection; (c) ways to enhance the quality, utility, and
clarity of the information to be collected; and (d) ways to minimize
the burden of the information collection on respondents, including
through the use of automated collection techniques or other forms of
information technology.
Comments should be addressed to the Office of Information and
Regulatory Affairs, Office of Management and Budget, Attention: Desk
Officer Alexander Hunt, New Executive Office Building, Room 3208,
Washington, DC 20503, with copies of such comments to Steven F. Hanft,
Assistant Executive Secretary (Regulatory Analysis), Federal Deposit
Insurance Corporation, Room F-4080, 550 17th Street NW, Washington, DC
20429. All comments should refer to part 309. OMB is required to make a
decision concerning the collections of information contained in the
proposed regulations between 30 and 60 days after the publication of
this document in the Federal Register. Therefore, a comment to OMB is
best assured of having its full effect if OMB receives it within 30
days of this publication. This does not affect the deadline for the
public to comment to the FDIC on the proposed regulation.
Title of collection: Requests for records pursuant to the Freedom
of Information Act.
Summary of the collection: The name, address and telephone number
of the requester; a statement whether the requester is an educational
institution, noncommercial scientific institution, or news media
representative; a statement agreeing to pay applicable fees or
requesting a waiver or reduction of fees; and the form or format of
responsive information requested, if other than paper copies.
Respondents: Persons who desire to obtain records pursuant to the
Freedom of Information Act.
Estimate of Annual Burden:
Number of requests--1,000.
Time required to prepare a request--15 minutes.
Total annual burden hours--250 hours.
List of Subjects in 12 CFR Part 309
Banks, banking, Credit, Freedom of information, Privacy.
For the reasons set forth in the preamble, the Federal Deposit
Insurance Corporation is proposing to amend title 12, chapter III, of
the Code of Federal Regulations as follows:
PART 309--DISCLOSURE OF INFORMATION
1. The authority citation for part 309 continues to read as
follows:
Authority: 5 U.S.C. 552; 12 U.S.C. 1819 ``Seventh'' and
``Tenth''.
2. Section 309.1 is revised to read as follows:
Sec. 309.1 Purpose and scope.
This part sets forth the basic policies of the Federal Deposit
Insurance Corporation regarding information it maintains and the
procedures for obtaining access to such information. Section 309.2 sets
forth definitions applicable to this part 309. Section 309.3 describes
the types of information and documents typically published in the
Federal Register. Section 309.4 explains how to access public records
maintained on the Federal Deposit Insurance Corporation's World Wide
Web page and in the Federal Deposit Insurance Corporation's Public
Information Center or ``PIC'', and describes the categories of records
generally found there. Section 309.5 implements the Freedom of
Information Act (5 U.S.C. 552). Section 309.6 authorizes the
discretionary disclosure of exempt records under certain limited
circumstances. Section 309.7 outlines procedures for serving a subpoena
or other legal process to obtain information maintained by the FDIC.
3. Section 309.2(e) is revised to read as follows:
Sec. 309.2 Definitions.
* * * * *
(e) The term record includes records, files, documents, reports,
correspondence, books, and accounts, or any portion thereof, in any
form the FDIC regularly maintains them.
* * * * *
4. Section 309.4 is revised to read as follows:
Sec. 309.4 Publicly available records.
Many records are available upon request or are available for public
inspection as noted below. To the extent permitted by law, the FDIC may
delete identifying details when it makes available or publishes a final
opinion, final order, statement of policy, interpretation or staff
manual or instruction. If redaction is necessary, the FDIC will, to the
extent technically feasible, indicate the amount of material deleted at
the place in the record where such deletion is made unless that
indication in and of itself will jeopardize the purpose for the
redaction. If applicable, fees for furnishing records under this
section are as set forth in Sec. 309.5(f) except that all categories of
requesters shall be charged duplication costs.
(a) FDIC World Wide Web page. (1) The following types of documents
created on or after November 1, 1996, may be found on the FDIC World
Wide Web page located at:
http://www.fdic.gov:
(i) Final opinions, including concurring and dissenting opinions,
as well as final orders and written agreements, made in the
adjudication of cases;
(ii) Statements of policy and interpretations adopted by the Board
of Directors that are not published in the Federal Register;
(iii) Administrative staff manuals and instructions to staff that
affect the public;
(iv) Copies of all records released to any person under Sec. 309.5
that, because of the nature of their subject matter, the FDIC has
determined are likely to be requested again;
(v) A general index of the records referred to in paragraph (a)(4)
of this section.
(2) Information published on the World Wide Web page is not subject
to the fees provision of Sec. 309.5(f), and is freely accessible.
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(b) Public Information Center. (1) The FDIC maintains a Public
Information Center or ``PIC'' that contains Corporate records that the
Freedom of Information Act requires be made available for regular
inspection and copying, as well as any records or information the FDIC,
in its discretion, has regularly made available to the public. The PIC
has extensive materials of interest to the public, including many
Reports, Summaries and Manuals used or published by the Corporation
that are available for inspection and copying.
(2) The PIC is open from 9:00 am to 5:00 pm, Monday through Friday,
excepting Federal holidays. It is located at 801 17th Street, NW,
Washington, DC 20006. The PIC may be reached during business hours by
calling (800) 276-6003.
(3) The PIC makes efforts to publish records and information of the
FDIC on the World Wide Web page, located at http://www.fdic.gov.
(4) The FDIC encourages the public to explore the wealth of
resources available at the FDIC Public Information Center and on the
Web page designated in paragraph (b)(3) of this section.
5. Section 309.5 is revised to read as follows:
Sec. 309.5 Procedures for requesting records.
(a) Definitions. For purposes of this section:
(1) Commercial use request means a request from or on behalf of a
requester 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. In determining whether a request
falls within this category, the FDIC will determine the use to which a
requester will put the records requested and seek additional
information as it deems necessary.
(2) Direct costs means those expenditures the FDIC actually incurs
in searching for, duplicating, and, in the case of commercial
requesters, reviewing records in response to a request for records.
(3) Duplication means the process of making a copy of a record
necessary to respond to a request for records or for inspection of
original records that contain exempt material or that cannot otherwise
be directly inspected. Such copies can take the form of paper copy,
microfilm, audiovisual records, or machine readable records (e.g.,
magnetic tape or computer disk).
(4) Educational institution means a preschool, a public or private
elementary or secondary school, an institution of undergraduate or
graduate higher education, an institution of professional education,
and an institution of vocational education, which operates a program or
programs of scholarly research.
(5) Noncommercial scientific institution means an institution that
is not operated on a commercial basis as that term is defined in
paragraph (a)(1) of this section, and which is operated solely for the
purpose of conducting scientific research, the results of which are not
intended to promote any particular product or industry.
(6) Representative of the news media means any person primarily
engaged in gathering news for, or a free-lance journalist who can
demonstrate a reasonable expectation of having his or her work product
published or broadcast by, an entity that is organized and operated to
publish or broadcast news to the public. The term news means
information that is about current events or that would be of current
interest to the general public.
(7) Review means the process of examining records located in
response to a request for records to determine whether any portion of
any record is permitted to be withheld as exempt information. It
includes processing any record for disclosure, e.g., doing all that is
necessary to excise them or otherwise prepare them for release.
(8) Search includes all time spent looking for material that is
responsive to a request, including page-by-page or line-by-line
identification of material within records. Searches may be done
manually and/or by computer using existing programming.
(b) Making a request for records. (1) The request shall be
submitted in writing to the Office of the Executive Secretary:
(i) By completing the online request form located on the FDIC World
Wide Web page, found at http://www.fdic.gov;
(ii) By facsimile clearly marked Freedom of Information Act Request
to (202) 898-8778; or
(iii) By sending a letter to the Office of the Executive Secretary,
ATTN: FOIA/PA Unit, 550 17th Street, NW, Washington, DC 20429.
(2) The request shall contain the following information:
(i) The name and address of the requester, an electronic mail
address, if available, and the telephone number at which the requester
may be reached during normal business hours;
(ii) Whether the requester is an educational institution,
noncommercial scientific institution, or news media representative;
(iii) A statement agreeing to pay the applicable fees, or a
statement identifying a maximum fee that is acceptable to the
requester, or a request for a waiver or reduction of fees that
satisfies paragraph (f)(1)(x) of this section; and
(iv) The preferred form and format of any responsive information
requested, if other than paper copies.
(3) A request for identifiable records shall reasonably describe
the records in a way that enables the FDIC's staff to identify and
produce the records with reasonable effort and without unduly burdening
or significantly interfering with any of the FDIC's operations.
(c) Defective requests. The FDIC 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 part. The FDIC
may return a defective request, specifying the deficiency. The
requester may submit a corrected request, which will be treated as a
new request.
(d) Processing requests--(1) Receipt of requests. Upon receipt of
any request that satisfies paragraph (b) of this section, the FOIA/PA
Unit, Office of the Executive Secretary, shall assign the request to
the appropriate processing schedule pursuant to this section. The date
of receipt for any request, including one that is addressed incorrectly
or that is referred by another agency, is the date the Office of the
Executive Secretary actually receives the request.
(2) Multi-track processing. (i) The FDIC provides different levels
of processing for categories of requests under this part. Requests for
records that are readily identifiable by the Office of the Executive
Secretary 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 (d)(3) of this section.
(ii) The FDIC will make the determination whether a request
qualifies for fast-track processing. A requester may contact the FOIA/
PA Unit 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 refine the
request in order to qualify for fast-track processing. Changes made to
requests to obtain faster processing must be in writing.
(3) Expedited processing. Where a person requesting expedited
access to records has demonstrated a compelling need for the records,
or where the FDIC has determined to expedite the response, the FDIC
shall process the
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request as soon as practicable. To show a compelling need for expedited
processing, the requester shall provide a statement demonstrating 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 can establish that they are primarily engaged in
information dissemination as their main professional occupation or
activity, and there is urgency to inform the public of the government
activity involved in the request; and
(iii) The requester's statement must be certified to be true and
correct to the best of the person's knowledge and belief and explain in
detail the basis for requesting expedited processing.
(4) Denial of expedited processing. A requester seeking expedited
processing will be notified whether expedited processing has been
granted within ten (10) working days of the receipt of the request. If
the requester is denied expedited processing, the requester may file an
appeal pursuant to the procedures set forth in paragraph (h) of this
section, and the FDIC shall respond to the appeal within ten (10)
working days after receipt of the appeal.
(5) Priority of responses. Consistent with sound administrative
process the FDIC processes requests in the order they are received in
the separate processing tracks. However, in the agency's discretion, or
upon a court order in a matter to which the FDIC is a party, a
particular request may be processed out of turn.
(6) Notification. (i) The time for response to requests will be 20
working days except:
(A) In the case of expedited treatment under paragraph (d)(3) of
this section;
(B) Where the running of such time is suspended for the calculation
of a cost estimate for the requester if the FDIC determines that the
processing of the request may exceed the requester's maximum fee
provision or if the charges are likely to exceed $250 as provided for
in paragraph (f)(1)(v) of this section;
(C) Where the running of such time is suspended for the payment of
fees pursuant to paragraphs (d)(6)(i)(B) and (f)(1) of this section; or
(D) In unusual circumstances, as defined in 5 U.S.C. 552(a)(6)(B).
(ii) In unusual circumstances as referred to in paragraph
(d)(6)(i)(D) of this section, the time limit may be extended for a
period of:
(A) Ten (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
(B) Such alternative time period as agreed to by the requester or
as reasonably determined by the FDIC when the FDIC notifies the
requester that the request cannot be processed in the specified time
limit.
(iii) Unusual circumstances may arise when:
(A) The records are in facilities, such as field offices or storage
centers, that are not located at the FDIC's Washington office;
(B) The records requested are voluminous or are not in close
proximity to one another; or
(C) There is a need to consult with another agency or among two or
more components of the FDIC having a substantial interest in the
determination.
(7) Response to request. In response to a request that satisfies
the requirements of paragraph (b) of this section, a search shall be
conducted of records maintained by the FDIC in existence on the date of
receipt of the request, and a review made of any responsive information
located. The FDIC shall notify the requester of:
(i) The FDIC's determination of the request;
(ii) The reasons for the determination;
(iii) If the response is a denial of an initial request or if any
information is withheld, the FDIC will advise the requester in writing:
(A) If the denial is in part or in whole;
(B) The name and title of each person responsible for the denial
(when other than the person signing the notification);
(C) The exemptions relied on for the denial; and
(D) The right of the requester to appeal the denial to the FDIC's
General Counsel within 30 business days following receipt of the
notification, as specified in paragraph (h) of this section.
(e) 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 FDIC or makes other acceptable arrangements, or
the FDIC deems it appropriate to send the documents by another means.
(2) The FDIC shall provide a copy of the record in any form or
format requested if the record is readily reproducible by the FDIC in
that form or format, but the FDIC need not provide more than one copy
of any record to a requester.
(3) By arrangement with the requester, the FDIC may elect to send
the responsive records electronically if a substantial portion of the
request is in electronic format. If the information requested is made
pursuant to the Privacy Act of 1974, 5 U.S.C. 552a, it will not be sent
by electronic means unless reasonable security measures can be
provided.
(f) Fees--(1) General rules. (i) Persons requesting records of the
FDIC shall be charged for the direct costs of search, duplication, and
review as set forth in paragraphs (f)(2) and (f)(3) of this section,
unless such costs are less than the FDIC's cost of processing the
requester's remittance.
(ii) Requesters will be charged for search and review costs even if
responsive records are not located or, if located, are determined to be
exempt from disclosure.
(iii) Multiple requests seeking similar or related records from the
same requester or group of requesters will be aggregated for the
purposes of this section.
(iv) If the FDIC determines that the estimated costs of search,
duplication, or review of requested records will exceed the dollar
amount specified in the request, or if no dollar amount is specified,
the FDIC will advise the requester of the estimated costs (if greater
than the FDIC's cost of processing the requester's remittance). The
requester must agree in writing to pay the costs of search,
duplication, and review prior to the FDIC initiating any records
search.
(v) If the FDIC estimates that its search, duplication, and review
costs will exceed $250.00, the requester must pay an amount equal to 20
percent of the estimated costs prior to the FDIC initiating any records
search.
(vi) The FDIC shall ordinarily collect all applicable fees under
the final invoice before releasing copies of requested records to the
requester.
(vii) The FDIC may require any requester who has previously failed
to pay the charges under this section within 30 calendar days of
mailing of the invoice to pay in advance the total estimated costs of
search, duplication, and review. The FDIC may also require a requester
who has any charges outstanding in excess of 30 calendar days following
mailing of the invoice to pay the full amount due, or demonstrate that
the fee has been paid in full, prior to the FDIC initiating any
additional records search.
(viii) The FDIC may begin assessing interest charges on unpaid
bills on the 31st day following the day on which the invoice was sent.
Interest will be at the rate prescribed in section 3717 of title
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31 of the United States Code and will accrue from the date of the
invoice.
(ix) The time limit for the FDIC to respond to a request will not
begin to run until the FDIC has received the requester's written
agreement under paragraph (f)(1)(iv) of this section, and advance
payment under paragraph (f)(1) (v) or (vii) of this section, or payment
of outstanding charges under paragraph (f)(1)(vii) or (viii) of this
section.
(x) As part of the initial request, a requester may ask that the
FDIC waive or reduce fees if disclosure of the records is in the public
interest because it 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.
Determinations as to a waiver or reduction of fees will be made by the
Executive Secretary (or designee) and the requester will be notified in
writing of his/her determination. A determination not to grant a
request for a waiver or reduction of fees under this paragraph may be
appealed to the FDIC's General Counsel (or designee) pursuant to the
procedure set forth in paragraph (h) of this section.
(2) Chargeable fees by category of requester. (i) Commercial use
requesters shall be charged search, duplication and review costs.
(ii) Educational institutions, non-commercial scientific
institutions and news media representatives shall be charged
duplication costs, except for the first 100 pages.
(iii) Requesters not described in paragraph (f)(2) (i) or (ii) of
this section shall be charged the full reasonable direct cost of search
and duplication, except for the first two hours of search time and
first 100 pages of duplication.
(3) Fee schedule. The dollar amount of fees which the FDIC may
charge to records requesters will be established by the Chief Financial
Officer of the FDIC (or designee). The FDIC may charge fees that recoup
the full allowable direct costs it incurs. Fees are subject to change
as costs change.
(i) Manual searches for records. The FDIC will charge for manual
searches for records at the basic rate of pay of the employee making
the search plus 16 percent to cover employee benefit costs. Where a
single class of personnel (e.g., all clerical, all professional, or all
executive) is used exclusively, the FDIC, at its discretion, may
establish and charge an average rate for the range of grades typically
involved.
(ii) Computer searches for records. The fee for searches of
computerized records is the actual direct cost of the search, including
computer time, computer runs, and the operator's time apportioned to
the search. The fee for a computer printout is the actual cost. The
fees for computer supplies are the actual costs. The FDIC may, at its
discretion, establish and charge a fee for computer searches based upon
a reasonable FDIC-wide average rate for central processing unit
operating costs and the operator's basic rate of pay plus 16 percent to
cover employee benefit costs.
(iii) Duplication of records. (A) The per-page fee for paper copy
reproduction of documents is the average FDIC-wide cost based upon the
reasonable direct costs of making such copies.
(B) For other methods of reproduction or duplication, the FDIC will
charge the actual direct costs of reproducing or duplicating the
documents.
(iv) Review of records. The FDIC will charge commercial use
requesters for the review of records at the time of processing the
initial request to determine whether they are exempt from mandatory
disclosure at the basic rate of pay of the employee making the search
plus 16 percent to cover employee benefit costs. Where a single class
of personnel (e.g., all clerical, all professional, or all executive)
is used exclusively, the FDIC, at its discretion, may establish and
charge an average rate for the range of grades typically involved. The
FDIC will not charge at the administrative appeal level for review of
an exemption already applied. When records or portions of records are
withheld in full under an exemption which is subsequently determined
not to apply, the FDIC may charge for a subsequent review to determine
the applicability of other exemptions not previously considered.
(v) Other services. Complying with requests for special services,
other than a readily produced electronic form or format, is at the
FDIC's discretion. The FDIC may recover the full costs of providing
such services to the requester.
(4) Publication of fee schedule and effective date of changes. (i)
The fee schedule is made available on the FDIC World Wide Web page,
found at
http://www.fdic.gov.
(ii) The fee schedule will be set forth in the ``Notice of Federal
Deposit Insurance Corporation Records Fees'' issued in December of each
year or in such ``Interim Notice of Federal Deposit Insurance
Corporation Records Fees'' as may be issued. Copies of such notices may
be obtained at no charge from the Office of the Executive Secretary,
FOIA/PA Unit, 550 17th Street, NW, Washington, D.C. 20429, and are
available on the Web page as noted in paragraph (f)(4)(i) of this
section.
(iii) The fees implemented in the December or Interim Notice will
be effective 30 days after issuance.
(5) Use of contractors. The FDIC may contract with independent
contractors to locate, reproduce, and/or disseminate records; provided,
however, that the FDIC has determined that the ultimate cost to the
requester will be no greater than it would be if the FDIC performed
these tasks itself. In no case will the FDIC contract out
responsibilities which the Freedom of Information Act (FOIA) (5 U.S.C.
552) provides that the FDIC alone may discharge, such as determining
the applicability of an exemption or whether to waive or reduce fees.
(g) Exempt information. A request for records may be denied if the
requested record contains information which falls into one or more of
the following categories.1 If the requested record contains
both exempt and nonexempt information, the nonexempt portions which may
reasonably be segregated from the exempt portions will be released to
the requester. If redaction is necessary, the FDIC will, to the extent
technically feasible, indicate the amount of material deleted at the
place in the record where such deletion is made unless that indication
in and of itself will jeopardize the purpose for the redaction. The
categories of exempt records are as follows:
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\1\ Classification of a record as exempt from disclosure under
the provisions of this paragraph (g) shall not be construed as
authority to withhold the record if it is otherwise subject to
disclosure under the Privacy Act of 1974 (5 U.S.C. 552a) or other
federal statute, any applicable regulation of FDIC or any other
federal agency having jurisdiction thereof, or any directive or
order of any court of competent jurisdiction.
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(1) Records that are specifically authorized under criteria
established by an Executive Order to be kept secret in the interest of
national defense or foreign policy and are in fact properly classified
pursuant to such Executive Order;
(2) Records related solely to the internal personnel rules and
practices of the FDIC;
(3) Records specifically exempted from disclosure by statute,
provided that such 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 and commercial or financial information obtained
from a person that is privileged or confidential;
(5) Interagency or intra-agency memoranda or letters that would not
be
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available by law to a private party in litigation with the FDIC;
(6) Personnel, medical, and similar files (including financial
files) the disclosure of which would constitute a clearly unwarranted
invasion of personal privacy;
(7) Records compiled for law enforcement purposes, but only to the
extent that the production of such law enforcement records:
(i) Could reasonably be expected to interfere with enforcement
proceedings;
(ii) Would deprive a person of a right to a fair trial or an
impartial adjudication;
(iii) Could reasonably be expected to constitute an unwarranted
invasion of personal privacy;
(iv) Could reasonably be expected to disclose the identity of a
confidential source, including a state, local, or foreign agency or
authority or any private institution which furnished records on a
confidential basis;
(v) Would disclose techniques and procedures for law enforcement
investigations or prosecutions, or would disclose guidelines for law
enforcement investigations or prosecutions if such disclosure could
reasonably be expected to risk circumvention of the law; or
(vi) Could reasonably be expected to endanger the life or physical
safety of any individual;
(8) Records that are contained in or related to examination,
operating, or condition reports prepared by, on behalf of, or for the
use of the FDIC or any agency responsible for the regulation or
supervision of financial institutions; or
(9) Geological and geophysical information and data, including
maps, concerning wells.
(h) Appeals. (1) Appeals should be addressed to the Office of the
Executive Secretary, FDIC, 550 17th Street, NW, Washington, DC 20429.
(2) A person whose initial request for records under this section,
or whose request for a waiver of fees under paragraph (f)(1)(x) of this
section, has been denied, either in part or in whole, has the right to
appeal the denial to the FDIC's General Counsel (or designee) within 30
business days after receipt of notification of the denial. Appeals of
denials of initial requests or for a waiver of fees must be in writing
and include any additional information relevant to consideration of the
appeal.
(3) Except in the case of an appeal for expedited treatment under
paragraph (d)(3) of this section, the FDIC will notify the appellant in
writing within 20 business days after receipt of the appeal and will
state:
(i) Whether it is granted or denied in whole or in part;
(ii) The name and title of each person responsible for the denial
(if other than the person signing the notification);
(iii) The exemptions relied upon for the denial in the case of
initial requests for records; and
(iv) The right to judicial review of the denial under the FOIA.
(4) If a requester is appealing for denial of expedited treatment,
the FDIC will notify the appellant within 10 business days after
receipt of the appeal of the FDIC's disposition.
(i) Records of another agency. If a requested record is the
property of another federal agency or department, and that agency or
department, either in writing or by regulation, expressly retains
ownership of such record, upon receipt of a request for the record the
FDIC will promptly inform the requester of this ownership and
immediately shall forward the request to the proprietary agency or
department either for processing in accordance with the latter's
regulations or for guidance with respect to disposition.
By Order of the Board of Directors.
Dated at Washington, D.C., this 9th day of December 1997.
Federal Deposit Insurance Corporation.
Robert E. Feldman,
Executive Secretary.
[FR Doc. 97-34037 Filed 12-31-97; 8:45 am]
BILLING CODE 6714-01-P
