[Federal Register Volume 60, Number 220 (Wednesday, November 15, 1995)]
[Rules and Regulations]
[Pages 57315-57333]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-28115]
DEPARTMENT OF THE TREASURY
Office of the Comptroller of the Currency
12 CFR Parts 4, 10, 11, and 18
Office of the Secretary
31 CFR Part 1
[Docket No. 95-27]
RIN 1557-AA67
Organization and Functions, Availability and Release of
Information, Contracting Outreach Program; Municipal Securities
Dealers; Securities Exchange Act Disclosure Rules; Disclosure of
Financial and Other Information by National Banks; Disclosure of
Records
AGENCY: Office of the Comptroller of the Currency and Office of the
Secretary, Treasury.
ACTION: Final rule.
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SUMMARY: The Office of the Comptroller of the Currency (OCC) is
revising its rules that describe the agency's organization and
functions and govern the availability and release of information in
order to facilitate the OCC's interaction with the banking industry and
the public. The OCC is also making technical and clarifying amendments
to its rules governing municipal securities dealers, disclosures under
the Securities Exchange Act, and the disclosure of financial and other
information by national banks. Finally, under authority delegated by
the Department of the Treasury, the OCC is making minor changes to
certain Treasury rules regarding disclosure of records. This final rule
is another component of the OCC's Regulation Review Program, which is
intended to update and streamline OCC regulations and to reduce
unnecessary regulatory costs and other burdens.
EFFECTIVE DATE: January 1, 1996.
FOR FURTHER INFORMATION CONTACT: Andrew T. Gutierrez, Attorney,
Legislative and Regulatory Activities Division, (202) 874-5090 (except
with respect to 12 CFR part 4, subpart C); Lester N. Scall, Senior
Attorney, Administrative and Internal Law Division, (202) 874-4460, or
Daniel L. Cooke, Attorney, Legislative and Regulatory Activities
Division, (202) 874-5090 (with respect to 12 CFR part 4, subpart C).
SUPPLEMENTARY INFORMATION:
The Proposal
On March 27, 1995, the OCC published a notice of proposed
rulemaking (60 FR 15705) to revise 12 CFR part 4--the OCC's regulations
that describe the agency's organization and functions, govern the
availability and release of information, and implement the outreach
program for potential OCC contractors.
The proposal sought to further the goals of the Regulation Review
Program by updating, clarifying, reorganizing, and streamlining the
regulations where appropriate to promote better and more efficient
interaction between the OCC and the banking industry and the public at
large. The proposal also made technical and clarifying amendments to 12
CFR part 10 (municipal securities dealers), part 11 (Securities
Exchange Act disclosure rules), part 18 (disclosure of financial and
other information by national banks), and 31 CFR part 1 (disclosure of
records).
The Final Rule
The final rule implements the proposal with a few additional
changes, which are made generally in response to comments received. The
OCC received a total of five comment letters: two from banks, one from
a bank trade organization, one from a bank consulting firm, and one
from a community group. The community group directed its comments to
several aspects of the OCC's corporate application process set forth in
12 CFR part 5. That same community group had previously submitted
substantially similar comments on the notice of proposed rulemaking
proposal to revise part 5 (59 FR 61304, Nov. 29, 1994). Because many of
the issues that the community group's comments raise relate to part 5,
the OCC is considering them in the context of the part 5 rulemaking.
The remaining four comment letters focused exclusively on proposed
subparts A, B, and C of 12 CFR part 4, which, respectively, describe
the agency's organization and functions, govern the disclosure of
information under the Freedom of Information Act (FOIA), and govern the
release of non-public OCC information.
The following sections summarize the amendments to part 4 and
briefly describe the changes made to parts 10, 11, and 18, and 31 CFR
part 1.
Part 4, Subpart A--Organization and Functions
Purpose (Sec. 4.1).
Proposed Sec. 4.1 explained the purpose of subpart A--namely, to
describe the OCC's organization and functions and provide the OCC's
principal addresses. The OCC received no comments on this section,
which is adopted as proposed with minor stylistic edits.
[[Page 57316]]
Office of the Comptroller of the Currency (Sec. 4.2).
Proposed Sec. 4.2 described the functions of the OCC. The OCC
received no comments on this section, which is adopted as proposed with
minor stylistic edits.
Comptroller of the Currency (Sec. 4.3).
Proposed Sec. 4.3 described the responsibilities of the Comptroller
of the Currency. The OCC received no comments on this section, which is
adopted as proposed with minor stylistic edits.
Neither the proposal nor the final rule contains the detailed job
descriptions of OCC positions subordinate to the Comptroller of the
Currency that formerly appeared in part 4. As explained in the preamble
of the proposal, the OCC will continue to publish current and accurate
descriptions of the functions of its major departments and divisions in
the OCC's annual report to Congress. The annual report, required under
12 U.S.C. 14, consists of the four issues of the Quarterly Journal
published each year; the first issue contains the Comptroller's Report
of Operations, which describes in detail the functions of the major
departments and divisions of the OCC. Persons may also contact the
OCC's Communications Division for information concerning the OCC's
organizational structure.
Washington Office (Sec. 4.4).
Proposed Sec. 4.4 described the functions and responsibilities of
the OCC's Washington office, and provided its address. The OCC received
one comment on this section, suggesting that the regulation be revised
to clarify which national banks are directly supervised by the
Washington office and why. This commenter and other readers are
referred to the Comptroller's Report of Operations found in the
Quarterly Journal, which discusses national banks supervised by the
Washington office (through the Multinational Banking Department and the
Special Supervision Division) to the extent that the information is not
confidential. The Quarterly Journal provides more current information
than the OCC's codified regulations. Accordingly, the OCC adopts this
section as proposed.
District and Field Offices (Sec. 4.5).
Proposed Sec. 4.5 described the functions and responsibilities of
the OCC's district and field offices, and provided the office address
and geographical composition of each OCC district. The OCC received no
comments on this section, which is adopted as proposed.
Part 4, Subpart B--Availability of Information Under the Freedom of
Information Act.
Purpose and scope (Sec. 4.11).
Proposed Sec. 4.11 explained the purpose of subpart B--namely, to
set forth the standards, policies, and procedures that the OCC applies
in administering the FOIA to facilitate the OCC's interaction with the
banking industry and the public. The proposal also delineated the scope
of subpart B by briefly describing the sections in the subpart. The OCC
received no comments on this section, which is adopted as proposed with
minor stylistic edits.
Information available under the FOIA (Sec. 4.12).
Proposed Sec. 4.12 explained that OCC records are available to the
public in accordance with the FOIA, except records that the FOIA
exempts from disclosure. The proposal set forth the nine FOIA
exemptions. Additionally, the proposal incorporated a ``special
exclusion'' provision found in the FOIA that authorizes an agency to
treat records as excluded from FOIA's coverage in certain circumstances
where disclosure of the existence of the records may interfere with
criminal law enforcement proceedings. One commenter expressed concerns
about the propriety of the FOIA special exclusion, and suggested that
the OCC adopt a means of nondisclosure that does not involve a
misrepresentation.
To date, the OCC has not relied on the FOIA special exclusion.
Under current OCC practice, whenever the OCC receives a request for
records in circumstances where disclosure of the existence of those
types of records may interfere with criminal law enforcement
proceedings, the OCC indicates that it will neither confirm nor deny
the existence of those records, regardless of whether those records
exist. Because the OCC believes that its current practice is sufficient
to prevent the disclosure of the existence of these types of records,
the OCC has determined that it is not necessary to include the FOIA
special exclusion in its regulations, and has omitted the proposed
language on the special exclusion.
The proposal also stated that, on a case-by-case basis, even if a
record is exempt from disclosure under the FOIA, the OCC may decide in
its discretion not to apply the exemption to the requested record. One
commenter suggested that the OCC add to this discretionary disclosure
provision a cross-reference to proposed section 4.16 (predisclosure
notice for confidential commercial information) to clarify that the OCC
will not override the predisclosure notice requirements of that
section. The OCC has added appropriate language in response to this
comment.
Publication in the Federal Register (Sec. 4.13).
Proposed Sec. 4.13 clarified that the OCC publishes in the Federal
Register proposed and final rules, and certain notices and policy
statements of concern to the general public. The OCC received no
comments on this section, which is adopted as proposed with minor
stylistic edits.
Public inspection and copying (Sec. 4.14).
Proposed Sec. 4.14 clarified that the OCC makes certain information
readily available from the Communications Division for public
inspection and copying, including: (1) Final orders, agreements, or
other enforceable documents issued in the adjudication of an OCC
enforcement case; (2) final opinions issued in the adjudication of an
OCC enforcement case; (3) statements of general policy or
interpretations of general applicability not published in the Federal
Register; (4) administrative staff manuals or instructions to staff
that may affect a member of the public; (5) a current index identifying
each document described in items (1)-(4) that the OCC issued, adopted,
or promulgated after July 4, 1967 (a date set under 5 U.S.C.
552(a)(2)); (6) a list of OCC publications available; and (7) a list of
forms available from the OCC, and specific forms and instructions.
The OCC received no comments on this section. However, the OCC is
clarifying item (7) with a footnote indicating that some forms that
national banks use, such as the Consolidated Report of Condition and
Income (FFIEC 031-034), may not be available from the OCC. The OCC will
provide information on where persons may obtain these forms and
instructions upon request. Moreover, for the sake of completeness, the
OCC is adding three items to the list of records available from the
Communications Division under this section, numbering them as follows:
(8) public Community Reinvestment Act performance evaluations; (9)
public securities-related filings required under 12 CFR part 11 or 16;
and (10) public comment letters regarding a proposed rule.
Finally, the OCC is adding item (11): public files (as defined at
12 CFR 5.9) with respect to pending applications described in part 5 of
its regulations. Under the proposed rule (and the former rule), public
files were available only by specific written request under the
procedures set forth in proposed Sec. 4.15 (former Sec. 4.17a). The OCC
has added
[[Page 57317]]
item (11) to Sec. 4.14 to indicate that public files will be readily
available for public inspection and copying from Licensing Manager at
the appropriate district office at the address listed in Sec. 4.5(a).
Specific requests for records (Sec. 4.15).
Proposed Sec. 4.15 clarified that any OCC record not exempt from
disclosure is available to any person upon specific request. The
proposal set forth the standards, policies, and procedures that apply
to a request for records or an administrative appeal of a denial of a
request for records. The OCC received no comments on this section.
However, the OCC has decided to make public files with respect to
corporate applications available under the less formal provisions of
Sec. 4.14 rather than this section (see discussion of Sec. 4.14,
above). Accordingly, the OCC has removed references to the availability
of public files from this section.
Predisclosure notice for confidential commercial information
(Sec. 4.16).
Proposed Sec. 4.16 explained the predisclosure notice procedures
that the OCC follows, in accordance with Executive Order 12600 (3 CFR,
1987 Comp., p. 235), when the OCC receives a request for records that
arguably are exempt from disclosure under exemption 4 of the FOIA as
confidential commercial information. 5 U.S.C. 552(b)(4). See proposed
Sec. 4.12(b)(4). One commenter suggested that the OCC extend the
predisclosure notice requirements of this section to requests for
disclosure of information for which the submitter has requested
confidentiality pursuant to FOIA exemption 6 (unwarranted invasion of
personal privacy) or expects confidentiality under FOIA exemption 8
(bank examination reports and related records). The OCC is not aware
of, and the commenter did not identify, any problems that warrant
extending these specific procedures beyond the scope of Executive Order
12600. Accordingly, this section is adopted as proposed with minor
stylistic edits.
It is important to emphasize the OCC's continuing commitment to
maintaining the confidentiality of bank-related information that is
protected under FOIA exemption 4, 6, or 8. The OCC does not disclose
under subpart B information that falls under those FOIA exemptions.
Rather, the OCC releases such non-public information only under the
procedures set forth in subpart C. The discussion of subpart C below
addresses the OCC's notice procedures regarding requests for non-public
information.
Fees for services (Sec. 4.17).
The proposal set forth the fees that the OCC assesses for the
services it renders in providing information under the FOIA. The OCC
received no comments on this section, which is adopted as proposed with
minor stylistic edits.
Part 4, Subpart C--Release of Non-public OCC Information
This subpart contains the OCC's procedures for the release of non-
public OCC information and states the restrictions on the dissemination
of non-public OCC information.1 The OCC received four comments
that addressed subpart C. These comments were generally supportive of
the proposal. The section-by-section discussion below summarizes these
comments and the changes the OCC has incorporated in the final rule.
\1\ The OCC's authority to prescribe this subpart derives from 5
U.S.C. 301 and 552 and recent judicial interpretations of the bank
examination privilege. This authority was discussed in detail in the
proposal. See 60 FR 15705, 15708.
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Purpose and scope (Sec. 4.31).
Proposed Sec. 4.31 identified the purposes of subpart C, including
the prevention of undue burden on the OCC. One commenter urged that, if
one purpose of the rule is to prevent undue burden on the OCC, another
purpose of the rule should likewise be to prevent undue burden on the
banking industry or the public. The OCC agrees with the commenter that
its rules with respect to the release of non-public OCC information
should seek to minimize burden to all participants in the process. The
final rule reflects this change and includes minor conforming changes
as well.
The proposal prescribed the scope of subpart C by specifying the
types of litigation to which subpart C applies and the type of
information covered by the regulation. The OCC received no comments on
the scope of subpart C.
The proposal stated that a request by an agency with authority to
investigate violations of criminal law or a request by a Federal agency
for use in civil or administrative enforcement proceedings was not
governed by subpart C. The final rule modifies the proposal by stating
that requests for non-public OCC information by the Board of Governors
of the Federal Reserve System (Board of Governors), the Federal Deposit
Insurance Corporation (FDIC), government agencies of the United States
and foreign governments, state agencies with authority to investigate
violations of criminal law, and state bank regulatory agencies are
governed solely by Sec. 4.36(c). As described below, Sec. 4.36(c)
generally provides that, when not prohibited by law, the Comptroller
may make, in the Comptroller's sole discretion, non-public OCC
information available to these agencies. The final rule is, therefore,
almost identical to the former rule, Sec. 4.18(b), which also gave the
Comptroller sole discretion to make non-public OCC information
available to certain agencies. The final rule differs from the former
provision only in the addition of two categories of agencies: (1) state
agencies with authority to investigate violations of criminal law; and
(2) state bank regulatory agencies.
Under the final rule, these state agencies, the Board of Governors,
the FDIC, and government agencies of the United States and foreign
governments need not follow the specific procedures set forth in
subpart C when seeking non-public OCC information. The OCC anticipates
that these agencies will, however, consult the subpart C procedures for
guidance regarding, for example, confidentiality undertakings and the
type of information the OCC will need in order to determine whether to
release the information requested.
Definitions (Sec. 4.32).
The proposal provided definitions for the following terms:
``compelling need,'' ``complete request,'' ``non-public OCC
information,'' ``showing that the information has high relevance,'' and
``testimony.'' The OCC received three comments on these definitions.
Two commenters urged the OCC to make the standards for the release of
information more stringent by changing the proposed rule's definitions
of ``compelling need'' and ``showing that the information has high
relevance.'' One commenter urged the OCC to make the standards less
stringent by redefining these terms.
The OCC has determined that the standards, as they were proposed,
best reflect the current state of the law and achieve the OCC's
objective of accommodating the interests of requesters subject to the
need to ensure open communications in the bank examination and
supervision process by preserving appropriate confidentiality.
Therefore, the OCC adopts the definitions as they were proposed with a
few changes in wording that clarify or streamline the provisions. For
example, the definition of ``compelling need'' is revised to reflect
that this standard applies only to requests for testimony and to
substitute the word ``relevant'' for the phrase defining relevance that
appeared in the proposal. The final rule uses the term ``relevant'' in
place of the term ``highly relevant,'' but the substance of its
definition remains the same.
The proposal did not retain the provision in former Sec. 4.18(b)
that stated that examination reports are the property of the OCC. See
60 Fed. Reg.
[[Page 57318]]
15705, 15709. The OCC received no comments on this point but has
decided that the statement is useful information that should be
retained. Therefore, the statement is incorporated as part of the
definition of ``non-public OCC information.''
Requirements for a request of records or testimony (Sec. 4.33).
Proposed Sec. 4.33 specified the submissions that requesters must
provide to the OCC when seeking non-public OCC information. The OCC
received no comments on this section, which the OCC adopts as proposed
with minor changes.
Where to submit a request (Sec. 4.34).
Proposed Sec. 4.34 specified that requests for non-public OCC
information, requests for authentication of a record, and notifications
regarding the issuance of subpoenas or other compulsory process must be
addressed to the OCC's Litigation Division in Washington, DC. The
proposal also added a provision that permits a person who is requesting
public OCC information and non-public OCC information to submit a
combined request for both to the Litigation Division in Washington, DC.
If a requester decides to submit a combined request under this section,
the OCC will process the combined request under this subpart and not
under subpart B (FOIA).
The OCC received no comments on this section. For clarity, the OCC
adds to the final rule a provision detailing where certain government
agencies should submit a request.
Consideration of requests (Sec. 4.35).
Proposed Sec. 4.35 stated that the decision to release non-public
OCC information is at the sole discretion of the Comptroller and listed
the issues and factors that the OCC will consider in acting on requests
for non-public OCC information. The proposal also stated that the OCC
may require a requester to submit additional information, or seek
information from other sources, and may respond to certain requests by
authorizing others in possession of the requested information to
release the information.
One commenter urged the OCC to modify the proposal to indicate
that, when a third-party litigant seeks non-public OCC information and
when other evidence reasonably suited that litigant's need is available
from another source, a strong presumption exists in favor of finding
that the public interest in maintaining the confidentiality of the
information outweighs the need for it. The OCC agrees with this
concern, but believes that the availability from other sources of
information reasonably suited to the requester's need is already
adequately addressed in Sec. 4.35(a)(2)(iii) as a basis for denial of a
request.
Three commenters urged the OCC to add provisions that would ensure
that a national bank receives notice whenever a requester seeks non-
public OCC information about that bank so that the bank may have an
opportunity to comment. One of those commenters urged the OCC to use
the procedures for publicly available information as proposed at
Sec. 4.16(b). Another commenter urged the OCC to require any third-
party litigant that requests non-public OCC information to notify, as a
prerequisite for OCC consideration of the request, all other parties to
the litigation and the bank that is the subject of the information
sought.
The OCC recognizes that a national bank has a strong interest in
the release of non-public OCC information that relates to the bank and
that the bank is most often in the best position to explain why the
information falls within the definition of non-public OCC information.
For these reasons the OCC adds a new provision to the final rule,
Sec. 4.35(a)(6), that states that, following receipt of a request for
non-public OCC information, the OCC generally notifies the national
bank that is the subject of the request, unless the OCC, in its
discretion, determines that to do so would advantage or prejudice any
of the parties in the matter at issue. The OCC is not here applying
subpart B's submitter notification procedures, Sec. 4.16(b), because
the scope of the OCC's release of information under subpart C is more
limited than its release of information under subpart B. Information
disclosed under subpart B enters the public domain and therefore loses
its confidentiality. Information released under subpart C remains the
property of the OCC and may be provided only to limited categories of
requesters or upon the prior approval of the OCC. It thus retains its
confidential character. The more detailed procedures set forth in
subpart B are, accordingly, unnecessary.
The final rule adds to the statement that release of non-public OCC
information is at the sole discretion of the Comptroller an explicit
statement clarifying that OCC action on a request for non-public OCC
information exhausts administrative remedies for discovery of the
information. The final rule also includes several minor changes to the
wording of Sec. 4.35.
Persons and entities with access to OCC information; prohibition on
dissemination (Sec. 4.36).
The title to proposed Sec. 4.36 ``Parties with access to OCC
information; restriction on dissemination'' is changed in the final
rule by replacing the word ``restriction'' with ``prohibition,'' and by
replacing the word ``Parties'' with the words ``Persons and entities,''
which better reflect the content of the section.
(a) OCC employees or former employees. Proposed Sec. 4.36(a),
incorporated and clarified the provisions of former Secs. 4.18(a) and
4.19 that prohibited OCC employees and former employees from
disseminating non-public OCC information without prior OCC approval.
The proposal also stated the OCC's policy of objecting to subpoenas for
non-public OCC information, such as employee testimony, when subpoenas
are used in lieu of the request procedures of this subpart. The OCC
received no comments on Sec. 4.36(a).
The proposal stated that the OCC will attempt to have compulsory
process withdrawn and may register appropriate objections when an
employee or former employee receives a subpoena. The final rule
clarifies that the OCC may intervene in a judicial or administrative
proceeding either to have compulsory process withdrawn or to make
appropriate objections.
The proposal instructed OCC employees and former employees that
they must notify the Director of the OCC's Litigation Division when
they receive a subpoena for non-public OCC information. The final rule
clarifies that the appropriate District Counsel, or the Director of the
Enforcement and Compliance Division as appropriate, handles subpoenas
arising out of criminal actions. In all other cases, employees and
former employees should notify the Director of the Litigation Division.
Because time is usually of the essence in these cases, immediate
notification of the appropriate OCC personnel is essential, and the OCC
has added these provisions to ensure that notices are directed
precisely. The final rule also makes several technical changes.
(b) Non-OCC employees or entities. In Sec. 4.36(b), the proposal
incorporated and clarified the provisions of former Sec. 4.18 (b) and
(c) that prohibited persons who are not current or former OCC employees
from disseminating non-public OCC information. Proposed Sec. 4.36(b)
did not address situations in which a Federal court has ordered
discovery of non-public OCC information. The final rule incorporates an
express exception for this situation that permits the subpoenaed person
or entity to make the information available according to the Federal
court's order if the requester has complied with the request procedures
of this subpart.
[[Page 57319]]
The final rule adds a requirement that a person or entity served
with a subpoena or request to provide non-public OCC information notify
the OCC so that the OCC can intervene in judicial proceedings when
appropriate. The final rule requires persons and entities to notify the
OCC upon receipt of service. In addition, the final rule requires
persons and entities requested to disclose non-public OCC information
to inform the requester of these rules and, in particular, of the
submission requirements. The final rule also requires persons and
entities to notify, at the appropriate time, the court or tribunal that
issued process of the substance of these rules.
This provision is consistent with the holding of the United States
Court of Appeals for the Sixth Circuit in In re Bankers Trust Company,
61 F.3rd 465 (6th Cir. 1995). The Sixth Circuit held that the Board of
Governors of the Federal Reserve System's (FRB's) regulation that
requires a party ``to continually decline to disclose information or
testimony'' following receipt of a subpoena, order, or other judicial
process exceeds the FRB's delegated authority. Id. at 470.
The OCC's final rule does not require a party to continue to refuse
to disclose a document or otherwise supplant a court's jurisdiction
over discovery. Rather, as countenanced by the Sixth Circuit in Bankers
Trust, this rule ensures that the OCC has ``the opportunity to
intervene to protect any interests, arguments, or concerns'' it has in
the production of ``confidential supervisory information'' by requiring
that the OCC be given notice of a request and, through the request
procedures, by providing the OCC with facts sufficient to respond to
process. Id. at 470, n. 6.
Proposed Sec. 4.36(b) permitted national banks to disclose non-
public OCC information to persons officially connected with the bank as
officer, director, employee, attorney, auditor, or independent auditor.
The OCC requested specific comment on whether ``consultants'' should be
included in the list of bank-connected persons who are eligible to
receive OCC examination reports without first obtaining the express
approval of the OCC.
Two commenters addressed Sec. 4.36 and both urged the OCC to
include ``consultants'' in the list of individuals eligible to receive
examination reports without prior OCC approval. The commenters noted
that many national banks use consultants and that access to examination
reports helps a consultant to assist bank management in responding to
problems and needs. The commenters asserted that whether to release an
exam report to a consultant should fall within the bank's discretion.
To ensure the confidentiality of exam reports released to
consultants, one commenter urged the OCC to attach a form
confidentiality agreement to each exam report. Another commenter urged
the OCC to attach a statement to each exam report that explains the
report's confidential nature and the sanctions for disseminating the
report.
The OCC agrees that the ability of a national bank to benefit from
the services of a consultant will often be maximized if a bank may
provide the consultant with an exam report. However, the OCC also has
an interest in protecting the confidentiality of the examination
process and is concerned that adding ``consultants'' to the
Sec. 4.36(b) list without condition could result in prohibited
dissemination of non-public OCC information. Accordingly, the final
rule is modified to state that a national bank or holding company or a
director, officer, or employee thereof may only release non-public OCC
information to a consultant if the consultant: (1) is under a written
contract to provide services to the bank; and (2) has a written
agreement with the bank in which the consultant (i) states its
awareness of, and agreement to abide by, the prohibition on the
dissemination of non-public OCC information contained in
Sec. 4.36(b)(1) of this subpart, and (ii) agrees not to use the non-
public OCC information for any purpose other than as provided under its
agreement to provide services to the bank. (Persons not listed in
Sec. 4.36(b) may still seek non-public information pursuant to the
request procedures in Sec. 4.35.) The final rule also clarifies that
the prohibition on dissemination of non-public OCC information that is
contained in Sec. 4.36(b)(1) applies to all persons and entities,
including consultants, who have access to non-public OCC information
under Sec. 4.36(b)(2).
One commenter suggested that a national bank should be permitted to
allow exam report access to consultants who are considering accepting
an engagement from the bank. The OCC believes that a prospective
consultant does not have the type of relationship with the bank that is
appropriate to ensure the confidentiality of the non-public OCC
information and therefore has not incorporated this suggestion in the
final rule.
(c) Disclosure to government agencies. Proposed Sec. 4.36(c)
incorporated the provisions of former Sec. 4.18(b) that governed the
disclosure of non-public OCC information to the Board of Governors, the
FDIC, and certain government agencies of the United States and foreign
governments. The proposal thereby preserved the OCC's policies and
procedures for sharing information with these agencies and did not
supersede information sharing agreements. The OCC received no comments
on Sec. 4.36(c).
The final rule also preserves the OCC's information sharing
policies and procedures. However, the final rule modifies Sec. 4.36(c)
to state more accurately that, in addition to requests by the Board of
Governors of the Federal Reserve System, the Federal Deposit Insurance
Corporation, and certain government agencies of the United States and
foreign governments, requests by state agencies with authority to
investigate violations of criminal law and state bank regulatory
agencies are governed solely by Sec. 4.36(c).
The final rule also clarifies that ``testimony'' is one type of
non-public OCC information that the Comptroller may make available to
these agencies. Though ``testimony'' was implicit in the proposal
because it is included within the definition of ``non-public OCC
information,'' the proposal did not expressly mention the term.
Proposed Sec. 4.36(c) stated that all non-public OCC information
made available pursuant to this subpart is OCC property. The final rule
modifies this provision by stating expressly that the OCC may condition
the use of non-public OCC information made available under this
paragraph (disclosure to government agencies) on appropriate
confidentiality protections. This provision parallels Sec. 4.37, which
applies to all requests for non-public OCC information.
(d) Intention of OCC not to waive rights. Proposed Sec. 4.36(d)
stated that non-public OCC information does not lose its non-public
status when released to a person or entity. The OCC received no
comments on this provision, which is adopted as proposed.
Restrictions on dissemination of released information (Sec. 4.37).
The title to proposed Sec. 4.37 ``Limitation of dissemination of
released information'' is changed in the final rule by replacing the
word ``Limitation'' with ``Restrictions,'' which better reflects the
content of the section.
The proposal permitted the OCC to condition release of non-public
OCC information on the issuance of a protective order and the sealing
of transcripts. The proposal also specified that the OCC may authorize
the use of the same records or testimony in another case. The OCC
received no comments on this section, and therefore adopts the section
as proposed. A model
[[Page 57320]]
stipulation and protective order are printed at appendix A to this
subpart.
Notification of parties and procedures for sharing and using OCC
records in litigation (Sec. 4.38).
The title to proposed Sec. 4.38 ``Procedures for sharing and using
OCC records in litigation'' is changed in the final rule by adding
``Notification of parties,'' which reflects the content of the section
as changed in the final rule.
Proposed Sec. 4.38 required: (1) parties to a case to share
released records among litigants; (2) all requesters to retrieve
released non-public OCC information from court files; and (3) all
parties to destroy non-public OCC information covered by a protective
order. The proposal also informed requesters that the OCC will
authenticate its documents for use as evidence. The OCC adopts these
provisions as proposed.
The OCC adds a provision to the final rule that requires a litigant
who submits a request to the OCC for the testimony of an OCC employee
or former employee to notify all other parties to the litigation. This
provision is necessary to ensure that other parties who wish to depose
the same OCC employee or former employee will have opportunity to
submit a request for testimony to the OCC prior to the deposition of
the employee or former employee, in accordance with Sec. 4.35(b)(3).
Fees for services (Sec. 4.39).
Proposed Sec. 4.39 set fee schedules that apply when the OCC
provides records or authorizes testimony from current or former
employees. The OCC received no comments on this section, which is
adopted, with minor stylistic changes, as proposed.
Part 4, Subpart D--Contracting Outreach Program
The proposal relocated the OCC's rules regarding the minority-,
women-, and individuals with disabilities-owned business contracting
outreach program from subpart C to subpart D, and renumbered them. The
OCC received no comments on this subpart. Accordingly, subpart D is
adopted as proposed.
The program's focus is on outreach as a means to enhance the
participation by these businesses in OCC procurements. Except for
procurements made pursuant to government-wide special purpose programs,
OCC procurements do not employ racial, ethnic, or gender
classifications as bases for contract awards. Given its focus on
outreach, the OCC does not believe the program is affected by the
recent Supreme Court decision in Adarand Contractors, Inc. v. Pena, 63
U.S.L.W. 4523 (U.S. June 12, 1995). However, this program, as well as
the government-wide special purpose programs, will be further reviewed
in context of the overall review of all Federal affirmative action
programs recently initiated pursuant to the President's direction.
Part 10--Municipal Securities Dealers
The proposal eliminated certain forms and instructions from the
OCC's rules regarding municipal securities dealers because it is not
necessary to publish them in the regulation. The OCC received no
comments on this amendment, which is adopted as proposed.
Part 11--Securities Exchange Act Disclosure Rules
The proposal made technical amendments to the OCC's rules regarding
disclosure under various provisions of the Securities Exchange Act of
1934 (15 U.S.C. 78l, 78m, 78n, 78p, and 78w), including updating the
reference to the name of the division that receives filings and
specifying the division that receives requests for copies of filings.
The OCC received no comments on these amendments, which are adopted as
proposed.
Part 18--Disclosure of Financial and Other Information by National
Banks
The proposal made several technical and conforming amendments to
the OCC's rules regarding annual financial disclosures by national
banks. The only significant amendment involved conforming the OCC's
rules to language adopted in the Financial Institutions Reform,
Recovery, and Enforcement Act of 1989 (FIRREA), Pub. L. 101-73, 103
Stat. 187, describing persons subject to administrative enforcement
action by the Federal banking agencies. Specifically, section 901(b) of
FIRREA amended 12 U.S.C. 1811 et seq., by substituting the term
``institution-affiliated party'' for the terms ``director,''
``officer,'' ``employee,'' ``agent,'' and ``other person participating
in the conduct of the affairs of a bank'' (the term ``institution-
affiliated party'' is defined at 12 U.S.C. 1813(u)). The proposal made
amendments to the provision that indicates the parties subject to
administrative action for violations of part 18, in order to conform
that provision to the language introduced in section 901(b) of FIRREA.
The OCC received no comments on these amendments, which are adopted
as proposed.
31 CFR Part 1--Disclosure of Records
The proposal made technical amendments to appendix J of subpart A
and appendix J of subpart C of part 31 to update regulatory information
specific to the OCC. Subpart A contains the Department of the
Treasury's FOIA rules, and subpart C contains the Department of the
Treasury's Privacy Act rules. The various appendices to subparts A and
C contain standardized information about components of the Department
of the Treasury, including officials and addresses relevant to the
implementation of the FOIA and the Privacy Act. Appendix J of subpart A
and appendix J of subpart B, entitled ``Office of the Comptroller of
the Currency,'' contain information about the OCC.
The Department of the Treasury, at 31 CFR 1.1(d) and 1.20, has
authorized the head of each of its components to substitute the
officials designated and change the addresses specified in the
appendices corresponding to that component. Pursuant to this grant of
authority, the OCC proposed to amend the OCC administrative information
in appendix J of subpart A and appendix J of subpart C.
The OCC received no comments on these amendments, which are adopted
as proposed with minor stylistic edits.
Derivation Table for 12 CFR Part 4
[This table directs readers to the provisions of the former 12 CFR part 4, if any, on which the revised 12 CFR part 4 is based]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Revised provision Former provision Comments
--------------------------------------------------------------------------------------------------------------------------------------------------------
Subpart A:
Sec. 4.1........................... Sec. 4.1.............................................. Significantly modified.
Secs. 4.2-4.5...................... Sec. 4.1a............................................. Significantly modified.
Subpart B:
Sec. 4.11.......................... Sec. 4.1.............................................. Significantly modified.
Sec. 4.12(a)....................... Sec. 4.16(a).......................................... Modified.
(b)........................... Sec. 4.16(b).......................................... Modified.
[[Page 57321]]
(c)........................... Sec. 4.16(c).......................................... Modified.
(d)........................... Sec. 4.16(d).......................................... Modified.
Sec. 4.13.......................... Sec. 4.14(a).......................................... Significantly modified.
Sec. 4.14(a)(1)-(4).......... Sec. 4.15(a)(1)-(4)................................... Modified.
(a)(5)........................ Sec. 4.15(b).......................................... Modified.
(a)(6)........................ Sec. 4.14(b).......................................... Modified.
(a)(7)........................ Sec. 4.13............................................. Modified.
(a)(8)........................ Sec. 4.17(b)(2)(ii)................................... Modified.
(a)(9)........................ Sec. 4.15(a)(6)-(9)................................... Modified.
(a)(10)....................... ....................................................... Added.
(a)(11)....................... Sec. 4.17(b)(2)(i)(A)................................. Significantly modified.
(b)........................... Sec. 4.15(c).......................................... Modified.
(c)........................... ....................................................... Added.
Sec. 4.15(a)....................... Sec. 4.16(a).......................................... Modified.
(b)........................... Sec. 4.17(b), (c), and (d)(1)......................... Significantly modified.
(c)........................... Secs. 4.17(d)(2), (d)(3), and (g), and 4.17a(b)....... Significantly modified.
(d)........................... Secs. 4.17(e) and 4.17a(c)............................ Modified.
(e)(1)........................ ....................................................... Added (see 5 U.S.C. 552(a)(4)(B)).
(e)(2)........................ Sec. 4.17(f).......................................... Modified.
(f)........................... Sec. 4.17a(d)......................................... Modified.
(g)........................... Sec. 4.17a(a)......................................... Modified.
Sec. 4.16.......................... Sec. 4.18(d).......................................... Modified.
Sec. 4.17.......................... Sec. 4.17(h).......................................... Modified.
Subpart C:
Sec. 4.31.......................... ....................................................... Added.
Sec. 4.32.......................... ....................................................... Added.
Sec. 4.33.......................... Sec. 4.19............................................. Significantly modified.
Sec. 4.34.......................... ....................................................... Added.
Sec. 4.35.......................... Sec. 4.19............................................. Significantly modified.
Sec. 4.36(a)....................... Secs. 4.18(a) and 4.19................................ Significantly modified.
(b)........................... Secs. 4.18(c) and 7.6025(c)........................... Significantly modified.
(c)........................... Sec. 4.18(b).......................................... Modified.
(d)........................... ....................................................... Added.
Sec. 4.37.......................... ....................................................... Added.
Sec. 4.38.......................... ....................................................... Added.
Sec. 4.39.......................... ....................................................... Added.
Subpart D:
Secs. 4.61-4.66.................... Secs. 4.61-4.74....................................... Renumbered.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Regulatory Flexibility Act
It is hereby certified that this final rule will not have a
significant economic impact on a substantial number of small entities.
Accordingly, a regulatory flexibility analysis is not required. This
final rule is primarily clarifying in nature and has no material impact
on national banks, regardless of size.
Executive Order 12866
The OCC has determined that this final rule is not a significant
regulatory action under Executive Order 12866.
Paperwork Reduction Act
The collection of information requirements contained in this final
rule have received emergency approval from the Office of Management and
Budget in accordance with the Paperwork Reduction Act of 1995 (44
U.S.C. 3507(d)), under OMB control number 1557-0200. Comments on the
collection of information should be sent to the Office of Management
and Budget, Paperwork Reduction Project 1557, Washington, DC 20503,
with copies to the Legislative and Regulatory Activities Division 1557-
0200, Office of the Comptroller of the Currency, 250 E Street, SW,
Washington, DC 20219. The OCC will submit the collection of information
requirements contained in this final rule for renewal of OMB approval
following publication of this final rule.
The collection of information requirements in this rule are found
in 12 CFR 4.33, 4.35, 4.36, 4.37, and 4.38. This information is
required to protect non-public OCC information from unnecessary
disclosure in order to ensure that national banks and the OCC engage in
a candid dialogue during the bank examination process. This collection
accomplishes that end primarily by providing the OCC with information
to process requests for non-public OCC information to determine if
sufficient grounds exist for the OCC to release requested information.
This collection also provides the OCC with notice of requests submitted
to national banks for non-public OCC information, which will enable the
OCC to intervene in litigation to register objections to disclosure
when appropriate.
Respondents are not required to respond to this collection of
information unless it displays a currently valid OMB control number.
The likely respondents are national banks, persons in litigation with
national banks, and former employees of the OCC.
Estimated average annual burden hours per respondent/recordkeeper:
5
Estimated number of respondents and/or recordkeepers: 180
Estimated total annual reporting and recordkeeping burden: 894
hours.
Start-up costs to respondents: None.
Unfunded Mandates Act of 1995
The OCC has determined that this final rule will not result in
expenditures by state, local, and tribal governments,
[[Page 57322]]
or by the private sector, of more than $100 million in any one year.
Accordingly, a budgetary impact statement is not required under section
202 of the Unfunded Mandates Act of 1995.
List of Subjects
12 CFR Part 4
Administrative practice and procedure, Confidential business
information, Freedom of information, National banks, Organization and
functions (Government agencies), Reporting and recordkeeping
requirements, Women and minority businesses.
12 CFR Part 10
National banks, Reporting and recordkeeping requirements,
Securities.
12 CFR Part 11
Confidential business information, National banks, Reporting and
recordkeeping requirements, Securities.
12 CFR Part 18
National banks, Reporting and recordkeeping requirements.
31 CFR Part 1
Confidential business information, Courts, Freedom of information,
Government employees, Privacy.
Authority and Issuance
For the reasons set out in the preamble, chapter I of title 12, and
subtitle A of title 31, of the Code of Federal Regulations are amended
as follows:
Comptroller of the Currency
12 CFR CHAPTER I
1. Part 4 is revised to read as follows:
PART 4--ORGANIZATION AND FUNCTIONS, AVAILABILITY AND RELEASE OF
INFORMATION, CONTRACTING OUTREACH PROGRAM
Subpart A--Organization and Functions
Sec.
4.1 Purpose.
4.2 Office of the Comptroller of the Currency.
4.3 Comptroller of the Currency.
4.4 Washington office.
4.5 District and field offices.
Subpart B--Availability of Information Under the Freedom of Information
Act
4.11 Purpose and scope.
4.12 Information available under the FOIA.
4.13 Publication in the Federal Register.
4.14 Public inspection and copying.
4.15 Specific requests for records.
4.16 Predisclosure notice for confidential commercial information.
4.17 Fees for services.
Subpart C--Release of Non-Public OCC Information
4.31 Purpose and scope.
4.32 Definitions.
4.33 Requirements for a request of records or testimony.
4.34 Where to submit a request.
4.35 Consideration of requests.
4.36 Persons and entities with access to OCC information;
prohibition on dissemination.
4.37 Restrictions on dissemination of released information.
4.38 Notification of parties and procedures for sharing and using
OCC records in litigation.
4.39 Fees for services.
Appendix A to Subpart C--Model Stipulation for Protective Order and
Model Protective Order
Subpart D--Minority-, Women-, and Individuals With Disabilities-Owned
Business Contracting Outreach Program; Contracting for Goods and
Services
4.61 Purpose.
4.62 Definitions.
4.63 Policy.
4.64 Promotion.
4.65 Certification.
4.66 Oversight and monitoring.
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. 481, 482, 1821(o), 1821(t); 18 U.S.C. 641, 1905, 1906; 31
U.S.C. 9701. Subpart D also issued under 12 U.S.C. 1833e.
Subpart A--Organization and Functions
Sec. 4.1 Purpose.
This subpart describes the organization and functions of the Office
of the Comptroller of the Currency (OCC), and provides the OCC's
principal addresses.
Sec. 4.2 Office of the Comptroller of the Currency.
The OCC supervises and regulates national banks and Federal
branches and agencies of foreign banks by examining these institutions
to determine compliance with applicable laws and regulations; approving
or denying applications for new charters or for changes in corporate or
banking structure; approving or denying activities; taking supervisory
or enforcement actions; appointing receivers and conservators; and
issuing rules and regulations applicable to these institutions, their
subsidiaries, and affiliates.
Sec. 4.3 Comptroller of the Currency.
The Comptroller of the Currency (Comptroller), as head of the OCC,
is responsible for all OCC programs and functions. The Comptroller is
appointed by the President, by and with the advice and consent of the
Senate, for a term of five years. The Comptroller serves as a member of
the board of the Federal Deposit Insurance Corporation, a member of the
Federal Financial Institutions Examination Council, and a member of the
board of the Neighborhood Reinvestment Corporation. The Comptroller is
advised and assisted by OCC staff, who perform the duties and functions
that the Comptroller directs.
Sec. 4.4 Washington office.
The Washington office of the OCC is the main office and
headquarters of the OCC. The Washington office directs OCC policy,
oversees OCC operations, and is responsible for the direct supervision
of certain national banks, including the largest national banks
(through its Multinational Banking Department) and other national banks
requiring special supervision. The Washington office is located at 250
E Street, SW, Washington, DC 20219.
Sec. 4.5 District and field offices.
(a) District offices. Each district office of the OCC is
responsible for the direct supervision of the national banks and
Federal branches and agencies of foreign banks in its district, with
the exception of the national banks supervised by the Washington
office. The six district offices cover the United States, Puerto Rico,
the Virgin Islands, Guam, and the Northern Mariana Islands. The office
address and the geographical composition of each district follows:
------------------------------------------------------------------------
Geographical
District Office address composition
------------------------------------------------------------------------
Northeastern.............. Office of the Connecticut,
Comptroller of the Delaware, District
Currency, 1114 of Columbia, Maine,
Avenue of the Maryland,
Americas, Suite Massachusetts, New
3900, New York, NY Hampshire, New
10036. Jersey, New York,
Pennsylvania, Puerto
Rico, Rhode Island,
Vermont, Virgin
Islands
[[Page 57323]]
Southeastern.............. Office of the Alabama, Florida,
Comptroller of the Georgia,
Currency, Marquis Mississippi, North
One Tower, Suite Carolina, South
600, 245 Peachtree Carolina, Tennessee,
Center Ave., NE, Virginia, West
Atlanta, GA 30303. Virginia
Central................... Office of the Illinois, Indiana,
Comptroller of the Kentucky, Michigan,
Currency, One Ohio, Wisconsin
Financial Place,
Suite 2700, 440
South LaSalle
Street, Chicago, IL
60605.
Midwestern................ Office of the Iowa, Kansas,
Comptroller of the Minnesota, Missouri,
Currency, 2345 Grand Nebraska, North
Ave., Suite 700, Dakota, South Dakota
Kansas City, MO
64108.
Southwestern.............. Office of the Arkansas, Louisiana,
Comptroller of the New Mexico,
Currency, 1600 Oklahoma, Texas.
Lincoln Plaza, 500
N. Akard Street,
Dallas, TX 75201.
Western................... Office of the Alaska, Arizona,
Comptroller of the California,
Currency, 50 Fremont Colorado, Guam,
Street, Suite 3900, Hawaii, Idaho,
San Francisco, CA Montana, Nevada,
94105. Northern Mariana
Islands, Oregon,
Washington, Wyoming,
Utah.
------------------------------------------------------------------------
(b) Field offices and duty stations. Field offices and duty
stations support the bank supervisory responsibilities of the district
offices.
Subpart B--Availability of Information Under the Freedom of
Information Act
Sec. 4.11 Purpose and scope.
(a) Purpose. This subpart sets forth the standards, policies, and
procedures that the OCC applies in administering the Freedom of
Information Act (FOIA) (5 U.S.C. 552) to facilitate the OCC's
interaction with the banking industry and the public.
(b) Scope. (1) This subpart describes the information that the FOIA
requires the OCC to disclose to the public (Sec. 4.12), and the three
methods by which the OCC discloses that information under the FOIA
(Secs. 4.13, 4.14, and 4.15).
(2) This subpart also sets forth predisclosure notice procedures
that the OCC follows, in accordance with Executive Order 12600 (3 CFR,
1987 Comp., p. 235), when the OCC receives a request under Sec. 4.15
for disclosure of records that arguably are exempt from disclosure as
confidential commercial information (Sec. 4.16). Finally, this subpart
describes the fees that the OCC assesses for the services it renders in
providing information under the FOIA (Sec. 4.17).
(3) This subpart does not apply to a request for records pursuant
to the Privacy Act (5 U.S.C. 552a). A person requesting records from
the OCC pursuant to the Privacy Act should refer to 31 CFR part 1,
subpart C, and appendix J of subpart C.
Sec. 4.12 Information available under the FOIA.
(a) General. In accordance with the FOIA, OCC records are available
to the public, except the exempt records described in paragraph (b) of
this section.
(b) Exemptions from availability. The following records, or
portions thereof, are exempt from disclosure under the FOIA:
(1) A record 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 that is properly classified
pursuant to that Executive order;
(2) A record relating solely to the internal personnel rules and
practices of an agency;
(3) A record specifically exempted from disclosure by statute
(other than 5 U.S.C. 552b), provided that the statute requires that the
matters be withheld from the public in such a manner as to leave no
discretion on the issue, establishes particular criteria for
withholding, or refers to particular types of matters to be withheld;
(4) A record that is privileged or contains trade secrets, or
commercial or financial information, furnished in confidence, that
relates to the business, personal, or financial affairs of any person
(see Sec. 4.16 for notice requirements regarding disclosure of
confidential commercial information);
(5) An intra-agency or interagency memorandum or letter not
routinely available by law to a private party in litigation, including
memoranda, reports, and other documents prepared by OCC employees, and
records of deliberations and discussions at meetings of OCC employees;
(6) A personnel, medical, or similar record, including a financial
record, or any portion thereof, where disclosure would constitute a
clearly unwarranted invasion of personal privacy;
(7) A record or information compiled for law enforcement purposes,
but only to the extent that the OCC reasonably believes that producing
the record or information may:
(i) Interfere with enforcement proceedings;
(ii) Deprive a person of the right to a fair trial or an impartial
adjudication;
(iii) Constitute an unwarranted invasion of personal privacy;
(iv) Disclose the identity of a confidential source, including a
State, local, or foreign agency or authority, or any private
institution that furnished information on a confidential basis;
(v) Disclose information furnished by a confidential source, in the
case of a record or information compiled by a criminal law enforcement
authority in the course of a criminal investigation, or by an agency
conducting a lawful national security intelligence investigation;
(vi) Disclose techniques and procedures for law enforcement
investigations or prosecutions, or disclose guidelines for law
enforcement investigations or prosecutions if such disclosure
reasonably could be expected to risk circumvention of the law; or
(vii) Endanger the life or physical safety of any individual;
(8) A record contained in or related to an examination, operating,
or condition report prepared by, on behalf of, or for the use of the
OCC or any other agency responsible for regulating or supervising
financial institutions; and
(9) A record containing or relating to geological and geophysical
information and data, including maps, concerning wells.
(c) Discretionary disclosure of exempt records. Even if a record is
exempt under paragraph (b) of this section, the OCC may elect, on a
case-by-case basis, not to apply the exemption to the requested record.
The OCC's election not to apply an exemption to a requested record has
no precedential significance as to the application or nonapplication of
the exemption to any other requested record, regardless of who requests
the record or when the OCC receives the request. The OCC will provide
predisclosure notice to submitters of confidential commercial
information in accordance with Sec. 4.16.
(d) Segregability. The OCC provides copies of reasonably segregable
portions of a record to any person properly requesting the record
pursuant to Sec. 4.15, after redacting any portion that is
[[Page 57324]]
exempt under paragraph (b) of this section.
Sec. 4.13 Publication in the Federal Register.
The OCC publishes certain documents in the Federal Register for the
guidance of the public, including the following:
(a) Proposed and final rules; and
(b) Certain notices and policy statements of concern to the general
public.
Sec. 4.14 Public inspection and copying.
(a) Available information. Subject to the exemptions listed in
Sec. 4.12(b), the OCC makes the following information readily available
for public inspection and copying:
(1) Any final order, agreement, or other enforceable document
issued in the adjudication of an OCC enforcement case, including a
final order published pursuant to 12 U.S.C. 1818(u);
(2) Any final opinion issued in the adjudication of an OCC
enforcement case;
(3) Any statement of general policy or interpretation of general
applicability not published in the Federal Register;
(4) Any administrative staff manual or instruction to staff that
may affect a member of the public as such;
(5) A current index identifying the information referred to in
paragraphs (a)(1) through (a)(4) of this section issued, adopted, or
promulgated after July 4, 1967;
(6) A list of available OCC publications;
(7) A list of forms available from the OCC, and specific forms and
instructions; 1
1 Some forms and instructions that national banks use, such as
the Consolidated Report of Condition and Income (FFIEC 031-034), are
not available from the OCC. The OCC will provide information on
where persons may obtain these forms and instructions upon request.
---------------------------------------------------------------------------
(8) Any public Community Reinvestment Act performance evaluation;
(9) Any public securities-related filing required under part 11 or
16 of this chapter;
(10) Any public comment letter regarding a proposed rule; and
(11) The public file (as defined in 12 CFR 5.9) with respect to a
pending application described in part 5 of this chapter.
(b) Redaction of identifying details. To the extent necessary to
prevent an invasion of personal privacy, the OCC may redact identifying
details from any information described in paragraph (a) of this section
before making the information available for public inspection and
copying.
(c) Addresses. The information described in paragraphs (a)(1)
through (a)(10) of this section is available from the Disclosure
Officer, Communications Division, Office of the Comptroller of the
Currency, 250 E Street, SW, Washington, DC 20219. The information
described in paragraph (a)(11) of this section is available from the
Licensing Manager at the appropriate district office at the address
listed in Sec. 4.5(a), or in the case of banks supervised by the
Multinational Banking Department, from the Licensing Manager,
Multinational Banking, Office of the Comptroller of the Currency, 250 E
Street, SW, Washington, DC 20219.
4.15 Specific requests for records.
(a) Available information. Subject to the exemptions described in
Sec. 4.12(b), any OCC record is available to any person upon specific
request in accordance with this section.
(b) Where to submit request or appeal--(1) General. Except as
provided in paragraph (b)(2) of this section, a person requesting a
record or filing an administrative appeal under this section must
submit the request or appeal to the Disclosure Officer, Communications
Division, Office of the Comptroller of the Currency, 250 E Street, SW,
Washington, DC 20219.
(2) Exceptions--(i) Records at the Federal Deposit Insurance
Corporation. A person requesting any of the following records, other
than blank forms (see Sec. 4.14(a)(7)), must submit the request to the
Disclosure Group, Federal Deposit Insurance Corporation, 550-17th
Street, NW, Washington, DC 20429, (800) 945-2186:
(A) Consolidated Report of Condition and Income (FFIEC 031, 032,
033, 034);
(B) Annual Report of Trust Assets (FFIEC 001);
(C) Uniform Bank Performance Report; and
(D) Special Report.
(ii) Records of another agency. When the OCC receives a request for
records in its possession that another Federal agency either generated
or provided to the OCC, the OCC promptly informs the requester and
immediately forwards the request to that agency for processing in
accordance with that agency's regulations.
(c) Request for records--(1) Content of request for records. A
person requesting records under this section must state, in writing:
((i) The requester's full name, address, and telephone number;
(ii) A reasonable description of the records sought (including
sufficient detail to enable OCC employees who are familiar with the
subject matter of the request to locate the records with a reasonable
amount of effort);
(iii) A statement agreeing to pay all fees that the OCC assesses
under Sec. 4.17;
(iv) A description of how the requester intends to use the records,
if a requester seeks placement in a lower fee category (i.e., a fee
category other than ``commercial use requester'') under Sec. 4.17; and
(v) Whether the requester prefers the OCC to deliver a copy of the
records or to allow the requester to inspect the records at the
appropriate OCC office.
(2) Initial determination. The OCC's Director of Communications or
that person's delegate initially determines whether to grant a request
for OCC records.
(3) If request is granted. If the OCC grants a request for records,
in whole or in part, the OCC promptly discloses the records in one of
two ways, depending on the requester's stated preference:
(i) The OCC may deliver a copy of the records to the requester. If
the OCC delivers a copy of the records to the requester, the OCC
duplicates the records at reasonable and proper times that do not
interfere with their use by the OCC or preclude other persons from
making inspections; or
(ii) The OCC may allow the requester to inspect the records at
reasonable and proper times that do not interfere with their use by the
OCC or preclude other persons from making inspections. If the OCC
allows the requester to inspect the records, the OCC may place a
reasonable limit on the number of records that a person may inspect
during a day.
(4) If request is denied. If the OCC denies a request for records,
in whole or in part, the OCC notifies the requester by mail. The
notification is dated and contains a brief statement of the reasons for
the denial, sets forth the name and title or position of the official
making the decision, and advises the requester of the right to an
administrative appeal in accordance with paragraph (d) of this section.
(d) Administrative appeal of a denial.--(1) Procedure. A requester
must submit an administrative appeal of denial of a request for records
in writing within 35 days of the date of the initial determination. The
appeal must include the circumstances and arguments supporting
disclosure of the requested records.
(2) Appellate determination. The Comptroller or the Comptroller's
delegate determines whether to grant an appeal of a denial of a request
for OCC records.
(3) If appeal is granted. If the OCC grants an appeal, in whole or
in part, the OCC treats the request as if it were originally granted,
in whole or in part,
[[Page 57325]]
by the OCC in accordance with paragraph (c)(3) of this section.
(4) If appeal is denied. If the OCC denies an appeal, in whole or
in part, the OCC notifies the requester by mail. The notification
contains a brief statement of the reasons for the denial, sets forth
the name and title or position of the official making the decision, and
advises the requester of the right to judicial review of the denial
under 5 U.S.C. 552(a)(4)(B).
(e) Judicial review--(1) General. If the OCC denies an appeal
pursuant to paragraph (d) of this section, or if the OCC fails to make
a determination within the time limits specified in paragraph (f) of
this section, the requester may commence an action to compel disclosure
of records, pursuant to 5 U.S.C. 552(a)(4)(B), in the United States
district court in:
(i) The district where the requester resides;
(ii) The district where the requester's principal place of business
is located;
(iii) The district where the records are located; or
(iv) The District of Columbia.
(2) Service of process. In commencing an action described in
paragraph (e)(1) of this section, the requester, in addition to
complying with the Federal Rules of Civil Procedure (28 U.S.C.
appendix) for service upon the United States or agencies thereof, must
serve process on the Chief Counsel or the Chief Counsel's delegate at
the following location: Office of the Comptroller of the Currency, 250
E Street, SW, Washington, DC 20219.
(f) Time limits--(1) Request. The OCC makes an initial
determination to grant or deny a request for records within 10 business
days after the date of receipt of the request, as described in
paragraph (g) of this section, except as stated in paragraph (f)(3) of
this section.
(2) Appeal. The OCC makes a determination to grant or deny an
administrative appeal within 20 business days after the date of receipt
of the appeal, as described in paragraph (g) of this section, except as
stated in paragraph (f)(3) of this section.
(3) Extension of time. The time limits set forth in paragraphs
(f)(1) and (2) of this section may be extended as follows:
(i) In unusual circumstances. The OCC may extend the time limits in
unusual circumstances for a maximum of 10 business days. If the OCC
extends the time limits, the OCC provides written notice to the person
making the request or appeal, containing the reason for the extension
and the date on which the OCC expects to make a determination. Unusual
circumstances exist when the OCC requires additional time to:
(A) Search for and collect the requested records from field
facilities or other buildings that are separate from the office
processing the request or appeal;
(B) Search for, collect, and appropriately examine a voluminous
amount of requested records;
(C) Consult with another agency that has a substantial interest in
the determination of the request; or
(D) Allow two or more components of the OCC that have substantial
interest in the determination of the request to consult with each
other;
(ii) By agreement. A requester may agree to extend the time limits
for any amount of time; or
(iii) By judicial action. If a requester commences an action
pursuant to paragraph (e) of this section for failure to comply with
the time limits set forth in this paragraph (f), a court with
jurisdiction may, pursuant to 5 U.S.C. 552(a)(6)(C), allow the OCC
additional time to complete the review of the records requested.
(g) Date of receipt of request or appeal. The date of receipt of a
request for records or an appeal is the date that OCC Communications
Division receives a request that satisfies the requirements of
paragraph (c)(1) or (d)(1) of this section, except as provided in
Sec. 4.17(d).
Sec. 4.16 Predisclosure notice for confidential commercial
information.
(a) Definitions. For purposes of this section, the following
definitions apply:
(1) Confidential commercial information means records that arguably
contain material exempt from release under Exemption 4 of the FOIA (5
U.S.C. 552(b)(4); Sec. 4.12(b)(4)), because disclosure reasonably could
cause substantial competitive harm to the submitter.
(2) Submitter means any person or entity that provides confidential
commercial information to the OCC. This term includes corporations,
State governments, foreign governments, and banks and their employees,
officers, directors, and principal shareholders.
(b) Notice to submitter--(1) When provided. In accordance with
Executive Order 12600 (3 CFR, 1987 Comp., p. 235), when the OCC
receives a request under Sec. 4.15(c) or, where appropriate, an appeal
under Sec. 4.15(d) for disclosure of confidential commercial
information, the OCC provides a submitter with prompt written notice of
the receipt of that request (except as provided in paragraph (b)(2) of
this section) in the following circumstances:
(i) With respect to confidential commercial information submitted
to the OCC prior to January 1, 1988, if:
(A) The records are less than 10 years old and the submitter
designated the information as confidential commercial information;
(B) The OCC reasonably believes that disclosure of the information
may cause substantial competitive harm to the submitter; or
(C) The information is subject to a prior express OCC commitment of
confidentiality; and
(ii) With respect to confidential commercial information submitted
to the OCC on or after January 1, 1988, if:
(A) The submitter in good faith designated the information as
confidential commercial information;
(B) The OCC designated the class of information to which the
requested information belongs as confidential commercial information;
or
(C) The OCC reasonably believes that disclosure of the information
may cause substantial competitive harm to the submitter.
(2) Exceptions. The OCC generally does not provide notice under
paragraph (b)(1) of this section if the OCC determines that:
(i) It will not disclose the information;
(ii) The information already has been disclosed officially to the
public;
(iii) The OCC is required by law (other than 5 U.S.C. 552) to
disclose the information;
(iv) The OCC acquired the information in the course of a lawful
investigation of a possible violation of criminal law;
(v) The submitter had an opportunity to designate the requested
information as confidential commercial information at the time of
submission of the information or a reasonable time thereafter and did
not do so, unless the OCC has substantial reason to believe that
disclosure of the information would result in competitive harm; or
(vi) The OCC determines that the submitter's designation under
paragraph (b)(1)(ii)(A) of this section is frivolous; in such case,
however, the OCC will provide the submitter with written notice of any
final administrative determination to disclose the information at least
10 business days prior to the date that the OCC intends to disclose the
information.
(3) Content of notice. The OCC either describes in the notice the
exact nature of the confidential commercial information requested or
includes with the notice copies of the records or portions of records
containing that information.
(4) Expiration of notice period. The OCC provides notice under this
paragraph (b) with respect to information that the submitter
[[Page 57326]]
designated under paragraph (b)(1)(ii)(A) of this section only for a
period of 10 years after the date of the submitter's designation,
unless the submitter requests and justifies to the OCC's satisfaction a
specific notice period of greater duration.
(5) Certification of confidentiality. If possible, the submitter
should support the claim of confidentiality with a statement or
certification that the requested information is confidential commercial
information that the submitter has not disclosed to the public. This
statement should be prepared by an officer or authorized representative
if the submitter is a corporation or other entity.
(c) Notice to requester. If the OCC provides notice to a submitter
under paragraph (b) of this section, the OCC notifies the person
requesting confidential commercial information (requester) that it has
provided notice to the submitter. The OCC also advises the requester
that if there is a delay in its decision whether to grant or deny
access to the information sought, the delay may be considered a denial
of access to the information, and that the requester may proceed with
an administrative appeal or seek judicial review. However, the
requester may agree to a voluntary extension of time to allow the OCC
to review the submitter's objection to disclosure (see
Sec. 4.15(f)(3)(ii)).
(d) Opportunity to object to disclosure. Within 10 days after
receiving notice under paragraph (b) of this section, the submitter may
provide the OCC with a detailed statement of objection to disclosure of
the information. That statement must specify the grounds for
withholding any of the information under any exemption of the FOIA. Any
statement that the submitter provides under this paragraph (d) may be
subject to disclosure under the FOIA.
(e) Notice of intent to disclose. The OCC considers carefully a
submitter's objection and specific grounds for nondisclosure prior to
determining whether to disclose the requested information. If the OCC
decides to disclose information over the objection of the submitter,
the OCC provides to the submitter, with a copy to the requester, a
written notice that includes:
(1) A statement of the OCC's reasons for not sustaining the
submitter's objections to disclosure;
(2) A description of the information to be disclosed;
(3) The anticipated disclosure date, which is not less than 10
business days after the OCC mails the written notice required under
this paragraph (e); and
(4) A statement that the submitter must notify the OCC immediately
if the submitter intends to seek injunctive relief.
(f) Notice of requester's lawsuit. Whenever the OCC receives
service of process indicating that a requester has brought suit seeking
to compel the OCC to disclose information covered by paragraph (b)(1)
of this section, the OCC promptly notifies the submitter.
Sec. 4.17 Fees for services.
(a) Definitions. For purposes of this section, the following
definitions apply:
(1) Actual costs means those expenditures that the OCC incurs in
providing services (including searching for, reviewing, and duplicating
records) in response to a request for records under Sec. 4.15.
(2) Search means the process of locating a record in response to a
request, including page-by-page or line-by-line identification of
material within a record. The OCC may perform a search manually or by
electronic means.
(3) Review means the process of examining a record located in
response to a request to determine which portions of that record should
be released. It also includes processing a record for disclosure.
(4) Duplication means the process of copying a record in response
to a request. A copy may take the form of a paper copy, microform,
audiovisual materials, or machine readable material (e.g., magnetic
tape or disk), among others.
(5) Commercial use requester means a person who seeks records for a
use or purpose that furthers the commercial, trade, or profit interests
of the requester or the person on whose behalf the request is made.
(6) Educational institution requester means a person who seeks
records on behalf of a public or private educational institution,
including a preschool, an elementary or secondary school, an
institution of undergraduate or graduate higher education, an
institution of professional education, or an institution of vocational
education that operates a program of scholarly research.
(7) Noncommercial scientific institution requester means a person
who is not a ``commercial use requester,'' as that term is defined in
paragraph (a)(5) of this section, and who seeks records on behalf of an
institution operated solely for the purpose of conducting scientific
research, the results of which are not intended to promote any
particular product or industry.
(8) Requester who is a representative of the news media means a
person who seeks records for the purpose of gathering news (i.e.,
information about current events or of current interest to the public)
on behalf of, or a free-lance journalist who reasonably expects to have
his or her work product published or broadcast by, an entity organized
and operated to publish or broadcast news to the public.
(b) Fees--(1) General. The hourly and per page rate that the OCC
generally charges requesters is set forth in the ``Notice of
Comptroller of the Currency Fees'' (Notice) described in 12 CFR 8.8.
Any interested person may request a copy of the Notice from the OCC by
mail or may obtain a copy at the location described in Sec. 4.14(c).
The OCC may contract with a commercial service to search for,
duplicate, or disseminate records, provided that the OCC determines
that the fee assessed upon a requester is no greater than if the OCC
performed the tasks itself. The OCC does not contract out
responsibilities that the FOIA provides that the OCC alone may
discharge, such as determining the applicability of an exemption or
whether to waive or reduce a fee.
(2) Fee categories. The OCC assesses a fee based on the fee
category in which the OCC places the requester. If the request states
how the requester intends to use the requested records (see
Sec. 4.15(c)(1)(iv)), the OCC may place the requester in a lower fee
category; otherwise, the OCC categorizes the requester as a
``commercial use requester.'' If the OCC reasonably doubts the
requester's stated intended use, or if that use is not clear from the
request, the OCC may place the requester in the ``commercial use''
category or may seek additional clarification. The fee categories are
as follows:
(i) Commercial use requesters. The OCC assesses a fee for a
requester in this category for the actual cost of search, review, and
duplication. A requester in this category does not receive any free
search, review, or duplication services.
(ii) Educational institution requesters, noncommercial scientific
institution requesters, and requesters who are representatives of the
news media. The OCC assesses a fee for a requester in this category for
the actual cost of duplication. A requester in this category receives
100 free pages.
(iii) All other requesters. The OCC assesses a fee for a requester
who does not fit into either of the above categories for the actual
cost of search and duplication. A requester in this category receives
100 free pages and two hours of free search time.
[[Page 57327]]
(3) Special services. The OCC may, in its discretion, accommodate a
request for special services. The OCC may recover the actual cost of
providing any special services.
(4) Waiving or reducing a fee. The OCC may waive or reduce a fee
under this section whenever, in its opinion, disclosure of records is
in the public interest because the disclosure:
(i) Is likely to contribute significantly to public understanding
of the operations or activities of the government; and
(ii) Is not primarily in the commercial interest of the requester.
(5) Fee for unsuccessful search. The OCC may assess a fee for time
spent searching for records, even if the OCC does not locate the
records requested.
(c) Payment of fees--(1) General. The OCC generally assesses a fee
when it delivers the records in response to the request, if any. A
requester must send payment within 30 calendar days of the billing date
to the Communications Division, Office of the Comptroller of the
Currency, 250 E Street, SW., Washington, DC 20219.
(2) Fee likely to exceed $25. If the OCC estimates that a fee is
likely to exceed $25, the OCC notifies the requester of the estimated
fee, unless the requester has indicated in advance a willingness to pay
a fee as high as the estimated fee. If so notified by the OCC, the
requester may confer with OCC employees to revise the request to
reflect a lower fee.
(3) Fee likely to exceed $250. If the OCC estimates that a fee is
likely to exceed $250, the OCC notifies the requester of the estimated
fee. In this circumstance, the OCC may require, as a condition to
processing the request, that the requester:
(i) Provide satisfactory assurance of full payment, if the
requester has a history of prompt payment; or
(ii) Pay the estimated fee in full, if the requester does not have
a history of prompt payment.
(4) Failure to pay a fee. If the requester fails to pay a fee
within 30 days of the date of the billing, the OCC may require, as a
condition to processing any further request, that the requester pay any
unpaid fee, plus interest (as provided in paragraph (c)(5) of this
section), and any estimated fee in full for that further request.
(5) Interest on unpaid fee. The OCC may assess interest charges on
an unpaid fee beginning on the 31st day following the billing date. The
OCC charges interest at the rate prescribed in 31 U.S.C. 3717.
(d) Tolling of time limits. Under the circumstances described in
paragraphs (c) (2), (3), and (4) of this section, the time limits set
forth in Sec. 4.15(f) (i.e., 10 business days from the receipt of a
request for records and 20 business days from the receipt of an
administrative appeal, plus any permissible extension) begin only after
the OCC receives a revised request under paragraph (c)(2) of this
section, an assurance of payment under paragraph (c)(3)(i) of this
section, or the required payments under paragraph (c)(3)(i) or (c)(4)
of this section.
(e) Aggregating requests. When the OCC reasonably believes that a
requester or group of requesters is attempting to break a request into
a series of requests for the purpose of evading the assessment of a
fee, the OCC may aggregate the requests and assess a fee accordingly.
Subpart C--Release of Non-Public OCC Information
Sec. 4.31 Purpose and scope.
(a) Purpose. The purposes of this subpart are to:
(1) Afford an orderly mechanism for the OCC to process
expeditiously requests for non-public OCC information, and, when
appropriate, for the OCC to assert evidentiary privileges in
litigation;
(2) Recognize the public's interest in obtaining access to relevant
and necessary information and the countervailing public interest of
maintaining the effectiveness of the OCC supervisory process and
appropriate confidentiality of OCC supervisory information;
(3) Ensure that the OCC's information is used in a manner that
supports the public interest and the interests of the OCC;
(4) Ensure that OCC resources are used in the most efficient manner
consistent with the OCC's statutory mission;
(5) Minimize burden on national banks, the public, and the OCC;
(6) Limit the expenditure of government resources for private
purposes; and
(7) Maintain the OCC's impartiality among private litigants.
(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. 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.
(2) This subpart does not apply to:
(i) A request for a record or testimony in a proceeding in which
the OCC is a party; or
(ii) A request for a record that is required to be disclosed under
the Freedom of Information Act (FOIA) (5 U.S.C. 552), as described in
Sec. 4.12.
(3) A request for a record or testimony made by the Board of
Governors of the Federal Reserve System, the Federal Deposit Insurance
Corporation, a government agency of the United States or a foreign
government, a state agency with authority to investigate violations of
criminal law, or a state bank regulatory agency is governed solely by
Sec. 4.36(c).
Sec. 4.32 Definitions.
(a) Complete request means a request containing sufficient
information to allow the OCC to make an informed decision.
(b) Non-public OCC information. Non-public OCC information:
(1) Means information that the OCC is not required to release under
the FOIA (5 U.S.C. 552) or that the OCC has not yet published or made
available pursuant to 12 U.S.C. 1818(u) and includes:
(i) A record created or obtained by the OCC in connection with the
OCC's performance of its responsibilities, such as a record concerning
supervision, licensing, regulation, and examination of a national bank,
a bank holding company, or an affiliate;
(ii) A record compiled by the OCC in connection with the OCC's
enforcement responsibilities;
(iii) A report of examination, supervisory correspondence, an
investigatory file compiled by the OCC in connection with an
investigation, and any internal agency memorandum, whether the
information is in the possession of the OCC or some other individual or
entity;
(iv) Confidential OCC information obtained by a third party or
otherwise incorporated in the records of a third party, including
another government agency;
(v) Testimony from, or an interview with, a current or former OCC
employee, officer, or agent concerning information acquired by that
person in the course of his or her performance of official duties with
the OCC or due to that person's official status at the OCC; and
(vi) Confidential information relating to operating and no longer
operating national banks as well as their subsidiaries and their
affiliates; and
(2) Is the property of the Comptroller. A report of examination is
loaned to the
[[Page 57328]]
bank or holding company for its confidential use only.
(c) Relevant means could contribute substantially to the resolution
of one or more specifically identified issues in the case.
(d) Show a compelling need means, in support of a request for
testimony, demonstrate with as much detail as is necessary under the
circumstances, that the requested information is relevant and that the
relevant material contained in the testimony is not available from any
other source. Sources, without limitation, include the books and
records of other persons or entities and non-public OCC records that
have been, or might be, released.
(e) Testimony means an interview or sworn testimony on the record.
Sec. 4.33 Requirements for a request of records or testimony.
(a) Generally--(1) Form of request. A person seeking non-public OCC
information must submit a request in writing to the OCC. The requester
must explain, in as detailed a description as is necessary under the
circumstances, the bases for the request and how the requested non-
public OCC information relates to the issues in the lawsuit or matter.
(2) Expedited request. A requester seeking a response in less than
60 days must explain why the request was not submitted earlier and why
the OCC should expedite the request.
(3) Request arising from adversarial matters. Where the requested
information is to be used in connection with an adversarial matter:
(i) The OCC generally will require that the lawsuit or
administrative action has been filed before it will consider the
request;
(ii) The request must include:
(A) A copy of the complaint or other pleading setting forth the
assertions in the case;
(B) The caption and docket number of the case;
(C) The name, address, and phone number of counsel to each party in
the case; and
(D) A description of any prior judicial decisions or pending
motions in the case that may bear on the asserted relevance of the
requested information;
(iii) The request must also:
(A) Show that the information is relevant to the purpose for which
it is sought;
(B) Show that other evidence reasonably suited to the requester's
needs is not available from any other source;
(C) Show that the need for the information outweighs the public
interest considerations in maintaining the confidentiality of the OCC
information and outweighs the burden on the OCC to produce the
information;
(D) Explain how the issues in the case and the status of the case
warrant that the OCC allow disclosure; and
(E) Identify any other issue that may bear on the question of
waiver of privilege by the OCC.
(b) Request for records. If the request is for a record, the
requester must adequately describe the record or records sought by type
and date.
(c) Request for testimony--(1) Generally. A requester seeking
testimony:
(i) Must show a compelling need for the requested information; and
(ii) Should request OCC testimony with sufficient time to obtain
the testimony in deposition form.
(2) Trial or hearing testimony. A requester seeking testimony at a
trial or hearing must show that a deposition would not suffice.
Sec. 4.34 Where to submit a request.
(a) A request for non-public OCC information. A person requesting
information under this subpart, requesting authentication of a record
under Sec. 4.38(d), or submitting a notification of the issuance of a
subpoena or compulsory process under Sec. 4.36, shall send the request
or notification to: Office of the Comptroller of the Currency, 250 E
Street, SW, Washington, DC 20219, Attention: Director, Litigation
Division.
(b) Combined requests for non-public and other OCC information. A
person requesting public OCC information and non-public OCC information
under this subpart may submit a combined request for both to the
address in paragraph (a) of this section. If a requester decides to
submit a combined request under this section, the OCC will process the
combined request under this subpart and not under subpart B of this
part (FOIA).
(c) Request by government agencies. A request made pursuant to
Sec. 4.36(c) must be submitted:
(1) In a civil action, to the Director of the OCC's Litigation
Division at the Washington, DC office; or
(2) In a criminal action, to the appropriate district counsel or
the Director of the OCC's Enforcement and Compliance Division at the
Washington, DC, office.
Sec. 4.35 Consideration of requests.
(a) In general--(1) OCC discretion. The OCC decides whether to
release non-public OCC information based on its weighing of all
appropriate factors including the requestor's fulfilling of the
requirements enumerated in Sec. 4.33. Each decision is at the sole
discretion of the Comptroller or the Comptroller's delegate and is a
final agency decision. OCC action on a request for non-public OCC
information exhausts administrative remedies for discovery of the
information.
(2) Bases for denial. The OCC may deny a request for non-public OCC
information for reasons that include the following:
(i) The requester was unsuccessful in showing that the information
is relevant to the pending matter;
(ii) The requester seeks testimony and the requestor did not show a
compelling need for the information;
(iii) The request arises from an adversarial matter and other
evidence reasonably suited to the requester's need is available from
another source;
(iv) A lawsuit or administrative action has not yet been filed and
the request was made in connection with potential litigation; or
(v) The production of the information would be contrary to the
public interest or unduly burdensome to the OCC.
(3) Additional information. A requester must submit a complete
request. The OCC may require the requester to provide additional
information to complete a request. Consistent with the purposes stated
in Sec. 4.31, the OCC may inquire into the circumstances of any case
underlying the request and rely on sources of information other than
the requester, including other parties.
(4) Time required by the OCC to respond. The OCC generally will
process requests in the order in which they are received. The OCC will
notify the requester in writing of the final decision. Absent exigent
or unusual circumstances, the OCC will respond to a request within 60
days from the date that the OCC receives a request that it deems a
complete request. Consistent with Sec. 4.33(a)(2), the OCC weighs a
request to respond to provide information in less than 60 days against
the unfairness to other requesters whose pending requests may be
delayed and the burden imposed on the OCC by the expedited processing.
(5) Notice to subject national banks. Following receipt of a
request for non-public OCC information, the OCC generally notifies the
national bank that is the subject of the requested information, unless
the OCC, in its discretion, determines that to do so would advantage or
prejudice any of the parties in the matter at issue.
(b) Testimony. (1) The OCC generally will not authorize a current
OCC
[[Page 57329]]
employee to provide expert or opinion evidence for a private party.
(2) The OCC may restrict the scope of any authorized testimony and
may act to ensure that the scope of testimony given by the OCC employee
adheres to the scope authorized by the OCC.
(3) Once a request for testimony has been submitted, and before the
requested testimony occurs, a party to the relevant case, who did not
join in the request and who wishes to question the witness beyond the
scope of testimony sought by the request, shall timely submit the
party's own request for OCC information pursuant to this subpart.
(4) The OCC may offer the requester the employee's written
declaration in lieu of testimony.
(c) Release of non-public OCC information by others. In appropriate
cases, the OCC may respond to a request for information by authorizing
a party to the case who is in possession of non-public OCC information
to release the information to the requester. An OCC authorization to
release records does not preclude the party in possession from
asserting its own privilege, arguing that the records are not relevant,
or asserting any other argument for which it has standing to protect
the records from release.
Sec. 4.36 Persons and entities with access to OCC information;
prohibition on dissemination.
(a) OCC employees or former employees--(1) Generally. Except as
authorized by this subpart or otherwise by the OCC, no OCC employee or
former employee may, in any manner, disclose or permit the disclosure
of any non-public OCC information to anyone other than an employee of
the Comptroller who is entitled to the information for the performance
of OCC duties.
(2) Duty of person served. Any OCC employee or former employee
subpoenaed or otherwise requested to provide information covered by
this subpart shall 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 an employee
or former employee receives a subpoena and the subpoena requires the
employee or former employee to appear or produce OCC information. If
necessary, the employee or former employee shall appear as required and
respectfully decline to produce the information sought, citing this
subpart and United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951).
The OCC employee or former employee shall 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 OCCs
Litigation Division at the Washington, DC office; or
(ii) In a criminal action, by notifying the appropriate district
counsel, for district employees and former district employees; or the
Director of the OCC's Enforcement and Compliance Division at the
Washington, DC office, for Washington employees and former Washington
employees.
(b) Non-OCC employees or entities--(1) Generally. (i) Without OCC
approval, no person, national bank, or other entity, including one in
lawful possession of non-public OCC information under paragraph (b)(2)
of this section, may disclose information covered by this subpart in
any manner, except:
(A) After the requester has sought the information from the OCC
pursuant to the procedures set forth in this subpart; and
(B) As ordered by a Federal court in a judicial proceeding in which
the OCC has had the opportunity to appear and oppose discovery.
(ii) Any person who discloses or uses non-public OCC information
except as expressly permitted by the Comptroller of the Currency or as
ordered by a Federal court, under paragraph (b)(1)(i) of this section,
may be subject to the penalties provided in 18 U.S.C. 641.
(2) Exception for national banks. When necessary or appropriate for
bank business purposes, a national bank or holding company, or any
director, officer, or employee thereof, may disclose non-public OCC
information, including information contained in, or related to, OCC
reports of examination, to a person or organization officially
connected with the bank as officer, director, employee, attorney,
auditor, or independent auditor. A national bank or holding company or
a director, officer, or employee thereof may also release non-public
OCC information to a consultant under this paragraph if the consultant
is under a written contract to provide services to the bank and the
consultant has a written agreement with the bank in which the
consultant:
(i) States its awareness of, and agreement to abide by, the
prohibition on the dissemination of non-public OCC information
contained in paragraph (b)(1) of this section; and
(ii) Agrees not to use the non-public OCC information for any
purpose other than as provided under its contract to provide services
to the bank.
(3) Duty of person or entity served. Any person, national bank, or
other entity served with a request, subpoena, order, motion to compel,
or other judicial or administrative process to provide non-public OCC
information shall:
(i) Immediately notify the Director of the OCC's Litigation
Division at the Washington, DC office and inform the Director of all
relevant facts, including the documents and information requested, so
that the OCC may intervene in the judicial or administrative action if
appropriate;
(ii) Inform the requester of the substance of these rules and, in
particular, of the obligation to follow the request procedures in
Secs. 4.33 and 4.34; and
(iii) At the appropriate time, inform the court or tribunal that
issued the process of the substance of these rules.
(4) Actions of the OCC following notice of service. Following
receipt of notice pursuant to paragraph (b)(3) of this section, the OCC
may direct the requester to comply with Secs. 4.33 and 4.34, intervene
in the judicial or administrative action, attempt to have the
compulsory process withdrawn, or register other appropriate objections.
(5) Return of records. The OCC may require any person in possession
of OCC records to return the records to the OCC.
(c) Disclosure to government agencies. When not prohibited by law,
the Comptroller may make available to the Board of Governors of the
Federal Reserve System, the Federal Deposit Insurance Corporation, and,
in the Comptroller's sole discretion, to certain other government
agencies of the United States and foreign governments, state agencies
with authority to investigate violations of criminal law, and state
bank regulatory agencies, a copy of a report of examination, testimony,
or other non-public OCC information for their use, when necessary, in
the performance of their official duties. All non-public OCC
information made available pursuant to this paragraph is OCC property,
and the OCC may condition its use on appropriate confidentiality
protections, including the mechanisms identified in Sec. 4.37.
(d) Intention of OCC not to waive rights. The possession by any of
the entities or individuals described in paragraphs (a), (b), and (c)
of this section of non-public OCC information does not constitute a
waiver by the OCC of its right to control, or impose limitations on,
the subsequent use and dissemination of the information.
Sec. 4.37 Restrictions on dissemination of released information.
(a) Records. The OCC may condition a decision to release non-public
OCC
[[Page 57330]]
information on entry of a protective order by the court or
administrative tribunal presiding in the particular case or, in non-
adversarial matters, on a written agreement of confidentiality. In a
case in which a protective order has already been entered, the OCC may
condition approval for release of non-public OCC information upon the
inclusion of additional or amended provisions in the protective order.
The OCC may authorize a party who obtained records for use in one case
to provide them to another party in another case.
(b) Testimony. The OCC may condition its authorization of
deposition testimony on an agreement of the parties to appropriate
limitations, such as an agreement to keep the transcript of the
testimony under seal or to make the transcript available only to the
parties, the court, and the jury. Upon request or on its own
initiative, the OCC may allow use of a transcript in other litigation.
The OCC may require the requester, at the requester's expense, to
furnish the OCC with a copy of the transcript. The OCC employee whose
deposition was transcribed does not waive his or her right to review
the transcript and to note errors.
Sec. 4.38 Notification of parties and procedures for sharing and using
OCC records in litigation.
(a) Responsibility of litigants to notify parties of a request for
testimony. Upon submitting a request to the OCC for the testimony of an
OCC employee or former employee, the requester shall notify all other
parties to the case that a request has been submitted.
(b) Responsibility of litigants to share released records. The
requester shall promptly notify other parties to a case of the release
of non-public OCC information obtained pursuant to this subpart, and,
upon entry of a protective order, shall provide copies of OCC
information, including OCC information obtained pursuant to Sec. 4.15,
to the other parties.
(c) Retrieval and destruction of released records. At the
conclusion of an action:
(1) The requester shall retrieve any non-public OCC information
from the court's file as soon as the court no longer requires the
information;
(2) Each party shall destroy the non-public OCC information covered
by the protective order; and
(3) Each party shall certify to the OCC that the non-public OCC
information covered by the protective order has been destroyed.
(d) Authentication for use as evidence. Upon request, the OCC
authenticates released records to facilitate their use as evidence.
Requesters who require authenticated records or certificates of
nonexistence of records should, as early as possible, request
certificates from the OCC's Litigation Division pursuant to
Sec. 4.34(a).
Sec. 4.39 Fees for services.
(a) Fees for records search, copying, and certification. The
requester shall pay a fee to the OCC, or to a commercial copier under
contract to the OCC, for any records search, copying, or certification
in accordance with the standards specified in Sec. 4.17. The OCC may
require a requester to remit payment prior to providing the requested
information.
(b) Witness fees and mileage. A person whose request for testimony
of a current OCC employee is approved shall, upon completion of the
testimonial appearance, tender promptly to the OCC payment for the
witness fees and mileage. The litigant shall compute these amounts in
accordance with 28 U.S.C. 1821. A litigant whose request for testimony
of a former OCC employee is approved shall tender promptly to the
witness any witness fees or mileage due in accordance with 28 U.S.C.
1821.
Appendix A to Subpart C--Model Stipulation for Protective Order and
Model Protective Order
I. Model Stipulation
CASE CAPTION
MODEL STIPULATION FOR PROTECTIVE ORDER
Whereas, counsel for ____________ have applied to the
Comptroller of the Currency (hereinafter ``Comptroller'') pursuant
to 12 CFR Part 4, Subpart C, for permission to have made available,
in connection with the captioned action, certain records; and
Whereas, such records are deemed by the Comptroller to be
confidential and privileged, pursuant to 12 U.S.C. 481; 5 U.S.C.
552(b)(8); 18 U.S.C. 641, 1906; and 12 CFR 4.12, and Part 4, Subpart
C; and
Whereas, following consideration by the Comptroller of the
application of the above described party, the Comptroller has
determined that the particular circumstances of the captioned action
warrant making certain possibly relevant records as denoted in
Appendix ``A'' to this Stipulation [records to be specified by type
and date] available to the parties in this action, provided that
appropriate protection of their confidentiality can be secured;
Therefore, it is hereby stipulated by and between the parties
hereto, through their respective attorneys that they will be bound
by the following protective order which may be entered by the Court
without further notice.
Dated this __ day of ____, 19__.
----------------------------------------------------------------------
Attorney for Plaintiff
----------------------------------------------------------------------
Attorney for Defendant
II. Model Protective Order
CASE CAPTION
MODEL PROTECTIVE ORDER
Whereas, counsel for ____________ have applied to the
Comptroller of the Currency (hereinafter Comptroller'') pursuant to
12 CFR Part 4, Subpart C, for permission to have made available, in
connection with the captioned action, certain records; and
Whereas, such records are deemed by the Comptroller to be
confidential and privileged, pursuant to 12 U.S.C. 481; 5 U.S.C.
552(b)(8); 18 U.S.C. 641, 1906; and 12 CFR 4.12, and Part 4, Subpart
C;
Whereas, following consideration by the Comptroller of the
application of the above described party, the Comptroller has
determined that the particular circumstances of the captioned action
warrant making certain possibly relevant records available to the
parties in this action, provided that appropriate protection of
their confidentiality can be secured;
Now, Therefore, it is Ordered That:
1. The records, as denoted in Appendix ``A'' to the Stipulation
for this Protective Order, upon being furnished [or released for
use] by the Comptroller, shall be disclosed only to the parties to
this action, their counsel, and the court [and the jury].
2. The parties to this action and their counsel shall keep such
records and any information contained in such records confidential
and shall in no way divulge the same to any person or entity, except
to such experts, consultants and non-party witnesses to whom the
records and their contents shall be disclosed, solely for the
purpose of properly preparing for and trying the action.
3. No person to whom information and records covered by this
Order are disclosed shall make any copies or otherwise use such
information or records or their contents for any purpose whatsoever,
except in connection with this action.
4. Any party or other person who wishes to use the information
or records or their contents in any other action shall make a
separate application to the Comptroller pursuant to 12 CFR Part 4,
Subpart C.
5. Should any records covered by this Order be filed with the
Court or utilized as exhibits at depositions in the captioned
action, or should information or records or their contents covered
by this Order be disclosed in the transcripts of depositions or the
trial in the captioned action, such records, exhibits and
transcripts shall be filed in sealed envelopes or other sealed
containers marked with the title of this action, identifying each
document and article therein and bearing a statement substantially
in the following form:
CONFIDENTIAL
Pursuant to the Order of the Court dated ____________ this
envelope containing the above-identified papers filed by (the name
of the party) is not to be opened nor the contents thereof displayed
or revealed except to the parties to this action or their counsel or
by further Order of the Court.
[[Page 57331]]
6. FOR JURY TRIAL: Any party offering any of the records into
evidence shall offer only those pages, or portions thereof, that are
relevant and material to the issues to be decided in the action and
shall block out any portion of any page that contains information
not relevant or material. Furthermore, the name of any person or
entity contained on any page of the records who is not a party to
this action, or whose name is not otherwise relevant or material to
the action, shall be blocked out prior to the admission of such page
into evidence. Any disagreement regarding what portion of any page
that should be blocked out in this manner shall be resolved by the
Court in camera, and the Court shall decide its admissibility into
evidence.
7. At the conclusion of this action, all parties shall certify
to the Comptroller that the records covered by this Order have been
destroyed. Furthermore, counsel for ____________, pursuant to 12 CFR
4.38(b), shall retrieve any records covered by this Order that may
have been filed with the Court.
So Ordered:
----------------------------------------------------------------------
Judge
Date
Subpart D--Minority- , Women- , and Individuals With Disabilities-
Owned Business Contracting Outreach Program; Contracting for Goods
and Services
Sec. 4.61 Purpose.
Pursuant to the Financial Institutions Reform, Recovery, and
Enforcement Act of 1989, Sec. 1216(c), Pub. L. 101-73, 103 Stat. 183,
529 (12 U.S.C. 1833e(c)) and consistent with the Rehabilitation Act of
1973, as amended (29 U.S.C. 701 et seq.), this subpart establishes the
OCC Minority- , Women- , and Individuals with Disabilities-Owned
Business Contracting Outreach Program (Outreach Program). The Outreach
Program is intended to ensure that firms owned and operated by
minorities, women, and individuals with disabilities have the
opportunity to participate, to the maximum extent possible, in all
contracting activities of the OCC.
Sec. 4.62 Definitions.
(a) Minority- and/or women-owned (small and large) businesses and
entities owned by minorities and women (MWOB) means firms at least 51
percent unconditionally-owned by one or more members of a minority
group or by one or more women who are citizens of the United States. In
the case of publicly-owned companies, at least 51 percent of each class
of voting stock must be unconditionally-owned by one or more members of
a minority group or by one or more women who are citizens of the United
States. In the case of a partnership, at least 51 percent of the
partnership interest must be unconditionally-owned by one or more
members of a minority group or by one or more women who are citizens of
the United States. Additionally, for the foregoing cases, the
management and daily business operations must be controlled by one or
more such individuals.
(b) Minority means any African American, Native American (i.e.,
American Indian, Eskimo, Aleut and Native Hawaiian), Hispanic American,
Asian-Pacific American, or Subcontinent-Asian American.
(c) Individual with disabilities-owned (small and large) businesses
and entities owned by individuals with disabilities (IDOB) means firms
at least 51 percent unconditionally-owned by one or more members who
are individuals with disabilities and citizens of the United States. In
the case of publicly-owned companies, at least 51 percent of each class
of voting stock must be unconditionally-owned by one or more members
who are individuals with disabilities and who are citizens of the
United States. In the case of a partnership, at least 51 percent of the
partnership interest must be unconditionally-owned by one or more
members who are individuals with disabilities and citizens of the
United States. Additionally, for the foregoing cases, the management
and daily business operations must be controlled by one or more such
individuals.
(d) Individual with disabilities means any person who has a
physical or mental impairment that substantially limits one or more of
such person's major life activities, has a record of such an
impairment, or is regarded as having such an impairment. For purposes
of this part, it does not include an individual who is currently
engaging in the illegal use of drugs nor an individual who has a
currently contagious disease or infection and who, by reason of such
disease or infection, would constitute a direct threat to the health or
safety of other individuals or who, by reason of the currently
contagious disease or infection, is unable to perform the duties of the
job as defined by the IDOB.
(e) Unconditional ownership means ownership that is not subject to
conditions or similar arrangements which cause the benefits of the
Outreach Program to accrue to persons other than the participating MWOB
or IDOB.
Sec. 4.63 Policy.
The OCC's policy is to ensure that MWOBs and IDOBs have the
opportunity to participate, to the maximum extent possible, in
contracts awarded by the OCC. The OCC awards contracts consistent with
the principles of full and open competition and best value acquisition,
and with the concept of contracting for agency needs at the lowest
practicable cost. The OCC ensures that MWOBs and IDOBs have the
opportunity to participate fully in all contracting activities that the
OCC enters into for goods and services, whether generated by the
headquarters office in Washington, DC, or any other office of the OCC.
Contracting opportunities may include small purchase awards, contracts
above the small purchase threshold, and delivery orders issued against
other governmental agency contracts.
Sec. 4.64 Promotion.
(a) Scope. The OCC, under the direction of the Deputy Comptroller
for Resource Management, engages in promotion and outreach activities
designed to identify MWOBs and IDOBs capable of providing goods and
services needed by the OCC, to facilitate interaction between the OCC
and the MWOBs and IDOBs community, and to indicate the OCC's commitment
to doing business with that community. The Outreach Program is designed
to facilitate OCC's participation in business promotion events
sponsored by other government agencies and attended by minorities,
women and individuals with disabilities. Once the OCC has identified a
prospective participant, it will assist the minority- or women-owned
business or individual with disabilities-owned business in
understanding the OCC's needs and contracting process.
(b) Outreach activities. OCC's Outreach Program includes the
following:
(1) Obtaining various lists and directories of MWOBs and IDOBs
maintained by government agencies;
(2) Contacting appropriate firms for participation in the OCC's
Outreach Program;
(3) Participating in business promotion events comprised of or
attended by MWOBs and IDOBs to explain OCC contracting opportunities
and to obtain names of potential MWOBs and IDOBs;
(4) Ensuring that the OCC contracting staff understands and
actively promotes this Outreach Program; and
(5) Registering MWOBs and IDOBs in the Department of the Treasury's
database to facilitate their participation in the competitive
procurement process for OCC contracts. This database is used by OCC
procurement staff to identify
[[Page 57332]]
firms to be solicited for OCC procurements.
Sec. 4.65 Certification.
(a) Objective. To preserve the integrity and foster the Outreach
Program's objectives, each prospective MWOB or IDOB must demonstrate
that it meets the ownership and control requirements for participation
in the Outreach Program.
(b) MWOB. A prospective MWOB may demonstrate its eligibility for
participation in the Outreach Program by:
(1) Submitting a valid MWOB certification received from another
government agency whose definition of MWOB is substantially similar to
that specified in Sec. 4.62(a);
(2) Self-certifying MWOB ownership status by filing with the OCC a
completed and signed certification form as prescribed by the Federal
Acquisition Regulation, 48 CFR 53.301-129; or
(3) Submitting a valid MWOB certification received from the Small
Business Administration.
(c) IDOB. A prospective IDOB may demonstrate its eligibility for
participation in the Outreach Program by:
(1) Submitting a valid IDOB certification received from another
government agency whose definition of IDOB is substantially similar to
that specified in Sec. 4.62(c); or
(2) Self-certifying IDOB ownership status by filing with the OCC a
completed and signed certification as prescribed in the Federal
Acquisition Regulation, 48 CFR 53.301-129, and adding an additional
certifying statement to read as follows:
I certify that I am an individual with disabilities as defined
in 12 CFR 4.62(d), and that my firm, (Name of Firm) qualifies as an
individual with disabilities-owned business as defined in 12 CFR
4.62(c).
Sec. 4.66 Oversight and monitoring.
The Deputy Comptroller for Resource Management shall appoint an
Outreach Program Manager, who shall appoint an Outreach Program
Specialist. The Outreach Program Manager is primarily responsible for
program advocacy, oversight and monitoring.
PART 10--MUNICIPAL SECURITIES DEALERS
2. The authority citation for part 10 is revised to read as
follows:
Authority: 12 U.S.C. 93a; 15 U.S.C. 78o-4(c)(5), and 78q-78w.
Sec. 10.1 [Amended]
3. In Sec. 10.1, the introductory text is amended by revising the
term ``Comptroller of the Currency'' to read ``Office of the
Comptroller of the Currency (OCC)''.
Sec. 10.2 [Amended]
4. In Sec. 10.2, paragraph (b) is amended by revising the term
``Rulemaking board'' to read ``Rulemaking Board''.
5. In Sec. 10.3, paragraph (a) is revised, paragraphs (b) and (c)
are amended by revising the term ``Comptroller of the Currency'' to
read ``OCC'', and a new paragraph (d) is added to read as follows:
Sec. 10.3 Filing of documents.
(a) All documents required to be filed with the OCC in accordance
with this part are to be filed at the Chief National Bank Examiner's
Office, Office of the Comptroller of the Currency, 250 E Street, SW,
Washington, DC 20219.
* * * * *
(d) Forms MSD-4 and MSD-5, with instructions, may be obtained from
the Chief National Bank Examiner's Office at the address listed in
paragraph (a) of this section.
Sec. 10.4 [Amended]
6. In Sec. 10.4, paragraphs (a)(1), (a)(2)(ii), (b)(2)(ii), (c)(1),
and (d)(2) are amended by revising the term ``Comptroller of the
Currency'' to read ``OCC'', and paragraph (b)(2)(i) is amended by
revising the term ``board'' to read ``Board''.
7. The undesignated centerheading preceding Sec. 10.41 is removed.
Sec. 10.41 [Removed]
8. Section 10.41 is removed.
Sec. 10.42 [Removed]
9. Section 10.42 is removed.
PART 11--SECURITIES EXCHANGE ACT DISCLOSURE RULES
10. The authority citation for part 11 is revised to read as
follows:
Authority: 12 U.S.C. 93a; 15 U.S.C. 78l, 78m, 78n, 78p, and 78w.
Sec. 11.1 [Amended]
11. In Sec. 11.1, paragraph (a) is amended in the first sentence by
revising the term ``Comptroller'' to read ``Office of the Comptroller
of the Currency (OCC)'', and in the second sentence by revising the
term ``Comptroller'' to read ``OCC''.
Sec. 11.2 [Amended]
12. In Sec. 11.2, paragraph (a) is amended by revising the term ``
`Comptroller' '' to read `` `OCC' '', and paragraph (c) is amended by
revising the term ``Comptroller'' to read ``OCC''.
13. Section 11.3 is revised to read as follows:
Sec. 11.3 Filing requirements and inspection of documents.
(a) All papers required to be filed with the OCC pursuant to the
1934 Act or regulations thereunder shall be submitted in quadruplicate
to the Securities and Corporate Practices Division, Office of the
Comptroller of the Currency, 250 E Street, SW., Washington, DC 20219.
Material may be filed by delivery to the OCC through the mail or
otherwise. The date on which papers are actually received by the OCC
shall be the date of filing, if the person or bank filing the papers
has complied with all applicable requirements.
(b) Copies of registration statements, definitive proxy
solicitation materials, reports, and annual reports to shareholders
required by this part (exclusive of exhibits) are available from the
Disclosure Officer, Communications Division, Office of the Comptroller
of the Currency, at the address listed in paragraph (a) of this
section.
14. In Sec. 11.4, paragraph (a) is revised to read as follows:
Sec. 11.4 Filing fees.
(a) The OCC may require filing fees to accompany certain filings
made under this part before it will accept the filing. The OCC provides
an applicable fee schedule for such filings in the ``Notice of
Comptroller of the Currency Fees'' described in 12 CFR 8.8.
* * * * *
PART 18--DISCLOSURE OF FINANCIAL AND OTHER INFORMATION BY NATIONAL
BANKS
15. The authority citation for part 18 continues to read as
follows:
Authority: 12 U.S.C. 93a, 161, and 1818.
Sec. 18.1 [Amended]
16. In Sec. 18.1, paragraph (a) is amended by revising the term
``Office's supervisory efforts'' to read ``supervisory efforts of the
Office of the Comptroller of the Currency (OCC)''.
Sec. 18.4 [Amended]
17. In Sec. 18.4, paragraph (a)(1)(ii) is amended by revising the
term ``Non accrual Loans and Leases'' to read ``Nonaccrual Loans,
Leases, and Other Assets'', and paragraph (b) and the text preceding
the statement in paragraph (d) are amended by revising the term
``Office'' to read ``OCC'' each place it appears.
18. In Sec. 18.5, paragraph (a) is revised to read as follows:
Sec. 18.5 Alternative annual disclosure statements.
* * * * *
[[Page 57333]]
(a) In the case of a national bank having a class of securities
registered pursuant to section 12 of the Securities Exchange Act of
1934 (15 U.S.C. 78l), by its annual report to security holders for
meetings at which directors are to be elected;
* * * * *
Sec. 18.9 [Amended]
19. Section 18.9 is amended by revising the term ``Office of the
Comptroller of the Currency'' to read ``OCC''.
20. Section 18.10 is revised to read as follows:
Sec. 18.10 Prohibited conduct and penalties.
(a) No national bank or institution-affiliated party shall,
directly or indirectly:
(1) Disclose or cause to be disclosed false or misleading
information in the annual disclosure statement, or omit or cause the
omission of material or required information in the annual disclosure
statement; or
(2) Represent that the OCC, or any employee thereof, has passed
upon the accuracy or completeness of the annual disclosure statement.
(b) For purposes of this part, institution-affiliated party means:
(1) Any director, officer, employee, or controlling stockholder
(other than a bank holding company) of, or agent for, a national bank;
(2) Any other person who has filed or is required to file a change-
in-control notice with the OCC under 12 U.S.C. 1817(j);
(3) Any shareholder (other than a bank holding company),
consultant, joint venture partner, and any other person as determined
by the OCC (by regulation or case-by-case) who participates in the
conduct of the affairs of a national bank; and
(4) Any independent contractor (including any attorney, appraiser,
or accountant) who knowingly or recklessly participates in:
(i) Any violation of any law or regulation;
(ii) Any breach of fiduciary duty; or
(iii) Any unsafe or unsound practice, which caused or is likely to
cause more than a minimal financial loss to, or a significant adverse
effect on, the national bank.
(c) Conduct that violates paragraph (a) of this section also may
constitute an unsafe or unsound banking practice or otherwise serve as
a basis for enforcement action by the OCC including, but not limited
to, the assessment of civil money penalties against the bank or any
institution-affiliated party who violates this part.
Office of the Secretary
31 CFR Subtitle A
PART 1--DISCLOSURE OF RECORDS
21. The authority citation for part 1 continues to read as follows:
Authority: 5 U.S.C. 301 and 31 U.S.C. 321. Subpart A also issued
under 5 U.S.C. 552, as amended. Subpart C also issued under 5 U.S.C.
552a.
22. Under the authority of 12 U.S.C. 93a and 31 CFR 1.1(d),
appendix J of subpart A of 31 CFR part 1 is amended by revising
paragraphs 2. through 5. to read as follows:
Appendix J--Office of the Comptroller of the Currency
* * * * *
2. Public reading room. The Office of the Comptroller of the
Currency will make materials available for review on an ad hoc basis
when necessary. Contact the Disclosure Officer, Communications
Division, Office of the Comptroller of the Currency, 250 E Street,
SW, Washington, DC 20219.
3. Requests for records. Initial determinations under 31 CFR
1.5(g) whether to grant requests for records of the Office of the
Comptroller of the Currency will be made by the Director of
Communications or that person's delegate. Requests may be mailed or
delivered in person to: Disclosure Officer, Communications Division,
Office of the Comptroller of the Currency, 250 E Street, SW,
Washington, DC 20219.
4. Administrative appeal of initial determination to deny
records. Appellate determinations under 31 CFR 1.5(h) with respect
to records of the Office of the Comptroller of the Currency will be
made by the Comptroller or the Comptroller's delegate. Appeals may
be mailed or delivered in person to: Disclosure Officer,
Communications Division, Office of the Comptroller of the Currency,
250 E Street, SW, Washington, DC 20219.
5. Delivery of process. Service of process shall be delivered to
the Chief Counsel or the Chief Counsel's delegate at the following
location: Office of the Comptroller of the Currency, 250 E Street,
SW, Washington, DC 20219.
23. Under the authority of 12 U.S.C. 93a and 31 CFR 1.20, appendix
J of subpart C of 31 CFR part 1 is amended by revising paragraphs 2.
through 6. to read as follows:
Appendix J--Office of the Comptroller of the Currency
* * * * *
2. Requests for notification and access to records and
accountings of disclosures. Initial determinations under 31 CFR 1.26
whether to grant requests for notification and access to records and
accountings of disclosures for the Office of the Comptroller of the
Currency will be made by the head of the organizational unit having
immediate custody of the records requested or the delegate of that
official. This is indicated in the appropriate system notice in
``Privacy Act Issuances'' published biennially by the Office of the
Federal Register. Requests for information and specific guidance on
where to send requests for records shall be mailed or delivered
personally to: Disclosure Officer, Communications Division, Office
of the Comptroller of the Currency, 250 E Street, SW, Washington, DC
20219.
3. Requests for amendment of records. Initial determinations
under 31 CFR 1.27 (a) through (d) whether to grant requests to amend
records will be made by the Comptroller's delegate or the head of
the organizational unit having immediate custody of the records or
the delegate of that official. Requests for amendment shall be
mailed or delivered personally to: Disclosure Officer,
Communications Division, Office of the Comptroller of the Currency,
250 E Street, SW., Washington, DC 20219.
4. Administrative appeal of initial determinations refusing
amendment of records. Appellate determinations refusing amendment of
records under 31 CFR 1.27(e) including extensions of time on appeal,
with respect to records of the Office of the Comptroller of the
Currency will be made by the Comptroller of the Currency or the
Comptroller's delegate. Appeals shall be mailed or delivered
personally to: Disclosure Officer, Communications Division, Office
of the Comptroller of the Currency, 250 E Street, SW., Washington,
DC 20219.
5. Statements of disagreement. ``Statements of Disagreement''
under 31 CFR 1.27(e)(4)(i) shall be filed with the OCC's Director of
Communications at the address indicated in the letter of
notification within 35 days of the date of such notification and
should be limited to one page.
6. Service of process. Service of process shall be delivered to
the Chief Counsel or the Chief Counsel's delegate at the following
location: Office of the Comptroller of the Currency, 250 E Street,
SW., Washington, DC 20219.
* * * * *
Dated: October 31, 1995.
Eugene A. Ludwig,
Comptroller of the Currency.
[FR Doc. 95-28115 Filed 11-14-95; 8:45 am]
BILLING CODE 4810-33-P
