[Federal Register Volume 63, Number 64 (Friday, April 3, 1998)]
[Rules and Regulations]
[Pages 16401-16408]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-8642]
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FEDERAL DEPOSIT INSURANCE CORPORATION
12 CFR Part 309
RIN 3064-AC10
Disclosure of Information
AGENCY: Federal Deposit Insurance Corporation (FDIC).
ACTION: Final rule.
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SUMMARY: The FDIC is amending its regulations governing the public
disclosure of information to reflect recent changes to the Freedom of
Information Act (FOIA) as a result of the enactment of the Electronic
Freedom of Information Act Amendments of 1996 (E-FOIA). Among other
things, this final rule implements expedited and ``multitrack'' FOIA
processing procedures; implements the processing deadlines and appeal
rights created by E-FOIA; and directs the public to the expanded range
of records available through the FDIC's Internet World Wide Web (www)
page.
EFFECTIVE DATE: May 4, 1998.
FOR FURTHER INFORMATION CONTACT: Valerie J. Best, Assistant Executive
Secretary, Office of the Executive Secretary, (202) 898-3812; Linda
Rego, Senior Attorney, (202) 898-7408, Legal Division.
[[Page 16402]]
SUPPLEMENTARY INFORMATION:
The Proposed Rule
Part 309 of the FDIC's rules and regulations implements the Freedom
of Information Act (FOIA), 5 U.S.C. 552. On December 9, 1997 (63 FR 29,
January 2, 1998), the FDIC Board of Directors (Board) issued for public
comment a proposed rule amending part 309 in order to incorporate the
provisions of the Electronic Freedom of Information Act Amendments of
1996 (E-FOIA), Public Law 104-231.
The proposed rule provided for the expedited processing of certain
categories of requesters as mandated by E-FOIA; proposed ``multitrack''
processing requirements as permitted by E-FOIA; incorporated new
processing deadlines and appeal rights as mandated by E-FOIA;
implemented provisions requiring agencies to generally provide records
in the form or format requested, as required by E-FOIA; implemented the
E-FOIA provisions requiring agencies to make available for public
access via electronic means agency materials previously available only
through inspection and copying; clarified that FOIA and Part 309 of the
FDIC's rules and regulations apply to records maintained in electronic
format; and incorporated the electronic-search requirements specified
by E-FOIA. The proposed rule advised the public that the FDIC's World
Wide Web page (or the ``FDIC's www page'') is a primary source of FDIC
information and further noted that extensive materials are available
for inspection or copying at the FDIC's reading room or ``Public
Information Center'' or ``PIC.''
The FDIC received three comment letters in response to the proposed
rule, one from a trade association representing news editors and
reporters, and two, which were largely identical in content, from
community groups involved in community housing issues.
The community groups urged the FDIC to publish current lists of
pending applications involving the Community Reinvestment Act (CRA) on
the FDIC's www page. The community groups also indicated that FOIA
requests seeking pending applications subject to the CRA should be
entitled to expedited treatment and that, in this regard, the 10-day
response period specified in E-FOIA for expedited FOIA requests should
be shortened to three business days for such FOIA requests. Finally,
the community groups asked the FDIC to incorporate provisions that
would waive FOIA fees for non-profit or low income community groups.
In response to the community groups' request that the FDIC publish
a list of pending applications on the FDIC's www page, we are pleased
to advise that the FDIC's Division of Supervision (DOS) and Division of
Compliance and Consumer Affairs (DCA) is currently developing just such
a site in conjunction with a separately adopted proposed rule to revise
the FDIC's regulations governing applications, notice and request
procedures, and delegations of authority, published for public comment
at 62 FR 52810 (Oct. 9, 1997). The page under development will promptly
list those applications open for comment. It is anticipated that the
page listing applications subject to CRA comment will be made available
for public review this year.
For the present, however, it should be noted that the FDIC's
regional offices maintain distribution lists of groups who have
expressed an interest in receiving notice of pending applications
involving CRA. Depository institutions seeking the FDIC's approval file
their initial application with the appropriate regional office, and
most routine agency orders are issued at the regional office level
under guidelines adopted by the Board. Consequently, it is expected
that the most current source of information regarding the initial
filing of a pending application involving CRA will generally be at the
regional office level. The DOS regional offices make every effort to
send, via facsimile, a notice of pending applications to groups
included on the distribution list. The FDIC's DCA works closely with
community and banking groups in each region to advise them of the laws
and regulations governing fair lending and community reinvestment, but
community groups who have not already done so may contact the regional
offices and ask that their group be added to the distribution lists.
With regard to the community groups' request that the FOIA
regulations be revised to waive processing fees for certain groups and
to implement a three-day response period for FOIA requests involving
pending applications, it should be noted that the FDIC very seldom
receives FOIA requests for pending applications. This is likely because
such information is readily available without the necessity of filing a
FOIA request. More specifically, 12 CFR 303.6(g) currently provides
that any person may inspect the nonconfidential portions of an
application file and that, for a period extending until 180 days after
final disposition of an application, the nonconfidential portions of
the file will be available for inspection in the regional office of the
FDIC in which the application has been filed. No charge is imposed for
the search for or review of the application file. Since the
nonconfidential portions of an application are already available
without charge (except for duplication costs), and in light of the fact
that the FDIC seldom receives a FOIA request for such files, the FDIC
believes that the regulations as proposed are appropriate.
Other issues raised by the community groups have been considered by
FDIC staff but do not involve implementation of the FOIA or E-FOIA and
are thus outside the scope of the current rulemaking.
The comment received from the association of news editors and
reporters noted their general approval of the FDIC's proposal; noted
their appreciation for the FDIC's embrace of electronic access in
preparing its www page; endorsed the FDIC's initiative to accept FOIA
requests electronically; and endorsed the FDIC's willingness to
exercise its discretion in granting expedited review to requesters on
its own initiative in addition to granting expedited review when a
requester meets the standard of ``compelling need.''
The trade association did ask, however, that the FDIC incorporate a
provision similar to that adopted by the Department of Justice in its
FOIA regulations with regard to the formality of certifications needed
to obtain expedited treatment. More specifically, and consistent with
E-FOIA, the FDIC's proposed rule provided that a requester is entitled
to expedited treatment only where failure to obtain the records
expeditiously could pose an imminent threat to the life or physical
safety of a person, or where the requester is a person primarily
engaged in disseminating information and there is an urgency to inform
the public concerning actual or alleged agency activity. A requester
seeking expedited processing must submit a certified statement
describing the basis for requesting expedited treatment.
[[Page 16403]]
The Department of Justice regulations, however, provide that the
formality of the certification may be waived as a matter of
administrative discretion. The trade association asks the FDIC to
incorporate a similar waiver provision. They express concern that not
all eligible requesters will know that they must submit a certification
at the time the initial request is filed. They fear that eligible
requesters will therefore experience delays even though they are
operating under the extraordinary circumstances found to merit
expedited treatment under the law.
The certification required by the FDIC is straightforward and,
consequently, we do not expect that it will be burdensome for eligible
requesters to submit a certification with their initial request. In
order to fully respond to the concerns raised by the trade association,
however, the FDIC is adopting in this final rule a provision similar to
that found in the Department of Justice's regulations. Consequently,
under the FDIC's final rule, the formality of the certification
required to obtain expedited treatment may be waived by the FDIC as a
matter of administrative discretion.
In the case of a defective FOIA request, the trade association asks
that the FDIC contact the requester by telephone in order to facilitate
clarification and correction of the request instead of engaging in an
extended exchange of letters. The FDIC generally does contact
requesters to clarify deficient or vague requests and will continue to
do so, consistent with sound administrative practice. Consequently, we
do not find it necessary or helpful to mandate such a requirement
through the regulation.
The Final Rule
The provisions of the final rule are summarized below. The final
rule tracks the proposed rule in all material respects. As described in
the proposed rule, Sec. 309.1 has been expanded to clarify the purpose
and scope of the various sections found within part 309. Section 309.4
has been streamlined by eliminating the lengthy list of various offices
to contact for different categories of publicly available records and,
instead, directing the public to FDIC's www page, found at: http://
www.fdic.gov, as a primary source of FDIC information. The FDIC is
continually working to increase the resources available over the
Internet on the FDIC's www page, and the public is encouraged to
explore the wealth of information available from the FDIC through the
Internet. For example, the FDIC has elected to publish various consumer
aids, such as pamphlets explaining deposit insurance coverage;
information of interest to the banking industry, such as statistical
and call report data and institution forms; information concerning the
FDIC's responsibilities and structure, such as the pamphlet entitled
``Symbol of Confidence,'' which lists sources to contact for additional
information about the FDIC; and asset information for those interested
in purchasing owned real estate (ORE) held by the FDIC.
Section 309.4 also describes the categories of information
available through the FDIC's public reading room, or ``Public
Information Center'' or ``PIC.'' The PIC maintains facilities for
receiving and storing public documents and information which the FDIC
generates in performing its mission. The PIC provides reference
services and referrals, and certain documents are available for
inspection or sale, such as the final orders issued in enforcement
actions.
Finally, Sec. 309.4 describes those categories of information that
are required to be made available for inspection or copying, either in
the FDIC's reading room or via computer telecommunications, as required
by E-FOIA. The FDIC has also established an Electronic FOIA Office to
provide information concerning the FDIC's FOIA program and to
facilitate the filing of FOIA requests via the Internet. The regulatory
text of the final rule has been clarified to explain that information
on the FDIC's World Wide Web page is available to the public without
charge. If, however, information available on the FDIC's World Wide Web
page is provided pursuant to a FOIA request processed under Sec. 309.5,
then the fees prescribed by FOIA apply and will be assessed pursuant to
Sec. 309.5(f).
The final rule revises Sec. 309.5, which describes the FDIC's
procedures for processing FOIA requests, to incorporate the changes
required by E-FOIA. The final rule provides for multitrack processing
of FOIA requests, and explains that fast-track processing will apply to
records that are easily identifiable by the Freedom of Information
office staff (FOIA/PA Unit) and that have already been cleared for
release to the public. Further, fast-track requests will be handled as
expeditiously as possible, in the order in which they are received.
The final rule provides that all information requests that do not
meet the fast-track processing standards will be handled under regular
processing procedures. A requester who desires fast-track processing
but whose request does not meet those standards may contact the FOIA/PA
Unit staff to narrow the request so that it will qualify for fast-track
processing. The statutory time limit for regular-track processing would
be extended to twenty business days, pursuant to E-FOIA, from the
previous ten business days.
Expedited processing may be provided where a requester has
demonstrated a compelling need for the records, or where the FDIC has
determined to expedite the response. The time limit for expedited
processing is set at ten business days, with expedited procedures
available for an appeal of the FDIC's determination not to provide
expedited processing. Under E-FOIA, there are only two types of
circumstances that can meet the compelling need standard: Where failure
to obtain the records expeditiously could pose an imminent threat to
the life or physical safety of a person, or where the requester is a
person primarily engaged in disseminating information and there is an
urgency to inform the public concerning actual or alleged agency
activity. For ease of administration and consistency, the proposal uses
the term ``representative of the news media,'' to describe a person
primarily engaged in disseminating information, because this term is
used for the FOIA fee schedule, and thus, is known to those familiar
with FOIA and the FDIC's FOIA rules. To demonstrate a compelling need,
a requester must submit a certified statement, a sample of which may be
obtained from the FOIA/PA Unit. As discussed above, the formality of
the certification may be waived as a matter of administrative
discretion.
Section 309.5(h) contains the FOIA fee schedules and the standards
for waiver of fees. The fee schedule provisions have been revised to
clarify that the processing time of a FOIA request does not begin in
cases (1) where advance payment is required until payment is received,
or (2) where
[[Page 16404]]
a person has requested a waiver of the fees and has not agreed to pay
the fees if the waiver request is denied.
Regulatory Flexibility Act Analysis
Pursuant to section 605(b) of the Regulatory Flexibility Act (5
U.S.C. 601, et seq.), the FDIC certifies that the final rule will not
have a significant economic impact on a substantial number of small
entities. These amendments simplify some of the procedures regarding
release of information and require disclosure of information in certain
instances in accordance with law. The requirements to disclose apply to
the FDIC; therefore, they should not have a significant economic impact
on a substantial number of small entities.
Paperwork Reduction Act Analysis
The Office of Management and Budget (OMB) has determined that no
information collection is contained in this final rule.
Small Business Regulatory Enforcement Fairness Act
The Small Business Regulatory Enforcement Fairness Act of 1996
(SBREFA) (Title II, Pub. L. 104-121) provides generally for agencies to
report rules to Congress for review. The reporting requirement is
triggered when a federal agency issues a final rule. Accordingly, the
FDIC will file the appropriate reports with Congress as required by
SBREFA.
The OMB has determined that this final rule amending 12 CFR Part
309 is not a ``major rule'' as defined by SBREFA.
List of Subjects in 12 CFR Part 309
Banks, banking, Credit, Freedom of information, Privacy.
For the reasons set forth in the preamble, the Federal Deposit
Insurance Corporation is amending title 12, chapter III, of the Code of
Federal Regulations as follows:
PART 309--DISCLOSURE OF INFORMATION
1. The authority citation for part 309 continues to read as
follows:
Authority: 5 U.S.C. 552; 12 U.S.C. 1819 ``Seventh'' and
``Tenth''.
2. Section 309.1 is revised to read as follows:
Sec. 309.1 Purpose and scope.
This part sets forth the basic policies of the Federal Deposit
Insurance Corporation regarding information it maintains and the
procedures for obtaining access to such information. Section 309.2 sets
forth definitions applicable to this part 309. Section 309.3 describes
the types of information and documents typically published in the
Federal Register. Section 309.4 explains how to access public records
maintained on the Federal Deposit Insurance Corporation's World Wide
Web page and in the Federal Deposit Insurance Corporation's Public
Information Center or ``PIC'', and describes the categories of records
generally found there. Section 309.5 implements the Freedom of
Information Act (5 U.S.C. 552). Section 309.6 authorizes the
discretionary disclosure of exempt records under certain limited
circumstances. Section 309.7 outlines procedures for serving a subpoena
or other legal process to obtain information maintained by the FDIC.
3. Section 309.2(e) is revised to read as follows:
Sec. 309.2 Definitions.
* * * * *
(e) The term record includes records, files, documents, reports,
correspondence, books, and accounts, or any portion thereof, in any
form the FDIC regularly maintains them.
* * * * *
4. Section 309.4 is revised to read as follows:
Sec. 309.4 Publicly available records.
(a) Records available on the FDIC's World Wide Web page.--(1)
Discretionary release of documents. The FDIC encourages the public to
explore the wealth of resources available on the FDIC's World Wide Web
page, located at: http://www.fdic.gov. The FDIC has elected to publish
a broad range of materials on its World Wide Web page, including
consumer guides; financial and statistical information of interest to
the banking industry; and information concerning the FDIC's
responsibilities and structure.
(2) Documents required to be made available via computer
telecommunications. (i) The following types of documents created on or
after November 1, 1996, and required to be made available through
computer telecommunications, may be found on the FDIC's World Wide Web
page located at: http://www.fdic.gov:
(A) Final opinions, including concurring and dissenting opinions,
as well as final orders and written agreements, made in the
adjudication of cases;
(B) Statements of policy and interpretations adopted by the Board
of Directors that are not published in the Federal Register;
(C) Administrative staff manuals and instructions to staff that
affect the public;
(D) Copies of all records released to any person under Sec. 309.5
that, because of the nature of their subject matter, the FDIC has
determined are likely to be the subject of subsequent requests;
(E) A general index of the records referred to in paragraph
(a)(2)(i)(D) of this section.
(ii) To the extent permitted by law, the FDIC may delete
identifying details when it makes available or publishes a final
opinion, final order, statement of policy, interpretation or staff
manual or instruction. If redaction is necessary, the FDIC will, to the
extent technically feasible, indicate the amount of material deleted at
the place in the record where such deletion is made unless that
indication in and of itself will jeopardize the purpose for the
redaction.
(b) Public Information Center. The FDIC maintains a Public
Information Center or ``PIC'' that contains Corporate records that the
Freedom of Information Act requires be made available for regular
inspection and copying, as well as any records or information the FDIC,
in its discretion, has regularly made available to the public. The PIC
has extensive materials of interest to the public, including many
Reports, Summaries and Manuals used or published by the Corporation
that are available for inspection and copying. The PIC is open from
9:00 AM to 5:00 PM, Monday through Friday, excepting federal holidays.
It is located at 801 17th Street, NW, Washington, DC 20006. The PIC may
be reached during business hours by calling (800) 276-6003.
(c) Applicable fees. (i) If applicable, fees for furnishing records
under this section are as set forth in Sec. 309.5(f) except that all
categories of requesters shall be charged duplication costs.
(ii) Information on the FDIC's World Wide Web page is available to
the public without charge. If, however, information available on the
FDIC's World Wide Web page is provided pursuant to a Freedom of
Information Act request processed under Sec. 309.5, then fees apply and
will be assessed pursuant to Sec. 309.5(f).
5. Section 309.5 is revised to read as follows:
Sec. 309.5 Procedures for requesting records.
(a) Definitions. For purposes of this section:
(1) Commercial use request means a request from or on behalf of a
requester who seeks records for a use or purpose that furthers the
commercial, trade, or profit interests of the requester or the person
on whose behalf the request is
[[Page 16405]]
made. In determining whether a request falls within this category, the
FDIC will determine the use to which a requester will put the records
requested and seek additional information as it deems necessary.
(2) Direct costs means those expenditures the FDIC actually incurs
in searching for, duplicating, and, in the case of commercial
requesters, reviewing records in response to a request for records.
(3) Duplication means the process of making a copy of a record
necessary to respond to a request for records or for inspection of
original records that contain exempt material or that cannot otherwise
be directly inspected. Such copies can take the form of paper copy,
microfilm, audiovisual records, or machine readable records (e.g.,
magnetic tape or computer disk).
(4) Educational institution means a preschool, a public or private
elementary or secondary school, an institution of undergraduate or
graduate higher education, an institution of professional education,
and an institution of vocational education, which operates a program or
programs of scholarly research.
(5) Noncommercial scientific institution means an institution that
is not operated on a commercial basis as that term is defined in
paragraph (a)(1) of this section, and which is operated solely for the
purpose of conducting scientific research, the results of which are not
intended to promote any particular product or industry.
(6) Representative of the news media means any person primarily
engaged in gathering news for, or a free-lance journalist who can
demonstrate a reasonable expectation of having his or her work product
published or broadcast by, an entity that is organized and operated to
publish or broadcast news to the public. The term news means
information that is about current events or that would be of current
interest to the general public.
(7) Review means the process of examining records located in
response to a request for records to determine whether any portion of
any record is permitted to be withheld as exempt information. It
includes processing any record for disclosure, e.g., doing all that is
necessary to excise them or otherwise prepare them for release.
(8) Search includes all time spent looking for material that is
responsive to a request, including page-by-page or line-by-line
identification of material within records. Searches may be done
manually and/or by computer using existing programming.
(b) Making a request for records. (1) The request shall be
submitted in writing to the Office of the Executive Secretary:
(i) By completing the online request form located on the FDIC's
World Wide Web page, found at: http://www.fdic.gov;
(ii) By facsimile clearly marked Freedom of Information Act Request
to (202) 898-8778; or
(iii) By sending a letter to the Office of the Executive Secretary,
ATTN: FOIA/PA Unit, 550 17th Street, NW, Washington, DC 20429.
(2) The request shall contain the following information:
(i) The name and address of the requester, an electronic mail
address, if available, and the telephone number at which the requester
may be reached during normal business hours;
(ii) Whether the requester is an educational institution,
noncommercial scientific institution, or news media representative;
(iii) A statement agreeing to pay the applicable fees, or a
statement identifying a maximum fee that is acceptable to the
requester, or a request for a waiver or reduction of fees that
satisfies paragraph (f)(1)(x) of this section; and
(iv) The preferred form and format of any responsive information
requested, if other than paper copies.
(3) A request for identifiable records shall reasonably describe
the records in a way that enables the FDIC's staff to identify and
produce the records with reasonable effort and without unduly burdening
or significantly interfering with any of the FDIC's operations.
(c) Defective requests. The FDIC need not accept or process a
request that does not reasonably describe the records requested or that
does not otherwise comply with the requirements of this part. The FDIC
may return a defective request, specifying the deficiency. The
requester may submit a corrected request, which will be treated as a
new request.
(d) Processing requests.--(1) Receipt of requests. Upon receipt of
any request that satisfies paragraph (b) of this section, the FOIA/PA
Unit, Office of the Executive Secretary, shall assign the request to
the appropriate processing track pursuant to this section. The date of
receipt for any request, including one that is addressed incorrectly or
that is referred by another agency, is the date the Office of the
Executive Secretary actually receives the request.
(2) Multitrack processing. (i) The FDIC provides different levels
of processing for categories of requests under this part. Requests for
records that are readily identifiable by the Office of the Executive
Secretary and that have already been cleared for public release may
qualify for fast-track processing. All other requests shall be handled
under normal processing procedures, unless expedited processing has
been granted pursuant to paragraph (d)(3) of this section.
(ii) The FDIC will make the determination whether a request
qualifies for fast-track processing. A requester may contact the FOIA/
PA Unit to learn whether a particular request has been assigned to
fast-track processing. If the request has not qualified for fast-track
processing, the requester will be given an opportunity to refine the
request in order to qualify for fast-track processing. Changes made to
requests to obtain faster processing must be in writing.
(3) Expedited processing. (i) Where a person requesting expedited
access to records has demonstrated a compelling need for the records,
or where the FDIC has determined to expedite the response, the FDIC
shall process the request as soon as practicable. To show a compelling
need for expedited processing, the requester shall provide a statement
demonstrating that:
(A) The failure to obtain the records on an expedited basis could
reasonably be expected to pose an imminent threat to the life or
physical safety of an individual; or
(B) The requester can establish that they are primarily engaged in
information dissemination as their main professional occupation or
activity, and there is urgency to inform the public of the government
activity involved in the request; and
(C) The requester's statement must be certified to be true and
correct to the best of the person's knowledge and belief and explain in
detail the basis for requesting expedited processing.
(ii) The formality of the certification required to obtain
expedited treatment may be waived by the FDIC as a matter of
administrative discretion.
(4) A requester seeking expedited processing will be notified
whether expedited processing has been granted within ten (10) working
days of the receipt of the request. If the request for expedited
processing is denied, the requester may file an appeal pursuant to the
procedures set forth in paragraph (h) of this section, and the FDIC
shall respond to the appeal within ten (10) working days after receipt
of the appeal.
(5) Priority of responses. Consistent with sound administrative
process the FDIC processes requests in the order they are received in
the separate processing tracks. However, in the
[[Page 16406]]
agency's discretion, or upon a court order in a matter to which the
FDIC is a party, a particular request may be processed out of turn.
(6) Notification. (i) The time for response to requests will be
twenty (20) working days except:
(A) In the case of expedited treatment under paragraph (d)(3) of
this section;
(B) Where the running of such time is suspended for the calculation
of a cost estimate for the requester if the FDIC determines that the
processing of the request may exceed the requester's maximum fee
provision or if the charges are likely to exceed $250 as provided for
in paragraph (f)(1)(v) of this section;
(C) Where the running of such time is suspended for the payment of
fees pursuant to the paragraphs (d)(6)(i)(B) and (f)(1) of this
section; or
(D) In unusual circumstances, as defined in 5 U.S.C. 552(a)(6)(B)
and further described in paragraph (d)(6)(iii) of this section.
(ii) In unusual circumstances as referred to in paragraph
(d)(6)(i)(D) of this section, the time limit may be extended for a
period of:
(A) Ten (10) working days as provided by written notice to the
requester, setting forth the reasons for the extension and the date on
which a determination is expected to be dispatched; or
(B) Such alternative time period as agreed to by the requester or
as reasonably determined by the FDIC when the FDIC notifies the
requester that the request cannot be processed in the specified time
limit.
(iii) Unusual circumstances may arise when:
(A) The records are in facilities, such as field offices or storage
centers, that are not located at the FDIC's Washington office;
(B) The records requested are voluminous or are not in close
proximity to one another; or
(C) There is a need to consult with another agency or among two or
more components of the FDIC having a substantial interest in the
determination.
(7) Response to request. In response to a request that satisfies
the requirements of paragraph (b) of this section, a search shall be
conducted of records maintained by the FDIC in existence on the date of
receipt of the request, and a review made of any responsive information
located. The FDIC shall notify the requester of:
(i) The FDIC's determination of the request;
(ii) The reasons for the determination;
(iii) If the response is a denial of an initial request or if any
information is withheld, the FDIC will advise the requester in writing:
(A) If the denial is in part or in whole;
(B) The name and title of each person responsible for the denial
(when other than the person signing the notification);
(C) The exemptions relied on for the denial; and
(D) The right of the requester to appeal the denial to the FDIC's
General Counsel within 30 business days following receipt of the
notification, as specified in paragraph (h) of this section.
(e) Providing responsive records. (1) Copies of requested records
shall be sent to the requester by regular U.S. mail to the address
indicated in the request, unless the requester elects to take delivery
of the documents at the FDIC or makes other acceptable arrangements, or
the FDIC deems it appropriate to send the documents by another means.
(2) The FDIC shall provide a copy of the record in any form or
format requested if the record is readily reproducible by the FDIC in
that form or format, but the FDIC need not provide more than one copy
of any record to a requester.
(3) By arrangement with the requester, the FDIC may elect to send
the responsive records electronically if a substantial portion of the
request is in electronic format. If the information requested is made
pursuant to the Privacy Act of 1974, 5 U.S.C. 552a, it will not be sent
by electronic means unless reasonable security measures can be
provided.
(f) Fees--(1) General rules. (i) Persons requesting records of the
FDIC shall be charged for the direct costs of search, duplication, and
review as set forth in paragraphs (f)(2) and (f)(3) of this section,
unless such costs are less than the FDIC's cost of processing the
requester's remittance.
(ii) Requesters will be charged for search and review costs even if
responsive records are not located or, if located, are determined to be
exempt from disclosure.
(iii) Multiple requests seeking similar or related records from the
same requester or group of requesters will be aggregated for the
purposes of this section.
(iv) If the FDIC determines that the estimated costs of search,
duplication, or review of requested records will exceed the dollar
amount specified in the request, or if no dollar amount is specified,
the FDIC will advise the requester of the estimated costs (if greater
than the FDIC's cost of processing the requester's remittance). The
requester must agree in writing to pay the costs of search,
duplication, and review prior to the FDIC initiating any records
search.
(v) If the FDIC estimates that its search, duplication, and review
costs will exceed $250.00, the requester must pay an amount equal to 20
percent of the estimated costs prior to the FDIC initiating any records
search.
(vi) The FDIC shall ordinarily collect all applicable fees under
the final invoice before releasing copies of requested records to the
requester.
(vii) The FDIC may require any requester who has previously failed
to pay the charges under this section within 30 calendar days of
mailing of the invoice to pay in advance the total estimated costs of
search, duplication, and review. The FDIC may also require a requester
who has any charges outstanding in excess of 30 calendar days following
mailing of the invoice to pay the full amount due, or demonstrate that
the fee has been paid in full, prior to the FDIC initiating any
additional records search.
(viii) The FDIC may begin assessing interest charges on unpaid
bills on the 31st day following the day on which the invoice was sent.
Interest will be at the rate prescribed in section 3717 of title 31 of
the United States Code and will accrue from the date of the invoice.
(ix) The time limit for the FDIC to respond to a request will not
begin to run until the FDIC has received the requester's written
agreement under paragraph (f)(1)(iv) of this section, and advance
payment under paragraph (f)(1) (v) or (vii) of this section, or payment
of outstanding charges under paragraph (f)(1)(vii) or (viii) of this
section.
(x) As part of the initial request, a requester may ask that the
FDIC waive or reduce fees if disclosure of the records is in the public
interest because it is likely to contribute significantly to public
understanding of the operations or activities of the government and is
not primarily in the commercial interest of the requester.
Determinations as to a waiver or reduction of fees will be made by the
Executive Secretary (or designee) and the requester will be notified in
writing of his/her determination. A determination not to grant a
request for a waiver or reduction of fees under this paragraph may be
appealed to the FDIC's General Counsel (or designee) pursuant to the
procedure set forth in paragraph (h) of this section.
(2) Chargeable fees by category of requester. (i) Commercial use
requesters shall be charged search, duplication and review costs.
(ii) Educational institutions, non-commercial scientific
institutions and news media representatives shall be
[[Page 16407]]
charged duplication costs, except for the first 100 pages.
(iii) Requesters not described in paragraph (f)(2) (i) or (ii) of
this section shall be charged the full reasonable direct cost of search
and duplication, except for the first two hours of search time and
first 100 pages of duplication.
(3) Fee schedule. The dollar amount of fees which the FDIC may
charge to records requesters will be established by the Chief Financial
Officer of the FDIC (or designee). The FDIC may charge fees that recoup
the full allowable direct costs it incurs. Fees are subject to change
as costs change.
(i) Manual searches for records. The FDIC will charge for manual
searches for records at the basic rate of pay of the employee making
the search plus 16 percent to cover employee benefit costs. Where a
single class of personnel (e.g., all clerical, all professional, or all
executive) is used exclusively, the FDIC, at its discretion, may
establish and charge an average rate for the range of grades typically
involved.
(ii) Computer searches for records. The fee for searches of
computerized records is the actual direct cost of the search, including
computer time, computer runs, and the operator's time apportioned to
the search. The fee for a computer printout is the actual cost. The
fees for computer supplies are the actual costs. The FDIC may, at its
discretion, establish and charge a fee for computer searches based upon
a reasonable FDIC-wide average rate for central processing unit
operating costs and the operator's basic rate of pay plus 16 percent to
cover employee benefit costs.
(iii) Duplication of records. (A) The per-page fee for paper copy
reproduction of documents is the average FDIC-wide cost based upon the
reasonable direct costs of making such copies.
(B) For other methods of reproduction or duplication, the FDIC will
charge the actual direct costs of reproducing or duplicating the
documents.
(iv) Review of records. The FDIC will charge commercial use
requesters for the review of records at the time of processing the
initial request to determine whether they are exempt from mandatory
disclosure at the basic rate of pay of the employee making the search
plus 16 percent to cover employee benefit costs. Where a single class
of personnel (e.g., all clerical, all professional, or all executive)
is used exclusively, the FDIC, at its discretion, may establish and
charge an average rate for the range of grades typically involved. The
FDIC will not charge at the administrative appeal level for review of
an exemption already applied. When records or portions of records are
withheld in full under an exemption which is subsequently determined
not to apply, the FDIC may charge for a subsequent review to determine
the applicability of other exemptions not previously considered.
(v) Other services. Complying with requests for special services,
other than a readily produced electronic form or format, is at the
FDIC's discretion. The FDIC may recover the full costs of providing
such services to the requester.
(4) Publication of fee schedule and effective date of changes. (i)
The fee schedule is made available on the FDIC's World Wide Web page,
found at http://www.fdic.gov.
(ii) The fee schedule will be set forth in the ``Notice of Federal
Deposit Insurance Corporation Records Fees'' issued in December of each
year or in such ``Interim Notice of Federal Deposit Insurance
Corporation Records Fees'' as may be issued. Copies of such notices may
be obtained at no charge from the Office of the Executive Secretary,
FOIA/PA Unit, 550 17th Street NW, Washington, D.C. 20429, and are
available on the FDIC's World Wide Web page as noted in paragraph
(f)(4)(i) of this section..
(iii) The fees implemented in the December or Interim Notice will
be effective 30 days after issuance.
(5) Use of contractors. The FDIC may contract with independent
contractors to locate, reproduce, and/or disseminate records; provided,
however, that the FDIC has determined that the ultimate cost to the
requester will be no greater than it would be if the FDIC performed
these tasks itself. In no case will the FDIC contract out
responsibilities which the Freedom of Information Act (FOIA) (5 U.S.C.
552) provides that the FDIC alone may discharge, such as determining
the applicability of an exemption or whether to waive or reduce fees.
(g) Exempt information. A request for records may be denied if the
requested record contains information which falls into one or more of
the following categories.1 If the requested record contains
both exempt and nonexempt information, the nonexempt portions which may
reasonably be segregated from the exempt portions will be released to
the requester. If redaction is necessary, the FDIC will, to the extent
technically feasible, indicate the amount of material deleted at the
place in the record where such deletion is made unless that indication
in and of itself will jeopardize the purpose for the redaction. The
categories of exempt records are as follows:
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\1\ Classification of a record as exempt from disclosure under
the provisions of this paragraph (g) shall not be construed as
authority to withhold the record if it is otherwise subject to
disclosure under the Privacy Act of 1974 (5 U.S.C. 552a) or other
federal statute, any applicable regulation of FDIC or any other
federal agency having jurisdiction thereof, or any directive or
order of any court of competent jurisdiction.
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(1) Records that are specifically authorized under criteria
established by an Executive Order to be kept secret in the interest of
national defense or foreign policy and are in fact properly classified
pursuant to such Executive Order;
(2) Records related solely to the internal personnel rules and
practices of the FDIC;
(3) Records specifically exempted from disclosure by statute,
provided that such statute:
(i) Requires that the matters be withheld from the public in such a
manner as to leave no discretion on the issue; or
(ii) Establishes particular criteria for withholding or refers to
particular types of matters to be withheld;
(4) Trade secrets and commercial or financial information obtained
from a person that is privileged or confidential;
(5) Interagency or intra-agency memoranda or letters that would not
be available by law to a private party in litigation with the FDIC;
(6) Personnel, medical, and similar files (including financial
files) the disclosure of which would constitute a clearly unwarranted
invasion of personal privacy;
(7) Records compiled for law enforcement purposes, but only to the
extent that the production of such law enforcement records:
(i) Could reasonably be expected to interfere with enforcement
proceedings;
(ii) Would deprive a person of a right to a fair trial or an
impartial adjudication;
(iii) Could reasonably be expected to constitute an unwarranted
invasion of personal privacy;
(iv) Could reasonably be expected to disclose the identity of a
confidential source, including a state, local, or foreign agency or
authority or any private institution which furnished records on a
confidential basis;
(v) Would disclose techniques and procedures for law enforcement
investigations or prosecutions, or would disclose guidelines for law
enforcement investigations or prosecutions if such disclosure could
reasonably be expected to risk circumvention of the law; or
(vi) Could reasonably be expected to endanger the life or physical
safety of any individual;
[[Page 16408]]
(8) Records that are contained in or related to examination,
operating, or condition reports prepared by, on behalf of, or for the
use of the FDIC or any agency responsible for the regulation or
supervision of financial institutions; or
(9) geological and geophysical information and data, including
maps, concerning wells.
(h) Appeals. (1) Appeals should be addressed to the Office of the
Executive Secretary, FDIC, 550 17th Street, NW, Washington, DC 20429.
(2) A person whose initial request for records under this section,
or whose request for a waiver of fees under paragraph (f)(1)(x) of this
section, has been denied, either in part or in whole, has the right to
appeal the denial to the FDIC's General Counsel (or designee) within 30
business days after receipt of notification of the denial. Appeals of
denials of initial requests or for a waiver of fees must be in writing
and include any additional information relevant to consideration of the
appeal.
(3) Except in the case of an appeal for expedited treatment under
paragraph (d)(3) of this section, the FDIC will notify the appellant in
writing within 20 business days after receipt of the appeal and will
state:
(i) Whether it is granted or denied in whole or in part;
(ii) The name and title of each person responsible for the denial
(if other than the person signing the notification);
(iii) The exemptions relied upon for the denial in the case of
initial requests for records; and
(iv) The right to judicial review of the denial under the FOIA.
(4) If a requester is appealing for denial of expedited treatment,
the FDIC will notify the appellant within 10 business days after
receipt of the appeal of the FDIC's disposition.
(5) Complete payment of any outstanding fee invoice will be
required before an appeal is processed.
(i) Records of another agency. If a requested record is the
property of another federal agency or department, and that agency or
department, either in writing or by regulation, expressly retains
ownership of such record, upon receipt of a request for the record the
FDIC will promptly inform the requester of this ownership and
immediately shall forward the request to the proprietary agency or
department either for processing in accordance with the latter's
regulations or for guidance with respect to disposition.
Sec. 309.6 [Amended]
6. Section 309.6 is amended by redesignating footnotes 5 through 9
as footnotes 2 through 6.
By Order of the Board of Directors.
Dated at Washington, D.C., this 24th day of March 1998.
Federal Deposit Insurance Corporation.
Robert E. Feldman,
Executive Secretary.
[FR Doc. 98-8642 Filed 4-2-98; 8:45 am]
BILLING CODE 6714-01-P
