[Federal Register Volume 64, Number 147 (Monday, August 2, 1999)]
[Rules and Regulations]
[Pages 41770-41774]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-19584]
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FARM CREDIT ADMINISTRATION
12 CFR Part 602
RIN 3052-AB84
Releasing Information
AGENCY: Farm Credit Administration (FCA).
ACTION: Final rule.
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SUMMARY: This final rule amends FCA regulations on the release of
information under the Freedom of Information Act (FOIA) to:
Reflect new fees and make it easier for the public to get
FCA records;
Revise the procedures for requests for testimony by FCA
employees on official matters and for producing FCA documents in
litigation when FCA is not a named party; and
Add procedures for getting records in public rulemaking
files.
We designed this regulation to be concise and easy to understand.
EFFECTIVE DATE: This regulation will become effective 30 days after
publication in the Federal Register during which either one or both
houses of Congress are in session. We will publish a notice of the
effective date in the Federal Register.
FOR FURTHER INFORMATION CONTACT:
John Hays, Policy Analyst, Office of Policy and Analysis, Farm Credit
Administration, 1501 Farm Credit Drive, McLean, VA 22102-5090, (703)
883-4498, TDD (703) 883-4444, or
Jane Virga, Senior Attorney, Office of General Counsel, Farm Credit
Administration, 1501 Farm Credit Drive, McLean, VA 22102-5090, (703)
883-4020, TDD (703) 883-4444.
SUPPLEMENTARY INFORMATION: We received no comments from the public on
our proposed rule published March 8, 1999 (64 FR 10954). The revisions
to part 602 are now final. We have added two tables to the final
regulation to make it easier for readers to view the types and amounts
of fees we charge requesters.
List of Subjects in 12 CFR Part 602
Administrative practice and procedure, Courts, Freedom of
information, Government employees.
For the reasons stated in the preamble, part 602, of chapter VI,
title 12 of the Code of Federal Regulations is revised to read as
follows:
PART 602--RELEASING INFORMATION:
Subpart A--Information and Records Generally
Sec.
602.1 Purpose and scope.
602.2 Disclosing reports of examination.
Subpart B--Availability of Records of the Farm Credit Administration
602.3 Definitions.
602.4 How to make a request.
602.5 FCA response to requests for records.
602.6 FOIA exemptions.
602.7 Confidential business information.
602.8 Appeals.
602.9 Current FOIA index.
Subpart C--FOIA Fees 602.10 Definitions.
602.11 Fees by type of requester.
602.12 Fees.
602.13 Fee waiver.
602.14 Advance payments--notice.
602.15 Interest on unpaid fees.
602.16 Combining requests.
Subpart D--Testimony and Production of Documents in Legal Proceedings
in Which FCA is Not a Named Party 602.17 Policy.
602.18 Definitions.
602.19 Request for testimony or production of documents.
602.20 Testimony of FCA employees.
602.21 Production of FCA documents.
602.22 Fees.
602.23 Responses to demands served on FCA employees.
602.24 Responses to demands served on non-FCA employees or
entities.
Subpart E--Release of Records in Public Rulemaking Files
602.25 General.
Authority: Secs. 5.9, 5.17; 12 U.S.C. 2243, 2252; 5 U.S.C. 301,
552; 52 FR 10012; E.O. 12600, 52 FR 23781, 3 CFR 1987, p. 235.
Subpart A--Information and Records Generally
Sec. 602.1 Purpose and scope.
This part contains FCA's rules for disclosing our records or
information; processing requests for records under the Freedom of
Information Act (5 U.S.C. 552, as amended)(FOIA); FOIA fees; disclosing
otherwise exempt information in litigation when FCA is not a party; and
getting documents in public rulemaking files. Part 603 of this chapter
tells you how to get records about yourself under the Privacy Act of
1974, 5 U.S.C. 552a.
Sec. 602.2 Disclosing reports of examination.
(a) Disclosure by FCA. Reports of examination are FCA property. We
prepare them for our confidential use and the use of the institution
examined. We do not give reports of examination to the public. Except
as provided in this section, only the Chairman or the
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Chairman's designee may consent to disclosing reports of examination of
Farm Credit System institutions and other institutions subject to our
examination. You may send a written request to our General Counsel that
explains why we should give permission.
(b) Disclosure by Farm Credit System institutions. An institution
that we have examined may disclose its report of examination to its
officers, directors, and agents, such as its attorney or accountant, if
they agree to keep the report confidential. In addition, banks may
disclose their reports of examination to their affiliated associations,
associations may disclose their reports to their supervisory bank, and
service corporations may disclose their reports of examination to the
institutions that own them. An institution may not disclose these
institutions' reports of examination to any other person without our
written permission.
(c) Disclosure to governmental entities. Without waiving any
privilege, we will disclose reports of examination to other Federal
government entities:
(1) In response to a Federal court order;
(2) In response to a request of either House or a Committee or
Subcommittee of Congress; or
(3) When requested for confidential use in an official
investigation by authorized representatives of other Federal agencies.
Subpart B--Availability of Records of the Farm Credit
Administration
Sec. 602.3 Definitions.
Appeal means a request under the FOIA asking for the reversal of a
decision.
Business information means trade secrets or other commercial or
financial information that is privileged or confidential.
Business submitter means any person or entity that gives business
information to the Government.
FOIA request means a written request for FCA records, made by any
person or entity that either directly or indirectly invokes the FOIA or
this part.
Record means all documentary materials, such as books, papers,
maps, photographs, and machine-readable materials, regardless of
physical form or characteristics (for example, electronic format) in
our possession and control when we receive your FOIA request.
Sec. 602.4 How to make a request.
(a) How to make and address a request. Your request for records
must be in writing and addressed to the FOIA Officer, Farm Credit
Administration. You may send it:
(1) By mail to 1501 Farm Credit Drive, McLean, Virginia 22102-5090;
(2) By facsimile to (703) 790-0052; or
(3) By E-mail to foiaofficer@fca.gov.''
(b) Description of requested records. You must describe the
requested records in enough detail to let us find them with a
reasonable effort. If the description is inadequate, we will ask you to
provide more information and the 20-day response period under
Sec. 602.5(a) will not begin until we receive your reply.
(c) Faster response. You may ask for a faster response to your FOIA
request by giving us a statement, certified to be true, that you have a
``compelling need.'' The FOIA Officer will tell you within 10 calendar
days after receiving the request whether we will respond to it faster.
If so, we will respond to your request as soon as we can. A compelling
need means:
(1) Someone's life or physical safety may be in danger if we do not
respond to the request faster; or
(2) You urgently need to tell the public about Federal government
activity as a representative of the news media.
(d) Request for personal information. If you or your representative
requests your personal information, we may require you to give us a
notarized request, identify yourself under penalty of perjury, or
provide other proof of your identity.
(e) Fees. When making a request, you must tell us the most you are
willing to pay. Our charges are in the fee tables in Secs. 602.11 and
602.12. You may also want to tell us the purpose of your request so we
can classify your request for fee purposes.
(f) Other requests. To ensure the public has timely information
about our activities, the Office of Congressional and Public Affairs
will make available copies of public documents, such as the FCA annual
report and media advisories.
Sec. 602.5 FCA response to requests for records.
(a) Response time. Within 20 business days of receiving your
request, the FOIA Officer will tell you whether we have granted or
denied it. If you send your request to the wrong address, the 20-day
response time will not begin until the FOIA Officer receives your
request.
(b) Extension of response time. In ``unusual circumstances,'' the
FOIA Officer may extend the 20-day response time for up to 10 more
business days by telling you in writing why we need more time and the
date we will mail you our response. As used in this subpart, ``unusual
circumstances'' means our need to:
(1) Search for and get the requested records from field offices or
other locations;
(2) Search for, get, and review many records identified in a single
request;
(3) Consult with another Federal agency having a substantial
interest in the request; or
(4) Consult with two or more FCA offices having a substantial
interest in the request.
(c) Referrals. If you ask for records we have that another Federal
agency originated, we will refer the request to the originating agency
and tell you about the referral. If you should have sent your request
to another Federal agency, we will refer the request to that agency and
so advise you.
Sec. 602.6 FOIA exemptions.
The FOIA allows agencies to withhold documents in certain
categories. For instance, we do not have to give you documents that
relate to our examination of institutions or that would violate the
personal privacy of an individual. If we do not give you a document
because the FOIA does not require us to, we will tell you which FOIA
exemption applies to our decision.
Sec. 602.7 Confidential business information.
(a) FCA disclosure. FCA may disclose business information from a
business submitter only under this section. This section will not apply
if:
(1) We decide the business submitter has no valid basis to object
to disclosure;
(2) The information has been published lawfully or made available
to the public; or
(3) Law (other than the FOIA) requires disclosure of the
information.
(b) Notice by FCA. When we receive a request for confidential
business information, the FOIA Officer will promptly tell the requester
and the business submitter in writing that the responsive records may
be free from disclosure under the FOIA. We will give the business
submitter a reasonable time to object to the proposed disclosure of the
responsive records and tell the requester whenever:
(1) The business submitter has in good faith labeled the
information a trade secret or commercial or financial information that
is privileged or confidential. We will provide such notice for 10 years
after receiving the information unless the business submitter justifies
the need for a longer period; or
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(2) We believe that disclosing the information may result in
commercial or financial injury to the business submitter.
(c) Objection to release. A business submitter who objects to our
releasing the requested information should tell us in writing why the
information is a trade secret or commercial or financial information
that is privileged or confidential.
(d) FCA response. (1) We will consider carefully a business
submitter's objections. If we decide to disclose business information
over the submitter's objection, the FOIA Officer will explain to the
submitter in writing why we disagreed with the submitter's objection
and describe the business information to be disclosed.
(2) We will tell the requester and the submitter the proposed
disclosure date at the same time.
(3) If a submitter sues to prevent release, we will promptly tell
the requester and will not disclose the business information until
after the court's decision.
(4) If a requester sues to compel disclosure, we will promptly tell
the business submitter.
Sec. 602.8 Appeals.
(a) How to appeal. You may appeal a total or partial denial of your
FOIA request within 30 calendar days of the date of the denial letter.
Your appeal must be in writing and addressed to the Director, Office of
Resources Management (ORM), Farm Credit Administration. You may send
it:
(1) By mail to 1501 Farm Credit Drive, McLean, Virginia 22102-5090;
(2) By facsimile to (703) 893-2608; or
(3) By E-mail to foiaappeal@fca.gov.
(b) FCA action on appeal. Within 20 business days of receiving your
appeal, the ORM Director will tell you, in writing, whether we have
granted or denied it. If you send your appeal to the wrong address, the
20-day response time will not begin until the ORM Director receives
your appeal.
(c) Unusual circumstances. In unusual circumstances, the ORM
Director may extend the 20-day response time by telling you in writing
why we need more time and the date we will mail you our response. All
extensions, including any extension of the response time for the first
request, may not total more than 10 business days.
Sec. 602.9 Current FOIA index.
FCA will make a current index available for public inspection and
copying, as required by the FOIA. We will give you an index for the
cost of copying it. Because we rarely receive requests for an index, we
have not published one in the Federal Register.
Subpart C--FOIA Fees
Sec. 602.10 Definitions.
Commercial use request means an information request by an
individual or entity seeking information for a use or purpose that
furthers the commercial, trade, or profit interests of that individual
or entity.
Direct costs means the costs FCA incurs in searching for and
reproducing documents to respond to a FOIA request. For a commercial
use request, it also means the costs we incur in reviewing documents to
respond to the request. Direct costs include the pro rated cost of the
salary of the employee performing the work (based on the basic rate of
pay plus 16 percent to cover benefits) and the cost of operating
reproduction equipment. They do not include overhead expenses.
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, or
an institution of vocational education that runs a program of scholarly
research.
Noncommercial scientific institution means a nonprofit institution
that conducts scientific research that is not intended to promote any
particular product or industry.
Pages mean 8-1/2 x 11 inch or 11 x 14 inch paper copies.
Representative of the news media means any person actively
gathering news for an entity that publishes or broadcasts news to the
public. News means information about current events or of current
interest to the public.
Reproduce (or reproduction) means copying a record.
Review means looking at documents found in response to a FOIA
request to decide whether any portion should be withheld. It does not
include the time spent resolving legal or policy issues.
Search means all time spent looking for material responsive to a
FOIA request, including page-by-page or line-by-line identification of
material within documents.
Sec. 602.11 Fees by type of requester.
Depending on your identity and the purpose of your request, the FCA
may charge you the direct costs of searching for responsive records,
reviewing the records, and reproducing them. If necessary, we will seek
clarification before classifying the request.
(a) Educational institutions and noncommercial scientific
institutions. We charge fees for reproduction costs only. The first 100
pages are free. You must show that the request is sanctioned by an
educational or noncommercial scientific institution and that you seek
the records for scholarly or scientific research, not for a commercial
use.
(b) Representatives of the news media. We charge fees for
reproduction costs only. The first 100 pages are free. You must be a
representative of the news media, and the request must not be made for
a commercial use. A request for records supporting news distribution is
not a request for a commercial use.
(c) Commercial use. We charge the direct cost for search, review,
and reproduction. Commercial use requesters are not entitled to free
search time or free reproduction. We will charge you even if we do not
disclose any records.
(d) All others. The first 2 hours of search time and the first 100
pages of reproduction are free. After that, we will charge you for
search and reproduction costs. We will charge you for a search even if
we do not disclose any records.
(e) Fee table. The fee information in paragraphs (a) through (d) of
this section is presented in the table to this paragraph. You may apply
for a waiver if your request is not mostly in your commercial interest
and the disclosure is in the public interest. See Sec. 602.13.
Fee Table
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Charges for
Type of requester --------------------------------------------------- Reproduction
Search time Review time
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Educational.............. No Charge................. No charge............ First 100 pages free, $
Noncommercial scientific users 0.15 a page after that.
News media
Commercial Users \1\.............. All direct costs.......... All direct costs..... $0.15 a page.
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All others* ...................... First 2 hours free, all No charge............ First 100 pages free,
direct costs after that. $0.15 a page after that.
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* You are responsible for fees even if we do not disclose any records.
Sec. 602.12 Fees.
(a) FCA may charge:
(1) For manual searches for records and for review, the pro rated
cost of the salary of the employee doing the work.
(2) For computer searches for records, the direct costs of computer
search time and supply or material costs.
(3) For each page made by photocopy or similar method, fifteen
cents a page, and for other forms of copying, the direct costs.
(4) The direct costs of elective services, such as certifying
records as true copies or sending records by special methods.
(b) We will not charge fees when total assessed fees are less than
$15.00.
(c) You must pay by personal check, bank draft drawn on a United
States bank, or postal money order made payable to the Treasury of the
United States.
(d) We treat a request about yourself under Privacy Act fee rules.
(e) The information in paragraphs (a) and (b) of this section is
presented in the table to this paragraph. Direct costs means the costs
FCA incurs in searching for, reviewing, and reproducing documents to
respond to a request. Direct costs include pro rated salary and
reproduction costs. We will not charge fees when they total less than $
15.00.
Fee Amounts Table
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Type of fee Amount of fee
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Manual Search and Review................................... Pro rated Salary Costs.
Computer Search............................................ Direct Costs.
Photocopy.................................................. $0.15 a page.
Other Reproduction Costs................................... Direct Costs.
Elective Services.......................................... Direct Costs.
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Sec. 602.13 Fee waiver.
We may waive or reduce fees if disclosure is not mostly in your
commercial interest but, instead, is in the public interest because it
will advance public understanding of the Federal government's
operations or activities.
Sec. 602.14 Advance payments--notice.
(a) If fees will be more than $25.00 and you have not told us in
advance that you will pay estimated fees, we will tell you the
estimated amount and ask that you agree to pay it. Except as noted in
this section, we will begin processing the FOIA request when we receive
your agreement to pay.
(b) If estimated fees exceed $250.00 and you have a history of
promptly paying fees charged for information requests, we may respond
to your request based on your agreement to pay.
(c) If estimated fees exceed $250.00 and you have no history of
paying fees, we may require you to pay in advance.
(d) If you have previously failed to pay fees for information
requests or paid them late, you must pay any fees still owed, plus
interest calculated under Sec. 602.15, and the estimated fees before we
will respond to a new or a pending request.
(e) If we require advance payment or an advance agreement to pay,
we will not consider your request to be received and will not respond
to it until you meet the requirement.
Sec. 602.15 Interest on unpaid fees.
If you fail to pay fees on time, FCA may charge you interest
starting on the 31st calendar day following the date we bill you. We
will charge you interest at the rate allowed by law (31 U.S.C. 3717) on
the billing date.
Sec. 602.16 Combining requests.
You may not avoid paying fees by filing multiple requests at the
same time. When FCA reasonably believes that you, alone or with others,
are breaking down a request into a series of requests to avoid fees, we
will combine the requests and charge accordingly. We will assume that
multiple requests within a 30-day period have been made to avoid fees.
Subpart D--Testimony and Production of Documents in Legal
Proceedings in Which FCA is Not a Named Party
Sec. 602.17 Policy.
(a) The rules in this subpart preserve the confidentiality of FCA's
documents and information, conserve employees' time for official
duties, uphold fairness in litigation, and help the Chairman decide
when to allow testimony and to produce documents. This subpart does not
affect access to documents under the FOIA or the Privacy Act. See
subpart B of this part and part 603 of this chapter.
(b) Generally, we will not produce documents voluntarily and
employees will not appear as witnesses voluntarily in any legal
proceeding. However, in limited circumstances, the Chairman may allow
the production of documents or testimony when the Chairman decides it
would be in the best interest of FCA or the public. All privileged
documents produced under this subpart remain our property. Any employee
having information or privileged documents may disclose them only as
allowed by the Chairman.
Sec. 602.18 Definitions.
Court means any entity conducting a legal proceeding.
Demand means any order, subpoena, or other legal process for
testimony or documents.
Direct costs means FCA's costs to search for, review, and reproduce
documents to respond to a request. Direct costs include the pro rated
cost of the salary of the employee performing the work (based on the
basic rate of pay plus 16 percent to cover benefits) and the cost of
operating reproduction equipment.
Document means any record or other documentary materials, such as
books,
[[Page 41774]]
papers, maps, photographs, and machine-readable materials, regardless
of physical form or characteristics (for example, electronic format) in
our possession and control when we receive the request.
Employee means any present or former FCA employee, any present or
former FCA Board member, any former Federal Farm Credit Board member,
any present or former FCA-appointed receiver or conservator, and any
present or former agent or contractor.
FCA Counsel means the General Counsel, a Department of Justice
attorney, or counsel authorized by FCA to act for the FCA or an
employee.
General Counsel means the FCA's General Counsel or designee.
Legal proceeding means any administrative, civil, or criminal
proceeding, including a discovery proceeding, before a court when FCA
is not a named party and has not instituted the legal proceeding.
Sec. 602.19 Request for testimony or production of documents.
(a) How to make and address a request. Your request for an
employee's testimony about official matters or the production of
documents must be in writing and addressed to the General Counsel, 1501
Farm Credit Drive, McLean, Virginia 22102-5090.
(b) Your request must contain the following:
(1) Title of the case;
(2) Forum;
(3) Your interest in the case;
(4) Summary of the litigation issues;
(5) Reasons for the request;
(6) Why the confidential information is important; and
(7) An explanation of why the testimony or document you want is not
reasonably available from another source. If you want testimony, you
must also state how you intend to use the testimony, provide a subject
matter summary of the requested testimony, and explain why a document
could not be used instead.
(c) The General Counsel may ask you to limit your request to make
it less burdensome or to give us information to help us decide if
providing documents or testimony is in the public interest.
Sec. 602.20 Testimony of FCA employees.
(a) An employee may testify only as the Chairman approves in
writing. Generally, an employee may testify only by deposition or
written interrogatory. An employee may give only factual testimony and
may not give opinion testimony.
(b) If, in response to your request, the Chairman decides that an
employee may testify, you must serve the employee with a subpoena under
applicable Federal or State rules of procedure and at the same time
send a copy of the subpoena by registered mail to the General Counsel.
(c) Normally, depositions will be taken at the employee's office,
at a time convenient to the employee and the FCA. FCA counsel may
represent FCA's interests at the deposition.
(d) If you request the deposition, you must give the General
Counsel a copy of the deposition transcript at no charge.
Sec. 602.21 Production of FCA documents.
(a) An FCA employee may produce documents only as the Chairman
allows.
(b) Before we will release any documents, the requesting party must
get an acceptable protective order from the court before which the
action is pending that will preserve the confidentiality of the
documents to be released.
(c) On request, we may provide certified or authenticated copies of
documents.
Sec. 602.22 Fees.
(a) For documents released under this subpart, FCA will charge:
(1) The direct costs of searching for responsive records, including
the use of a computer, reviewing the records, and reproducing them. We
also will charge for the direct costs of any other services and
materials that we provide at your request.
(2) Fifteen cents a copy for each page made by photocopy or similar
process.
(3) The direct costs for each certification or authentication of
documents.
(b) You must pay by personal check, bank draft drawn on a United
States bank, or postal money order made payable to FCA. We will waive
fees of $15.00 or less. We will send the documents after we receive
your payment.
Sec. 602.23 Responses to demands served on FCA employees.
(a) An employee served with a demand or a subpoena in a legal
proceeding must immediately tell the General Counsel of such service,
the testimony or documents described in the demand, and all relevant
facts.
(b) When the Chairman does not allow testimony or production of
documents, FCA Counsel will provide the regulations in this subpart to
the party or court issuing the demand and explain that the employee may
not testify or produce documents without the Chairman's prior approval.
(c) If the court rules the employee must comply with the demand
regardless of the Chairman's instructions not to do so, the employee
must respectfully refuse to comply.
(d) FCA's decision under this subpart to comply or not to comply
with any demand is not a waiver, an assertion of privilege, or an
objection based on relevance, technical deficiency, or any other
ground. We may oppose any demand on any legal ground.
Sec. 602.24 Responses to demands served on non-FCA employees or
entities.
If you are not an employee and are served with a demand or a
subpoena in a legal proceeding directing you to produce or testify
about an FCA report of examination, other document created or adopted
by FCA, or any related document, you must object and immediately tell
the General Counsel of such service, the testimony or documents
described in the demand, and all relevant facts. You also must object
to the production of any documents on the basis that they are FCA's
property and cannot be released without FCA's consent. You should tell
the requester the production of documents or testimony must follow the
procedures in this part.
Subpart E--Release of Records in Public Rulemaking Files
Sec. 602.25 General.
FCA has a public rulemaking file for each regulation. You may get
copies of documents in the public rulemaking file by sending a written
request to the Director, Regulation and Policy Division, Office of
Policy and Analysis, Farm Credit Administration, 1501 Farm Credit
Drive, McLean, Virginia 22102-5090. We will charge fifteen cents a copy
for each page. We will waive fees of $15.00 or less.
Dated: July 21, 1999.
Vivian L. Portis,
Secretary,
Farm Credit Administration Board.
[FR Doc. 99-19584 Filed 7-30-99; 8:45 am]
BILLING CODE 6705-01-P
