[Federal Register Volume 63, Number 57 (Wednesday, March 25, 1998)]
[Rules and Regulations]
[Pages 14336-14344]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-7726]
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NATIONAL CREDIT UNION ADMINISTRATION
12 CFR PART 792
The Freedom of Information Act and Privacy Act
AGENCY: National Credit Union Administration (NCUA).
ACTION: Final rule.
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SUMMARY: NCUA is revising its regulations governing the disclosure of
information under the Freedom of Information Act (FOIA) to reflect
recent changes to FOIA brought about by the enactment of the Electronic
Freedom of Information Act Amendments of 1996 (E-FOIA). The revised
regulation sets forth new procedures NCUA will employ to implement
provisions of E-FOIA, such as expedited treatment of requests and
multi-track processing. The rule also clarifies the information that
must be included in FOIA requests so that NCUA can process them. Other
changes to the rule provide guidance to the public on how to obtain
records contained in the files of the Office of Inspector General. A
change to the fee provision reflects a recalculation of the agency's
duplication costs.
DATES: This regulation is effective April 24, 1998.
FOR FURTHER INFORMATION CONTACT: Dianne Salva, Staff Attorney, or
Sheila Albin, Associate General Counsel, (703) 518-6540.
SUPPLEMENTARY INFORMATION:
Background
On October 2, 1996, the President signed into law the Electronic
Freedom of Information Act Amendments of 1996, Public Law 104-231. E-
FOIA has twin goals of making records contained in government files
more easily accessible to the public and improving administration of
FOIA programs in the agencies. In particular, Congress moved to amend
the FOIA because it found that government agencies were increasingly
using computers to conduct agency business and store valuable agency
records and information. In recognition of the vast amount of
information the government maintains in electronic format, E-FOIA was
designed to ensure continued public access to government information,
including that maintained in electronic format. This final rule revises
the NCUA's information disclosure regulations, 12 CFR part 792, to
comply with E-FOIA.
On November 13, 1997, NCUA published a proposed rule, (62 FR
60799), and, in response, received five comments from the public. The
comments received generally supported the proposal. Several commenters
applauded the breadth of information available on the NCUA website, but
also asked that NCUA consider expanding the categories of information
available on the website and emphasized the need to update the website
information expeditiously. NCUA has a wide variety of records on its
website and more information is added regularly. One commenter asked
that information on the website be made available in various electronic
formats. These comments have been forwarded to the NCUA staff
responsible for maintenance of the website for consideration.
One commenter expressed confusion over the mechanics of the multi-
track system. NCUA believes that a multi-track processing system is the
most efficient and fair way to process FOIA requests. If requests were
processed on a strict first-in first-out basis, a request that could be
easily answered, such as one for a press release, would be processed
only after an earlier-received, complex request requiring extensive
search and review. Accordingly, the multi-track system remains
incorporated in this final rule. One commenter expressed confusion over
the interaction between the treatment of an expedited request and the
multi-track processing system, as well as the standards that will be
applied to determine to which track a request is assigned. To address
such confusion, NCUA's final rule clarifies that the multi-track system
includes a fast track, an expedited track and a regular track. The
types of requests that will enter the fast track are described in the
proposal as those that seek records which are readily identifiable or
have already been cleared for public release. In general, requests
placed on the fast track will be those seeking records that are not
voluminous and do not require extensive review to determine the
applicability of any FOIA exemptions. The commenter asked that NCUA
explain, by example, what type of records would meet that standard.
Generally speaking, records that will qualify for the fast track will
be those that have previously been released publicly by NCUA under
FOIA, and that can be quickly located at the Information Center
handling the request. Examples of such documents include NCUA letters
to credit unions, reports to Congress, call report data as available on
the NCUA website or listings of credit unions in a geographical area.
NCUA received four comments suggesting that it establish a specific
time limit for processing requests under the multi-track or expedited
processing
[[Page 14337]]
systems. NCUA carefully considered the comments concerning setting
specific time frames for fast track or expedited requests. The
procedure for the multi-track system will be that, when a request is
received, the Information Center will review it and determine which
track it should enter. Requests within each track will generally be
processed according to their date of receipt. This should result in the
greatest number of requests being completed in the least amount of
time. Furthermore, we reviewed other agencies' final regulations
implementing E-FOIA and found that no other agency has elected to
assign a time frame of less than 20 days for response to requests in
any track of a multi-track system. NCUA is aware that some requests may
not easily be categorized, or may appear to qualify for the fast track
initially, but be determined to be more complex once the processing is
underway. For these reasons, it was determined that no specific time
frames, other than those set forth in the statute, should be adopted in
the final rule.
One commenter suggested that NCUA establish an electronic form for
filing FOIA requests from its website, and another asked that NCUA
identify an e-mail address and fax numbers for submitting requests.
Since FOIA requests may be submitted to NCUA's Central Office or any of
its six regional offices, a list of fax numbers in the rule would be
cumbersome, but an e-mail address has been added. NCUA is currently
planning to devote space in its website to E-FOIA, and will take the
remaining comments into consideration in developing that space.
New Provisions
Section 792.02 now reflects the additional category of records NCUA
will make publicly available for inspection and copying: records
released under FOIA after March 31, 1997, which the agency determines
have become or are likely to become the subject of subsequent requests.
Section 792.03 sets forth the indices of records made available for
public inspection and copying and includes the additional index of
popular FOIA responses.
Section 792.04 informs the public that certain records created by
NCUA after November 1, 1996 are also available on the NCUA website.
Section 792.06 clarifies that records maintained in electronic
format are subject to FOIA.
Section 792.07 identifies the places within NCUA where the public
may write to request records. The Office of Inspector General has been
added to reflect that the NCUA Board has delegated authority to the
Inspector General to respond to initial FOIA requests for records
contained in Office of Inspector General files.
Sections 792.08 and 792.09 clarify administrative requirements and
procedures for submitting FOIA requests. To improve communications
between the agency and requesters, requesters are instructed to include
their name, address and telephone number with their request. In
recognition of the new requirement that agencies honor form or format
requests, requesters are also asked to designate their form or format
of choice, if other than paper copy, at the time they make their
request.
Section 792.10 sets forth the procedures for the multi-track
processing system comprised of a fast track, expedited track and
regular track. Fast track processing will apply to records that are
easily identifiable by NCUA staff and have been previously cleared for
release to the public. Fast track requests will be handled as
expeditiously as possible in the order they are received. Requests will
be placed on the expedited track if the requester meets the
requirements for expedited treatment set forth in Sec. 792.18. All
information requests that do not meet the fast track or expedited 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 NCUA to try to
narrow the scope of the request so that it will qualify for fast track
processing.
Section 792.12 was added to inform requesters that, as long as it
is technically feasible and would not harm an interest that a FOIA
exemption is intended to protect, NCUA will indicate where, why and how
much information was withheld from its response.
Section 792.13 was added to advise requesters that they may obtain
information in any readily reproducible form or format they request. It
also clarifies that only one copy of a record will be produced.
Section 792.15 sets forth the new processing time limit of 20
working days in place of the prior 10 working days. It also sets forth
the two exceptions to the 20 working day time limit: the suspension of
time for the payment of fees or if unusual circumstances exist.
Section 792.16 describes the criteria for determining whether
unusual circumstances exist. The criteria have not changed. The
regulation contains a new provision on aggregating multiple requests
which, together, cause unusual circumstances to exist. NCUA will now
aggregate multiple requests from the same requester or group of
requesters acting in concert, if it believes they constitute a single
request, and if, taken together, the requests satisfy the unusual
circumstances criteria. This section also contains a new provision
advising requesters that, if NCUA sends them a notice extending the
processing time due to unusual circumstances, it will also tell them
that they may reduce the scope of their request so that it can be
processed within the statutory time frame or agree to an alternative
time frame.
Section 792.18 has been added to implement the expedited processing
provision of E-FOIA. It sets forth the criteria for a requester seeking
to establish a compelling need to support a request for expedited
processing. E-FOIA permits two categories of requests involving
compelling needs to be granted expedited treatment: Those that entail
an imminent threat to the life or physical safety of an individual or
those that are filed by persons primarily engaged in disseminating
information and involve an urgency to inform the public concerning
actual or alleged government activity. For ease of administration and
consistency, the proposed rule uses the term ``representative of the
news media'' to describe a person primarily engaged in disseminating
information, because the term has been used for many years in other
provisions of the regulation and is familiar to the public and agency
staff. In keeping with Congress' express intent that the specified
criteria for compelling need be narrowly applied, expedited processing
will only be granted in those extraordinary cases meeting the specific
requirements of the regulation. H.R. Rep. 795, 104th Cong., 2d Sess. 26
(1996). As the legislative history states, ``the expedited process
procedure is intended to be limited to circumstances in which a delay
in obtaining information can reasonably be foreseen to cause a
significant adverse consequence to a recognized interest.'' Id. To meet
the criterion of an urgency to inform the public concerning an actual
or alleged federal government activity, the requester must show that a
delay in the release of the information would compromise a significant
recognized interest, and that the requested information pertains to a
matter of current exigency to the American public. This section also
informs the public of the right of appeal for denial of a request for
expedited processing.
[[Page 14338]]
Section 792.19 has been amended to reflect that the current fee
schedule is available on the NCUA website. It has also been amended to
reflect a new duplication rate. The current regulation sets out that
searches for records responsive to a FOIA request will be conducted by
computer using existing programming. The final rule strikes the
reference to existing programming and adds language to say that no
modification of existing programming or system will be made if it would
significantly interfere with the operation of an NCUA automated
information system.
Section 792.28 clarifies that appeals are permitted when NCUA
denies a request for a fee waiver or reduction.
Regulatory Procedures
Regulatory Flexibility Act
The Regulatory Flexibility Act requires the NCUA to prepare an
analysis to describe any significant economic impact any proposed
regulation may have on a substantial number of small credit unions,
meaning those under $1 million in assets. The NCUA Board has determined
and certifies that the rule will not have a significant economic impact
on a substantial number of small credit unions. The rule simplifies
some of the procedures regarding the release of information and
requires disclosure of information in certain instances in accordance
with law. The disclosure requirements are imposed on the NCUA,
therefore, they should not have a significant economic impact on a
substantial number of small credit unions.
Paperwork Reduction Act Analysis
These regulations will impose no additional information collection,
reporting or record keeping requirements subject to the approval of the
Office of Management and Budget pursuant to the Paperwork Reduction Act
of 1995, 44 U.S.C. 3501, et seq.
Executive Order 12,612
The NCUA Board certifies that the rule will not have a substantial
direct effect on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among various levels of government.
Small Business Regulatory Enforcement Fairness Act
The Small Business Regulatory Enforcement Fairness Act of 1996
(SBREFA) (Pub. L. 104-121) provides generally for congressional review
of agency rules. The reporting requirement is triggered when a final
rule is issued. The rule has been submitted to OMB for determination of
whether this final rule constitutes a major rule as defined under the
statute. A major rule is one that OMB finds has resulted in or is
likely to result in: (1) An annual effect on the economy of $100
million or more; (2) a major increase in costs or prices for consumers,
individuals, industries, federal state or local government agencies or
geographic regions; or (3) significant adverse effects on competition,
employment, investment, productivity, innovation, or the ability of
United States based enterprises to compete with foreign based
enterprises in domestic and export markets. OMB has determined that
this rule is not a major rule.
List of Subjects in 12 CFR Part 792
Administrative practice and procedure, Credit unions, Confidential
business information, Freedom of Information Act, Privacy Act.
By the National Credit Union Administration Board on March 19,
1998.
Becky Baker,
Secretary of the Board.
For the reasons set forth in the preamble, NCUA amends 12 CFR part
792 as follows:
PART 792--[AMENDED]
1. The authority citation for part 792 is revised to read as
follows:
Authority: 5 U.S.C. 301, 552, 552a, 552b; 12 U.S.C. 1752a(d),
1766, 1789, 1795f; E.O. 12600, 52 FR 23781, 3 CFR, 1987 Comp., p.
235; E.O. 12958, 60 FR 19825, 3 CFR, 1995 Comp., p.333.
Secs. 792.20--792.37 (Subpart B) [Redesignated as Subpart E
(Secs. 792.52--792.69)]
2. Redesignate subpart B (792.20-792.37) as subpart E (792.52-
792.69) and reserve subpart B.
3. Revise subpart A of part 792 to read as follows:
Subpart A--The Freedom of Information Act
General Purpose
Sec.
792.01 What What is the purpose of this subpart?
Records Publicly Available
792.02 What records does NCUA make available to the public for
inspection and copying?
792.03 How will I know which records to request?
792.04 How can I obtain these records?
792.05 What is the significance of records made available and
indexed?
Records Available Upon Request
792.06 Can I obtain other records?
792.07 Where do I send my request?
792.08 What must I include in my request?
792.09 What if my request does not meet the requirements of this
subpart?
792.10 What will NCUA do with my request?
792.11 What kind of records are exempt from public disclosure?
792.12 How will I know what records NCUA has determined to be
exempt?
792.13 Can I get the records in different forms or formats?
792.14 Who is responsible for responding to my request?
792.15 How long will it take to process my request?
792.16 What unusual circumstances can delay NCUA's response?
792.17 What can I do if the time limit passes and I still have not
received response?
Expedited Processing
792.18 What if my request is urgent and I cannot wait for the
records?
Fees
792.19 How does NCUA calculate the fees for processing my request?
792.20 What are the charges for each fee category?
792.21 Will NCUA provide a fee estimate?
792.22 What will NCUA charge for other services?
792.23 Can I avoid charges by sending multiple, small requests?
792.24 Can NCUA charge me interest if I fail to pay my bill?
792.25 Will NCUA charge me if the records are not found or are
determined to be exempt?
792.26 Will I be asked to pay fees in advance?
Fee Waiver or Reduction
792.27 Can fees be reduced or waived?
Appeals
792.28 What if I am not satisfied with the response I receive?
Submitter Notice
792.29 If I send NCUA confidential commercial information, can it
be disclosed under FOIA?
Release of Exempt Records
792.30 Is there a prohibition against disclosure of exempt records?
792.31 Can exempt records be disclosed to credit unions, financial
institutions and state or federal agencies?
792.32 Can exempt records be disclosed to investigatory agencies?
Subpart A--The Freedom of Information Act
General Purpose
Sec. 792.01 What is the purpose of this subpart?
This subpart describes the procedures you must follow to obtain
records from NCUA under the Freedom of Information Act (FOIA), (5
U.S.C. 552).
[[Page 14339]]
Records Publicly Available
Sec. 792.02 What records does NCUA make available to the public for
inspection and copying?
Except for records that are exempt from public disclosure under
FOIA as amended (5 U.S.C. 552) or are promptly published and copies are
available for purchase, NCUA routinely makes the following five types
of records available for you to inspect and copy:
(a) Final opinions, including concurring and dissenting opinions,
and orders made in the adjudication of cases;
(b) Statements of policy and interpretations which have been
adopted by the agency but not published in the Federal Register;
(c) Administrative staff manuals and instructions to staff that
affect a member of the public;
(d) Copies of all records, regardless of form or format, which have
been released after March 31, 1997, in response to a FOIA request and
which, because of the nature of their subject matter, NCUA determines
have been or are likely to become the subject of subsequent requests;
and
(e) Indices of the documents referred to in this paragraph.
Sec. 792.03 How will I know which records to request?
NCUA maintains current indices providing identifying information
for the public for any matter referred to in Sec. 792.02, issued,
adopted, or promulgated after July 4, 1967. The listing of material in
an index is for the convenience of possible users and does not
constitute a determination that all of the items listed will be
disclosed. NCUA has determined that publication of the indices is
unnecessary and impractical. You may obtain copies of indices by making
a request to the Office of Administration, at NCUA, 1775 Duke Street,
Alexandria, VA 22314-2387 or, as indicated, on the NCUA web site. The
indices are available for public inspection and copying and are
provided at their duplication cost. The indices are:
(a) NCUA Publications List: Manuals relating to general and
technical information, booklets published by NCUA, and the Credit Union
Directory. The NCUA Publications list is available on the NCUA web
site.
(b) Directives Control Index: A list of statements of policy, NCUA
Instructions, Bulletins, Letters to Credit Unions, and certain internal
manuals.
(c) Popular FOIA Index: Records released in response to a FOIA
request, that NCUA determines are likely to be the subject of
subsequent requests because of the nature of their subject matter. The
Popular FOIA Index will be available on the NCUA web site on or before
December 31, 1999.
Sec. 792.04 How can I obtain these records?
You may obtain these types of records or information in the
following ways:
(a) You may obtain copies of the records referenced in Sec. 792.02
by obtaining the index referred to in Sec. 792.03 and following the
ordering instructions it contains, or by making a request to the FOIA
Officer, NCUA, Office of General Counsel at 1775 Duke Street,
Alexandria, Virginia 22314-3428.
(b) If they were created by NCUA on or after November 1, 1996,
records referenced in Sec. 792.02 are available on the NCUA web site,
found at http://www.ncua.gov.
Sec. 792.05 What is the significance of records made available and
indexed?
The records referred to in Sec. 792.02 may be relied on, used, or
cited as precedent by NCUA against a party, provided:
(a) The materials have been indexed and either made available or
published; or
(b) The party has actual and timely notice of the materials'
contents.
Records Available Upon Request
Sec. 792.06 Can I obtain other records?
Except with respect to records routinely made available under
Sec. 792.02 or published in the Federal Register, or to the extent that
records are exempt under the FOIA, if you make a request for records in
accordance with this subpart, NCUA will make such records available to
you, including records maintained in electronic format, as long as you
agree to pay the actual, direct costs.
Sec. 792.07 Where do I send my request?
(a) You must send your request to one of NCUA's Information
Centers. The Central Office, Regional Offices, Office of Inspector
General and the Asset Management and Assistance Center are designated
as Information Centers for the NCUA. The Freedom of Information Officer
of the Office of General Counsel is responsible for the operations of
the Information Center maintained at the Central Office. The Regional
Directors are responsible for the operation of the Information Centers
in their Regional Offices. The Inspector General is responsible for the
operation of the Office of Inspector General Information Center.
(b) If you think that the records are located at one of NCUA's
Regional Offices, then you should send your request to the appropriate
Regional Director, whose address can be found in Sec. 790.2(c) of this
chapter.
(c) If you think that the records are located at the Asset
Management and Assistance Center, then you should send your request to
the President, Asset Management and Assistance Center, 4807 Spicewood
Springs Road, Suite 5100, Austin, Texas 78759-8490.
(d) If you think that the records you want are in the files of the
Office of Inspector General, then you should send your request to the
Inspector General, NCUA, 1775 Duke Street, Alexandria, Virginia 22314-
3428.
(e) When you are not sure of the location of records, or if you
think that the records you want are located in the Central Office, you
should send your request to the Freedom of Information Officer at NCUA,
Office of the General Counsel, 1775 Duke Street, Alexandria, Virginia
22314-3428. You may also send your request by electronic mail to
[email protected]
Sec. 792.08 What must I include in my request?
Your request must include the following:
(a) Your name, address and a telephone number where you can be
reached during normal business hours.
(b) A reasonable description of the records you seek. A reasonable
description is one that enables an NCUA employee, who is familiar with
the subject area of the request, to locate the record with a reasonable
amount of effort.
(c) A statement agreeing to pay all applicable fees or to pay fees
up to a certain maximum amount, or requesting a fee reduction or waiver
in accordance with Sec. 792.27. If the actual fees are expected to
exceed the maximum amount you indicate in your request, NCUA will
contact you to see if you are willing to pay the estimated fees. If you
do not want to pay the estimated fees, your request will be closed and
no bill will be sent.
(d) If other than paper copy, you must identify the form and format
of responsive information you are requesting.
Sec. 792.09 What if my request does not meet the requirements of this
subpart?
NCUA need not accept or process your request if it does not comply
with the requirements of this subpart. NCUA may return such a request
to you with an explanation of the deficiency. You may then submit a
corrected request, which will be treated as a new request.
[[Page 14340]]
Sec. 792.10 What will NCUA do with my request?
(a) On receipt of any request, the Information Center assigns it to
the appropriate processing schedule, pursuant to paragraph (b) of this
section. The date of receipt for any request, including one that is
addressed incorrectly or that is referred to NCUA by another agency, is
the date the appropriate Information Center actually receives the
request.
(b) NCUA has a multi-track processing system. Requests for records
that are readily identifiable by the Information Center and have
already been cleared for public release may qualify for fast track
processing. Requests which meets the requirements of Sec. 792.18 will
be processed on the expedited track. All other requests will be handled
under normal processing procedures.
(c) The Information Center will make the determination whether a
request qualifies for fast track processing or expedited track
processing. You may contact the Information Center to learn to which
track your request has been assigned. If your request has not qualified
for fast track processing, you will have an opportunity to limit the
scope of material requested to qualify for fast track processing.
Limitations of requests must be in writing. If your request for
expedited processing is not granted, you will be advised of your right
to appeal.
(d) The Information Center will normally process requests in the
order they are received in the separate processing tracks. However, in
NCUA's discretion, a particular request may be processed out of turn.
(e) Upon a determination by the appropriate Information Center to
comply with your initial request for records, the records will be made
promptly available to you. If we notify you of a denial of your
request, we will include the names and titles or positions of each
person responsible for the denial.
Sec. 792.11 What kind of records are exempt from public disclosure?
(a) All records of NCUA or any officer, employee, or agent thereof,
are confidential, privileged and exempt from disclosure, except as
otherwise provided in this subpart, if they are:
(1) Records 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 an Executive Order.
(2) Records related solely to NCUA internal personnel rules and
practices. This exemption applies to internal rules or instructions
which must be kept confidential in order to assure effective
performance of the functions and activities for which NCUA is
responsible and which do not materially affect members of the public.
This exemption also applies to manuals and instructions to the extent
that release of the information would permit circumvention of laws or
regulations.
(3) Specifically exempted from disclosure by statute, where the
statute either makes nondisclosure mandatory or establishes particular
criteria for withholding information.
(4) Records which contain trade secrets and commercial or financial
information which relate to the business, personal or financial affairs
of any person or organization, are furnished to NCUA, and are
confidential or privileged. This exemption includes, but is not limited
to, various types of confidential sales and cost statistics, trade
secrets, and names of key customers and personnel. Assurances of
confidentiality given by staff are not binding on NCUA.
(5) Inter-agency or intra-agency memoranda or letters which would
not be available by law to a private party in litigation with NCUA.
This exemption preserves the existing freedom of NCUA officials and
employees to engage in full and frank written or taped communications
with each other and with officials and employees of other agencies. It
includes, but is not limited to, inter-agency and intra-agency reports,
memoranda, letters, correspondence, work papers, and minutes of
meetings, as well as staff papers prepared for use within NCUA or in
concert with other governmental agencies.
(6) Personnel, medical, and similar files (including financial
files), the disclosure of which without written permission would
constitute a clearly unwarranted invasion of personal privacy. Files
exempt from disclosure include, but are not limited to:
(i) The personnel records of the NCUA;
(ii) The personnel records voluntarily submitted by private parties
in response to NCUA's requests for proposals; and
(iii) Files containing reports, records or other material
pertaining to individual cases in which disciplinary or other
administrative action has been or may be taken.
(7) Records or information compiled for law enforcement purposes,
but only to the extent that the production of such law enforcement
records or information:
(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 information on a
confidential basis, and, in the case of a record or information
compiled by a criminal law enforcement authority in the course of a
criminal investigation on or by an agency conducting a lawful national
security intelligence investigation, information furnished by the
confidential source;
(v) Would disclose techniques and procedures for law enforcement
investigation 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. This includes, but is not limited to,
information relating to enforcement proceedings upon which NCUA has
acted or will act in the future.
(8) Contained in or related to examination, operating or condition
reports prepared by, or on behalf of, or for the use of NCUA or any
agency responsible for the regulation or supervision of financial
institutions. This includes all information, whether in formal or
informal report form, the disclosure of which would harm the financial
security of credit unions or would interfere with the relationship
between NCUA and credit unions.
(b) We will provide any reasonably segregable portion of a
requested record after deleting those portions that are exempt from
disclosure under this section.
Sec. 792.12 How will I know what records NCUA has determined to be
exempt?
As long as it is technically feasible and does not threaten an
interest protected by the FOIA, we will:
(a) Mark the place where we redacted information from documents
released to you and note the exemption that protects the information
from public disclosure; or
(b) Make reasonable efforts to include with our response to you an
estimate of the volume of information withheld.
Sec. 792.13 Can I get the records in different forms or formats?
NCUA will provide a copy of the record in any form or format
requested,
[[Page 14341]]
such as computer disk, if the record is readily reproducible by us in
that form or format, but we will not provide more than one copy of any
record.
Sec. 792.14 Who is responsible for responding to my request?
The appropriate Regional Director, the Inspector General, the
President of the Asset Management and Assistance Center, or the Freedom
of Information Officer, or, in their absence, their designee, is
responsible for making the initial determination on whether to grant or
deny a request for information. This official may refer a request to an
NCUA employee who is familiar with the subject area of the request.
Other NCUA staff members may aid the official by providing information,
advice, recommending a decision, or implementing a decision, but no
NCUA employee other than an authorized official may make the initial
determination. Referral of a request by the official to an employee
will not affect the time limitation imposed in Sec. 792.15 unless the
request involves an unusual circumstance as provided in Sec. 792.16.
Sec. 792.15 How long will it take to process my request?
NCUA will respond to requests within 20 working days, except:
(a) Where the running of such time is suspended for payment of fees
pursuant to Sec. 792.26;
(b) In unusual circumstances, as defined in 5 U.S.C. 552(a)(6)(B)
and Sec. 792.16, the time limit may be extended for:
(1) An additional 10 working days as provided by written notice to
you, stating the reasons for the extension and the date on which a
determination will be sent; or
(2) Such alternative time period as mutually agreed by you and the
Information Office, when NCUA notifies you that the request cannot be
processed in the specified time limit.
Sec. 792.16 What unusual circumstances can delay NCUA's response?
(a) In unusual circumstances, the time limits for responding to
your request (or your appeal) may be extended by NCUA. If NCUA extends
the time it will provide you with written notice, setting forth the
reasons for such extension and the date on which a determination is
expected to be dispatched. Our notice will not specify a date that
would result in an extension for more than 10 working days, except as
set forth in paragraph (c) of this section. The unusual circumstances
that can delay NCUA's response to your request are:
(1) The need to search for, and collect the requested records
from field facilities or other establishments that are separate from
the office processing the request;
(2) The need to search for, collect, and appropriately examine a
voluminous amount of separate and distinct records which are
demanded in a single request; or
(3) The need for consultation, which will be conducted with all
practicable speed, with another agency having substantial interest
in the determination of the request or among two or more components
of NCUA having a substantial interest in the subject matter.
(b) If you, or you and a group of others acting in concert, submit
multiple requests that NCUA believes actually constitute a single
request, which would otherwise satisfy the unusual circumstances
criteria specified in this section, and the requests involve related
matters, then NCUA may aggregate those requests and the provisions of
Sec. 792.15(b) will apply.
(c) If NCUA sends you an extension notice, it will also advise you
that you can either limit the scope of your request so that it can be
processed within the statutory time limit or agree to an alternative
time frame for processing your request.
Sec. 792.17 What can I do if the time limit passes and I still have
not received a response?
You can file suit against NCUA because you will be deemed to have
exhausted your administrative remedies if NCUA fails to comply with the
time limit provisions of this subpart. If NCUA can show that
exceptional circumstances exist and that it is exercising due diligence
in responding to your request, the court may retain jurisdiction and
allow NCUA to complete its review of the records. In determining
whether exceptional circumstances exist, the court may consider your
refusal to modify the scope of your request or arrange an alternative
time frame for processing after being given the opportunity to do so by
NCUA, when it notifies you of the existence of unusual circumstances as
set forth in Sec. 792.16.
Expedited Processing
Sec. 792.18 What if my request is urgent and I cannot wait for the
records?
You may request expedited processing of your request if you can
show a compelling need for the records. In cases where your request for
expedited processing is granted or if NCUA has determined to expedite
the response, it will be processed as soon as practicable.
(a) To demonstrate a compelling need for expedited processing, you
must provide a certified statement. The statement, certified by you to
be true and correct to the best of your knowledge and belief, must
demonstrate that:
(1) 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
(2) The requester is a representative of the news media, as defined
in Sec. 792.20, and there is urgency to inform the public concerning
actual or alleged NCUA activity.
(b) In response to a request for expedited processing, the
Information Center will notify you of the determination within ten days
of receipt of the request. If the Information Center denies your
request for expedited processing, you may file an appeal pursuant to
the procedures set forth in Sec. 792.28, and NCUA will expeditiously
respond to the appeal.
(c) The Information Center will normally process requests in the
order they are received in the separate processing tracks. However, in
NCUA's discretion, a particular request may be processed out of turn.
Fees
Sec. 792.19 How does NCUA calculate the fees for processing my
request?
We will charge you our allowable direct costs, unless they are less
than the cost of billing you. Direct costs means those expenditures
that NCUA actually incurs in searching for, duplicating and reviewing
documents to respond to a FOIA request. Search means all time spent
looking for material that is responsive to a request, including page-
by-page or line-by-line identification of material within documents.
Searches may be done manually or by computer. Search does not include
modification of an existing program or system that would significantly
interfere with the operation of an automated information system. Review
means examining documents to determine whether any portion should be
withheld and preparing documents for disclosure. Fees are subject to
change as costs increase. The current rate schedule is available on our
web site at http://www.ncua.gov. We may contract with the private
sector to locate, reproduce or disseminate records. NCUA will not
contract out responsibilities that FOIA requires it to discharge, such
as determining the applicability of an exemption, or determining
whether to waive or reduce fees. The following labor and duplication
rate calculations apply:
[[Page 14342]]
(a) NCUA will charge fees at the following rates for manual
searches for and review of records:
(1) If search/review is done by clerical staff, the hourly rate for
CU-5, plus 16% of that rate to cover benefits;
(2) If search/review is done by professional staff, the hourly rate
for CU-13, plus 16% of that rate to cover benefits.
(b) NCUA will charge fees at the hourly rate for CU-13, plus 16% of
that rate to cover benefits, plus the hourly cost of operating the
computer for computer searches for records.
(c) NCUA will charge the following duplication fees:
(1) The per-page fee for paper copy reproduction of a document is
$.05;
(2) The fee for documents generated by computer is the hourly fee
for the computer operator, plus the cost of materials (computer paper,
tapes, labels, etc.);
(3) If any other method of duplication is used, NCUA will charge
the actual direct cost of duplication.
Sec. 792.20 What are the charges for each fee category?
The fee category definitions are:
(a) Commercial use request means a request from or on behalf of one
who seeks information 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.
(b) Educational institution means a preschool, an elementary or
secondary school, an institution of undergraduate higher education, an
institution of graduate higher education, an institution of
professional education, and an institution of vocational education
operating a program or programs of scholarly research.
(c) Noncommercial scientific institution means an institution that
is not operated for a ``commercial'' purpose as that term is used in
paragraph (a) of this section and is operated solely for the purpose of
conducting scientific research, the results of which are not intended
to promote any particular product or industry.
(d) Representative of the news media means any person actively
gathering news for an entity that is organized and operated to publish
or broadcast news to the public. Included within the meaning of public
is the credit union community. The term news means information that is
about current events or that would be of current interest to the
public. You may consult the following chart to find the fees applicable
to your request:
----------------------------------------------------------------------------------------------------------------
If your fee category is You'll receive And you'll be charged
----------------------------------------------------------------------------------------------------------------
Commercial use..................... 0 hours free search....... search time
0 hours free review....... review time
0 free pages.............. duplication
Educational institution, Unlimited free search duplication
noncommercial scientific hours.
institution, newsmedia. Unlimited free review
hours.
100 free pages............
All others......................... 2 hours free search....... search time
Unlimited free review
hours.
100 free pages............ duplication
----------------------------------------------------------------------------------------------------------------
Sec. 792.21 Will NCUA provide a fee estimate?
NCUA will notify you of the estimated amount if fees are likely to
exceed $25, unless you have indicated in advance a willingness to pay
fees as high as those anticipated. You will then have the opportunity
to confer with NCUA personnel to reformulate the request to meet your
needs at a lower cost.
Sec. 792.22 What will NCUA charge for other services?
Complying with requests for special services is entirely at the
discretion of NCUA. NCUA will recover the full costs of providing such
services to the extent it elects to provide them.
Sec. 792.23 Can I avoid charges by sending multiple, small requests?
You may not file multiple requests, each seeking portions of a
document or similar documents, solely to avoid payment of fees. If this
is done, NCUA may aggregate any such requests and charge you
accordingly.
Sec. 792.24 Can NCUA charge me interest if I fail to pay my bill?
NCUA can assess interest charges on an unpaid bill starting on the
31st day following the date of the bill. If you fail to pay your bill
within 30 days, interest will be at the rate prescribed in 31 U.S.C.
3717, and will accrue from the date of the billing.
Sec. 792.25 Will NCUA charge me if the records are not found or are
determined to be exempt?
NCUA may assess fees for time spent searching and reviewing, even
if it fails to locate the records or if records located are determined
to be exempt from disclosure.
Sec. 792.26 Will I be asked to pay fees in advance?
NCUA will require you to give an assurance of payment or an advance
payment only when:
(a) NCUA estimates or determines that allowable charges that you
may be required to pay are likely to exceed $250. NCUA will notify you
of the likely cost and obtain satisfactory assurance of full payment
where you have a history of prompt payment of FOIA fees, or require an
advance payment of an amount up to the full estimated charges in the
case where you have no history of payment; or
(b) You have previously failed to pay a fee charged in a timely
fashion. NCUA may require you to pay the full amount owed, plus any
applicable interest, or demonstrate that you have, in fact, paid the
fee, and to make an advance payment of the full amount of the estimated
fee before we begin to process a new request or a pending request from
you.
(c) If you are required to make an advance payment of fees, then
the administrative time limits prescribed in Sec. 792.16 will begin
only after NCUA has received the fee payments described.
Fee Waiver or Reduction
Sec. 792.27 Can fees be reduced or waived?
You may request that NCUA waive or reduce fees if disclosure of the
information you request 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 your
commercial interest.
(a) NCUA will make a determination of whether the public interest
requirement above is met based on the following factors:
(1) Whether the subject of the requested records concerns the
operations or activities of the government;
[[Page 14343]]
(2) Whether the disclosure is likely to contribute to an
understanding of government operations or activities;
(3) Whether disclosure of the requested information will contribute
to public understanding; and
(4) Whether the disclosure is likely to contribute significantly to
public understanding of government operations or activities,
(b) If the public interest requirement is met, NCUA will make a
determination on the commercial interest requirement based upon the
following factors:
(1) Whether you have a commercial interest that would be furthered
by the requested disclosure; and if so
(2) Whether the magnitude of your commercial interest is
sufficiently large in comparison with the public interest in
disclosure, that disclosure is primarily in your commercial interest.
(c) If the required public interest exists and your commercial
interest is not primary in comparison, NCUA will waive or reduce fees.
(d) If you are not satisfied with our determination on your fee
waiver or reduction request, you may submit an appeal to the General
Counsel in accordance with Sec. 792.28.
Appeals
Sec. 792.28 What if I am not satisfied with the response I receive?
If you are not satisfied with NCUA's response to your request, you
can file an administrative appeal. Your appeal must be in writing and
must be filed within 30 days from receipt of the initial determination
(in cases of denials of an entire request, or denial of a request for
fee waiver or reduction), or from receipt of any records being made
available pursuant to the initial determination (in cases of partial
denials.) In its response to your initial request, the Freedom of
Information Act Officer, Inspector General, President of the Asset
Management and Assistance Center, or responsible Regional Director, (or
designee,) will notify you that you may appeal any adverse
determination to the Office of General Counsel. The General Counsel, or
designee, as set forth in this paragraph, will:
(a) Make a determination with respect to any appeal within 20 days
(excepting Saturdays, Sundays, and legal public holidays) after the
receipt of such appeal. If, on appeal, the denial of the request for
records is, in whole or in part, upheld, the Office of General Counsel
will notify you of the provisions for judicial review of that
determination under FOIA. Where you do not address your request or
appeal to the proper official, the time limitations stated above will
be computed from the receipt of the request or appeal by the proper
official.
(b) The General Counsel is the official responsible for determining
all appeals from initial determinations. In case of this person's
absence, the appropriate officer acting in the General Counsel's stead
will make the appellate determination, unless such officer was
responsible for the initial determination, in which case the Vice-
Chairman of the NCUA Board will make the appellate determination.
(c) All appeals should be addressed to the General Counsel in the
Central Office and should be clearly identified as such on the envelope
and in the letter of appeal by using the indicator ``FOIA-APPEAL.''
Failure to address an appeal properly may delay commencement of the
time limitation stated in paragraph (a)(1) of this section, to take
account of the time reasonably required to forward the appeal to the
Office of General Counsel.
Sec. 792.29 If I send NCUA confidential commercial information, can it
be disclosed under FOIA?
(a) If you submit confidential commercial information to NCUA, it
may be disclosed in response to a FOIA request in accordance with this
section.
(b) For purposes of this section:
(1) Confidential commercial information means commercial or
financial information provided to NCUA by a submitter that arguably is
protected from disclosure under Sec. 792.11(a)(4) because disclosure
could reasonably be expected to cause substantial competitive harm.
(2) Submitter means any person or entity who provides business
information, directly or indirectly, to NCUA.
(c) Submitters of business information must use good faith efforts
to designate, by appropriate markings, either at the time of submission
or at a reasonable time thereafter, those portions of their submissions
deemed to be protected from disclosure under Sec. 792.11(a)(4). Such a
designation shall expire ten years after the date of submission.
(d) We will provide a submitter with written notice of a FOIA
request or administrative appeal encompassing designated business
information when:
(1) The information has been designated in good faith by the
submitter as confidential commercial information deemed protected from
disclosure under Sec. 792.11(a)(4); or
(2) NCUA has reason to believe that the information may be
protected from disclosure under Sec. 792.11(a)(4).
(e) A copy of the notice to the submitter will also be provided to
the FOIA requester.
(f) Through the notice described in paragraph (d) of this section,
NCUA will afford the submitter a reasonable period of time within which
to provide a detailed written statement of any objection to disclosure.
The statement must describe why the information is confidential
commercial information and why it should not be disclosed.
(g) Whenever we decide that we must disclose confidential
commercial information over the objection of the submitter, we will
send both the submitter and the FOIA requester, within a reasonable
number of days prior to the specified disclosure date, a written notice
which will include:
(1) A statement of the reasons for which the submitter's disclosure
objection was not sustained; and
(2) A description of the information to be disclosed; and
(3) A specified disclosure date.
(h) If a requester brings suit to compel disclosure of confidential
commercial information, we will promptly notify the submitter.
(i) The notice requirements of paragraph (d) of this section do not
apply if:
(1) We determine that the information should not be disclosed;
(2) The information has been lawfully published or has been
officially made available to the public;
(3) Disclosure of the information is required by law; or
(4) The designation made by the submitter in accordance with
paragraph (c) of this section appears obviously frivolous; except that
in such case, NCUA will provide the submitter with written notice of
any final administrative decision to disclose the information within a
reasonable number of days prior to the specified disclosure date.
Release of Exempt Information
Sec. 792.30 Is there a prohibition against disclosure of exempt
records?
Except those authorized officials listed in Sec. 792.14, or as
provided in Secs. 792.31-792.32, and subpart C of this part, no
officer, employee, or agent of NCUA or of any federally-insured credit
union shall disclose or permit the disclosure of any exempt records of
NCUA to any person other than those NCUA or credit union officers,
employees, or agents properly entitled to such information for the
performance of their official duties.
[[Page 14344]]
Sec. 792.31 Can exempt records be disclosed to credit unions,
financial institutions and state or federal agencies?
The NCUA Board, in its sole discretion, or any person designated by
it in writing, may make available to certain governmental agencies and
insured financial institutions copies of reports of examination and
other documents, papers or information for their use, when necessary,
in the performance of their official duties or functions. All reports,
documents and papers made available pursuant to this paragraph shall
remain the property of NCUA. No person, agency or employee shall
disclose the reports or exempt records without NCUA's express written
authorization.
Sec. 792.32 Can exempt records be disclosed to investigatory agencies?
The NCUA Board, or any person designated by it in writing, in its
discretion and in appropriate circumstances, may disclose to proper
federal or state authorities copies of exempt records pertaining to
irregularities discovered in credit unions which may constitute either
unsafe or unsound practices or violations of federal or state, civil or
criminal law.
[FR Doc. 98-7726 Filed 3-24-98; 8:45 am]
BILLING CODE 7535-01-U
