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Federal Reserve Bank of Dallas ROBERT D. McTEER, JR. DALLAS, TEXAS 75265-5906 P R E S ID E N T AN D C H IE F E X E C U T IV E O F F IC E R November 21, 1997 Notice 97-108 TO: The Chief Executive Officer of each financial institution and others concerned in the Eleventh Federal Reserve District SUBJECT Rules Regarding Availability of Information DETAILS The Board of Governors of the Federal Reserve System has published amendments to its Rules Regarding Availability of Information (Rules). The amendments reflect recent changes in the Freedom of Information Act as a result of the Electronic Freedom of Information Act Amendments. To account for future amendments to the Rules, the sections have been renum bered. The review of the Board’s Rules that produced this final rule was conducted in accordance with section 303 of the Riegle Community Development and Regulatory Improve ment Act of 1994. In this regard, the amendments to the Rules clarify certain provisions and simplify the processing of requests for access to information in certain circumstances. ATTACHMENT A copy of the Board’s notice as it appears on pages 54356-66, Vol. 62, No. 202 of the Federal Register dated October 20, 1997, is attached. MORE INFORMATION For more information, please contact Jane Schmoker at (214) 922-5101. For addi tional copies of this Bank’s notice, contact the Public Affairs Department at (214) 922-5254. Sincerely yours, For additional copies, bankers and others are encouraged to use one of the following toll-free numbers in contacting the Federal Reserve Bank of Dallas: Dallas Office (800) 333-4460; El Paso Branch Intrastate (800) 592-1631, Interstate (800) 351-1012; Houston Branch Intrastate (800) 392-4162, Interstate (800) 221-0363; San Antonio Branch Intrastate (800) 292-5810. This publication was digitized and made available by the Federal Reserve Bank of Dallas' Historical Library (FedHistory@dal.frb.org) 54356 Federal Register / Vol. 62, No. 202 / Monday, October 20, 1997 / Rules and Regulations FEDERAL RESERVE SYSTEM 12CFR Part 261 [Docket No. R-0975] Rules Regarding Availability of Information Board of Governors of the Federal Reserve System. ACTION: Final rule. AGENCY: The Board of Governors of the Federal Reserve System (Board) hereby amends its Rules Regarding Availability of Information (Rules) to reflect recent changes in the Freedom of Information Act (FOIA) as a result of the Electronic Freedom of Information Act Amendments (EFOIA). In order to account for future amendments to the Rules, the sections have been renumbered. The review of the Board’s Rules that produced this final rule was conducted in accordance with section 303 of the Riegle Community Development and Regulatory Improvement Act of 1994. In this regard, the amendments to the Rules clarify certain provisions and simplify the processing of requests for access to information in certain circumstances. EFFECTIVE DATE: November 19, 1997. SUMMARY: account of various statutes that have been enacted since the Rules were last revised in 1988.2 To implement these changes, the Board published proposed changes to Subparts A, B, and D of its Rules on June 10, 1997 (62 FR 31526). The Board received four comments: one from a Federal Reserve Bank, one from a commercial bank, one from a credit union, and one from a community group. Three of the comments supported the proposal; the community group, however, opposed some of the proposed changes. A discussion of the specific comments is included in the section-by-section analysis. In 1996, the Board published for comment proposed amendments to the Rules (61 FR 7436, February 28, 1996) that primarily concerned Subpart C of the Rules and the definitions in Subpart A of terms that are used in Subpart C. In addition, the Board had proposed changes to certain portions of Subpart B and Subpart D, which were republished in the June 1997 proposed rule. The changes to Subparts A, B and D are being adopted in this final rule; the proposed amendments to Subpart C are still under consideration. Subpart A Elaine M. Boutilier, Senior Counsel, (202/452-2418), Legal Division; or Susanne K. Mitchell, Manager, Freedom of Information Office (202/452-2407). For the hearing impaired only, contact Diane Jenkins, Telecommunications Device for the Deaf (TDD )(202/4523544), Board of Governors of the Federal Reserve System, 20th and Constitution, N.W., Washington, D.C. 20551. SUPPLEMENTARY INFORMATION: Last year, Congress passed the Electronic Freedom of Information Act Amendments of 1996, Public Law 104-231, which amends the Freedom of Information Act, 5 U.S.C. 552. Among other things, EFOIA requires agencies to promulgate regulations that provide for expedited processing of requests for records, and permits agencies to promulgate regulations that provide for multitrack processing of requests. In addition to amending its Rules to comply with EFOIA, the Board has taken this opportunity, in accordance with section 303 of the Riegle Community Development and Regulatory Improvement Act of 1994, to review and streamline those Rules.1 In addition, the Board is amending the Rules to take Subpart A contains the General Provisions, describing the authority, purpose, and scope; listing the definitions applicable to this part, and explaining the responsibilities of the Secretary of the Board as custodian of the Board’s records. The changes to this subpart are primarily in the “Authority” section to clarify the ability of the Board to provide exempt records to certain entities outside of the FOIA process in specific circumstances. In addition, certain definitions that were included in the section on FOIA fees and fee waivers have been moved forward to the “Definitions” section. One commenter noted that the definition of “records” specifically excludes handwritten notes, and questions the authority for this exclusion. The intention was to exclude personal notes that are not a part of official Board records. This, however, is accomplished by the exclusion of personal files, so the reference to handwritten notes has been deleted. Section 261.3 is amended to clarify that authority delegated to the General Counsel and other officers of the Board may be subdelegated. An additional change to § 261.3(c) states that the Secretary of the Board is the Board’s agent for service of all process, and that 1 The regulatory citations contained in this final rule refer to the regulation, as am ended. As noted above, the sections have been renum bered. 2 The Board’s Rules have been im plem ented in a m anner consistent w ith these and other changes described in this final rule. FOR FURTHER INFORMATION CONTACT: Federal Register / Vol. 62, No. 202 / Monday, October 20, 1997 / Rules and Regulations the Board w ill not accept process on behalf of employees in connection with purely private matters except as specifically provided by law. Subpart B Subpart B is amended to comply with the EFOIA requirements for expedited processing. The Board also is implementing multitrack processing. In addition, the Board has revised the section on fees and fee waivers; and portions of this Subpart have been reorganized and streamlined. Section 261.10 lists the information that the Board publishes on a regular or intermittent basis. This section has been streamlined. No substantive changes have been made. Section 261.11 describes the information that is made available for inspection or copying, either in the Board’s reading room or over the Internet, as required by EFOIA. The records provided over the Internet cover a much smaller scope than those available in the Board’s reading room, because the requirement to provide records over the Internet covers only records created by the Board after November 1 ,1 9 9 6 . One of the commenters suggested that the Board expand the categories of documents provided over the Internet to include policies, interpretations, orders, and requests for comments, as well as provide indexing and an appropriate search mechanism on the website. The Board is in the process of expanding the information that is made available over the Internet. Legal interpretations dating from January 1996, and Press Releases, w hich include some Board orders, have been placed on the website. The remaining Board orders dating after November 1 ,1 9 9 6 , will be provided in the near future. Other information that the Board believes is of interest to the public is being provided as quickly as the Board’s resources permit. With regard to indexing or a search mechanism, there is a general index provided on the site, and the Board expects to install a search mechanism soon. Another commenter requested that the Board place the text of the public sections of its Community Reinvestment Act examination reports on its website. The Board expects to have this information on its website by the end of this year. This commenter also noted that the Board has not placed its administrative manuals on its website. EFOIA requires such manuals to be made available in the reading room if they are not published and offered for sale. All Board manuals of this type are published and offered for sale. Section 261.12 describes the procedures for requesting records that are not published or routinely made available for inspection. This section includes the requirement that FOIA requests not be combined with any other requests to the Board except requests under the Privacy Act. This requirement is intended to ensure that FOIA requests are delivered promptly to the Board’s Freedom of Information Office (FOI Office) when they are received, which may not occur if the FOIA request is included in a request for other action by the Board. One commenter opposed this amendment on grounds that it would prohibit a requester from combining a FOIA request with comments submitted in connection with an application under the Bank Holding Company Act of 1956 (BHCA), 12 U.S.C. 1841 et seq. The commenter believes that it should be permissible to combine a FOIA request with substantive comments regarding an application, or in the alternative, a process should be established for making requests under the Board’s ex parte rules for processing BHCA applications. A separate, clearly identified FOIA request delivered directly to the Secretary insures a faster FOIA response, however, because comment letters are not routinely sent to the FOIA office for action. Procedures for BHCA applications are set forth in the Board’s Regulation Y, which was recently revised after notice and comment. Section 261.13 describes the Board’s procedures for processing FOIA requests. This section has been extensively revised to reflect the changes required by EFOIA. In the review process, one sentence was inadvertently dropped from the section when it was published for comment. The existing rule states that the Secretary will assign responsible staff to process particular requests. This provision has been restored to section 261.13(d) to provide the Secretary with the authority to assign the requests to the appropriate staff at the Board. The revised regulation provides for multitrack processing. Fast-track processing w ill apply to records that are easily identifiable by the FOI Office staff and that have already been cleared for release to the public. Fast-track requests will be handled as expeditiously as possible, in the order in which they are received. All information requests that do not meet the fast-track processing standards will be handled under regular processing procedures. A requester who desires fast-track processing but whose request does not meet those standards may contact the FOI Office staff to 54357 narrow the request so that it will qualify for fast-track processing. The statutory time limit for regular-track processing is extended to twenty business days, 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 Board has determined to expedite the response. The time limit for determination whether to grant expedited processing is set at ten days, with expedited procedures for an appeal of the Secretary’s determination not to provide expedited processing. Under EFOIA, 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 section 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 Board’s Rules. To demonstrate a compelling need, a requester must submit a certified statement. A form for the certified statement may be obtained from the FOI Office. One commenter objected that the definition of “compelling need” does not include public interest requesters who wish to comment on pending BHCA applications. The definition of compelling need is established by EFOIA, not the Board. Section 261.14 lists the exemptions from disclosure under FOIA. This section has been reorganized and streamlined, but no substantive changes have been made. Sections 261.15 and 261.16, which were previously located in Subpart D, have been moved to Subpart B for clarity, since they apply only to FOIA requests. Accordingly, a separate Subpart D is no longer necessary. These provisions implement Executive Order 12,600, June 23, 1987, by establishing certain predisclosure notification procedures for confidential business or financial information that may be exempt under (b)(4) of the FOIA, 5 U.S.C. 552(b)(4).3 3 These provisions are intended only to address m atters of the kind covered by Executive Order 12,600. This, however, does not preclude the Board Continued 54358 Federal Register / Vol. 62, No. 202 / Monday, October 20, 1997 / Rules and Regulations Section 261.15 sets forth the procedures for requesting confidential treatment. The Board wishes to emphasize that failure to properly segregate confidential material from other material may result in the release of that material without prior notice to the submitter. This is particularly important in light of the Board’s intention, in connection with processing BHCA applications, to provide, upon request, the public portion of an application within three business days of the request. In order to meet this deadline, the Board’s and Reserve Bank’s staff must rely on the applicant to properly designate the material submitted. A careful review of the material designated as “Confidential” will be made and any information improperly labeled as “Confidential” will be provided to requesters immediately upon identification as publicly available. Section 261.16 sets forth the procedures for responding to a FOIA request for information that has been designated by the submitter as confidential. It provides for notice to the submitter that permits the submitter to provide written objections to the release of the confidential information. Section 261.16(e) describes the information that a submitter should include in its written submission objecting to the release of the documents, including whether the information was provided voluntarily under the standards set by the court case, Critical Mass Energy Project v. NEC, 975 F. 2d. 871 (D.C. Cir. 1992). If the information was not provided voluntarily, the submitter must provide detailed facts and arguments showing either the likelihood of substantial competitive harm resulting from release of the information, or that release would impair the Board’s ability to obtain necessary information in the future. Section 261.17 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 until payment is received in cases where advance payment is or its staff from giving notice to subm itters in other situations where, for exam ple, docum ents obtained pursuant to a confidentiality com m itm ent are subpoenaed in civil litigation. The Board exercises its discretion in such cases consistent w ith applicable law. The Board does not disclose its receipt of federal grand jury subpoenas, however, except in accordance w ith law following consultation w ith appropriate law enforcem ent authorities. required. Where a person has requested a waiver of the fees and has not agreed to pay the fees, the processing time does not begin until a fee waiver has been granted, or if the waiver is denied, until the requester has agreed to pay the applicable fees. One commenter objected to this provision, stating that it unfairly affects nonprofit groups with limited budgets that must promise to pay the fees for an application in order to receive it in a timely manner. This commenter requested that the Board establish a procedure to certify groups, on an ongoing basis, for fee waivers, instead of making the determination on a case-by-case basis. FOIA, itself, establishes certain categories that receive favorable treatment with regard to fees, e.g., the news media and educational institutions. FOIA also provides for fee waivers where disclosure of the information is in the public interest (not based on the requester’s status). Thus, a requester must meet the standards for a fee waiver in each request. This requirement is supported by the legislative history (see, 132 Cong. Rec. H. 9463 (Oct.8, 1986)(Rep. English)) and court decisions (see, National Wildlife Federation v. Hamilton, No. 9 5 - 0 1 7 BU(D. Mont. July 15, 1996)). The Board reviews each fee waiver request pursuant to the standards set forth in the Act and its Rules. If a non-profit community group demonstrates in its request for a waiver of fees that the requested information will be distributed to the public and will contribute significantly to the public understanding of the activities of the Board, then the requester should qualify under the Act and the Board’s Rules for a waiver of the fees. The standards under which the Secretary may grant a request for waiver of fees have been modified to reflect the development of case law in this area. Additionally, the regulation provides for administrative appeal of a denial of a waiver request, which reflects the Board’s current procedure of permitting such administrative appeals. Subpart C The sections in Subpart C have been renumbered to be consistent with the renumbering of Subparts A and B in this proposal. No substantive changes have been made at this time. Proposed changes to this Subpart were published in 1996 (61 FR 7436, February 28, 1996), and the comments received on these changes are still under consideration. Regulatory Flexibility Act Analysis Pursuant to section 605(b) of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), the Board certifies that the amendments 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 Board, therefore they should not have a significant economic impact on a substantial number of small entities. Paperwork Reduction Act Analysis In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3506; 5 CFR 1320 Appendix A .l), the Board reviewed the rule under the authority delegated to the Board by the Office of Management and Budget. The Federal Reserve may not conduct or sponsor, and an organization is not required to respond to, this information collection unless it displays a currently valid OMB control number. The OMB control number is 7100-0281. The collection of information requirements in this regulation are found in 12 CFR 261.12, 261.13, 261.16, and 261.17. (The hour burden for requests for confidential treatment made under 261.15 are included in the hour burden associated with the information collections for which the respondent desires confidential treatment.) The information will be used to fulfill requests for information made under the Freedom of Information Act, or to determine the appropriateness of fulfilling such requests. The respondents may include small entities. This information is required to obtain a benefit (5 U.S.C. 552). Generally, requests made under 12 CFR 261.12, 261.13, 261.16, and 12 CFR 261.17 are not exempt from disclosure under the Freedom of Information Act. The annual hour burden estimates are presented in the following table. There is estimated to be no annual cost burden over the annual hour burden, and no associated capital or start up cost. One comment specifically addressing the burden estimates was received from a federal credit union, stating that the burden estimates seemed accurate. Federal Register / Vol. 62, No. 202 / Monday, October 20, 1997 / Rules and Regulations Estimated annual fre quency Initial request (261.12 (b) and (c) and 261.13(c))........................................................................................ Limits on an earlier request that included a request for expedited processing that has been denied (261.13(b)(2)) ................................................................................................................................................ Appeal of denial of request (261.13(i)) ......................................................................................................... Written objections by submitter to release of data (261.16(e)) ................................................................. Request to waive or reduce fees (261.17(f)) ................................................................................................ Total ............................................................. The Federal Reserve has a continuing interest in the public’s opinions of its collections of information. At any time, comments regarding the burden estimate, or any other aspect of this collection of information, including suggestions for reducing the burden, may be sent to: Secretary, Board of Governors of the Federal Reserve System, 20th and C Streets, N.W., Washington, DC 20551; and to the Office of Management and Budget, Paperwork Reduction Project (7100 0281), Washington, DC 20503. List of Subjects in 12 CFR Part 261 Confidential business information, Federal Reserve System, Freedom of Information, Reporting and recordkeeping requirements. For the reasons set forth in the preamble, the Board amends 12 CFR part 261 as follows: PART 261— RULES REGARDING AVAILABILITY OF INFORMATION 1. The authority citation for part 261 is revised to read as follows: Authority: 5 U.S.C. 552; 12 U.S.C. 248(i) and (k), 321 et seq., 611 et seq., 1442, 1817(a)(2)(A), 1817(a)(8), 1818(u) and (v), 1821(o), 1821(t), 1830, 1844, 1951 et seq., 2601, 2801 et seq., 2901 et seq., 3101 et seq., 3401 etseq.; 15 U.S.C. 77uu(b), 78q(c)(3); 29 U.S.C. 1204; 31 U.S.C. 5301 et seq.; 42 U.S.C. 3601; 44 U.S.C. 3510. Subpart D— [Removed] 2. Subpart D, consisting of §§ 261.15 through 261.17, is removed. §§261.11-261.14 [Redesignated as §§261.20-261.23] 3. Sections 261.11 through 261.14 in Subpart C are redesignated as §§ 261.20 through 261.23, respectively, in Subpart C. 4. Subparts A and B are revised to read as follows: Subpart A— General Provisions Sec. 261.1 A uthority, purpose, and scope. 261.2 Definitions. 261.3 C ustodian of records; certification; service; alternative authority. ................................................ Estimated re sponse time (hours) Estimated annual bur den hours .5 2,450 .5 50 60 60 50 4,900 100 30 30 100 54359 2 2 .5 2,670 has determined that the Board, or its delegees, may disclose exempt information of the Board, in accordance 261.10 Published information. with the procedures set forth in this 261.11 Records available for public part, whenever it is necessary or inspection and copying. appropriate to do so in the exercise of 261.12 Records available to public upon any of the Board’s supervisory or request. regulatory authorities, including but not 261.13 Processing requests. limited to, authority granted to the 261.14 Exemptions from disclosure. Board in the Federal Reserve Act, 12 261.15 Request for confidential treatment. U.S.C. 221 et seq., the Bank Holding 261.16 Request for access to confidential commercial or financial information. Company Act, 12 U.S.C. 1841 et seq., 261.17 Fee schedules; w aiver of fees. and the International Banking Act, 12 U.S.C. 3101 et seq. The Board has Subpart A— General Provisions determined that all such disclosures, made in accordance with the rules and §261.1 Authority, purpose, and scope. (a) Authority. (1) This part is issued procedures specified in this part, are by the Board of Governors of the Federal authorized by law. (3) The Board has also determined Reserve System (the Board) pursuant to that it is authorized by law to disclose the Freedom of Information Act, 5 information to a law enforcement or U.S.C. 552; Sections 9, 11, and 25A of the Federal Reserve Act, 12 U.S.C. 248(i) other federal or state government agency and (k), 321 et seq., (including 326), 611 that has the authority to request and receive such information in carrying out et seq.', Section 22 of the Federal Home its own statutory responsibilities, or in Loan Bank Act, 12 U.S.C 1442; the response to a valid order of a court of Federal Deposit Insurance Act, 12 U.S.C. 1817(a)(2)(A), 1817(a)(8), 1818(u) competent jurisdiction or of a duly constituted administrative tribunal. and (v), 1821(o); section 5 of the Bank (b) Purpose. This part sets forth the Holding Company Act, 12 U.S.C. 1844; categories of information made available the Bank Secrecy Act, 12 U.S.C. 1951 et to the public, the procedures for seq., and Chapter 53 of Title 31; the obtaining documents and records, the Home Mortgage Disclosure Act, 12 procedures for limited release of exempt U.S.C. 2801 et seq.; the Community and confidential supervisory Reinvestment Act, 12 U.S.C. 2901 et information, and the procedures for seq.; the International Banking Act, 12 protecting confidential business U.S.C. 3101 et seq.; the Right to information. Financial Privacy Act, 12 U.S.C. 3401 et (c) Scope. (1) This subpart A contains seq.; the Securities and Exchange Act, general provisions and definitions of 15 U.S.C. 77uuu(b), 78q(c)(3); the terms used in this part. Employee Retirement Income Security (2) Subpart B of this part implements Act, 29 U.S.C. 1204; the Money the Freedom of Information Act (FOIA) Laundering Suppression Act, 31 U.S.C. (5 U.S.C. 552). 5301, the Fair Housing Act, 42 U.S.C. (3) Subpart C of this part sets forth: 3601; the Paperwork Reduction Act, 44 (i) The kinds of exempt information U.S.C. 3510; and any other applicable made available to supervised law that establishes a basis for the institutions, supervisory agencies, law exercise of governmental authority by enforcement agencies, and others in the Board. certain circumstances; (2) This part establishes mechanisms (ii) The procedures for disclosure; and for carrying out the Board’s statutory (iii) The procedures with respect to responsibilities under statutes in subpoenas, orders compelling paragraph (a)(1) of this section to the production, and other process. extent those responsibilities require the §261.2 Definitions. disclosure, production, or withholding For purposes of this part: of information. In this regard, the Board Subpart B— Published Information and Records Available to Public; Procedures for Requests 54360 Federal Register / Vol. 62, No. 202 / Monday, October 20, 1997 / Rules and Regulations (a) Board’s official files means the that otherwise cannot be inspected Board’s central records. directly. Among others, such copies (b) Commercial use request refers to a may take the form of paper, microform, request from or on behalf of one who audiovisual materials, or machineseeks information for a use or purpose readable documentation (e.g., magnetic that furthers the commercial, trade, or tape or disk). (f) Educational institution refers to a profit interests of the requester or the preschool, a public or private person on whose behalf the request is elementary or secondary school, or an made. (c)(1) Confidential supervisory institution of undergraduate higher information means: education, graduate higher education, (1) Exempt information consisting of professional education, or an institution reports of examination, inspection and of vocational education, which operates visitation, confidential operating and a program of scholarly research. (g) Exempt information means condition reports, and any information derived from, related to, or contained in information that is exempt from disclosure under § 261.14. such reports; (h) Noncommercial scientific (ii) Information gathered by the Board institution refers to an institution that is in the course of any investigation, not operated on a “commercial” basis suspicious activity report, cease-and(as that term is used in this section) and desist orders, civil money penalty that is operated solely for the purpose enforcement orders, suspension, of conducting scientific research, the removal or prohibition orders, or other results of which are not intended to orders or actions under the Financial promote any particular product or Institutions Supervisory Act of 1966, Pub.L. 89-695, 80 Stat. 1028 (codified as industry. (i)(l) Records o f the Board include: amended in scattered sections of 12 (1) In written form, or in nonwritten U.S.C.), the Bank Holding Company Act or machine-readable form; all of 1956, 12 U.S.C. 1841 et seq.,the information coming into the possession Federal Reserve Act, 12 U.S.C. 221 et and under the control of the Board, any seq., the International Banking Act of Board member, any Federal Reserve 1978, Pub.L. 9 5 -3 6 9 , 92 Stat. 607 Bank, or any officer, employee, or agent (codified as amended in scattered of the Board or of any Federal Reserve sections of 12 U.S.C.), and the Bank, in the performance of functions International Lending Supervision Act of 1983, 12 U.S.C. 3901 et seq.-, except— for or on behalf of the Board that (A) Such final orders, amendments, or constitute part of the Board’s official files; or modifications of final orders, or other (ii) That are maintained for actions or documents that are administrative reasons in the regular specifically required to be published or made available to the public pursuant to course of business in official files in any division or office of the Board or any 12 U.S.C. 1818(u), or other applicable Federal Reserve Bank in connection law, including the record of litigated with the transaction of any official proceedings; and business. (B) The public section of Community (2) Records o f the Board does not Reinvestment Act examination reports, include personal files of Board members pursuant to 12 U.S.C. 2906(b); and and employees; tangible exhibits, (iii) Any documents prepared by, on formulas, designs, or other items of behalf of, or for the use of the Board, a valuable intellectual property; extra Federal Reserve Bank, a federal or state copies of documents and library and financial institutions supervisory museum materials kept solely for agency, or a bank or bank holding reference or exhibition purposes; company or other supervised financial unaltered publications otherwise institution. available to the public in Board (2) Confidential supervisory publications, libraries, or established information does not include distribution systems. documents prepared by a supervised (j) Report o f examination means the financial institution for its own business report prepared by the Board, or other purposes and that are in its possession. federal or state financial institution (a) Direct costs mean those supervisory agency, concerning the expenditures that the Board actually examination of a financial institution, incurs in searching for, reviewing, and and includes reports of inspection and duplicating documents in response to a reports of examination of U.S. branches request made under § 261.12. (e) Duplication refers to the process ofor agencies of foreign banks and making a copy of a document in representative offices of foreign response to a request for disclosure of organizations, and other institutions records or for inspection of original examined by the Federal Reserve records that contain exempt material or System. (k) Report o f inspection means the report prepared by the Board concerning its inspection of a bank holding company and its bank and nonbank subsidiaries. (1) Representative o f the news media refers to any person actively gathering news for an entity that is organized and operated to publish or broadcast news to the public. (1) The term “news” means information that is about current events or that would be of current interest to the public. (2) Examples of news media entities include, but are not limited to, television or radio stations broadcasting to the public at large, and publishers of periodicals (but only in those instances when they can qualify as disseminators of “news”) who make their products available for purchase or subscription by the general public. (3) “Freelance” journalists may be regarded as working for a news organization if they can demonstrate a solid basis for expecting publication through that organization, even though they are not actually employed by it. (m)(l) Review refers to the process of examining documents, located in response to a request for access, to determine whether any portion of a document is exempt information. It includes doing all that is necessary to excise the documents and otherwise to prepare them for release. (2) Review does not include time spent resolving general legal or policy issues regarding the application of exemptions. (n)(l) Search means a reasonable search, by manual or automated means, of the Board’s official files and any other files containing Board records as seem reasonably likely in the particular circumstances to contain information of the kind requested. For purposes of computing fees under § 261.17, search time includes all time spent looking for material that is responsive to a request, including line-by-line identification of material within documents. Such activity is distinct from “review” of material to determine whether the material is exempt from disclosure. (2) Search does not mean or include research, creation of any document, or extensive modification of an existing program or system that would significantly interfere with the operation of the Board’s automated information systems. (o) Supervised financial institution includes a bank, bank holding company (including subsidiaries), U.S. branch or agency of a foreign bank, or any other institution that is supervised by the Board. Federal Register / Vol. 62, No. 202 / Monday, October 20, 1997 / Rules and Regulations § 261.3 Custodian of records; certification; service; alternative authority. (a) Custodian o f records. The Secretary of the Board (Secretary) is the official custodian of all Board records, including records that are in the possession or control of the Board, any Federal Reserve Bank, or any Board or Reserve Bank employee. (b) Certification o f record. The Secretary may certify the authenticity of any Board record, or any copy of such record, for any purpose, and for or before any duly constituted federal or state court, tribunal, or agency. (c) Service o f subpoenas or other process. Subpoenas or other judicial or administrative process, demanding access to any Board records or making any claim against the Board, shall be addressed to and served upon the Secretary of the Board at the Board’s office at 20th and C Streets, N.W., Washington, D.C. 20551. Neither the Board nor the Secretary are agents for service of process on behalf of any employee in respect of purely private legal disputes, except as specifically provided by law. (d) Alternative authority. Any action or determination required or permitted by this part to be done by the Secretary, the General Counsel, or the Director of any Division may be done by any employee who has been duly designated for this purpose by the Secretary, General Counsel, or the appropriate Director. Subpart B— Published Information and Records Available to Public; Procedures for Requests §261.10 Published information. (а) Federal Register. The Board publishes in the Federal Register for the guidance of the public: (1) Descriptions of the Board’s central and field organization; (2) Statements of the general course and method by w hich the Board’s functions are channeled and determined, including the nature and requirements of procedures; (3) Rules of procedure, descriptions of forms available and the place where they may be obtained, and instructions on the scope and contents of all papers, reports, and examinations; (4) Substantive rules, interpretations of general applicability, and statements of general policy; (5) Every amendment, revision, or repeal of the foregoing in paragraphs (a)(1) through (a)(4) of this section; (б) Notices of proposed rulemaking; (7) Notices of applications received under the Bank Holding Company Act of 1956 (12 U.S.C. 1841 et seq.) and the Change in Bank Control Act (12 U.S.C. 1817); (8) Notices of all Board meetings, pursuant to the Government in the Sunshine Act (5 U.S.C. 552b); (9) Notices identifying the Board’s systems of records, pursuant to the Privacy Act of 1974 (5 U.S.C. 552a); and (10) Notices of agency data collection forms being reviewed under the Paperwork Reduction Act (5 U.S.C. 3501 et seq.). (b) Board’s Reports to Congress. The Board’s annual report to Congress pursuant to the Federal Reserve Act (12 U.S.C. 247), which is made public upon its submission to Congress, contains a full account of the Board’s operations during the year, the policy actions by the Federal Open Market Committee, an economic review of the year, and legislative recommendations to Congress. The Board also makes periodic reports to Congress under certain statutes, including but not limited to the Freedom of Information Act (5 U.S.C. 552); the Government in the Sunshine Act (5 U.S.C. 552b); the Full Employment and Balanced Growth Act of 1978 (12 U.S.C. 225a); and the Privacy Act (5 U.S.C. 552a). (c) Federal Reserve Bulletin. This publication is issued monthly and contains economic and statistical information, articles relating to the economy or Board activities, and descriptions of recent actions by the Board. (d) Other published information. Among other things, the Board publishes the following information: (1) Weekly publications. The Board issues the following publications weekly: (1) A statement showing the condition of each Federal Reserve Bank and a consolidated statement of the condition of all Federal Reserve Banks, pursuant to 12 U.S.C. 248(a); (11) An index of applications received and the actions taken on the applications, as well as other matters issued, adopted, or promulgated by the Board; and (iii) A statement showing changes in the structure of the banking industry resulting from mergers and the establishment of branches. (2) Press releases. The Board frequently issues statements to the press and public regarding monetary and credit actions, regulatory actions, actions taken on certain types of applications, and other matters. (3) Call Report and other data. Certain data from Reports of Condition and Income submitted to the Board are available through the National Technical Information Service and may 54361 be obtained by the procedure described in § 261.11(c)(2). (4) Federal Reserve Regulatory Service. This is a multivolume looseleaf service published by the Board, containing statutes, regulations, interpretations, rulings, staff opinions, and procedural rules under which the Board operates. Portions of the service are also published as separate looseleaf handbooks relating to consumer and community affairs, monetary policy and reserve requirements, payments systems, and securities credit transactions. The service and each handbook contain subject and citation indexes, are updated monthly, and may be subscribed to on a yearly basis. (e) Index to Board actions. The Board’s Freedom of Information Office maintains an index to Board actions, which is updated weekly and provides identifying information about any matters issued, adopted, and promulgated by the Board since July 4, 1967. Copies of the index may be obtained upon request to the Freedom of Information Office subject to the current schedule of fees in § 261.17. (f) Obtaining Board publications. The Publications Services Section maintains a list of Board publications that are available to the public. In addition, a partial list of publications is published in the Federal Reserve Bulletin. All publications issued by the Board, including available back issues, may be obtained from Publications Services, Board of Governors of the Federal Reserve System, 20th Street and Constitution Avenue, N.W., Washington, D.C. 20551 (pedestrian entrance is on C Street, N.W.). Subscription or other charges may apply to some publications. § 261.11 Records available for public inspection and copying. (a) Types o f records made available. Unless they were published promptly and made available for sale or without charge, the following records shall be made available for inspection and copying at the Freedom of Information Office: (1) Final opinions, including concurring and dissenting opinions, as well as final orders and written agreements, made in the adjudication of cases; (2) Statements of policy and interpretations adopted by the Board that are not published in the Federal Register; (3) Administrative staff manuals and instructions to staff that affect the public; (4) Copies of all records released to any person under § 261.12 that, because 54362 Federal Register / Vol. 62, No. 202 / Monday, October 20, 1997 / Rules and Regulations the Freedom of Information Office actually receives the request. (b) Multitrack processing. (1) The Board provides different levels of processing for categories of requests under this section. Requests for records ACT REQUEST. that are readily identifiable by the (3) A request may not be combined Freedom of Information Office and that with any other request to the Board have already been cleared for public except for a request under 12 CFR release may qualify for fast-track 261a.3(a) (Rules Regarding Access to processing. All other requests shall be and Review of Personal Information handled under normal processing under the Privacy Act of 1974) and a procedures, unless expedited processing request made under § 261.23(b)(l)(ii). has been granted pursuant to paragraph (c) Contents o f request. The request (c)(2) of this section. shall contain the following information: (2) The Freedom of Information Office (1) The name and address of the will make the determination whether a requester, and the telephone number at request qualifies for fast-track which the requester can be reached processing. A requester may contact the during normal business hours; Freedom of Information Office to learn (2) Whether the requested information whether a particular request has been is intended for commercial use, and assigned to fast-track processing. If the whether the requester is an educational request has not qualified for fast-track or noncommercial scientific institution, processing, the requester will be given or news media representative; an opportunity to limit the request in (3) A statement agreeing to pay the order to qualify for fast-track processing. applicable fees, or a statement Limitations of requests must be in identifying any desired fee limitation, or writing. a request for a waiver or reduction of (c) Expedited processing. When a fees that satisfies § 261.17(h); and person requesting expedited access to (4) If the request is being made in records has demonstrated a compelling connection with on-going litigation, a need for the records, or when the Board statement indicating whether the has determined to expedite the requester w ill seek discretionary release response, the Board shall process the of exempt information from the General request as soon as practicable. Counsel upon denial of the request by (1) To demonstrate a compelling need the Secretary. A requester who intends for expedited processing, the requester to make such a request to the General shall provide a certified statement, a Counsel may also address the factors set sample of which may be obtained from forth in § 261.23(b). the Freedom of Information Office. The (d) Defective requests. The Board need statement, which must be certified to be not accept or process a request that does true and correct to the best of the not reasonably describe the records requester’s knowledge and belief, shall requested or that does not otherwise demonstrate that: comply with the requirements of this (1) The failure to obtain the records on section. The Board may return a an expedited basis could reasonably be defective request, specifying the expected to pose an imminent threat to deficiency. The requester may submit a the life or physical safety of an corrected request, which will be treated individual; or §261.12 Records available to public upon (ii) The requester is a representative of as a new request. request. the news media, as defined in § 261.2, (e) Oral requests. The Freedom of (a) Types o f records made available. and there is urgency to inform the Information Office may honor an oral public concerning actual or alleged All records of the Board that are not request for records, but if the requester available under §§ 261.10 and 261.11 is dissatisfied with the Board’s response Board activity. (2) In response to a request for shall be made available upon request, and wishes to seek review, the requester expedited processing, the Secretary pursuant to the procedures and must submit a written request, which shall notify a requester of the exceptions in this Subpart B. shall be treated as an initial request. determination within ten calendar days (b) Procedures for requesting records. § 261.13 Processing requests. of receipt of the request. If the Secretary (1) A request for identifiable records (a) Receipt o f requests. Upon receipt denies a request for expedited shall reasonably describe the records in of any request that satisfies § 261.12(b), processing, the requester may file an a way that enables the Board’s staff to the Freedom of Information Office shall appeal pursuant to the procedures set identify and produce the records with assign the request to the appropriate forth in paragraph (i) of this section, and reasonable effort and without unduly processing schedule, pursuant to the Board shall respond to the appeal burdening or significantly interfering paragraph (b) of this section. The date within ten working days after the appeal with any of the Board’s operations. (2) The request shall be submitted in of receipt for any request, including one was received by the Board. (d) Priority o f responses. The writing to the Freedom of Information that is addressed incorrectly or that is Secretary w ill assign responsible staff to referred to the Board by another agency Office, Board of Governors of the Federal Reserve System, 20th & C Street, or by a Federal Reserve Bank, is the date process particular requests. The of the nature of their subject matter, the Board has determined are likely to be requested again; (5) A general index of the records referred to in paragraph (a)(4) of this section; and (6) The public section of Community Reinvestment Act examination reports. (b) Reading room procedures. (1) Information available under this section is available for inspection and copying, from 9:00 a.m. to 5:00 p.m. weekdays, at the Freedom of Information Office of the Board of Governors of the Federal Reserve System, 20th Street and Constitution Avenue, N.W., Washington, D.C. 20551 (the pedestrian entrance is on C Street, N.W.). (2) The Board may determine that certain classes of publicly available filings shall be made available for inspection and copying only at the Federal Reserve Bank where those records are filed. (c) Electronic records. (1) Except as set forth in paragraph (c)(2) of this section, information available under this section that was created by the Board on or after November 1, 1996, shall also be available on the Board’s internet site (which can be found at http:// www.bog.frb.fed.us). (2) NTIS. The publicly available portions of Reports of Condition and Income of individual banks and certain other data files produced by the Board are distributed by the National Technical Information Service. Requests for these public reports should be addressed to: Sales Office, National Technical Information Service, U.S. Department of Commerce, 5285 Port Royal Road, Springfield, Virginia 22161, (703) 4 87-4650. (3) Privacy protection. The Board may delete identifying details from any record to prevent a clearly unwarranted invasion of personal privacy. N.W., Washington, D.C. 20551; or sent by facsimile to the Freedom of Information Office, (202) 87 2-7562 or 7565. The request shall be clearly marked FREEDOM OF INFORMATION Federal Register / Vol. 62, No. 202 / Monday, October 20, 1997 / Rules and Regulations Freedom of Information Office will normally process requests in the order they are received in the separate processing tracks, except when expedited processing is granted. However, in the Secretary’s discretion, or upon a court order in a matter to which the Board is a party, a particular request may be processed out of turn. (e) Time limits. The time for response to requests shall be 20 working days, except: (1) In the case of expedited treatment under paragraph (c) of this section; (2) Where the running of such time is suspended for payment of fees pursuant to § 2 6 1 .17(b)(2); (3) In unusual circumstances, as defined in 5 U.S.C. 552(a)(6)(B). In such circumstances, the time limit may be extended for a period of time not to exceed: (i) 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 (ii) Such alternative time period as mutually agreed to by the Freedom of Information Office and the requester when the Freedom of Information Office notifies the requester that the request cannot be processed in the specified time limit. (f) Response to request. In response to a request that satisfies § 261.12(b), an appropriate search shall be conducted of records of the Board in existence on the date of receipt of the request, and a review made of any responsive information located. The Secretary shall notify the requester of: (1) The Board’s determination of the request; (2) The reasons for the determination; (3) The amount of information withheld; (4) The right of the requester to appeal to the Board any denial or partial denial, as specified in paragraph (i) of this section; and (5) In the case of a denial of a request, the name and title or position of the person responsible for the denial. (g) Referral to another agency. To the extent a request covers documents that were created by, obtained from, or classified by another agency, the Board may refer the request to that agency for a response and inform the requester promptly of the referral. (h) 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 Freedom of Information Office or makes other acceptable arrangements, or the Board deems it appropriate to send the documents by another means. (2) The Board shall provide a copy of the record in any form or format requested if the record is readily reproducible by the Board in that form or format, but the Board need not provide more than one copy of any record to a requester. (i) Appeal o f denial o f request. Any person denied access to Board records requested under § 261.12 may file a written appeal with the Board, as follows: (1) The appeal shall prominently display the phrase FREEDOM OF INFORMATION ACT APPEAL on the first page, and shall be addressed to the Freedom of Information Office, Board of Governors of the Federal Reserve System, 20th & C Street, N.W., Washington, D.C. 20551; or sent by facsimile to the Freedom of Information Office, (202) 872 -7562 or 7565. (2) An initial request for records may not be combined in the same letter with an appeal. (3) The appeal shall be filed within 10 working days of the date on which the denial was issued, or the date on which documents in partial response to the request were transmitted to the requester, whichever is later. The Board may consider an untimely appeal if: (i) It is accompanied by a written request for leave to file an untimely appeal; and (ii) The Board determines, in its discretion and for good and substantial cause shown, that the appeal should be considered. (4) The Board shall make a determination regarding any appeal within 20 working days of actual receipt of the appeal by the Freedom of Information Office, and the determination letter shall notify the appealing party of the right to seek judicial review. (5) The Secretary may reconsider a denial being appealed if intervening circumstances or additional facts not known at the time of the denial come to the attention of the Secretary while an appeal is pending. § 261.14 Exemptions from disclosure. 54363 (2) Internal personnel rules and practices. Any information related solely to the internal personnel rules and practices of the Board. (3) Statutory exemption. Any information specifically exempted from disclosure by statute (other than 5 U.S.C. 552b), if the 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; commercial or financial information. Any matter that is a trade secret or that constitutes commercial or financial information obtained from a person and that is privileged or confidential. (5) Inter- or intra-agency memorandums. Information contained in inter- or intra-agency memorandums or letters that would not be available by law to a party (other than an agency) in litigation with an agency, including, but not limited to: (i) Memorandums; (ii) Reports; (iii) Other documents prepared by the staffs of the Board or Federal Reserve Banks; and (iv) Records of deliberations of the Board and of discussions at meetings of the Board, any Board committee, or Board staff, that are not subject to 5 U.S.C. 552b (the Government in the Sunshine Act). (6) Personnel and medical files. Any information contained in personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy. (7) Information compiled for law enforcement purposes. Any records or information compiled for law enforcement purposes, to the extent permitted under 5 U.S.C. 552(b)(7); including information relating to administrative enforcement proceedings of the Board. (8) Examination, inspection, operating, or condition reports, and confidential supervisory information. Any matter that is contained in or related to examination, operating, or condition reports prepared by, on behalf the following records of the Board are of, or for the use of an agency exempt from disclosure under this part: responsible for the regulation or (1) National defense. Any information supervision of financial institutions, including a state financial institution that is specifically authorized under supervisory agency. criteria established by an Executive (b) Segregation of nonexempt Order to be kept secret in the interest of national defense or foreign policy and is information. The Board shall provide any reasonably segregable portion of a in fact properly classified pursuant to record that is requested after deleting the Executive Order. Types o f records exem pt from disclosure. Pursuant to 5 U.S.C. 552(b), (a) 54364 Federal Register / Vol. 62, No. 202 / Monday, October 20, 1997 / Rules and Regulations those portions that are exempt under this section. § 261.15 Request for confidential treatment. (a) Submission o f request. Any submitter of information to the Board who desires confidential treatment pursuant to 5 U.S.C. 552(b)(4) and § 261.14 (a)(4) shall file a request for confidential treatment with the Board (or in the case of documents filed with a Federal Reserve Bank, with that Federal Reserve Bank) at the time the information is submitted or a reasonable time after submission. (b) Form o f request. Each request for confidential treatment shall state in reasonable detail the facts supporting the request and its legal justification. (2) The Board may make any exempt Conclusory statements that release of the information would cause information furnished in connection competitive harm generally will not be with an application for Board approval considered sufficient to justify of a transaction available to the public confidential treatment. in accordance with § 261.12, and without prior notice and to the extent it (c) Designation and separation of deems necessary, may comment on such confidential material. All information information in any opinion or statement considered confidential by a submitter issued to the public in connection with shall be clearly designated a Board action to which such CONFIDENTIAL in the submission and information pertains. separated from information for which (d) Delayed release. Publication in the confidential treatment is not requested. Failure to segregate confidential Federal Register or availability to the information from other material may public of certain information may be result in release of the nonsegregated delayed if immediate disclosure would material to the public without notice to likely: the submitter. (1) Interfere with accomplishing the (d) Exceptions. This section does not objectives of the Board in the discharge apply to: of its statutory functions; (1) Data collected on forms that are (2) Interfere with the orderly conduct approved pursuant to the Paperwork of the foreign affairs of the United Reduction Act (44 U.S.C. 3501 et seq.) States; and are deemed confidential by the (3) Permit speculators or others to Board. Any such form deemed gain unfair profits or other unfair confidential by the Board shall so advantages by speculative trading in indicate on the face of the form or in its securities or otherwise; instructions. The data may, however, be (4) Result in unnecessary or disclosed in aggregate form in such a unwarranted disturbances in the manner that individual company data is securities markets; not disclosed or derivable. (5) Interfere with the orderly (2) Any comments submitted by a execution of the objectives or policies of member of the public on applications other government agencies; or and regulatory proposals being considered by the Board, unless the (6) Impair the ability to negotiate any Board or the Secretary determines that contract or otherwise harm the confidential treatment is warranted. commercial or financial interest of the United States, the Board, any Federal (3) A determination by the Board to Reserve Bank, or any department or comment upon information submitted agency of the United States. to the Board in any opinion or statement issued to the public as described in (e) Prohibition against disclosure. § 261.14(c). Except as provided in this part, no officer, employee, or agent of the Board (e) Special procedures. The Board or any Federal Reserve Bank shall may establish special procedures for disclose or permit the disclosure of any particular documents, filings, or types of unpublished information of the Board to information by express provisions in any person (other than Board or Reserve this part or by instructions on particular forms that are approved by the Board. Bank officers, employees, or agents properly entitled to such information for These special procedures shall take the performance of official duties). precedence over this section. (c) Discretionary release. (1) Except where disclosure is expressly prohibited by statute, regulation, or order, the Board may release records that are exempt from mandatory disclosure whenever the Board or designated Board members, the Secretary of the Board, the General Counsel of the Board, the Director of the Division of Banking Supervision and Regulation, or the appropriate Federal Reserve Bank, acting pursuant to this part or 12 CFR part 265, determines that such disclosure would be in the public interest. § 261.16 Request for access to confidential commercial or financial information. (a) Request for confidential information. A request by a submitter for confidential treatment of any information shall be considered in connection with a request for access to that information. At their discretion, appropriate Board or staff members (including Federal Reserve Bank staff) may act on the request for confidentiality prior to any request for access to the documents. (b) Notice to the submitter. When a request for access is received pursuant to the Freedom of Information Act (5 U.S.C. 552): (1) The Secretary shall notify a submitter of the request, if: (1) The submitter requested confidential treatment of the information pursuant to 5 U.S.C. 552(b)(4); and (ii) The request by the submitter for confidential treatment was made within 10 years preceding the date of the request for access. (2) Absent a request for confidential treatment, the Secretary may notify a submitter of a request for access to information provided by the submitter if the Secretary reasonably believes that disclosure of the information may cause substantial competitive harm to the submitter. (3) The notice given to the submitter shall: (i) Be given as soon as practicable after receipt of the request for access; (ii) Describe the request; and (iii) Give the submitter a reasonable opportunity, not to exceed ten working days from the date of notice, to submit written objections to disclosure of the information. (c) Exceptions to notice to submitter. Notice to the submitter need not be given if: (1) The Secretary determines that the request for access should be denied; (2) The requested information lawfully has been made available to the public; (3) Disclosure of the information is required by law (other than 5 U.S.C. 552); or (4) The submitter’s claim of confidentiality under 5 U.S.C. 552(b)(4) appears obviously frivolous or has already been denied by the Secretary, except that in this last instance the Secretary shall give the submitter written notice of the determination to disclose the information at least five working days prior to disclosure. (d) Notice to requester. At the same time the Secretary notifies the submitter, the Secretary also shall notify Federal Register / Vol. 62, No. 202 / Monday, October 20, 1997 / Rules and Regulations the requester that the request is subject to the provisions of this section. (e) Written objections by submitter. Upon receipt of notice of a request for access to its information, the submitter may provide written objections to release of the information. Such objections shall state whether the information was provided voluntarily or involuntarily to the Board. (1) If the information was voluntarily provided to the Board, the submitter shall provide detailed facts showing that the information is customarily withheld from the public. (2) If the information was not provided voluntarily to the Board, the submitter shall provide detailed facts and arguments showing: (1) The likelihood of substantial harm that would be caused to the submitter’s competitive position; or (ii) That release of the information would impair the Board’s ability to obtain necessary information in the future. (f) Determination by Secretary. The Secretary’s determination whether or not to disclose any information for which confidential treatment has been requested pursuant to this section shall be communicated to the submitter and the requester immediately. If the Secretary determines to disclose the information and the submitter has objected to such disclosure pursuant to paragraph (e) of this section, the Secretary shall provide the submitter with the reasons for disclosure, and shall delay disclosure for ten working days from the date of the determination. (g) Notice o f lawsuit. (1) The Secretary shall promptly notify any submitter of information covered by this section of the filing of any suit against the Board to compel disclosure of such information. (2) The Secretary shall promptly notify the requester of any suit filed against the Board to enjoin the disclosure of any documents requested by the requester. §261.17 Fee schedules; waiver of fees. (a) Fee schedules. The fees applicable to a request for records pursuant to §§ 261.11 and 261.12 are set forth in Appendix A to this section. These fees cover only the full allowable direct costs of search, duplication, and review. No fees will be charged where the average cost of collecting the fee (calculated at $5.00) exceeds the amount of the fee. (b) Payment procedures. The Secretary may assume that a person requesting records pursuant to § 261.12 will pay the applicable fees, unless the request includes a limitation on fees to be paid or seeks a waiver or reduction of fees pursuant to paragraph (f) of this section. (1) Advance notification o f fees. If the estimated charges are likely to exceed $100, the Freedom of Information Office shall notify the requester of the estimated amount, unless the requester has indicated a willingness to pay fees as high as those anticipated. Upon receipt of such notice, the requester may confer with the Freedom of Information Office to reformulate the request to lower the costs. The time period for responding to requests under § 261.13(e), and the processing of the request will be suspended until the requester agrees to pay the applicable fees. (2) Advance payment. The Secretary may require advance payment of any fee estimated to exceed $250. The Secretary may also require full payment in advance where a requester has previously failed to pay a fee in a timely fashion. The time period for responding to requests under § 261.13(e), and the processing of the request will be suspended until the Freedom of Information Office receives the required payment. (3) Late charges. The Secretary may assess interest charges when fee payment is not made within 30 days of the date on w hich the billing was sent. Interest is at the rate prescribed in 31 U.S.C. 3717 and accrues from the date of the billing. (c) Categories o f uses. The fees assessed depend upon the intended use for the records requested. In determining which category is appropriate, the Secretary shall look to the intended use set forth in the request for records. Where a requester’s description of the use is insufficient to make a determination, the Secretary may seek additional clarification before categorizing the request. (1) Commercial use. The fees for search, duplication, and review apply when records are requested for commercial use. (2) Educational, research, or media use. The fees for duplication apply when records are not sought for commercial use, and the requester is a representative of the news media or an educational or noncommercial scientific institution, whose purpose is scholarly or scientific research. The first 100 pages of duplication, however, will be provided free. (3) A ll other uses. For all other requests, the fees for document search and duplication apply. The first two hours of search time and the first 100 pages of duplication, however, will be provided free. 54365 (d) Nonproductive search. Fees for search and review may be charged even if no responsive documents are located or if the request is denied. (e) Aggregated requests. A requester may not file multiple requests at the same time, solely in order to avoid payment of fees. If the Secretary reasonably believes that a requester is separating a request into a series of requests for the purpose of evading the assessment of fees, the Secretary may aggregate any such requests and charge accordingly. It is considered reasonable for the Secretary to presume that multiple requests of this type made within a 30-day period have been made to avoid fees. (f) Waiver or reduction o f fees. A request for a waiver or reduction of the fees, and the justification for the waiver, shall be included with the request for records to which it pertains. If a waiver is requested and the requester has not indicated in writing an agreement to pay the applicable fees if the waiver request is denied, the time for response to the request for documents, as set forth in § 261.13(e), shall not begin until a waiver has been granted; or if the waiver is denied, until the requester has agreed to pay the applicable fees. (1) Standards for determining waiver or reduction. The Secretary shall grant a waiver or reduction of fees where it is determined both that disclosure of the information is in the public interest because it is likely to contribute significantly to public understanding of the operation or activities of the government, and that the disclosure of information is not primarily in the commercial interest of the requester. In making this determination, the following factors shall be considered: (i) Whether the subject of the records concerns the operations or activities of the government; (ii) Whether disclosure of the information is likely to contribute significantly to public understanding of government operations or activities; (iii) Whether the requester has the intention and ability to disseminate the information to the public; (iv) Whether the information is already in the public domain; (v) Whether the requester has a commercial interest that would be furthered by the disclosure; and, if so, (vi) Whether the magnitude of the identified commercial interest of the requester is sufficiently large, in comparison with the public interest in disclosure, that disclosure is primarily in the commercial interest of the requester. 54366 Federal Register / Vol. 62, No. 202 / Monday, October 20, 1997 / Rules and Regulations (2) Contents o f request for waiver. A request for a waiver or reduction of fees shall include: (i) A clear statement of the requester’s interest in the documents; (ii) The use proposed for the documents and whether the requester will derive income or other benefit for such use; (iii) A statement of how the public will benefit from such use and from the Board’s release of the documents; (iv) A description of the method by which the information will be disseminated to the public; and (v) If specialized use of the information is contemplated, a statement of the requester’s qualifications that are relevant to that use. (3) Burden o f proof. The burden shall be on the requester to present evidence or information in support of a request for a waiver or reduction of fees. (4) Determination by Secretary. The Secretary shall make a determination on the request for a waiver or reduction of fees and shall notify the requester accordingly. A denial may be appealed to the Board in accordance with § 261.13(j). (g) Employee requests. In connection with any request by an employee, former employee, or applicant for employment, for records for use in prosecuting a grievance or complaint of discrimination against the Board, fees shall be waived where the total charges (including charges for information provided under the Privacy Act of 1974 (5 U.S.C. 552a) are $50 or less; but the Secretary may waive fees in excess of that amount. (h) Special services. The Secretary may agree to provide, and set fees to recover the costs of, special services not covered by the Freedom of Information Act, such as certifying records or information and sending records by special methods such as express mail or overnight delivery. A p p e n d ix A t o § 2 6 1 .1 7 . — F r e e d o m o f In f o r m a t i o n F e e S c h e d u l e Duplication: Photocopy, per standard page .... Paper copies of microfiche, per fra m e .......................................... Duplicate microfiche, per micro fiche ........................................... Search and review: Clerical/Technical, hourly rate Professional/Supervisory, hourly ra te .............................................. Manager/Senior Professional, hourly ra te .................................. Computer search and production: Computer operator search, hour ly r a te ......................................... $0.10 .10 .35 20.00 38.00 65.00 32.00 A p p e n d ix A t o § 2 6 1 .1 7 .— F r e e d o m o f In f o r m a t i o n F e e S c h e d u l e — Continued Tapes (cassette) per ta p e ........... Tapes (cartridge), per tape ......... Tapes (reel), per tape ................. Diskettes (3Vz"), per diskette .... Diskettes (51/4"), per diskette .... Computer Output (PC), per minute ........................................ Computer Output (mainframe) .... 6.00 9.00 18.00 4.00 5.00 .10 (1) 1Actual cost. By order of the Board of Governors of the Federal Reserve System, October 10,1997. William W. Wiles, Secretary o f the Board. [FR Doc. 97-27566 Filed 10-17-97; 8:45 am] BILLING CODE 6210 -0 1 -P
@FedFRASER