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FEDERAL RESERVE BAMHC
OF MEW YORIC
[
Circular No. 10168
May 13, 1987
]
BOARD RULES REGARDING AVAILABILITY OF INFORMATION
Procedures for Accessing Board Records Pursuant to the Freedom of Information Act
To All D epository Institutions, and Others Concerned,
in the Second F ederal Reserve District:
The Board of Governors of the Federal Reserve System has requested public comment on a
proposed revision of its Rules Regarding Availability of Information to clarify the procedures for
handling requests for access to Board records, either under the Freedom of Information Act or the
Federal Reserve Act.
Printed on the reverse side is an excerpt of the summary portion of the Board’s proposal, which
has been reprinted from the Federal Register of April 23,1987 (52 FR 13458). Comments should be
sent, by June 22, 1987, to the Board of Governors, as specified in the notice; copies of the complete
text of the proposal will be furnished upon request directed to the Supervision Support Department
(Tel. No. 212-720-5908).
In a related action, the Board of Governors has also amended, effective May 27, 1987, its
Rules Regarding Availability of Information to revise the schedule of fees for requests for Board
records pursuant to the Freedom of Information Act. The amendment has been published in the
Federal Register of April 28, 1987 (52 FR 15299); copies of the amendment will also be furnished
upon request directed to the Supervision Support Department.
E. G erald C orrigan ,
-President.
(OVER)
H2 e r a Part 261
[Docket W®. R-0601]
Rules Regarding Availability @f
8ni?@irms)tii@n
AGENCY: Board of Governors of the
Federal Reserve System.
ACTION: Notice of proposed rulemaking.
summary: The Board of Governors of
the Federal Reserve System (“Board”)
proposes to amend its Rules Regarding
Availability of Information. The
proposed changes to that regulation
include: (1) A description of the Board’s
procedures in processing requests under
the Freedom of Information Act
(“FOIA"); (2) further delegation of
authority to the Board’s General
Counsel to act on requests for
information by law enforcement
agencies and others; (3) additional
provisions regarding the availability of
information to federal and state
financial institutions’ supervisory
authorities; (4) disclosure by financial
institutions of examination or inspection
reports to appropriate agents of such
institutions; (5) notice of FOIA requests
to submitters of confidential commercial
or financial information, and procedures
for requesting confidential treatment of
such information and for addressing the
proposed disclosure of information that
a submitter believes should not be
disclosed; and (6) technical
amendments.
On March 25,1987, the Board
approved publication for comment of the
proposed changes to its fee schedules
pertaining to requests for Board
documents pursuant to the Freedom of
Information Reform Act of 1986, Pub. L
99-570. 52 FR 10233 (March 31,1987).
Those proposed changes will be
addressed pursuant to that other
rulemaking and are repeated in the
present notice primarily for the
convenience of the public. See § 261.10.
This action is being taken as part of
the Board’s Regulatory Planning and
Review Program to simplify and clarify
all its regulations. The proposal
incorporates certain new procedures
that will facilitate the release of
nonexempt information while protecting
the rights of submitters of exempt
information.
©ate: Comments should be received by
June 22,1987.
a d d r e s s : Interested parties are invited
to submit written comments to William
W. Wiles, Secretary, Board of
Governors of the Federal Reserve
System, 20th Street and Constitution
Avenue NW., Washington, DC 20551,
or to deliver such comments to the guard
station in the Eccles Building Courtyard
on 20th Street NW. (between
Constitution Avenue and C Street NW.).
Written comments should refer to
Docket No. R-0601. Comments received
may be inspected in Room B-1122
between 9:00 a.m. and 5:00 p.m.
weekdays, except as provided in
§ 261.6(a) of the Board’s Rules Regarding
Availability of Information. (12 CFR
261.6(a)).
R j& rra a s
in f o r m a t io n c o n t a c t :
Stephen L Siciliano, Special Assistant
to the General Counsel for
Administrative Law, Legal Division
(202/452-3920); Elaine M. Boutilier,
Senior Attorney, Legal Division (202/
452-2418); Kenneth M. Kinoshita,
Attorney, Legal Division (202/452-3721);
or for the hearing impaired only,
Telecommunications Device for the Deaf
(“TDD”), Eamestine Hill or Dorothea
Thompson (202/452-3544), Board of
Governors of the Federal Reserve
System, Washington, DC 20551.
PRINTED IN NEW YORK, FROM FEDERAL REGISTER, VOL. 52, NO. 78, pp. 13458-13459
13458
Federal Register / Vol. 52, No. 78 / Thursday, April 23, 1987 / Proposed Rules
12 CFR Part 261
[Docket No. A -0601]
Rules Regarding Availability of
Information
Board of Governors of the
Federal Reserve System.
ACTION: Notice of proposed rulemaking.
SUMMARY: The Board of Governors of
the Federal Reserve System (“Board”)
proposes to amend its Rules Regarding
Availability of Information. The
proposed changes to that regulation
include: (1) A description of the Board’s
procedures in processing requests under
the Freedom of Information Act
(“FOIA”}; (2) further delegation of
authority to the Board’s General
agency:
[Ref. Cir. No. 10168]
Federal Register / Vol. 52, No. 78 / Thursday, April 23, 1987 / Proposed Rules
Counsel to act on requests for
information by law enforcement
agencies and others; (3) additional
provisions regarding the availability of
information to federal and state
financial institutions' supervisory
authorities; (4) disclosure by financial
institutions of examination or inspection
reports to appropriate agents of such
institutions; (5) notice of FOIA requests
to submitters of confidential commercial
or financial information, and procedures
for requesting confidential treatment of
such information and for addressing the
proposed disclosure of information that
a submitter believes should not be
disclosed; and (6) technical
amendments.
On March 25,1987, the Board
approved publication for comment of the
proposed changes to its fee schedules
pertaining to requests for Board
documents pursuant to the Freedom of
Information Reform Act of 1986, Pub. L
99-570. 52 FR 10233 (March 31,1987).
Those proposed changes will be
addressed pursuant to that other
rulemaking and are repeated in the
present notice primarily for the
convenience of the public. See § 261.10.
This action is being taken as part of
the Board’s Regulatory Planning and
Review Program to simplify and clarify
all its regulations. The proposal
incorporates certain new procedures
that will facilitate the release of
nonexempt information while protecting
the rights of submitters of exempt
information.
d a t e : Comments should be received b y
June 22,1987.
ADDRESS: Interested parties are invited
to submit written comments to William
W. Wiles, Secretary, Board of
Governors of the Federal Reserve
System, 20th Street and Constitution
Avenue NW., Washington, DC 20551,
or to deliver such comments to the guard
station in the Eccles Building Courtyard
on 20th Street NW. (between
Constitution Avenue and C Street NW.).
Written comments should refer to
Docket No. R-0601. Comments received
may be inspected in Room B-1122
between 9:00 a.m. and 5:00 p m
weekdays, except as provided in
§ 261.6(a) of the Board’s Rules Regarding
Availability of Information. (12 CFR
261.6(a)).
Telecommunications Device for the Deaf
(“TDD"), Eamestine Hill or Dorothea
Thompson (202/452-3544), Board of
Governors of the Federal Reserve
System, Washington, DC 20551.
SUPPLEMENTARY INFORMATION: The
purpose of this proposed revision of the
Board’s Rules Regarding Availability of
Information is to set forth more clearly
the procedures for requesting access to
documents that are records of the Board,
either under the FOIA or the Federal
Reserve Act. The revision also changes
certain procedures for obtaining access
to documents. These provisions and
changes are described in more detail
below.
A. Subpart A—General Provisions
Subpart A describes the authority,
purpose and scope of the regulation, and
gives new expanded definitions for the
terms used in the regulation. New
definitions of “records of the Board” and
“search” are designed to clarify these
terms in accordance with law and to
facilitate the orderly processing of
requests. Definitions of “Board’s official
files”, “report of examination”, “report
of inspection” and "search” have been
added. Subpart A also provides for
alternative authority when the official
named in the regulation is not available
to take action.
B. Subpart B—Published Information
and Records Available to Public;
Procedures for Requests
Section 261.5 lists and explains the
various types of information published
by the Board. This information is readily
available to the public, either from ©
public library or through the Board’s
Publications Services Section.
Section 261.6 describes the types of
information that are available to the
public upon request Requests for such
documents are generally made pursuant
to the FOIA, under the procedures set
forth in f 261.9. In addition, certain data
files produced by the Board may be
obtained through the National Technical
Information Service (“NTIS"). Ao of
January 1987, data files available from
NTIS included: Bank Credit (1979-1984),
Bank Holding Company Annual Tape
(Y-6), Bank Holding Company Quarterly
Tape (Y-9), Call and Income Report
Capacity Utilization, Consumer
Installment Credit Electric Power Used
FOR FURTHER INFORMATION CONTACT:
by Industries, Flow of Funds, Industrial
Stephen L Siciliano, Special Assistant
Production Tape, Money Stock Tape
(1959-1984), Reserves Tape (1959-1834).
to the General Counsel for
Administrative Law, Legal Division
Selected Interest Rates H-15 Tape,
Survey of Consumer Credit (1977),
(202/452-3920); Elaine M. Boutilier,
Survey of Consumer Finance and High
Senior Attorney, Legal Division (202/
Income Supplement (1983) and Survey of
452-2418); Kenneth M. Kinoshita,
Attorney, Legal Division (202/452-3721); Currency and Transaction Accounts
(1984).
or for the hearing impaired only.
(2 )
13439
Section 261.7 provides that some types
of information may not be released until
after a period of time determined by the
Board to be necessary to avoid certain
consequences. For example, deferred
publication or deferred availability of
information may be necessary where
information relates to the negotiation of
procurement or other contracts for the
Federal Reserve System, or relates to
the determination of monetary or credit
policies, including but not limited to
discount rates, reserve requirements,
and margin requirements. Immediate,
rather than deferred access to such
information could, for example, impair
the Board’s ability to negotiate contracts
in a manner most advantageous to the
Board, or could lead to speculation in
the money markets which could impair
the Board’s ability to implement its
monetary or credit policies.
Section 261.8 lists the types of
information that are exempt from
disclosure. These exemptions generally
follow the exemptions provided in the
FOIA, 5 U.S.C. 552(b). The primary
distinction between these exemptions
and those included in the FOIA is that
the FOIA exemption for matters related
to geological and geophysical
information and data concerning wells
(5 U.S.C. 552(b)(9)) is omitted, and a
provision regarding information covered
by a court order prohibiting disclosure is
added. Section 261.8(a)(4) reflects a
recent change in the language of
exemption 7 in the FOIA, 5 U.S.C.
552(b)(7). As is the case with requests
made pursuant to FOIA, the Board will
release any reasonably segregable
portion of a document after deleting
information exempt from disclosure.
Section 261.9 describes the procedures
for making a request for documents, the
processing of such request
administrative appellate review of the
denial of a request and the provisions
for extensions of time for responding to
the request
A request for documents must be for
identifiable records; that is, it must
contain a description that identifies a
circumscribable body of documents in
such a way that the Board’s staff can
identify, search for, aggregate, collect
and produce such documents without
unduly burdening or disrupting any of
the Board’s functions.
A request should be submitted in
writing and should be clearly marked
“Freedom of Information Act Request”
to ensure that it is immediately
delivered to the FOIA office at the
Board. Failure to so designate a request
may result in delays in the response. It
is also necessary that a request identify
whether the requested information is
13460
Federal Register / Vol. 52, No. 78 / Thursday, April 23, 1987 / Proposed Rules
intended for commercial use, and
whether the requester is an educational
institution, a noncommercial scientific
institution, or a media representative.
This identification information is
necessary to determine the fees to be
charged under § 261.10.
When responding to a request, the
Board may advise the requester that it
can neither confirm nor deny the
existence of the requested records. For
example, the Board may decline to
confirm or deny the existence of
particular supervisory actions regarding
identifiable institutions.
The revised regulation, at § 261.9(c)(2),
provides that the Board may select the
form of the copies of records released in
response to a request; e.g., copies may
be on paper, microform or in computer
readable format.
Section 261.9(d) sets forth the
procedures for appealing a denial of a
request for records under the FOIA. An
appeal must be filed in writing within 10
working days of the date of the denial
and the Board (or a designated Board
member) will make a determination on
the appeal within 20 days of receipt of
the appeal by the Secretary. The section
also adds new procedures regarding
untimely appeals and new provisions
regarding the mootness of certain
appeals.
In unusual circumstances, the Board
may extend the time limits for response
to either an initial request or an appeal.
The time extension is set in 5 U.S.C.
552(a)(6) as 10 working days. These 10
days may be used either for the initial or
appeallate reviews, or both, but the total
extension for either or both may not
exceed 10 working days. “Unusual
circumstances” means: (i) 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; (ii) the
need to search for, collect, and
appropriately examine a voluminous
amount of separate and distinct records
demanded in a single request; or (iii) the
need for consultation with others at the
Board or with another agency having
substantial interest in the determination
of the request.
If the Board fails to meet the time
deadlines, including any extension, it
will notify the requester of the delay and
the reason. Such notice does not affect
the requester’s legal rights of judicial
review under the FOIA. The Board will
continue to process the request as
quickly as possible and will send out the
determination in the usual manner.
To faciliate the processing of requests
for information, provisions have been
added regarding the contents of
requests, the treatment of defective
requests, and oral requests, § 261.9(a),
the priority of responses to requests and
the referral of requests to other
agencies, § 261..9(b), and the
consequences of failure to comply with
applicable time limits, § 261.9(e).
Section 261.10 provides for the
schedule of fees and the procedures for
requesting a waiver of the fees. This
section has been previously published
for comment and is expected to go into
final effect in late April 1987. Prior to
publication of final rules pursuant to this
notice, it will be designated § 261.8 of
the Board's current Rules Regarding
Availability of Information. It is
proposed herein that the section will be
renumbered as § 261.10 in this proposed
revision of the Rules. The fees are
required to reflect the Board’s direct
costs of search, duplication and review.
These fees are set forth in Appendix A.
Under the Freedom of Information
Reform A ct requesters are classified
into four different categories for fee
assessment purposes: commercial use
requesters; educational and
noncommercial scientific institutions;
representatives of the news media; and
all other requesters.
Commercial use requesters—A
commercial use request is defined as a
request from or on behalf of one who
seeks information for a use or purpose
that is related to commerce, trade or
profit as these phrases are commonly
known or have been interpreted by the
courts in the context of the FOIA. When
the Board receives a request for
documents appearing to be for
commercial use, fees will be assessed
for the total search time, review time,
and all duplication of the documents.
Requesters should note that the Board
may assess fees for the search for and
review of documents even if no
documents are ultimately released. If the
request for documents primarily serves
the commercial interest of the requester,
the Board may, but is not required to,
consider a request for waiver or
reduction of fees based on an assertion
that disclosure would be in the public
interest The procedures for requesting a
waiver of fees are set forth in
| 261.10(h).
Educational and noncommercial
scientific institution requesters—'An
“educational institution” is defined as
an accredited institution of higher
learning engaged in scholarly research.
A “noncommercial scientific institution"
is defined as an independent non-profit
institution whose purpose is to conduct
scientific research. The Board will
provide documents to requesters in this
category for the cost of duplication only,
excluding charges for the first 100 pages.
To be eligible for this reduction in fees,
(3)
the requester must show that the request
is being made under the auspices of a
qualifying institution and that the
records are not sought for a commercial
use, but are in furtherance of scholarly
or scientific research. To be eligible for
free search time, the requester must
reasonably describe the records sought
Representatives of the news media—
This term is defined as any
representative of established news
media outlets, i.e., any organization such
as a television or radio station, or a
newspaper or magazine of general
circulation, or a person working for an
organization which regularly publishes
information for dissemination to the
general public whether electronically or
in print. "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
not actually employed by it. The Board
will provide documents to requesters in
this category for the cost of duplication
only, excluding charges for the first 100
pages. To be eligible for free search
time, the requester must reasonably
describe the records sought
All other requesters—The Board will
assess fees for search and duplication to
all requesters who do not fit in the
above categories, except that the first
100 pages of duplication and the first
two hours of search time will be
furnished without charge.
To prevent abuse of the provision
granting 100 pages of duplication and
two hours of search time free of charge,
this rule includes the section of the
proposed OMB guidelines permitting
aggregation of requests that are
reasonably believed to have been
broken down to evade fees.
Section 261.10(g) provides that the
Board may require advance payment of
fees if the total fees are estimated to
exceed $250, or where a requester has
previously failed to make timely
payment of fees due. This subpart also
includes the section of the proposed
OMB guidelines permitting interest to be
charged on fees over 30 days past due at
the rate prescribed in 31 U.S.C. 3717 for
an outstanding debt on a U.S.
Government claim. This rate is set
annually by the Secretary of the
Treasury equal to the average 12-month
investment rate on Treasury tax and
loan accounts.
C. Subpart C—Confidential Information
Made Available to Supervised
Institutions, Bank Supervisory Agencies,
Law Enforcement Agencies, and Others
This Subpart sets forth the
circumstances and conditions under
Federal Register / Vol. 52, No. 78 / Thursday, April 23, 1987 / Proposed Rules
which confidential information may be
made available to federal and state
agencies and to others. The procedures
in this Subpart address the Board’s
general authority over its records under
the Federal Reserve Act, but these
procedures are without prejudice to the
right of any person to invoke the FOIA
procedures set out in Subpart B.
Section 261.11 generally provides that
reports of examination and inspection
and confidential supervisory
information may be disclosed to federal
and state financial institutions
supervisory agencies, such as the
Comptroller of the Currency, the Federal
Deposit Insurance Corporation, the
Federal Home Loan Bank Board, and the
various state banking departments and
commissions.
Section 261.11(b) provides that the
Board may determine that reports of
examination or inspection may be
disclosed by designated members of the
staff on a routine basis for purposes
determined by the Board. For example,
disclosures by the Director of the
Divisions of Banking Supervision and
Regulation have been authorized to be
made of transfer agent reports of
examination pursuant to section 17(c)(3)
of the Securities and Exchange Act (12
CFR 265.2(c) (25)), of information
acquired pursuant to Parts 207, 220, 221,
and 224 of Title 12, Code of Federal
Regulations (12 CFR 265.2(c)(20)}, and of
certain information regarding possible
violations of law pursuant to section
3004(b) of the Employee Retirement
Income Security Act (12 CFR
265.2(c)(31)).
Section 261.11(c) authorizes the
Director of the Board’s Division of
Banking Supervision and Regulation to
provide copies of the Board’s reports of
examination and inspection to the
Comptroller of the Currency, the Federal
Deposit Insurance Corporation and the
Federal Home Loan Bank Board. The
addition of the Federal Home Loan Bank
Board has been made as a consequence
of the greater frequency of cross
industry acquisitions and the resulting
need for exchange of information among
supervisory agencies.
Section 261.11(d)(1) authorizes the
Director of the Board’s Division of
Banking Supervision and Regulation and
the Federal Reserve Banks to provide
reports of examination and other
appropriate information concerning
state member banks and bank holding
companies to state financial institutions
supervisory authorities having general
supervisory authority over such state
member banks and bank holding
companies.
Section 261.11(d)(2) authorizes the
Director of the Board's Division of
Banking Supervision and Regulation or
the Federal Reserve Banks to provide
reports of examination and reports of
inspection of banks, companies, or their
affiliates or subsidiaries to state
financial institutions supervisory
authorities which do not have general
supervisory authority over such banks,
companies, or their affiliates or
subsidiaries under certain
circumstances. Under the Board's
current regulation, such a release may
be made only upon the Board’s
approval. The new regulation would
permit such release where the reports
and other information concern banks,
companies, or their subsidiaries or
affiliates which are not subject to the
general supervisory authority of the
requesting state agency, provided that
the examined institutions have applied
to acquire or have acquired financial
institutions which are subject to the
general supervisory authority of the
requesting state agency. The amendment
would facilitate review by state
financial institutions supervisory
authorities of applications by out-ofstate financial organizations to acquire
financial institutions subject to the
general supervision of the requesting
state agency, and also facilitate the
continual supervision of such financial
institutions by state financial
institutions supervisory authorities. The
amendment confirms procedures
adopted last year by die Board and the
Federal Financial Institutions
Examination Council.
Section 261.11(f) sets forth the
conditions under which another bank
supervisory authority may inspect &
Confidential Report of Condition of a
foreign banking organization.
Section 261.12 sets forth the
procedures for making confidential
documents or information of the Board
available to law enforcement agencies
for use where necessary in the
performance of official duties. This
section expands the authority of the
General Counsel, under delegated
authority, to provide confidential
information to law enforcement
agencies. The current rule, S 261.6(b)(1),
only permits the General Counsel to
release confidential information to
agencies of the United States for use
where necessary in the performance of
their official duties, and prohibits
disclosure of the information by that
agency to any other person.
The proposed rule would give the
General Counsel delegated authority to
release, upon request confidential
Board information, including but not
limited to reports of examination and
inspection, to federal and state law
enforcement agencies and properly
(
4
)
13461
accredited foreign law enforcement
agencies under certain circumstances.
The law enforcement agency must show
that the information is needed in
connection with a formal investigation
or other official duties of that agency,
and must give satisfactory assurances of
confidentiality.
This change is proposed to increase
the speed and efficiency of the Board's
response to legitimate law enforcement
agency requests, by defining the
standards and procedures that govern
such requests, and to include other than
federal agencies in the class of agencies
that are eligible to request information.
The Board has had some experience
with requests from state law
enforcement agencies and deems it
appropriate to delegate the authority to
respond to these requests to the General
Counsel. In determining whether to
release the documents to the law
enforcement agency, the General
Counsel will consider the law
enforcement purpose of the request for
documents and their availability
elsewhere (such as from the institution
at issue in the investigation). The
General Counsel will require a
commitment not to disclose the
information to any other entity without
the prior written permission of the Board
or its General Counsel, and may also
impose whatever additional conditions
deemed necessary to protect the
confidentiality of the information or to
insure compliance with applicable laws
or regulations. In the case of federal and
state grand juries, criminal trial and
administrative subpoenas, the General
Counsel will review the subpoenas and
may approve release of information
pursuant to the subpoenas with
appropriate limitations to protect the
confidentiality of the information
released.
Section 261.13 provides that the
General Counsel may act on requests for
access to confidential information that
relate to private civil litigation, and also
addresses the release of confidential
supervisory information by an examined
institution to appropriate agents of that
institution.
A person seeking confidential
information of the Board (including, but
not limited to, reports of examination or
inspection) for use in private civil
litigation must exhaust all
administrative remedies for access to
the information prior to obtaining a
subpoena for the documents. This
section sets forth the administrative
procedure for requesting access to such
information in such circumstances.
Accordingly, the person should request
access to confidential information from
13462_________ Federal Register / Vol. 52, No. 78 / Thursday, April 23, 1987 / Proposed Rules
the General Counsel at least 45 days
prior to the time access is desired. The
Board has delegated to the General
Counsel the authority to act on such
requests. As a general matter, however,
the Board believes that litigants should
address their discovery requests
primarily to records of the examined
institution rather than to confidential
records of the Board. Accordingly,
§ 261.13(b)(2) requires the General
Counsel to find compelling
circumstances before approving any
such requests.
It is the Board’s long-standing policy
that reports of examination and
materials derived therefrom are
confidential and privileged and should
not be discovered except in the most
compelling circumstances. Reports of
examination are used by the Board as
an aid in carrying out its important
responsibility to maintain the safety and
soundness of the banking system by
detecting and correcting unsafe
practices and violations of law. The
confidentiality of such reports is crucial
to the effectiveness of the examination
process. To the extent that bank officers
become reluctant to discuss their
institutions’ affairs with the Federal
Reserve’s examiners, the ability of the
Federal Reserve to detect violations of
law and other supervisory problems and
to correct such problems in a timely
manner would be impaired Similarly, it
is important that the Board’s examiners
be absolutely candid in their reports to
the Board. Nothing is more likely to chili
such candor than knowledge that
persons foreign to the examination
process may gain access to these
reports.
As a result, the Board believes that
litigants desiring access to confidential
information concerning the affairs of a
bank or bank holding company should
focus on discovery of the institution’s
own records rather than seeking:
discovery of the Board’s reports of
examination. On numerous occasions,
Congress and the courts have affirmed
the Board’s view that reports of
examination are confidential and
privileged. See, e.g., United States v.
Provident National Bank, 41 F.R.D. 209
(E.D. Pa. 1886); Gregory v. FDIC, 631
F.2d 898 (D.G Cir. 1080).
Under $ 261.13(d)(2) any financial
institution possessing a report of
examination or inspection provided to it
by its Federal Reserve Bank subsequent
to an examination may disclose the
report to its parent bank holding
company without prior permission of the
Board if the parent agrees in writing to
preserve the confidentiality of the
report.
Under § 261.13(d)(3) an examined
financial institution that has lawfully
obtained a report of its examination or
inspection may disclose, under certain
conditions, such reports or portions
thereof to appropriate agents of the
institution. The conditions under which
this information may be provided are
that (1) prior to such disclosure the
financial institution shall consult with
the appropriate Federal Reserve Bank
regarding the qualification of the agent
under this section; (2) the information is
necessary to the performance of
specifically identified responsibilities of
the agent; (3) the documents are
reviewed on the premises of the
examined institution; (4) prior to review,
the agent agrees in writing to preserve
the confidentiality of the reports and
any information contained in the
reports; and (5) the agent agrees in
writing not to disclose any confidential
Board information, including for
purposes of any trial, without first
obtaining approval of the Board’s
General Counsel.
It should be noted that repeals of
examination and inspection are not
substitutes for audit reports prepared by
independent certified public
accountants, and the Board’s examiners
do not generally follow audit procedures
in preparing the reports. Accordingly,
persons are cautioned not to rely on
these reports in lieu of a full ami
reasonable self-inspection or audit of
the financial institution’s own records.
Section 261.14 gives the procedures to
be followed when a person having
confidential Board documents is served
with a subpoena, order or other Judicial
or administrative process requiring his.
personal attendance as witness or
production of the documents. The only
amendment to this provision is that it is
expanded to include administrative
subpoenas and orders as well as judicial
subpoenas and orders, and the change
from Secretary to General Counsel as
the person to be notified of .such service
of process.
D. Subpaxt D—Requests for Confidential
Treatment
Subpart O is a new section in the
Rules Regarding Availability of
Information. It provides procedures fora
person submitting information or
documents to the Board (“submitter") to
request confidential treatment for all or
part of those documents.
Under 9 261.16 s submitter desiring
confidential treatment for documents at
information being submitted must
request confidentiality at the time they
are submitted. This request for
confidential treatment must give a legal
basis, with supporting facts and
(5)
arguments, for providing confidentiality.
The submitter must also separate
material for which confidentiality is
being requested from other material and
clearly mark it “Confidential.”
The Board will consider any requests
for confidentiality at such time as a
request for access to those documents
are made. The Board (or Reserve Bank
or its staff) may also act on the request
for confidentiality prior to any request
for access. It is current practice for
Reserve Banks to review applications
under the Bank Holding Company at the
time they are received to separate those
parts that will be accorded confidential
treatment from the publicly available
portion of the application.
Section 261.17 sets forth special
procedures for handling requests for
confidentiality under subsection (b)(4) of
FOIA (5 U.S.C. 552(b)(4)), for material
believed to contain "trade secrets and
commercial or financial information
obtained from a person privileged and
confidential.” Under this section, when
a request is filed for information for
which the submitter has requested (b)(4)
protection, the Board may notify the
submitter of the request for access,
except in the situation specified in
§ 261.17(d). At the same time the Board
will notify the requester that the request
is subject to the provisions of this
section. The submitter will have up to
ten working days in which to file written
objections to the disclosure of the
requested information. Any such
objections filed will be considered by
the Secretary when making the
determination regarding disclosure of
the information. The Secretary's
determination will be communicated to
both die requester and submitter on the
date the determination is made. If the
determination is to release the
information, and the submitter had filed
objections to such disclosure, the actual
release of the documents will be
delayed for up to ten additional working
days after the date of such
determination. Should the submitter of
such information sue to restrain
disclosure, or a requester whose request
has been denied should sue to compel
disclosure, the Secretary will promptly
notify the other party of the lawsuit
Regulatory Flexibility Act Analysis
Pursuant to section 605(b) of the
Regulatory Flexibility Act (Pub. L No.
96-354,5 U.S.C. 601 et seq.j, the Board
certifies that the proposed amendment
will not have a significant economic
impact on a substantial number of small
entities. The proposed amendment is a
change to agency procedures and
Federal Register / Vol. 52, No. 78 / Thursday, April 23, 1987 / Proposed Rules
practice and does not have a particular
effect on small entities.
List of Subjects in 12 CFR Part 261
Freedom of Information Act, Federal
Reserve System.
For the reasons set out in this notice,
and pursuant to the Board’s authority
under section 9 of the Federal Reserve
Act (12 U.S.C. 321 et seq.) and under
section 5 of the Bank Holding Company
(12 U.S.C. 1844) to exercise general
supervision of and to examine state
member banks and bank holding
companies, and section ll(k) of the
Federal Reserve Act (12 U.S.C. 248{k}) to
delegate functions to members and
employees of the Board and to the
Reserve Banks, the Board proposes to
revise its Rules Regarding Availability
of Information, 12 CFR Part 261, as
follows:
PA R T 261— RULES REGARDING
A V A ILA BILITY OF INFORM ATION
Subpart A—General Provisions
Sec.
261.1 Authority, purpose, and scope.
261.2 Definitions.
261.3 Custodian of records; certification;
service; alternative authority.
Subpart B—Published Inform ation and
Records Available to Public; Procedures for
Requests
261.5 Published information.
261.6 Records available to public upon
request
261.7 Deferred availability of certain
information.
261.8 Exemptions from disclosure.
261.9 Procedures for making requests for
identifiable records; processing of.
requests; appellate review of denial of
request; time extensions.
261.10 Fee schedules; waiver of fees.
Subpart C— Confidential inform ation M ad *
Available to Supervised Institutions,
: .
Financial Institution Supervisory Agencies,
Lew enforcement Agencies, end Others In
Certain Circumstances
Authority; 5 U.S.C. 552.12 U.S.C. 248(k),
321, and 1844.
Subpart A—General Provisions
§ 261.1 Authority, purpose, and scope.
(a) Authority. This Part is issued by
the Board of Governors of the Federal
Reserve System (the "Board”) pursuant
to 12 U.S.C. 248(i) and (k) and 5 U.S.C.
552.
(b) Purpose. This Part sets forth the
kinds of information made available to
the public and the rules of procedure for
obtaining documents and records as
well as the rules of procedure with
respect to confidential information.
(c) Scope. (1) Subpart A contains
general provisions and definitions of
terms used in this regulation.
(2) Subpart B implements the Freedom
of Information Act (5 U.S.C. 552) and
explains:
(i) The kinds of information the Board
regularly publishes;
(ii) The types of records made
available to the public upon request;
(iii) The kinds of information exempt
horn disclosure or subject to deferred
availability; and
(iv) The procedures for obtaining
information and for processing
information requests.
(3) Subpart C sets forth:
(i) The kinds of confidential
information made available to .
supervised institutions, supervisory
agencies, law enforcement agencies; and
others in certain circumstances;
(ii) The procedures for disclosure;
(iii) The procedures for processing law
enforcement requests; and
(iv) The procedures with respect to
subpoenas, orders compelling
production, and other process*
(4) Subpart D contains the procedures
relating to requests for confidential
treatment of documents and
information. '
§2611
CMMUoam
261.11 Confidential information made
For purposee o f this regulations
available to supervised institutions and:,; (a) “Board's official files” means the financial institutions supervisory
Board’s central records.
agencies.
(b) “Confidential supervisory
261.12 Confidential information made
information” means cease and desist
available to law enforcement agencies
and other nonfinahefal institutions
supervisory agencies.
261.13 Other disclosure of confidential
information.
261.14 Subpoenas, orders compelling
production, and other process.
Subpart D— Requests fo r Confidential
Treatm ent
261.15 Scope of subpart.
261.16 Submission and form of request for
confidential treatment; action on request
261 17 Confidential commercial or financial
information.
orders, suspension or removal orders, or
other orders or actions under the
Financial Institutions Supervisory Act of
1966, the Bank Holding Company Act of
1956, as amended, or the Federal
Reserve Act of 1913, as amended, and
reports of examination and inspection,
and confidential operating and condition
reports and any information derived
from, related to, or contained therein.
“Confidential supervisory information”
may consist of documents prepared by,
on behalf of, or for the use of the Board,
(6 )
13463
a Reserve Bank, a Federal or state
financial institutions supervisory
agency, or a bank or bank holding
company.
(c) “Information of the Board” means
all information coming into the
possession of the Board, any Board
member, any Federal Reserve Bank, or
any officer, employee, or agent of the
Board or of any Federal Reserve Bank,
in the performance of functions for or on
behalf of the Board, including functions
delegated by the Board pursuant to Part
265 of this Chapter.
(d) (1) "Records of the Board” includes
applications, rules, statements, opinions,
orders, memoranda, letters, reports,
accounts, and other written material, as
well as magnetic tapes, computer
printouts of information obtained
through use of existing computer
programs, maps, photographs, and other
materials in nonwritten or machine
readable form that contains information
of the Board and that:
(1) Constitute part of the Board’s
official files; or
(ii) Are maintained for administrative
reasons in the regular course of business
in official files in any division or office
of the Board or any Federal Reserve
Bank in connection with the transaction
of any official business.
(2) “Records of the Board” does not
include: .
(i) Handwritten notes; personal files
of Board members and employees;
tangible exhibits, formulas, designs, or
other items of valuable intellectual
property; extra copies of documents and
library and museum materials kept
solely for reference or exhibition
purposes; unaltered publications
otherwise available to the public in
Board publications, libraries, or
established distribution systems;
- (ii) Documents, including lists, and
other material not in existence or in the
Board's possession or control on the
date a request for records is received;
(iii) Documents no longer in the
possession of the Board which have
been disposed of in accordance with
law;
(iv) Copies of transcripts provided to
the Board under any reporting service
contract and that may be obtained
directly from the contractor,
(v) Documents of other agencies made
available to the Board on a confidential
basis by such agencies;
(vi) Documents that are not the
property of the Board and which have
been made available to the Board on a
temporary or otherwise limited basis
with its consent
(e) “Report of examination" means the
report prepared by the Board concerning
13464
Federal Register / Vol. 52, No. 78 / Thursday, April 23, 1987 / Proposed Rules
its examination of a state member bank
of the Federal Reserve System, and
includes reports of inspection of bank
holding companies, U.S. branch or
agency of a foreign bank, and other
institutions examined by the Federal
Reserve System. Such reports of
examination may be prepared either
solely by the Board or jointly by the
Board and an appropriate state bank
supervisory agency. "Reports of
examination” may include reports of
examination of other financial
institutions prepared and provided to
the Federal Reserve System by other
federal and state financial institution
supervisory agencies.
(f) "Report of inspection” means the
report prepared by the Board concerning
its inspection of a bank holding
company and its bank and nonbank
subsidiaries.
(g) (1) "Search” means a reasonable
search of the Board’s official files and
any other files containing Board records
as seem reasonable likely in the
particular circumstances to contain
documents of the kind requested.
Searches may be done manually or by
computer using existing programming.
For purposes of computing fees under
§ 261.10 of this regulation, 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:
(i) Research;
(ii) Creation of any information or
data retrieval program or system;
(iii) Extensive modification of an
existing program or system;
(iv) Creation of any document, or any
other activity that involves creative
processes rather than simply retrieval of
existing documents.
§ 261.3 Custocflan records; certification;
service; aitomativ® authority.
(a) Custodian of records. Th©
Secretary of the Board is the official
custodian of all records of the Board,
including all records that are in the
possession or control of the Board, any
Federal Reserve Bank, or any employee
thereof.
(b) Certification of record. The
Secretary of the Board may certify the
authenticity of any record of the Board,
or of any copy of such record, for any
purpose, and for or before any duly
constituted federal or state court
tribunal, or agency.
(c) Service of subpoenas or other
process. Subpoenas or other judicial or
administrative process demanding
access to records of the Board shall be
addressed to and served upon the
Secretary of the Board at the Board’s
offices in Washington, DC 20551.
(d) Alternative authority. (1)
Secretary of the Board. Any action or
determination required or permitted by
this regulation to be done by the
Secretary of the Board may be done by
an Associate Secretary or other
responsible employee of the Board who
has been duly designated for this
purpose by the Secretary.
(2) General Counsel. Any action or
determination required or permitted by
this regulation to be done by the
General Counsel may, in the General
Counsel’s absence, be done by deputy or
associate general counsel or other
attorney of the Board’s Legal Division
who has been duly designated for this
purpose by the General Counsel.
(3) Director of Banking Supervision
and Regulation. Any action or
determination required or permitted by
this regulation to be done by the
Director of the Division of Banking
Supervision and Regulation may, in the
Director’s absence, be done by the
Deputy Director or other official of the
Division who has been duly designated
for this purpose by the Director.
Subpart B— Published Information and
Records Available T o Public;
Procedures for Requests
§ 261.5 PubSahed 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 which the Board’s
functions are channeled and
determined, including die nature and
requirements of procedures:
(3) Rules of procedure, descriptions of
forms available and the place at which
they may be obtained, and instructions
on the scope and contents of all papers,
reports, and examinations;
(4) Substantive rules of general
applicability, statements of general
policy, and interpretations of general
applicability;
(5$ Every
revision, c?
repeal of the foregoing;
(б ) General 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 formal public hearings
ordered by the Board;
(7)
(9) Notices identifying the Board's
systems of records, pursuant to 5 U.S.C.
552a;
(10) Notices of all Board meetings,
pursuant to 5 U.S.C. 552b; and
(11) 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—(1)
Annual report under Federal Reserve
Act. 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, an
economic review of the year, and
legislative recommendations to
Congress. The report includes:
(1) A complete record of the policy
actions taken by the Board and the
Federal Open Market Committee,
showing the votes taken and the
underlying reasons (12 U.S.C. 247a);
(ii) Material pertaining to
administering Board functions under the
Bank Holding Company Act of 1956 (12
U.S.C. 1843(c) and 1844(d));
(iii) Material pertaining to bank
mergers approved by the Board under
section 18(c) of the Federal Deposit
Insurance Act (12 U.S.C. 1828(c)(9)); and
(iv) Reports required by section 114 of
the TYuth in Lending Act (15 U.S.C.
1613); section 602 of the Change in Bank
Control Act (12 U.S.C. 1817(j)(14));
section 121 of the Securities and
Exchange Act (15 U.S.C. 78w(b)); section
707 of the Equal Credit Opportunity Act
(15 U.S.C 1691f); section 18 of the
Federal Trade Commission
Improvement Act (12 U.S.C. 57a(f)(5));
section 918 of the Electronic Funds
Transfer Act (15 U.S.C 1693p); section
805 of the Community Reinvestment Act
(12 U.S.C 2904); the Securities Act
Amendments of 1975 (15 U.S.C. 78w);
and section 3(h) of the International
Banking Act of 1978, Pub. L. 95-369.
(2) Reports under other Acts. The
Board also reports to Congress annually,
or at more frequent intervals, under
certain Acts of Congress, including but
not limited to the Freedom of
Information Act (5 U.S.C. 552(d)); the
Government in the Sunshine Act (5
U.S.C. 552b(i)); and the Full Employment
and Balanced Growth Act of 1978 (12
U.S.C. 225a), concerning the
administration of its functions under
each of these acts.
(c) Federal Reserve Bulletin—(1)
Contents. In the Federal Reserve
Bulletin, which is issued monthly, the
Board publishes:
(i) Economic and statistical
information;
Federal Register / Vol. 52, No. 78 / Thursday, April 23, 1987 / Proposed Rules
(ii) Articles on subjects of economic
interest or relating to Board activities;
(iii) Regulations;
(iv) Statements of general policy;
(v) Interpretations of laws and
regulations of general interest to the
public;
(vi) Notices of Board action on certain
types of applications; and
(vii) Board orders and accompanying
statements on certain types of
adjudications.
(2)
A dvan ced release o f information.
Some material published in the Bulletin
is released in advance of publication,
including certain regulations,
interpretations, orders and opinions, and
the Board’s index of industrial
production and other statistical series.
(d) Other published information—(1)
Statements of financial condition. As
required by section 11(a) of the Federal
Reserve Act (12 U.S.C. 248(a)), the Board
issues weekly a statement showing the
condition of each Federal Reserve Bank
and a consolidated statement of the
condition of all Federal Reserve Banks.
(2) Index o f applications. The Board
also issues weeidy an index of the
applications received and the actions
taken on such applications, as well as
other matters issued, adopted, or
promulgated by the Board.
(3) Statement of changes in bank
structure. In addition, the Board issues
weekly a statement showing changes in
the structure of the banking industry
resulting from mergers and the
establishment of branches.
(4) 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. Current
press releases may be obtained from the
Board’s Publications Services Section.
(5) Computer tapes. The Board
periodically prepares data of various
kinds on computer tapes, which are
available to the public upon request
pursuant to a current schedule of
changes.
(6) Regulatory Service. The Board
published The Federal Reserve
Regulatory Service, which is a
multivolume looseleaf service
containing statutes, regulations,
interpretations, rulings, staff opinions,
and procedural rules under which the
Board operates. Parts of the Service are
also published as separate looseleaf
handbooks relating to Consumer and
Community Affairs, Monetary Policy
and Reserve Requirements, and
Securities Credit Transactions. The
Service and each handbook contain
subject and citation indexes, are
13465
updated monthly, and may be
orders and opinions issued pursuant to
authority delegated by the Board;
subscribed to on a yearly basis.
(7) Lists o f B oard publications. The
(2) Interpretations and statements of
Board’s Publications Services Section
policy adopted by the Board that are not
maintains a list of Board publications
published in the Federal Register;
that are available to the public. In
(3) Records of the final votes of Board
addition, a partial list of important
members;
publications is published in the Federal
(4) Administrative staff manuals and
R eserve Bulletin.
instructions to staff that affect the
(e) Indexes to Board actions. (1) The
public; and
Board’s Freedom of Information Office
(5) Other records subject to disclosure
maintains an index to Board actions
pursuant to 5 U.S.C. 552.
which provides identifying information
(b) Exceptions and lim itations — (1)
about any matters issued, adopted, and C onfidentiality. The Board may delete
promulgated by the Board since July 4,
identifying details from any record to
1967. The index is updated weekly and
a clearly unwarranted invasion
is available to the public on microform. prevent
of
personal
privacy or to protect
Copies of the index may be obtained
privileged
or
confidential commercial or
upon request to the Secretary of the
financial
information.
The Board shall
Board subject to the current schedule of state in writing the reason
for the
changes, as described in § 261.10 of this deletion.
regulation.
Deferred availability. Availability
(2) In addition, the Board publishes a of (2)
information
in any record may be
weekly index, as described in paragraph postponed, as provided
in § 261.7 of this
(d)(2) of this section, which provides
regulation.
identifying information on a current
(3) Exempt records; discretionary
basis about matters issued, adopted,
release.
Some records are exempt from
and promulgated by the Board. The
disclosure
under 5 U.S.C. 552(b), as
weekly index is available from the
described
in
§ 281.8 of this regulation.
Publications Services Section on a
However, except where disclosure is
subscription or a single issue basis
expressly prohibited by an applicable
pursuant to a current schedule of
statute, regulations, or order, the Board
charges. Back issues of this index are
may
release records that are exempt
available from the Secretary of the
from
mandatory disclosure whenever
Board subject to the schedule of
the
Board
or designated Board members,
charges, described in ft 261.10 of this
the
Secretary
of the Board, the General
regulation,
Counsel
of
the
Board, the Director of the
(f) Obtaining Board publications. All
Division
of
Banking
Supervision and
publications issued by the Board may be Regulation, or the appropriate
obtained from the Publications Services Reserve Bank, acting pursuant Federal
to this
Section of the Federal Reserve Board,
part
or
Part
285
of
this
Title,
determines
20th Street and Constitution Ave., NW„ that such disclosure would be in the
Washington, DC 20551 (pedestrian
interest In no event shall the
entrance is on C Street NW.), including: public
release
of information that has been
(1) Current and available back issues requested
for commercial solicitation
of the Board's Annual Report to
purposes
be
considered to be in the
Congress (copies of the Board's Annual public interest
unless such release is
Report to Congress are also normally
specifically
authorized
by the persons
available for examination at each
named
in
the
records
to
be released.
Federal Reserve Bank);
Nonexempt information. Although
(2) Single, current and available back the(4)Board
may deny access to portions
issues of the Federal Reserve Bulletin
of a record, it will release reasonably
which may be obtained at the
segregable nonexempt portions.
prescribed rates (any individual or
(5) Requests for applications and
group may subscribe annually to the
reports.
The Board preliminarily
Bulletin at the prescribed rate).
identifies public portions of most
applications and reports filed in
{ M I jO nscords svaishls to pqbWc upon
connection with its supervision of
(a) Types o f records made available. financial institutions. The public
portions contain information that may
Subject to the provisions of this
regulation, the following records shall be be released without further review. The
Board will consider each request for
made available for inspection and
copying upon request unless they were these applications and reports to be a
publish promptly and made available for request for the public portions only,
unless the requester specifically seeks
sale or without charge:
(1) Orders made in the adjudication of access to the entire document.
(6) Disposal of records. Nothing in this
cases and final opinions, including
concurring and dissenting opinions, and regulation precludes the Board from
(8 )
13466
Federal Register / Vol. 52, No. 78 / Thursday, April 23, 1987 / Proposed Rules
disposing of records eligible for disposal
in the normal course of business and in
accordance with applicable law.
(c) How to obtain access to records.
Records of the Board subject to this
section are available for inspection and
copying, in response to requests for
identifiable records pursuant to § 261.9
of this regulation, from 9:00 a.m. to 5:00
p.m. weekdays, at the Office of the
Board of Governors of the Federal
Reserve System, 20th Street and
Constitution Avenue, NW., Washington,
DC 20551 (the pedestrian entrance is on
C Street, NW.). Indexes of Board actions
and copies of selected Board records are
available in the Freedom of Information
Office for immediate inspection without
a request or other prior arrangements.
(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.
(3) The publicly available portions of
Reports of Condition and Income of
individual banks, as well as 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) 487-4050.
§ 261.7 Deferred availability of certain
information.
(a) Information subject to deferred
availability. Certain types of
(6) Impair the ability to negotiate any
contract or otherwise harm the
commercial or financial interests of the
United States, the Board, any Federal
Reserve Bank, or any department or
agency of the United States.
§ 261.6 Exemptions from disclosure.
(a) Types of information or records
that are exempt from disclosure. The
following records and information of the
Board are exempt from disclosure under
this regulation:
(1) National defense. Any information
or record that is:
(1) Specifically authorized under
criteria established by an Executive
order to be kept secret in the interest of
national defense or foreign policy and is
in fact properly classified pursuant to
such Executive order; or
(2) Examination, inspection,
operating, or condition reports, and
confidential; supervisory information.
(i) Any matter that is contained in or
related to examination, inspection,
operating, or condition reports or
confidential supervisory information
prepared by, on behalf of, or for the use
of the Board, any Federal Reserve Bank,
or any federal or state financial
institution supervisory agency that
deems such documents or information
confidential.
(ii) The Board may, however,
determine that certain kinds of
operating or condition reports may, for
reasons of policy, be routinely disclosed
to the public upon request. In case, no
special authorization shall be required
for disclosure of the reports by members
of the Board’s staff; and there shall be
no limitation on the use of the reports by
members of the public receiving them.
(3) Trade secrets; commerical or
information may not be published in the
Federal Register or made available for
inspection and copying until after a
period of time the Board determines to
financial information.
be reasonably necessary to avoid the
(i) Any matter that is a trade secret or
effects described in paragraph (b) of this that
constitutes commercial or financial
section.
(b) Reasons for deferred availability. information obtained from a person and
that is privileged or confidential.
Information may be subject to deferred
(ii) The Board may; however, make
availability of deferred publication
any information furnished in confidence
because earlier disclosure would:
in connection with an application for
(1) Interfere with accomplishing the
objectives of the Board in the discharge Board approval of a transaction
available to the public in accordance
of its statutory functions;
(2) Interfere with the orderly conduct with $ 261.0 of this regulation, and
without prior notice and to the extent it
of the foreign affairs of the United
deems necessary, may comment on such,
States;
information in any opinion or statement
(3) Permit speculators or others to
issued to the public in connection with a
gain unfair profits or other unfair
Board action to which such information
advantages by speculative trading in
pertains.
securities or otherwise;
(4) Records or information compiled
(4) Result in unnecessary or
or law enforcement purposes. Any
unwarranted disturbances in the
records or information complied for law
securities markets;
enforcement purposes, to the extent
(5) Interfere with the orderly
execution of the objectives or policies of permitted under 5 U.S.C. 552b, including
information relating to proceedings for
other Government agencies; or
(9)
(i) Issuing cease-and-desist orders,
suspension or removal orders, or other
orders or actions under the Financial
Institutions Supervisory Act of 1966. the
Bank Holding Company Act of 1956. as
amended, or the Federal Reserve Act of
1913, as amended;
(ii) Terminating membership of an
institution in the Federal Reserve
System under section 9 of the Federal
Reserve Act (12 U.S.C. 327);
(iii) Suspending a depository
institution from use of the credit
facilities of the Federal Reserve System
under section 4 of the Federal Reserve
Act (12 U.S.C. 301); or
(iv) Granting or revoking any
approval, permission, or authority,
except to the extent provided in this Part
and Part 262 of this chapter concerning
bank holding company and bank merger
applications.
(5) Internal personnel rules and
practices. Any information related
solely to the internal personnel rules
and practices of the Board, within the
meaning of 5 U.S.C. 552(b)(2).
(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) Inter- or intra-agency
memorandums of letters. Any matter
contained in inter- or intra-agency
memorandums or letters that would not
be routinely 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.
(8) Court order prohibitions. Any
document or information that is covered
by an order of a court of competent
jurisdiction that prohibits its disclosure.
(9) Statutory Exemption. 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.
(b) Segregation of nonexempt
information. (1) The Board shall provide
any reasonably segregable portion of a
recording to any person requesting such
Federal Register / Vol. 52, No. 78 / Thursday, April 23, 1987 / Proposed Rules
13467
record after deleting those portions that §261.9 Procedures for making requests
(b) Procedures for responding to
for identifiable records; processing of
are exempt under this section. In
requests
—(1) Time limits. In response to
requests; appellate review of denial of
any
request
that satisfies paragraph (a)
determining whether exempt
request; time extensions.
of this section, the Board shall, if
information is reasonably segregable,
(a) Procedures for making request for necessary, cause an appropriate search
the Board shall consider all relevant
records. (1) Contents o f request. A
to be conducted of records of the Board
factors, including but not limited to:
request for identifiable records shall
in existence on the date of receipt of the
(1) The amount and placement of
describe the records to
request, and shall detemine within ten
nonexempt information in relation to the reasonably
access is sought in a way that
working days of receipt of the request
structure and size of the document; and which
enables the Board’s staff to identify and whether to comply with the request,
(ii) The intelligibility and usefulness ofproduce
the records with reasonable
unless the running of such time is tolled
the nonexempt information that is
effort
and
without unduly burdening or for payment for fees pursuant to § 261.10
segregated balanced against the
disrupting any of the Board’s operations. of this regulation, or such period is
administrative burden and cost of
The request shall be submitted in
extended, pursuant to paragraph (e) of
segregation.
writing to the Secretary of the Board,
this section or Subpart D of this
(2) Subject to these considerations,
and the envelope clearly marked
regulation. The date of receipt for a
reasonably segregable nonexempt
“Freedom of Information Act R equest’’ request that is addressed incorrectly or
portions of a document are those
The request shall contain the following
that is referred to the Board by another
nonexempt portions:
information:
agency or by a Federal Reserve Bank
(1) The name and address of the
(i) Whose meaning is not distorted by
will be the date the Office of the
person filing the request and the
deletion;
Secretary actually receives it.
(2) Response to request The Board
(ii) That are sufficiently detailed to be telephone number at which the
requester can be reached during normal shall, within the time period specified in
intelligible and useful to the requester;
business hours;
paragraph (b)(1) of this section, notify
and
(ii) The name of any pending litigation the requester of:
(iii) From which a skillful and
to which the request relates, the court
(i) The Board’s determination of the
knowledgeable person could not
and its location;
request;
reconstruct any exempt information.
(iii) Whether the requested
(ii) The reasons for the determination;
(3) Information stored on computer
information
is
intended
for
commercial
(iii) The right of the requester to
tape that can be segregated only by
use, and whether the requester is an
appeal to the Board any denial or partial
creating a new retrieval program is not
educational or noncommercial scientific denial, as specified in paragraph (d) of
considered reasonably segregable.
institution, or news media
this section; and
(c) Prohibition against disclosure.
representative; and
(iv) In the case of a denial of a
Except as provided in this regulation, no
(iv) A statement agreeing to pay the
request the name and title or position of
officer, employee, or agent of the Board applicable fees; or a statement
the person responsible for the denial
or any Federal Reserve Bank shall
identifying any fee limitation desired; or
(3) Refusal to acknowledge records. If
disclose or permit the disclosure of any a request for a waiver or reduction of
a
request
covers records or types of
unpublished information of the Board to fees that satisfies § 281.10 of this
records
whose
existence is confidential,
any person (other than Board or Reserve regulation.
such as records of enforcement actions
Bank officers, employees, or agents
(2) Defective requests, (i) The Board
against identifiable financial
properly entitled to such information for need not accept or process a request
institutions, the Board may advise the
the performance of official duties),
that is not a request for identifiable
requester that it can neither confirm nor
whether by giving out or furnishing the
records or that
deny the existence of the requested
information or a copy of it or by
(A) Can be complied with only by
records and notify the requester of the
allowing any person to inspect or copy
designing an information retrieval
legal basis for that determination.
it, or otherwise.
system; or
(4) Priority of responses. The
(d) Foreign banking organization
Secretary will assign responsible staff to
(B) Does not otherwise comply with
confidential report of operations. It is
the requirements of paragraph (a) of this particular requests and will normally
the Board's policy that the
process requests in the order they are
section.
confidentiality of a foreign banking
(ii) The Board may return a defective received. However, in the Secretary’s
organization’s Confidential Report of
discretion, or upon a court order in a
request specifying the dificiency. The
Operations (Form F.R. 2068) should be
matter to which the Board is a party, a
requester may submit a corrected
maintained at all times. Except as
request which shall be treated as a new particular request may be processed out
provided in § 261.11(e) of this regulation, request
of turn.
information submitted to the Board as
(5) Referrals. To the extent a request
(3) Oral requests. The Board may
part of any Confidential Report of
honor an oral request for records, but if covers documents that were created by,
Operations is not available for public
obtained from, or classified by another
the requester is dissatisfied with the
agency, the Board may refer the request
inspection by any person other than an Board's response and wishes to seek
to that agency for a response and will
officer, employee, or agent of the Board review, the requester must submit a
inform the requester promptly of the
or a Federal Reserve Bank properly
written request which shall be treated
referral.
as an initial request
entitled to such information in the
(c) Procedures for copying and review
(4) Advance payment of fees.
performance of such person’s official
of records; number of copies; method of
duties. Any employee who violates this Whenever the Board requires advance
payment of any fee pursuant to S 261.10 duplication—(1) Request for copies.
section by releasing such a Report to
When a requester asks that documents
any unauthorized person may be subject of this regulation, the requester shall
be copied, copies shall be made at the
promptly remit the required advance
to disciplinary action under 12 CFR
fee established, as provided in § 261.10
payment to the Board as a condition to
264.735-5 (Rules of Employee
of this regulation. Copies shall be sent to
further processing of the request.
Responsibilities and Conduct).
(10)
13468
Federal Register / Vol. 52, No. 78 / Thursday, April 23, 1987 / Proposed Rules
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 Board’s Freedom
of Information Office in Washington,
DC., or makes other arrangements
acceptable to the Board.
(2) Number of copies; method of
duplication. The Board need not provide
more than one copy of any record to any
requester, and the Board may select the
form of the copy provided, such as
paper, microform, or other medium.
(3) Request to review documents.
Requesters may review documents at
the Board’s Freedom of Information
Office under staff supervision.
Requesters may not disassemble or alter
any record or file being inspected.
(d) Appeal of denial of request for
records—(1) Request for appellate
review; time limits. Any person denied
access to Board records requested in
accordance with this section may file
with the Board a written request for
appellate review of the denial by the
Board or Board member(s) designated to
hear such appeal. Such request shall be
filed within ten working days of the date
on which the denial was issued, or,
where a request for documents has been
partially approved but access to the
documents has not been given, within
ten working days from the date such
documents are transmitted to the
requester. The request shall prominently
display the word ‘‘Appeal” on the first
page. An initial request for records may
not be combined in the same letter with
an appeal.
(2) Untimely appeals. 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 or designated Board
members) determines, in its discretion
and for good and substantial cause
shown, that the appeal should be
considered.
(3) Decision on appeal; time limits.
The Board or designated Board
member(s) shall made a determination
with respect to any appeal within 20
working days of actual receipt of the
appeal by the Secretary and shall
immediately notify the appealing party
of the determination and the right to
seek judicial review if the determination
upholds, in whole or in part the denial
of the request for records. Such
determination is not subject to review
under § 265.3 of this chapter which
provides for review of actions taken
under delegated authority.
(4) Mootness of appeal, (i) The Board,
a Board member, or a staff person
designated by the Chairman may
declare an appeal wholly or partially
(and in the case of commercial
moot and instruct the Secretary of the
Board to reconsider the previous denial requesters, reviewing) documents to
respond to a request made under section
or to release the requested documents,
261.9 of this regulation. Direct cost3
where a determination is made that
intervening circumstances or additional include, for example, the salary of the
employee performing work (the basic
facts not known at the time of denial
have or may have eliminated any need
rate of pay for the employee plus a
or justification for withholding the
factor to cover benefits) and the cost of
requested documents.
operating duplicating machinery. Not
(ii) The Secretary of the Board may
included in direct costs are overhead
reconsider a denial being appealed if
expenses such as costs of space, and
such intervening circumstances or
heating or lighting the facility in which
additional facts come to the attention of the records are stored.
the Secretary while an appeal is
(2) "Duplication" refers to the process
pending.
of making a copy of a document
(e) Time extensions in unusual
necessary to respond to a request for
circumstances; failure to comply with
disclosure of records or for inspection of
time limits.—(1) Time extensions. In
original records that contain exempt
unusual circumstances, as defined in 5
material or that otherwise cannot be
U.S.C. 552(a)(6), the time limits specified inspected directly. Such copies may take
in paragraph (b)(1) and paragraph (d)(3) the form of paper copy, microform,
of this section may be extended for a
audio-visual materials, or machine
period of time not to exceed the time set readable documentation (e.g., magnetic
forth in 5 U.S.C. 552(b)(6) by written
tape or disk), among others.
notice to the requester setting forth the
(3) “Review” refers to the process of
reasons for the extension and the date
examining
located in
on which a determination is expected to response todocuments
a
commercial
use request to
be dispatched. The extension of time
determine
whether
any
portion
may be divided between the initial and document located is permitted toofbeany
appellate reviews but the total
withheld. It also includes processing any
extensions relating to any request and
documents for disclosure, e.g., doing all
resulting appeal may not exceed the
that is necessary to excise them and
period of time set forth in 5 U.S.C.
otherwise prepare them for release.
552(b)(6).
Review
not include time spent
(2) Failure to comply with time limits. resolvingdoes
general legal or policy issues
If the Board fails to comply with the
regarding the application of exemptions.
applicable time limits and extensions
(c) Commercial use. (1) The fees in the
specified in this section, the Board or
Schedule
of Fees for document search,
other responsible employee shall, where duplication,
and review apply when
practicable, give notice to the requester, records are requested
for commercial
stating the reasons for the delay and the use.
date by which the Board expects to
(2) "Commercial use request” refers to
dispatch its determination. Without
a
request
from or on behalf of one who
prejudice to the legal remedies provided seeks information
for a use or purpose
the requester in 5 U.S.C 552, the Board
that
is
related
to
commerce,
trade, or
shall continue processing the request as profit as these phrases are commonly
quickly as possible and shall dispatch
known or have been interpreted by the
its determination when reached in the
courts in the context of the Freedom of
same manner as if it had been reached
Information Act.
within the applicable time limits.
(3) In determining whether a requester
properly belongs in this category, the
$281.10 Fca schedules; w aiver o f fees.
Secretary shalliook first to the use to
(a) Fee schedules. Records of the
which a requester will put the
Board available for public inspection
documents requested. Where a
and copying are subject to a written
Schedule of Fees for search, review, and requester does not explain its purpose,
or where its explanation is insufficient,
duplication. (See Appendix A for
the Secretary may draw reasonable
Schedule of Fees.) The fees set forth in
inferences from the requester’s identity
the Schedule of Fees reflect the direct
costs of search, duplication, and review, and charge fees accordingly. For
example, the Secretary may presume
and may be adjusted from time to time
that a document request written on
by the Secretary to reflect changes in
corporate letterhead stationery that
direct costs.
merely recites a list of the documents
(b) Fees charged. The fees charged
wanted is for a commercial use.
only cover the direct costs of search,
(d) Educational research, or media
duplication, or review.
use. (1) Only the fees in the Schedule of
(1) “Direct costs” mean those
Fees for document duplication apply
expenditures which the Board actually
when records are not sought for
incurs in searching for and duplicating
(ID
Federal Register / Vol. 52, No. 78 / Thursday, April 23, 1987 / Proposed Rules
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. However, there is
no charge for the first one hundred
pages of duplication.
(2) “Educational institution” refers to
an accredited institution of higher
learning engaged in scholarly research.
(3) "Noncommercial scientific
institution” refers to an independent
nonprofit institution whose purpose is to
conduct scientific research.
(4) “Representative of the news
media” refers to any representative of
established news media outlets, i.e., any
organization such as a television or
radio station, or a newspaper or
magazine of general circulation, or
person working for such organization
which regularly publishes information
for dissemination to the general public
whether electronically or in print.
“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 not actually
employed by it
(e) O ther uses. For all other requests,
the fees in the Schedule of Fees for
document search and duplication apply.
However, there is no charge for the first
one hundred pages of duplication or the
first two hours of search time.
(f) A ggregated requests. If the
Secretary reasonably believes that a
requester or group of requesters is
attempting to break down a request into
a series of requests for the purpose of
evading the assessment of fees, the
Secretary may aggregate any such
request accordingly.
(g) P aym ent procedures — (1) Fee
paym ent. The Secretary may assume
that a person requesting records
pursuant to § 261.9 of this regulation will
pay the applicable fees, unless a request
includes a limitation on fees to a© paid
or seeks a waiver or reduction of fees
pursuant to paragraph (h) of this section.
(2) A dvan ce p a y m e n t (i) The
Secretary may require advance payment
of any fee estimated to exceed $250. Th@
Secretary may also require full payment
in advance where a requester has
previously failed to pay fees in a timely
fashion.
(ii) For purposes of computing the time
period for responding to requests under
i 261.9(b) of this regulation, the running
of the time period will begin only after
the Secretary receives the required
payment.
(3) L ate charges. The Secretary may
assess interest charges when fee
payment is not made within 30 days of
the date on which the billing was sent.
Interest will be at the rate prescribed in
section 3717 of Title 31 U.S.C.A. This
rate of interest is published by the
Secretary of the Treasury before
November 1 each year and is equal to
the average investment rate for Treasury
tax and loan accounts for the 12-month
period ending on September 30 of each
year. The rate is effective on the First
day of the next calendar quarter after
publication.
(h) Waiver or reduction of fees — (1)
Standards for determining waiver or
reduction. The Secretary or his or her
designee shall grant a waiver or
reduction of fees chargeable under
paragraph (b) of this section where it is
determined that disclosure of the
information is in the public interest
because it is likely to contribute
significantly to public understanding of
the operations or activities of the Board
and is not primarily in the commercial
interest of the requester. The Secretary
or his or her designee shall also waive
fees that are less than the average cost
of collecting fees. In determining
whether disclosure is in the public
interest, the following factors may be
considered:
(i) The relation of the records to the
operations or activities of the Board;
(ii) The informative value of the
information to be disclosed;
(iii) Any contribution to an
understanding of the subject by the
general public likely to result from
disclosure;
(iv) The significance of that
contribution to the public understanding
of the subject;
(v) The nature of the requester’!!
personal interest, if any, in the
disclosure requested; and
(vi) Whether the disclosure would be
primarily in the requester’s commercial
interest
(2) Contents of request for waiver.
The Secretary or his or her designee will
normally deny a request for a waiver of
fees that doss not include:
(i) A clear statement of the requester^
interest in the requested documents;
(ii) The use proposed for th@ ■
documents and whether the requester
will derive income or other benefit from
such use;
(iii) A statement of how the public will
benefit from such use and from the
Board’s release of the requested
documents; and
(iv) If specialised use of the
documents or information io
contemplated, a statement of the
requester's qualifications that are
relevant to the speciailized use.
(3) Burden of proof. In all cases the
burden shall be on the requester to
(12)
13469
present evidence or information in
support of a request for a waiver of fees.
(4) 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) are $50
or less; but the Secretary may waive
fees in excess of that amount.
(5) Fees for nonproductive search.
Fees for record searches and review
may be charged even if no responsive
documents are located or if the request
is denied, particularly if the requester
insists upon a search qfter being
informed that it is likely to be
nonproductive or that any records found
are likely to be exempt from disclosure.
The Secretary shall apply the standards
set out in paragraph (h) of this section in
determining whether to waive or
reduced fees.
Appendix A to § 281.1®=—Freedom of
Information Fee Schedule
Duplication
Photocopy, per standard page.................... $.08
Paper copies of microfiche, per frame........$.07
Duplicate microfiche, per microfiche.........$.10
Search and Review
Clerical (Grades FR4-FR7), hourly
rate....................................................... $8.50
Technical (Grades FR8-FR11), hourly
rate.—..................................................$12.80
Management/professional, hourly
rate......................................................$25.80
Computer Search and Production
For each request the Secretary will
separately determine the actual direct cost of
providing the service, including computer
search time, tape or printout production, and
operator salary.
Special Services
The Secretary of the Board 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, packaging and mailing
records, and sending records by special
methods such as express mail. The Secretary
may provide self-service photocopy machines
and microfiche printers as a convenience to
requesters and set separate per-page fees
reflecting the cost of operating and
maintenance of those machines.
Fee Waivera
For qualifying educational and
noncommercial scientific institution
requesters and representatives of the news
media, the Board will not assess fees for
review time, for the first ICOpages of
reproduction, or, when the records sought are
reasonably described, for search time. For
other noncommercial use requests no fees
will be assessed for review time, for the first
13470
Federal Register / Vol. 52, No. 78 / Thursday, April 23, 1987 / Proposed Rules
100 pages of reproduction, or for the first two offices and representatives, reports of
hours of search time. For requesters
examination and inspection,
qualifying for 100 free pages of reproduction, confidential supervisory information,
the fees for duplicate microfiche will be
and other appropriate information (such
prorated to eliminate the charge for 100
as confidential operating and condition
frames.
reports) relating to a bank, bank holding
The Board will waive in full fees that total company,
U.S. branch or agency of a
less than $4.
foreign bank, or other examined
The Secretary of the Board or his or her
designee will also waive or reduce fees, upon financial institution.
(d) Disclosure upon request to state
proper request, if disclosure of the
information is in the public interest because it financial institutions supervisory
is likely to contribute significantly to public
agencies. Upon request, the Director of
lending company of the foreign banking
organization, only for use where
necessary in the performance of official
duties.
(2) These reports shall be made
available for inspection by authorized
persons only on Federal Reserve
premises under the same procedures
applicable to personnel of the Federal
Reserve System.
(3) Any report made available under
this paragraph remains the property of
understanding of the operations or activities
the
Board’s
Division
of
Banking
the Board. No person, agency, or
of the Board and is not primarily in the
Supervision and Regulation or the
who obtains access to such
commercial interest of the requester. A fee
appropriate Federal Reserve Bank may authority
report, or any officer, director, or
reduction is available to employees, former
make
available
reports
of
examination
thereof, may publish,
employees, and applicants for employment
and inspection, confidential supervisory employee
who request records for use in prosecuting a
publicize,
or
otherwise disclose any
information, and other appropriate
grievance or complaint of discrimination
information
contained
in the report to
information (such as confidential
against the Board.
any
person.
operating and condition reports) relating
(g) Conditions and limitations. The
Subpart G=€@iJifid®ntSaS Inf@rmat8©in)
to a bank, bank holding company, U.S.
Board
may impose such conditions or
Mad® Available t@Supervised
branch or agency of a foreign bank, or
on disclosure under this
other examined institution (‘‘supervised limitations
institutions, Financial lnst!tuti©ni
section that it determines are necessary
institution”), to:
Supervisory Agencies, Law
to effect the purposes of this Regulation,
(1) A state financial institution
Enforcement Agencies, and Other© in
to insure compliance with applicable
supervisory agency having direct
Certain Circumstance©
laws or regulations, or to protect the
supervisory
authority
over
such
confidentiality of the Board’s
§ 20 1.11 Confidential Informatlon mad©
supervised
institution;
or
available to supervised Institutions and
information.
(2)
A
state
financial
institution
financial institutions supervisory sgoncfos.
supervisory agency not having direct
§ 201.12 Confidential information mad®
(a) Routine disclosure of reports of
supervisory authority over such
available t© law ’o x t i agencies and
examination and inspection and ■ *
supervised institution if the requesting
other nonfinancial institutions supervisory
confidential supervisory information to agency has entered into an information agencies.
supervised institutions. A copy of each sharing
agreement with the appropriate
(a) Disclosure upon request. Upon
report of examination or inspection or
Federal Reserve Bank and the
written
request, the Board may make
confidential supervisory information
information to be provided concerns a
available
to appropriate law
concerning a supervised bank, bank
supervised institution that has acquired enforcement
agencies and to other
holding company (including
or has applied to acquire a financial
institutions supervisory
subsidiaries), U.S. branch or agency of a institution subject to that agency’s direct nonfinancial
agencies
for
use
where necessary in the
foreign bank, or other institution
supervisory authority.
performance
of
official
duties, reports of
examined by the Federal Reserve
(e) Other disclosure prohibited. All
examination
and
inspection,
System may be made available by the
reports and information made available confidential supervisory information,
Board or the appropriate Federal
under this section remain the property of and other confidential documents and
Reserve Bank to the supervised
the Board, and except as otherwise
information of the Board concerning
institution. This report of examination or provided in this regulation, no person,
banks, bank holding companies and
inspection or confidential supervisory
agency, or authority to whom the
their subsidiaries, U.S. branches and
information is provided for the use of
information is make available, or any
agencies of foreign banks, and other
the directors, executive officers, and
officer, director, or employee thereof,
examined
institutions.
employees of the examined financial
may disclose such information except in
(b) Eligibility. Federal, state, and local
institution in connection with the
published statistical material that does
law enforcement agencies and other
performance of their duties,
not disclose, either directly or when
nonfinancial institutions supervisory
(b) Other routine disclosures. From
used in conjunction with publicly
may file written requests with
time to time, the Board may determine
available information, the affairs of any agencies
the Board for access to confidential
that reports of examination os’
individual or corporation.
inspection or confidential supervisory
(f) Foreign Bank Confidential Report documents and information under this
section of the regulation. Properly
information may be disclosed by
of Operations. (1) Notwithstanding any accredited
foreign law enforcement
designated members of the staff on a
other provision of this Regulation, any
Confidential Report of Operations (Form agencies and other foreign government
routine basis for purposes determined
agencies may also file written requests
F.R. 2C28) of a foreign banking
by the Board.
(c) Disclosure upon request to federal organization may, upon written request with the Board.
(c) Contend of request. To obtain
financial institutions supervisory
to and approval by the Director of the
access to confidential documents or
Disvision of Banking Supervision and
agencies. The Director of the Board’s
information under this section of the
Regulation (or the Director’s delegee),
Division of Banking Supervision and
and with the concurrence of the General regulation, the head of the law
Regulation or the appropriate Federal
Reserve Bank, upon request, may make Counsel (or delegee), be made available enforcement agency or nonfinancial
institution supervisory agency (or their
for inspection to another bank
available to the Comptroller of the
designees) shall address a letter request
Currency, the Federal Deposit Insurance supervisory authority having general
supervision of any United States branch, to the Board’s General Counsel,
Corporation, and the Federal Home
agency, subsidiary, bank, or commercial specifying:
Loan Bank Board and their regional
(13)
Federal Register / Vol. 52, No. 78 / Thursday, April 23, 1987 / Proposed Rules
(1) The particular information, kinds
of information, and where possible, the
particular documents to which access is
sought;
(2) The reasons why such information
cannot be obtained from the examined
institution in question rather than from
the Board;
(3) A statement of the law
enforcement purpose or other purpose
for which the information shall be used;
(4) Whether the requested disclosure
is permitted or restricted in any way by
applicable law or regulation;
(5) A commitment that the information
requested shall not be disclosed to any
person outside the agency without the
written permission of the Board or its
General Counsel; and
(8) If the document or information
requested includes customer account
information subject to the Right to
Financial Privacy A ct as amended (12
U.S.C. 3401), a statement that such
customer account information need not
be provided, or a statement as to why
the Act does not apply to the request, or
a certification that the requesting agency
has complied with the requirements of
the Act.
(d) Action on request (1) The General
Counsel shall review each request and
may approve the request upon
determining that:
(1) The request complies with this
section;
(ii) The information is needed in
connection with a formal investigation
or other official duties of the requesting
agency;
(iii) Satisfactory assurances of
confidentiality have been given; and
(iv) No law prohibits the requested
disclosure.
(2) The General Counsel may impose
any conditions or limitations on
disclosure that the General Counsel
determines to be necessary to effect the
purposes of this Part or to insure
compliance with applicable laws or
regulations.
(e) Routine disclosures. From time to
time the Board may determine that
reports of examination or inspection
may be disclosed by designated
members of the staff on a routine basis
for purposes determined by the Board.
(f) Federal and state grand jury,
criminal trial, and government
administrative subpoenas. The Board's
General Counsel shall review and may
approve the disclosure of confidential
information pursuant to federal and
state grand jury, criminal trial, and
government administrative subpoenas.
The General Counsel may impose such
conditions or limitations on disclosure
under this section that it determines are
necessary to effect the purposes of this
Part, to insure compliance with
applicable laws or regulations, or to
protect the confidentiality of the Board’s
information.
(g) Requests for testimony or
interviews. Government agencies
seeking to obtain testimony or
interviews from current and former
Federal Reserve System staff concerning
any confidential information of the
Board shall use the procedures set out in
paragraph (c) of this section.
(h) Other disclosure prohibited. All
reports and information made available
under this section remain the property of
the Board, and except as otherwise
provided in this regulation, no person,
agency, or authority to whom the
information is made available, or any
officer, director, or employee thereof,
may disclose any such information
except in published statistical material
that does not disclose, either directly or
when used in conjunction with publicly
available information, the affairs of any
individual or corporation.
§ 261.113 Other disclosure of confidential
Information.
(a) Policy statement It is the Board's
long-standing policy regarding its
reports of examination and inspection
and confidential supervisory
information that such information is
confidential and privileged and should
not be disclosed except in the most
compelling circumstances. Any party
desiring information concerning the
affairs of a bank or bank holding
company should seek that information
from the bank or bank holding company
rather than seek disclosure of the
Board’8 reports of examination and
inspection and confidential supervisory
information;
(b) Requests related to private
litigants. (1) Exhaustion of
administrative remedies. Any person
(except agencies identified in §S 261.11
and 261.12 of this regulation) desiring
access to confidential information of the
Board for use in litigation before a court
board, commission, or agency must file a
written request with the General
Counsel of the Board at least 45
calendar days before access is desired.
(2) Action on request The General
Counsel may approve a request made
under this section provided that he or
she determines that the requester has
made a showing of compelling
circumstances that require disclosure to
the requester of confidential
information, and if the General Counsel
determines that such disclosure is
consistent with the regulatory
responsibilities and policies of the
Board. The General Counsel may, in
granting approval of a request made
(14)
13471
under this section, impose such
conditions or limitations on use of any
information disclosed as he or she feels
is necessary to protect the
confidentiality of the Board's
information.
(c) Requests for testimony. Any
person desiring to obtain the testimony
of present or former Board or Reserve
Bank employees on matters involving
confidential information of the Board,
whether by deposition or otherwise,
shall use the procedures set out in
paragraph (b) of this section.
(d) Disclosure of reports of
examination and inspection and
confidential supervisory information by
financial institutions to affiliated
persons—(1) Limitation on disclosure.
Financial institutions lawfully in
possession of reports of examination or
inspection or confidential supervisory
information pursuant to § 261.11 of this
regulation are prohibited from disclosing
such reports or information to any
person except as permitted by this
paragraph.
(2) Parent companies. Any financial
institution lawfully in possession of
reports of examination or inspection or
confidential supervisory information
pursuant to § 261.11 of this regulation
may disclose such reports or
information, or portions of them, to its
parent bank holding company without
consulting the Board provided that the
parent company agrees in writing with
the financial institution to preserve the
confidentiality of such reports and
information pursuant to this regulation.
(3) Agents. Any financial institution
lawfully in possession of reports of
examination or inspection or
confidential supervisory information
pursuant to § 261.11 of this regulation
may disclose such reports or
information to appropriate agents of the
financial institution, subject to the
following conditions:
(i) Prior to any disclosure of such
reports or information, the financial
institution shall consult with the
appropriate Reserve Bank regarding the
qualification of the agent to receive
information under this paragraph;
(ii) The reports or information to be
made available is material and
necessary to the performance of
specifically identified responsibilities of
the agent;
(iii) The reports and information are
not removed from the premises of the
financial institution and are reviewed
only on ite premises;
(iv) Prior to review, the agent agrees
in writing with the financial institution
to preserve the confidentiality of the
reports and information; and
1M72
Federal Register / Vol. 52, No. 78 / Thursday, April 23, 1987 / Proposed Rules
(v) The agent agrees in writing with
the financial institution not to disclose
any confidential Board information
obtained under this section in
connection with any trial of any civil,
criminal, or administrative action
without first seeking the prior approval
of the Board’s General Counsel pursuant
to the procedures set forth in paragraph
(b) of this section.
(e) Other disclosures prohibited. All
reports and information made available
under this section remain the property of
the Board, and except as otherwise
provided in this regulation, no person,
partnership, company, or other entity to
whom the information is made
available, or any officer, director,
partner, employee, or other associate
thereof, may disclose any such
information.
§ 261.14 Subpoenas, ©rdtera ©ssorp©®!^
andl ©Sifts®?pr®@©9a
(a) Advice by person served. Any
person (including any officer, employee,
or agent of the Board or any Federal
Reserve Bank) who has documents of
information off the Board that may not
be disclosed and who is served with a
subpoena, order, or other judicial or
administrative process requiring his or
her personal attendance as a witness or
the production of documents or
information in any proceeding, shall:
(1) Promptly inform the Board’s
General Counsel off the service and all
relevant facts, including the documents
and information requested, and any
facts of assistance to the Board in
determining whether the material
requested should be made available;
and
(2} At the appropriate time Inform th©
court or tribunal that issued the process
and the attorney for the party at whose
instance the process was issued off the
substance off these rales.
(b) Appearance by person served.
Unless the Board has authorised
disclosure off the infformatro® requested,
any person who has Board Isiibrasati©®
that may not be disclosed, and who is
required to respond to a subpoena of
other legal process, shall attend at th©
time and place required and decline to
disclose or to give any testimony with
respect to the information, basing such
refusal upon the provisions of this
regulation. Iff the court or other body
orders the disclosure of the information
or the giving off testimony, the person
having the information shall continue to
decline to disclose the information and
shall promptly report the facts to the
Board for such action as the Board may
deem appropriate.
Subpart D=R®quests for ConfldentiaO
Treatment
§ 261.15 Scop® ©ff subpart,
(a) Data collection forms. This
subpart does not apply to data collected
by the Board on forms that are approved
pursuant to the Paperwork Reduction
Act and are deemed confidential by the
Board. Any such form deemed
confidential by the Board shall contain
language so indicating on the face of the
form or in its instructions. Such
information may, however, be disclosed
in aggregate form in such a manner that
individual company data is not
disclosed or derivable.
(b) Duty to submit information. This
subpart does not modify in any manner
the obligation of any person or company
to submit, pursuant to any law of
regulation, any document, information,
form, or other filing to the Board or any
Federal Reserve Bank.
(c) Public cohiments. (1) Any
comments submitted by a member off th©
public applications and regulatory
proposals being considered by th© Board
are public unless the Board of th®
Secretary determines that confidential
treatment is warranted.
(2] A request for confidential
treatment of such comments shall bs
submitted in a separate letter of
memorandum accompanying th@
comments and on which th® words,
“Request Iof Confidential Treatment"
art prominently displayed.
Notwithstanding any other provision off
this regulation, th® Board
n®Q
inform any person submitting sandhi
comments off a decision not to afford
confidential tr@®tea©aS to th© comments.
§ 261.16 Subsiliiio w in cllo ro o frifcd
il©3 ©onfideiittal treatment; action on
(a)
Submission ofpsquml Amy
submitter of document© or information
to the Board who desire® that they b®
afforded confidential treatment ©hall 111®
a request for confidential treatment with
th© Board (or in th® case off documents
filed with a Federal Reservs Bank, with
that Reserve Bank), at th® tisa® they ar©
submitted
(b) Form of request Each request for
confidential treatment shall state in
reasonable detail the facts and
arguments supporting the request and it©
legal justification. Conclusory
statement© that particular information
would be useful to competitors or would
impair sales, or similar statement©,
(15)
generally will not be considered
sufficient to justify confidential
treatment.
(c) Designation and separation of
confidential material. All information
considered confidential by a submitter
shall be clearly designated
“confidential” in the submission and
clearly separated from information for
which confidential treatment is not
requested.
(d) Action on request. (1) Request for
confidential treatment of any documents
will be considered in connection with
any request for access to the documents.
At their discretion, appropriate Board or
staff members (including Reserve Bank
staff) may act on the request for
confidentiality prior to any request for
access to the documents.
(2) Any request for confidentiality
pursuant to 5 U.S.C. 552(b)(4) will be
handled in accordance with § 281.17 of
this subpart
(3) Nothing in this section limits the
Secretary’s authority to make
determinations regarding requests for
access to records under § 261.9.
(e) Special procedures. The Board
may establish special procedures for
particular documents, filings, or types off
information by express provisions in
this regulation or by instructions on
particular forms that are approved by
the Board. These special procedures
shall take precedence over the
procedures set out in this subpart
§ gdl.l? ©©MSdlGintiaf! ©orainfcsretel @7
(a) Notice to submitter. Whenever a
request for access to Board records
submitted pursuant to section 201.8 of
this regulation covers, in whole or in
part, any document or information for
tvhich confidential treatment has beenrequested pursuant to S U.S.C. 552(b)(4)
(“trade secrets and commercial or
financial information obtained from ©
person and privileged or confidential”),
or when it otherwise appear© to th® .
Secretary that the document requested
contains information that may be
deemed confidential under 5 U.S.C.
552(b)(4), th® Secretary may notify the
submitter of the document off the request
for access. This notice shall: (1) Where
possible, be given within five working
days of the receipt of the request for
access; (2) describe the request; and (3)
give the submitter a reasonable
opportunity, not to exceed ten working
days, to submit written objections to the
granting of th® request. The notice to the
submitter, if given orally, shall be
Federal Register / Vol. 52* No. 78 / Thursday, April 23, 1987 / Proposed Rules
promptly confirmed in writing by the
Secretary.
(b) Notice to requester. At the same
time the Secretary gives notice to the
submitter, the Secretary shall also give
notice to the requester that the request
is subject to the provisions of this
section and that notice of the request is
being given to the submitter.
(c) Determination by Secretary. The
Secretary's determination whether or
not to disclose any document 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
document or information and the
submitter has objected to such
disclosure under paragraph (a) of this
section, the Secretary shall delay actual
release of the document or information
for ten working days following the date
of the determination.
(d) Exceptions ternotice to submitter.
Notwithstanding any other provision in
this section, no notice to any submitter
is required: (1) If the Secretary
determines, prior to giving such notice,
that the request for access should be
denied; (2) if the information requested
lawfully has been published or
otherwise made available to the public;
(3) if disclosure of the information is
required by k w (other than 5 USX].
552); or (4) if the submitter’s claim
confidentiality under 5 U.S.C. 552(b)(4)
is deemed to be insubstantial or has
already been denied by the Secretary.
(e) Notice of lawsuit (l)T h e
Secretary shall promptly notify any
submitter of information or documents
covered by this section of the filing of
any suit against the Board pursuant to 3
U.S.C. 552 to compel disclosure of stoSl
documents o f information.
(2) The Secretary shall promptly
notify the requester of any suM filed
against the Board pursuant to 5 U.S.C.
552 to enjoin the disclosure of any
documents requested by the requester.
(f) Exception for Board rulings.
Nothing in this section shall apply ia
connection with any determination fay
the Beard to comment i^ c o m ferastk® •
submitted to the Board in any opinion or
statement issued to the public as
described in f 201M of this regulation.
By order of the Board of Governors, April
16, 1987.
William W. Wfloo,
Secretary of the Board.
[FR Doc. §7-6355 Filed! 4-2Z-S7 Sj&S sraj
BILUK® 03 33 03^€>®1l=a
(16)
13473
Federal Register / Vol 52, No. 81 / Tuesday, April 28, 1987 / Rules and Regulations
by a freelance journalist who objected
to the definition of “freelance journalist”
in the section on news media. Again,
this is a definition set by OMB, which
has addressed in their final guidelines
similar concerns raised by freelance
journalists. This commenter and the
third commenter also objected generally
to considerations respecting fee waiver
determinations set out in proposed
§ 261.8(h)(1), describing them as
unnecessary and impermissible. These
considerations are intended to provide
guidance in interpretation of the
statutory standards, however, and
clearly do not amend or supersede those
FEDERAL RESERVE SYSTEM
standards. One commenter also asked
that the notice required by § 261.8(g)(2)
12 CFR Part 261
be made applicable to the situation
[Docket No. R-0597]
described in § 261.8(g)(5), but the Board
believes this advance notice
Freedom of Information; Rules on
requirement is applicable as suggested
Availability of Information
without further amendment.
AGENCY: Board of Governors of the
The third comment was submitted by
Federal Reserve System.
a public citizens group which primarily
reiterated that group’s comments to
ACTION: Final rule.
OMB on its proposed guidelines, which
s u m m a r y : The Board of Governors of
have been addressed by OMB. This
the Federal Reserve System has
group also objected to the Board’s
amended its Rules Regarding
proposal to require submission of
Availability of Information to implement certain information by persons seeking
the Freedom of Information Reform Act waiver of fee3. However, the Board
(“FOI Reform Act”), Pub. L. 99-570, by
considers it necessary for a person
revising the schedule of fees applicable requesting waiver of fees to establish
to requests for Board records pursuant
his or her entitlement to such a waiver,
to the Freedom of Information Act
and the Board understands that such
(“FOIA”).
showings will normally be made more
EFFECTIVE DATE: May 27, 1987.
easily by the news media and by
FOR FURTHER INFORMATION CONTACT:
educational institution requesters than
Stephen L Siciliano, Special Assistant
by other types of requesters.
to the General Counsel for
The schedule adopted by the Board
Administrative Law, Legal Division
must conform to the guidelines
(202/452-3920); Elaine M. Boutilier,
promulgated by the Office of
Senior Attorney, Legal Division (202/
Management of Budget ("OMB”). OMB
452-2418); or for the hearing impaired
published final guidelines on March 27,
only, Telecommunications Device for
1987 (52 FR 10018). The fee schedule and
the Deaf (“TDD”), Eamestine Hill or
related items included in this rule have
Dorothea Thompson (202/452-3544),
been modified to conform to those final
Board of Governors of the Federal
guidelines. OMB made various
Reserve System, Washington, DC 20551. modifications to its proposed guidelines
SUPPLEMENTARY INFORMATION: The FOI
as a result of the public comments
Reform Act requires each agency to
received. These changes primarily
addressed the public’s concerns about
“promulgate regulations, pursuant to
some definitions of terms proposed by
notice and receipt of public comment,
OMB. Accordingly, OMB modified many
specifying the schedule of fees
applicable to the processing of requests of the definitions published in the
proposed guidelines. Most of the
under the Freedom of Information
modifications were meant to merely
Act . . .". The Board published its
proposed rule for comment on March 31, clarify the proposed definition, however,
two significant definitions were
1987 (52 FR 10233). Three comments
modified substantively: The scope of
were received. One comment was
“educational institution" was enlarged
submitted by a bank holding company
to include educational institutions
and stated that the features of the
providing any level of education, from
rulemaking considered by the
preschool to postgraduate research; and
commenter to be discriminatory stem
the definition of "news media” was
from the statute and OMB's guidelines
redrafted to clarify the extent of the
rather than from the Board’s proposed
action. Another comment was submitted coverage.
[Ref. Cir. No. 10168]
15299
OMB also added the requirement that
a requester who has not indicated in
advance his willingness to pay fees as
high as are anticipated by the agency to
be notified by the agency whenever fees
are expected to exceed $25. This
requirement has been added as section
(g)(2) in the Board’s rule.
Pursuant to the FOI Reform Act and
the OMB guidelines, the Secretary has
set fees to recover the full direct costs
incurred by the Board in searching for,
reviewing, and duplicating documents in
response to FOLA requests. This rule
sets forth the schedule of fees and the
procedures for requesting a waiver of
the fees. The fees are set forth in
Appendix A. In compliance with the FOI
Reform Act, requesters are classified
into four different categories for fee
assessment purposes: commercial use
requesters; educational and
noncommercial scientific institutions;
representatives of the news media; and
all other requesters.
Commercial use requesters-—A
commercial use request is 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.
When the Board receives a request for
documents appearing to be for
commercial use, fees will be assessed
for the total search time, review time,
and all duplication of the documents.
Requesters should note that the Board
may assess fees for the search for and
review of documents even if no
documents are ultimately released.
Educational and noncommercial
scientific institution requesters—An
“educational institution" refers to a
preschool, a public or private
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,
which operates a program of scholarly
research. A “noncomme; ial scientific
institution” is defined as an independent
non-profit institution whose purpose is
to conduct scientific research. The
Board will provide documents to
requesters in this category for the cost of
duplication only, excluding charges for
the first 100 pages. To be eligible for this
reduction in fees, the requester must
show that the request is being made as
authorized by and under the auspices of
a qualifying institution and that the
records are not sought for a commercial
use, but are in furtherance of scholarly
or scientific research. To be eligible for
153DO
Federal Register / Vol. 52, No. 81 / Tuesday, April 28, 1887 / Rules and Regulations
List of Subjects in 12 CFR Part 2®1
Freedom of Information Act, Federal
R epresentative o f the new s m edia —
Reserve System.
This term is defined as any person that
For the reasons set cut in this notice,
is actively gathering news for an entity
and pursuant to the Board’s authority
that is organized and operated to
section ll(k) of the Federal
publish or broadcast news to the public. under
Reserve Act {12 U.S.G. 248(k)) to
The Board will provide documents to
functions to members and
requesters in this category for the cost of delegate
employees of the Board and to the
duplication only, excluding charges for Reserve
Banks, the Board amends its
the first 100 pages. To be eligible for free Rules Regarding
Availability of
search time, the requester must
[12 CFR Part 261) as
reasonably describe the records sought. Information
follows:
A ll other requesters —The Board will
assess fees for search and duplication to PART 261—[AMENDED]
all requesters who do not fit in the
1. The authority citation for Part 261
above categories, except that the first
continues to read as follows:
100 pages of duplication and the first
two hours of search time will be
Authority: 5 U.S.C. 552.
furnished without charge. Requesters
§261.4 [Amended]
should note that the Board may assess
2. In | 261.4, paragraph (g) is removed.
fees for the search for documents even if
3. Section 261.8 is added to read as
no documents are ultimately released.
follows:
To prevent abuse of the provisions
granting 100 pages of duplication and
§261.8 Fe©schedules; u?siv©fof fees.
two hours of search time free of charge,
(a) Fee schedules. Records of the
subpart (f) permits the Secretary to
Board
available for public inspection
aggregate requests that are reasonably
and
copying
are subject to a written
believed to have been broken down to
Schedule
of
Fees
for search, review, and
evade fees.
duplication. (See the Appendix to this
Subpart (g) provides that the Board
section for the Schedule of Fees.) The
may require advance payment of fees if fees set forth in the Schedule of Fees
the total fees are estimated to exceed
reflect the full allowable direct costs of
$250, or where a requester has
search, duplication, and review, and
previously failed to make timely
may be adjusted from time to time by
payment of fees due. This subpart also
the Secretary to reflect changes in direct
permits interest to be charged on fees
costs.
over 30 days past due at the rate
(b) Fees charged. The fees charged
prescribed in 31 U.S.C. 3717 for an
only cover the full allowable direct costs
outstanding debt on a U.S. Government of search, duplication, or review.
claim. This rate is set annually by the
(1) "Direct costs” mean those
Secretary' of the Treasury equal to the
expenditures which the Board actually
average 12-month investment rate on
incurs in searching for and duplicating
Treasury tax and loan accounts.
(and in the case of commercial
The FOI Reform Act requires that fees requesters, reviewing) documents to
shall be waived or reduced (1) "if the
respond to a request made under section
disclosure of the information is in the
261.4 of this Part. Direct costs include,
public interest because it is likely to
for example, the salary of the employee
contribute significantly to public
performing work (the basic rate of pay
understanding of the operations or
for the employee plus a factor to cover
activities of the government,” end (2)
benefits) and the cost of operating
such disclosure "is not primarily in the
duplicating machinery. Not included in
commeicial interest of the requester.”
direct costs are overhead expenses such
Subpart (h) sets forth the required
as costs of space, and heating or lighting
the facility in which the records are
contents of a request for a waiver or
reduction of fees and the six factors the stored.
Secretary will consider in determining
(2) "Duplication” refers to the process
whether to grant the request. The six
of making a copy of a document
enumerated factors that reflect the new necessary to respond to a request for
statutory standard which agencies are
disclosure of records or for inspection of
required to take into consideration in
original records that contain exempt
determining whether the two basic
material or that otherwise cannot be
requirements for a fee waiver or
inspected directly. Such copies may take
reduction are met. The Secretary will
the form of paper copy, microform,
apply those factors to fee waiver
audio-visual materials, or machine
requests sequentially, on a case-by-case readable documentation [e.g., magnetic
basis.
tape or disk), among others.
free search time, the requester must
reasonably describe the records sought.
(2)
(3) “Review” refers to the process of
examining documents located in
response to a request that is for a
commercial use to determine whether
any portion of any document located is
permitted to be withheld. It also
includes processing any documents for
disclosure, e.g., doing all that is
necessary to excise them and otherwise
to prepare them for release. Review
does not include time spent resolving
general legal or policy issues regarding
the application of exemptions.
(c) Com m ercial use. (1) The fees in the
Schedule of Fees for document search,
duplication, and review apply when
records are requested for commercial
use.
(2) “Commercial use request" refers to
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.
(3) In determining whether a requester
properly belongs in this category, the
Secretary shall look first to the use to
which a requester will put the
documents requested. Where a
requester does not explain its purpose,
or where its explanation is insufficient,
the Secretary may seek additional
clarification from the requester before
categorizing the request as one for
commercial use.
(d) Educational, research, or m edia
use. (1) Only the fees in the Schedule of
Fees for document 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. However, there is
no charge for the first one hundred
pages of duplication.
(2) "Educational institution” refers to
a preschool, a public or private
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,
which operates a program of scholarly
research.
(3) "Noncommercial scientific
institution” refers to an independent
nonprofit institution whose purpose is to
conduct scientific research.
(4) “Representative of the news
media” refers to any person that is
actively gathering new's for an entity
that is organized and operated to
publish or broadcast news to the public.
The term "news” means information
that is about current events or that
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Federal Register / Vol. 52, No. 81 / Tuesday, April 28, 1987 / Rules and Regulations
would be of current interest to the
public. 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. "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 not actually employed by it.
(e) O ther uses. For all other requests,
the fees in the Schedule of Fees for
document search and duplication apply.
However, there is no charge for the first
one hundred pages of duplication or the
first two hours of search time.
(f) Aggregated requests. A requester
may not file multiple requests at the
same time, each seeking portions of a
document or documents solely in order
to avoid payment of fees. If the
Secretary reasonably believes that a
requester or group of requesters is
attempting to break a request down 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.
(g) Paym ent procedures — (1) Fee
paym en t The Secretary may assume
that a person requesting records
pursuant to § 261.4 of this Part will pay
the applicable fees, unless a request
includes a limitation on fees to be paid
or seeks a waiver or reduction of fees
pursuant to paragraph (h) of this section.
(2) Advance notification. If the
Secretary estimates that charges are
likely to exceed $25, the requester shall
be notified of the estimated amount of
fees, unless he has indicated in advance
his willingness to pay fees as high as
those anticipated. Upon receipt of such
notice the requester may confer with the
Secretary as to the possibility of
reformulating the request in order to
lower the costs.
(3) A dvance paym ent, (i) 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.
(ii) For purposes of computing the time
period for responding to requests under
section 261.4(d) of this Part, the running
of the time period will begin only after
the Secretary receives the required
payment.
(4) Late charges. The Secretary may
assess interest charges when fee
payment is not made within 30 days of
the date on which the billing was sent.
Interest will be at the rate prescribed in
section 3717 of Title 31 U.S.C.A. and will
accrue from the date of the billing. This
rate of interest is published by the
Secretary of the Treasury before
November 1 each year and is equal to
the average investment rate for Treasury
tax and loan accounts for the 12-month
period ending on September 30 of each
year. The rate is effective on the first
day of the next calendar quarter after
publication.
(5) Fees for nonproductive search.
Fees for record searches and review
may be charged even if no responsive
documents are located or if the request
is denied, particularly if the requester
insists upon a search after being
informed that it is likely to be
nonproductive or that any records found
are likely to be exempt from disclosure.
The Secretary shall apply the standards
set out in paragraph (h) of this section in
determining whether to waive or reduce
fees.
(h) W aiver or reduction o f fees — (1)
Standards for determining w aiver or
reduction. The Secretary or his or her
designee shall grant a waiver or
reduction of fees chargeable under
paragraph (b) of this section 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 operations or activities of the
government, and that the disclosure of
information is not primarily in the
commercial interest of the requester.
The Secretary or his or her designee
shall also waive fees that are less than
the average cost of collecting fees. In
determining whether disclosure is in the
public interest, the following factors will
be considered:
(i) The subject o f the req u est Whether
the subject of the requested records
concerns “the operations or activities of
the government”;
(ii) The inform ative value o f the
information to be disclosed: Whether
the disclosure is "likely to contribute” to
an understanding of government
operations or activities;
(iii) The contribution to an
understanding o f the subject b y the
general public lik ely to result from
disclosure: Whether disclosure of the
requested information will contribute to
"public understanding”;
(iv) The significance of the
contribution to the public
15301
understanding: Whether the disclosure
is likely to contribute "significantly” to
public understanding of government
operations or activities;
(v) The existence and magnitude of a
com m ercial in terest Whether the
requester has a commercial interest that
would be furthered by the requested
disclosure; and, if so
(vi) The prim ary interest in
disclosure: 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”.
(2) Contents o f request for waiver. The
Secretary will normally deny a request
for a waiver of fees that does not
include:
(i) A clear statement of the requester’s
interest in the requested documents;
(ii) The use proposed for the
documents and whether the requester
will derive income or other benefit from
such use;
(iii) A statement of how the public will
benefit from such use and from the
Board’s release of the requested
documents; and
(iv) If specialized use of the
documents or information is
contemplated, a statement of the
requester’s qualifications that are
relevant to the specialized use.
(3) Burden o f proof. In all cases the
burden shall be on the requester to
present evidence or information in
support of a request for a waiver of fees.
(4) Em ployee 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) are $50
or less; but the Secretary may waive
fees in excess of that amount.
Appendix to §261.8—Freedom of Information
Fee Schedule
Duplication:
Photocopy, per standard page........... $.08
Paper copies of microfiche, per
frame................................................................ 07
Duplicate microfiche, per micro
fiche.................................................................. 10
Search and review:
Clerical (Grades FR4-FR7), hourly
rate......................................................... 8.50
Technical (Grades FR&-FR11),
hourly rate........................................... 12.80
Management/professional, hourly
rate........................................................ 25.90
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Federal Register / Vol. 52, No. 81 / Tuesday, April 28, 1987 / Rules and Regulations
Computer search and production: For each
request the Secretary will separately
determine the actual direct cost of providing
the service, including computer search time,
tape or printout production, and operator
salary.
Special services: The Secretary of the
Board 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. The Secretary may provide selfservice photocopy machines and microfiche
printers as a convenience to requesters and
set separate per-page fees reflecting the cost
of operating and maintenance of those
machines.
Fee waivers: For qualifying educational
and noncommercial scientific institution
requesters and representatives of the news
media the Board will not assess fees for
review time, for the first 100 pages of
reproduction, or, when the records sought are
reasonably described, for search time. For
other non-commercial use requests no fees
will be assessed for review time, for the first
100 pages of reproduction, or for the first two
hours of search time. For requesters
qualifying for 100 free pages of reproduction,
the fees for duplicate microfiche will be
prorated to eliminate the charge for 100
frames.
The Board will waive in full fees that total
less than $4.
The Secretary of the Board or his or her
designee will also waive or reduce fees, upon
proper request, if disclosure of the
information is in the public interest because it
is likely to contribute significantly to public
understanding of the operations or activities
of the government and is not primarily'in the
commercial interest of the requester. A fee
reduction is available to employees, former
employees, and applicants for employment
who request records for use in prosecuting a
grievance or complaint of discrimination
against the Board.
By order of the Board of Governors,
effective April 22, 1987.
William W. Wiles,
Secretary of the Board.
[FR Doc. 87-9496 Filed 4-27-87; 8:45 am]
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